Director v. N.E.A. and K.F.W. Date:, 2014 BCPC 368

Citation: Director v. N.E.A. and K.F.W. Date: 20140916 2014 BCPC 0368 File No: 3261 Registry: Burns Lake 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: KAW , born [omitted for publication] LAW, born [omitted for publication] CAW, born [omitted for publication] AW, born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: NEA and KFW PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. F. M. JACKSON

Counsel for the Director: S. Westwood Appearing on their own behalf: NEA Place of Hearing: Burns Lake , B.C. Date of Hearing: Mar 25, May 27-29, Sept 9 & 10, 2014 Date of Judgment: September 16, 2014 History [ 1 ] The parents, NEA and KFW had five children together. Four of those children are subjects of this application by the Ministry.

The children are: KAW - [omitted for publication] LAW - [omitted for publication] CAW - [omitted for publication] AW - [omitted for publication]. [ 2 ] The children were taken into care in October 2011. [ 3 ] In December of 2013, this court make a finding that the children were in need of protection and subsequently a “last chance” order was made under s49(7) of the CFCSA. [ 4 ] In February 2014, the Director applied for a Continuing Care Order under s.49(9) of the CFCSA. The hearing commenced in March 2014 and after being adjourned at the request of the parents continued on September 9 th and 10 th , 2014.

Law [ 5 ] As this is an application under s49(9) the court must consider the factors listed in s49(6). Those factors are:

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 children’s best interests. [ 6 ] Pursuant to s49(10) there are only two possible orders for the court. These are placing the children in the continuing care of the Ministry or returning the children to the parent apparently entitled to custody. [ 7 ]

Section 4 of the CFCSA lists factors that the court must consider in determining the best interests of the child. These include:

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. [ 8 ] Subsection 2 of

section 4 also states, “If the child is an aboriginal child, the importance of preserving the child’s cultural identity must be considered in determining the child’s best interests. Evidence [ 9 ] EM testified that she was the foster mother for CAW, LAW and KAW. She has had care of CAW and LAW since October 2011 and of KAW since February 2013 when he moved to her home from supervised care at his parental grandparents.

[ 10 ] Ms. M testified to obvious behavioral problems and delayed development the three boys had when they arrived at her home. She further testified that there had been marked improvements in the behavior of the boys and they were each receiving help through care plans from the Ministry, school and day-care. She added that the boys were to be assessed whether they had any special needs that required specialized therapy. [ 11 ] Ms.

M also indicated that she would encourage future contact with the boys’ parents and would take the boys to their traditional Aboriginal events. [ 12 ] JG testified that she was the foster mother for AW. She has had care of AW since October 2011 which was approximately three months after AW’s birth. She testified that AW had a strong temper but was doing well in her care.

She also testified that AW was visiting with her three brothers every week, that she would encourage future contact between AW and her birth parents and that she had been taking AW to Wet’suwet’en cultural events in Morricetown. [ 13 ] FB testified that she has been the Family Preservation Officer for the Lake Babine First Nation for approximately two and one half years. She added that she had met with Ms. A to work on her plan of care to improve her ability to care for the four children. Ms. B testified that her last meeting with Ms.

A was on July 9 th , 2014. [ 14 ] KD testified that she was the Social Worker in charge of the file. She introduced three volumes of records and a response by the Burns Lake RCMP to an s96 CFCSA request as Exhibits 2, 4, 5 and 3 respectively. These records show a pattern of neglect by the parents with interventions by the Ministry starting in May of 2000 with two earlier children that are living with biological fathers, neither of whom is Mr. W. [ 15 ] These records referred to in the testimony of Ms. D show an unhappy history of instability based on alcohol abuse by both Ms. A and Mr.

W, domestic violence by both parents but more by Mr. W, transience by both parents, a cycle of separations and reconciliations by the parents, mental health problems from depression for Ms. A and convictions for sexual assault and sexual interference against Mr. W in 2005 and 2006. These were the basis for the earlier court’s finding that the children were in need of protection. [ 16 ] Ms. D also testified that in 2009 Ms. A was living with the two and later three children she had at that time in Tachet, British Columbia. She added that from December 2009 until August 2011 Ms.

A was doing reasonably well in caring for the children. She mentioned that one of the Ministry’s concerns at that time was the lack of support services for Ms. A in Tachet. [ 17 ] Ms. D testified that contact between Ms. A and the children was very sporadic (9 of 18 scheduled-tab 37 of Exhibit 2) from September 2012 until June 2013 and from June 2013 until February 2014 there had only been one visit and one phone call. She added that there had been two visits in July 2014 but that the last contact with the children had been July 17, 2014 contrary to the agreed Plan of Care. [ 18 ] Ms. D testified that Mr.

W’s contact had also been sporadic. He had taken KAW to Prince George and to Burns Lake and had taken him swimming but had not taken LAW and CAW on those occasions. She added that in fact he only saw LAW and CAW when he was visiting KAW. [ 19 ] Ms. D testified that concerning AW, Mr. W also had sporadic visits. She described the pattern as regular visits for two or three weeks then no visits for three months and a repetition of the cycle. [ 20 ] Ms. D testified that Plans of Care had been developed with the parents a number of times including after two mediations. In June 2013 Mr.

W entered a Plan of Care (Ex 2 tab 36) which required Mr. W to address alcohol and substance abuse through AA and counselling. As well he was to improve his parenting skills by consistently attending all the agreed and scheduled visits. [ 21 ] Earlier in June 2012 both Mr. W and Ms. A agreed to a Plan of Care (Ex 2 tab 23). Both agreed to complete a residential drug and alcohol rehab program and consistently maintain scheduled contact with the children. Ms. D further testified that Ms. A had also understood that she had to take a parenting skills program. [ 22 ] Mr. W attended the first two days of the hearing.

He did not attend the two days of hearing in September. However, on the second day, September 10 th , he telephoned and requested to attend for the rest of the hearing by telephone. The remainder of the hearing at that time was approximately three and one half hours. That application was denied. He indicated that he was at work and could not get the time off. Accordingly, no evidence was received by or on behalf of Mr. W. [ 23 ] AB testified that she was the Native Court Worker for the Lake Babine First Nation.

She stated that the Lake Babine First Nation was opposed to Continuing Care Orders because the children lose their cultural identity. The First Nation would want the children to be placed with their extended family. However, in cross-examination she conceded that there were no such suitable placements available. She added that she would work with Ms. A to provide services such as arranging transport from Tachet to the scheduled assessments. [ 24 ] Ms. A testified that she was orphaned at age thirteen. She continued that she self-medicated with alcohol and is now a recovering alcoholic.

She fairly conceded that the concerns of the Ministry about her history of alcohol abuse, domestic violence, transience and depression were valid based on her history. [ 25 ] However, Ms. A went on to testify as to the steps she had taken to deal with those concerns. She testified that three years ago while in Prince George she had voluntarily gone into detox and had for a period attended AA meetings three times a week. [ 26 ] Ms.

A stated that the Ministry’s application for a continuing care order in February of this year “was a real eye-opener” and she realized that she had to take steps to regain custody of the four children. To that end, she attended the Wilp si’satxw residential treatment program in May.

[ 27 ] Ms. A continued that she had a relapse on May 27 th , 2014 during which she and Mr. W became drunk and attended at his parents’ home and caused a disturbance which involved the RCMP. No charges were laid. After that she voluntarily attended the Wilp si’satxw treatment centre for further treatment. [ 28 ] Ms. A testified that she was then scheduled with the assistance of the Lake Babine First Nation and the Ministry to attend a more intensive alcohol rehabilitation program at Round Lake but did not attend as she had found a job. [ 29 ] Ms.

A testified that work was difficult to find in Tachet and she took a job earning $180/day harvesting fish. Under cross- examination she defended the decision to take the job rather than further treatment as it would allow her to become more self-sufficient, qualify for Employment Insurance and ultimately purchase a motor vehicle. She added that she had also found part-time work working for the band after the fishing season. [ 30 ] Ms. A testified that her job made it impossible to exercise her visits with the children and that the Ministry refused to move the visits.

The Ministry explained the inflexibility was caused by the Foster Parents regular taking of the children to their cabin out of town each weekend. [ 31 ] Ms. A admitted that she had not taken parenting classes but stated that if she received the children back she would take those classes through the Band in Tachet. [ 32 ] Ms. A advised the court that she had learned a great deal from her treatment at Wilp si’satxw. She had realized the root problems that caused her depression and led her to alcoholism. Accordingly, she stated that she was able to quit using anti-depressant medication two months ago.

Earlier she had been seeing Dr. G about her depression. Similarly, she realized that the relationship with Mr. W was a destructive cycle. [ 33 ] In cross-examination, Ms. A stated that she had contacted the Lake Babine counsellor HV but hadn’t done any counselling yet because of her work schedule. [ 34 ] Ms. A played for the court a short video on her cell-phone that she was unable to download to a DVD. It showed her and the four children walking to the park during a supervised visit. The relationship between her and the children appeared good and the Ministry conceded that Ms.

A was “engaged” with the children and loved them. [ 35 ] Ms. A put forward a plan for her care of the children if they were returned to her. She pointed out that she had a house in Tachet. [ 36 ] Ms. A added that her parents lived in Tachet and her mother would care for the children while she was at her part-time job (five hours/day). In cross-examination, she stated that her sister would also move to Tachet from Prince George to help her with the children. [ 37 ] Ms. A stated that the Band would also provide a housekeeper on a weekly basis. [ 38 ] Ms.

A testified that the children could take the bus on a fifteen minute ride to the school in Grand Isle. In cross-examination, she added that it wasn’t the best school and when the children were of school age she might move to a larger centre. Also in cross- examination she conceded that for KAW, who was already in the school system in Houston that it would be in his best interest to not change schools. Analysis [ 39 ] I shall first apply the factors from s49(6) of the CFCSA to Mr. W’s situation.

As indicated above, the court already found in December that his past conduct towards the children made them in need of protection. He has not presented any plan for the future care of the children and has not complied with the agreed Plans of Care developed between himself and the ministry to deal with his alcohol issues, his history of violence, his transience and his limited engagement with the children, particularly, LAW and CAW. [ 40 ] Concerning Mr.

W and the best interests of the children there is no evidence of any steps having been taken to assure the court of the children’s safety, to deal with the potential disabilities such as Fetal Alcohol Syndrome Disorder that is being assessed. As well, there has been only sporadic contact with the children over the past three years and continuity of care has been with the foster parents. The quality of the relationship of the four children is better with the foster parents than with Mr. W. [ 41 ] The factor in Mr.

W’s favour is the preservation of the children’s aboriginal cultural identity as he is also a member of the Wet’suwet’en First Nation. However, there is no evidence from Mr. W as to what he would do to preserve the children’s cultural identity. [ 42 ] Based on the consideration of the factors above, I must conclude that the children should not be returned to his care. [ 43 ] I shall now apply the factors from s 49(6) of the CFCSA to Ms. A’s situation. As indicated above, the court already found in December that her past conduct towards the children made them in need of protection.

She has presented a plan for the future care of the children and has complied with some but not all of the agreed Plans of Care developed between herself and the Ministry to deal with her alcohol issues, her history of domestic violence, her transience and her mental health issues. [ 44 ] Ms. A has taken a residential treatment program and a refresher program after a relapse of her alcoholism. She has a home in Tachet. She has obtained employment. She advises that her mother will provide support in caring for the children. [ 45 ] Ms.

A indicated that the Fort Babine First Nation will provide counselling and housekeeping assistance. Ms. B indicates that she will work with Ms. A to obtain other necessary services from the Band such as transportation for the children to assessment appointments. The housekeeping and further assistance from the Band are at this time only prospective.

[ 46 ] I must then consider the best interests of the children. The children are all quite young, ranging in age from three to six years of age. The emotional and social development of the children has shown marked improvement while in the care of the foster parents. Three of the children have been with their foster parents for almost three years. KAW has been out of his parent’s care for almost three years and with his two brothers in the same foster home since February 2013. [ 47 ] Continuity and consistency of care favours their staying with the foster parents.

Similarly, the strong relationship bond that has developed between the children and their foster parents favours they’re staying with the foster parents. [ 48 ] The factor in favour of Ms. A is the preservation of the children’s aboriginal cultural identity. Ms. A testified that she would teach the children their cultural traditions such as hunting, fishing and food preparation amongst others. The foster parents at best would only be able to nurture Wet’suwet’en culture through occasional contact. [ 49 ] I must now apply the factors from s49(6) CFCSA to the Ministry’s situation.

The Ministry has a comprehensive “Plan of Care” for the children which included consultation with the foster parents, the school system, the Bulkley Valley Child Development Centre and specialists in Child Development such as Dr. L (Ex. 4 tabs 2 and 3) Thomas Robinson Consulting (Ex 5 tab 6) as well as a number of future assessments supervised by the Northwest Supported Child Development Program Team (Ex 5 tab3). [ 50 ] I must then consider the best interests of the children.

It is clear that the safety, emotional development of the children, the continuity of care, and the quality of the relationship of the children with the foster parents are met while in care of the Ministry. The

section 4 CFCSA factor least met by the Ministry is the preservation of the children’s cultural identity although the foster parents are taking limited steps in that regard. [ 51 ] The real question for the court is whether the steps taken by Ms. A to deal with her problems are enough that the children can be returned to her care. Unfortunately, I must conclude that they are not. The Wilp si’satxw program, the end of the relationship with Mr. W, the home in Tachet and employment are all excellent steps.

However, the failure to take the Round Lake program and the failure to maintain regular scheduled contact with the children combined with the relapse on May 27 th of this year weigh against the return of the children. [ 52 ] Ms. A’s excellent steps towards recovery are only three months old. I must conclude that it would not be in the children’s best interest to break the stability and continuity of care they have known for almost three years to place them with Ms.

A when according to both Wilp si’satxw summaries (Ex 7 & 8) “if she does not follow her personal recovery plan that … she may relapse.” It would not be in the children’s best interest of continuity and stability to take that chance at this time. [ 53 ] However, it would certainly be in the children’s best interest to maintain and hopefully increase their contact with their biological parents. Therefore, I shall order that both parents shall have access to the children supervised or unsupervised in the discretion of the Director for a period of one year.

Further applications, may be made by either parent under s56 of the CFCSA. With a longer period of stability and recovery by Ms. A combined with further parenting courses, she would also be able to apply under s54 of the CFCSA to cancel the continuing care order. Order [ 54 ] There will be a finding that the children remain in a need of protection. [ 55 ] There will be a Continuing Custody Order granted under s49(5)(

a) and (

b) with supervised or unsupervised access to either parent in the discretion of the Director for a period of one year. _____________________________ W. F. M. Jackson Provincial Court Judge