Director v. J.G.S. et al Date:, 2016 BCPC 12

Citation: Director v. J.G.S. et al Date: 20160125 2016 BCPC 0012 File No: 37350 Registry: Penticton 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: I.S.M.S. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: J.G.S. J.M.S. PARENTS AND: C.J.S. GRANDMOTHER CORRIGENDUM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.E. SHAW Counsel for the Director: B. Crow Counsel for the Parent: (for J.G.S.) K. Kelly Counsel for the Parent : (for J.M.S.) K. Lundman Counsel for the Grandmother: A. Campbell Place of Hearing: Penticton , B.C.

Date of Hearing: October 21-23, 2014, February 13, April 13-16, April 20-23 August 4, 5, 7 & 10, 2015 Written submissions: September, 30 2015 Date of Judgment: January 25, 2016 A corrigendum was released by the Court on February 4, 2016. The corrections have been made to the text, and the Corrigendum is appended to this document. INTRODUCTION [ 1 ] I.S.M.S. is a very special little boy who was born [omitted for publication] to his parents, J.G.S. (his mother) and J.M.S. (his father). He is currently 13 years old.

He was removed from his parents care on June 19, 2013, and is in the care of the Director on a temporary custody order which was granted on September 20, 2013. [ 2 ] From the time I.S.M.S. was born, there arose concerns about the ability of the parents to be able to safely parent him. The Ministry of Children and Families (Director) has been involved with the family on a total of seven intakes of community concern regarding I.S.M.S. and/or his younger sister F.J.A.S., who is now 10 years old. F.J.A.S. was removed from her parent’s care at the same time I.S.M.S. was removed, June 19, 2013.

She is not a subject of this proceeding. Since August of 2013, she has been and remains in the custody and care of her maternal grandmother, C.J.S. [ 3 ] It is acknowledged that I.S.M.S. has special needs. As of January 2013, I.S.M.S. is diagnosed with autism spectrum disorder, microcephaly, chromosome microdeletion, severe intellectual disability, and attention deficit hyperactivity disorder. In addition, he requires ongoing treatment with orthotics. As a result of these diagnoses, I.S.M.S. requires significant care and attention as well as on- going multi-disciplinary medical and health services.

It is fair to say that I.S.M.S. requires care 24 hours a day. [ 4 ] The Director is seeking a Continuing Custody Order (CCO) for I.S.M.S. The parents are opposing the granting of a CCO in relation to I.S.M.S. They seek an order for the return of I.S.M.S. to their care. In the alternative, if the court grants a CCO to the Director, the parents seek an order for post-CCO access to their son. [ 5 ] C.J.S., the maternal grandmother, had originally sought guardianship and care of I.S.M.S. Prior to the trial commencing, the grandmother withdrew her application for sole guardianship and custody of I.S.M.S.

If a CCO is granted to the Director, the grandmother seeks an order for post-CCO access to her grandson. The Director is consenting to access by the grandmother, C.J.S., in the event a CCO is ordered. [ 6 ] It is noted that the grandmother is very supportive of her grandson being returned to the care of her daughter and I.S.M.S.’s father. ISSUES [ 7 ] The issues which must be considered and answered in this hearing are: 1. Was I.S.M.S. in need of protection on June 19, 2013 when the Director removed him from his parent’s care? 2.

If yes, have the circumstances which caused the Director to remove I.S.M.S. from his parents improved, or is there a significant likelihood that the circumstances will improve within a reasonable time? 3. If yes, should I.S.M.S. be returned to his parents? 4. If no, should the parents be granted a ‘last chance order’? 5. If no, should the Director be granted a Continuing Custody Order for I.S.M.S.? If yes, should the parents be granted post-CCO access to I.S.M.S.?

FACTUAL BACKGROUND Involvement of Director with I.S.M.S. and his Family Prior to Removal [ 8 ] Prior to I.S.M.S. being removed on June 19, 2013, there were 7 prior intakes or reports of concern regarding I.S.M.S and/or F.J.A.S. [ 9 ] The first two intakes occurred when J.G.S. was in hospital, firstly with the birth of I.S.M.S. on [omitted for publication], and the second intake was on [omitted for publication] when F.J.A.S. was born. [ 10 ] The reports are concerns of the hospital staff that the mother and the father would not be able to properly care for I.S.M.S.

When F.J.A.S. was born, the hospital staff called the Director again with the same concerns, now about the two children. [ 11 ] The concerns revolve around the mother’s cognitive challenges and to a lesser extent, the father’s cognitive abilities. A further concern was the parents seeming reluctance or resistance to accept professional assistance and guidance.

[ 12 ] In both intakes, a social worker for the Director contacted Dr Evans, the mother’s family doctor, who expressed no concerns regarding the mother’s ability to parent the new-born or parent the two children. He acknowledged he was aware of a below average IQ of the parents, and he reported that the mother learns by modelling. [ 13 ] The maternal grandmother, C.J.S., provided support to her daughter, and the family was visited by the Public Health nurse.

The family had some community contact through their church and the church pastor was aware of some of the concerns. [ 14 ] On the first two intakes, the Director’s file was closed with no finding of need of protection for the children. [ 15 ] The third intake, received November 15, 2007, involved a report from a school counsellor about concerns of the mother’s ability to cope with parenting two children.

By this time I.S.M.S., now 5, demonstrated cognitive and physical delays as well as significant behavioural challenges. [ 16 ] The school counsellor reported the mother behaved in an inappropriate way at the school: for instance, she engaged in emotional protracted crying during the Strong Start Program. It was also reported the mother was observed yanking, pulling and yelling at the children. [ 17 ] Following the report, the Director assigned a crisis intervention worker and referrals to other community services were made. The file remained open. [ 18 ] The fourth intake report was received January 9, 2008.

The church pastor called as he observed the mother having significant difficulties coping at the church with I.S.M.S.’s behavioural outbursts and challenges. He reported an incident where the mother was hysterical, yelling, and being angry at other church workers for giving her advice on how to cope with I.S.M.S. The pastor reported the mother threw I.S.M.S. on a couch. It is at this point the pastor intervened. However, the mother reportedly then went into another room where children were present and began punching a punching bag, which scared the children.

The Pastor reported the mother was resistant to any advice about I.S.M.S. [ 19 ] It is noted the fourth intake came in before the third intake investigation had been closed, and the Director found the children in need of protection. The family was referred to services as the least intrusive response by the Ministry. [ 20 ] The fifth intake was on June 2, 2009, when a nurse from Interior Health attended at the family’s residence to do an assessment for an ‘at home program’. The nurse reported the residence was unclean and significantly cluttered with dirty dishes and old pizza boxes.

The nurse reported an overwhelming smell of urine in the residence coming, in part, from pet guinea pigs, but also I.S.M.S.’s bedroom. I.S.M.S. slept on a thin foamy mattress, lying on the floor. It was reported the mother admitted she did not use sheets with I.S.M.S. as he wet the bed every night, and it is reported the reason she gave was she was too tired. It was reported the mother admitted she did not bath I.S.M.S. every day when he wet the bed or his clothes, reportedly for the same reason.

It was further reported during the time the nurse was present, I.S.M.S. asked the mother numerous times to take him to the bathroom as he needed to ‘pee’, but the mother did not respond and she did not take him to the bathroom. The nurse reported F.J.A.S., now 4 years old, appeared to be behaving in an uncontrolled manner with little supervision. [ 21 ] The overall impression of the nurse during that visit was the mother was not coping with parenting the two children. As a result of the report, the social worker for the Director went to the family’s home. The social worker confirmed the concerns of the nurse.

The social worker made a plan with the mother to purchase a new bed for I.S.M.S. In addition, services to assist with cleaning the house and respite for I.S.M.S. were arranged. A finding of neglect was made by the social worker. [ 22 ] Although the parents were upset about the report and felt the reports being made to the Director were intrusive complaints made by busybodies, they agreed to the plan of the Director.

The Director felt the children were safe with the parents due to their willingness to cooperate with services at that time. [ 23 ] The sixth intake was on December 15, 2009, by a community professional working with the family. [ 24 ] The concern was that the parents were disengaging from support services and refusing to allow support into the home. The worker reported concerns that the mother was unable to manage and the children were being neglected due to poor hygiene, lack of food, and an unclean condition of the home.

The report also set out a concern that the children were being inappropriately clothed in dirty clothing unsuitable for the winter weather. [ 25 ] Significant supports and services were put in place by the social worker and were initially accessed by the family. As of January 2010, I.S.M.S. was attending home schooling with a teacher outside of the home for half days from 8:45 am to 12:30 pm; F.J.A.S. was in pre-school from 9 am to 3 pm daily; and the family was receiving 20 hours per month (with visits 2 times a week) from Community Living Services for support in the home assisting with the house cleaning.

I.S.M.S. was taken to weekly pool physio by his teacher. A yearly bus pass was provided to the family to assist getting F.J.A.S. to and from school. [ 26 ] The Director’s opinion at that time was that, although the family may not be able to manage long-term, the family was currently engaging with a number of supports and the Director’s further intervention at that time was not necessary. It was felt the extensive supports the Director provided were sufficient.

The file was closed on January 27, 2010. [ 27 ] The seventh intake was reported on October 18, 2012, where a supervisor from the after school program expressed concerns that the F.J.A.S.’s needs were not being met by the parents. F.J.A.S. was reported to be wearing inappropriate and dirty clothes and presented with greasy hair. There were concerns about inappropriate and old food being sent for her lunches.

I.S.M.S. did not attend the after-school program at this time as he had been removed due to difficult and challenging behavioural issues. [ 28 ] The caller reported concerns of the mother exhibiting high anxiety, and fixating on issues with an obsession to repeat a communication numerous times with numerous calls.

[ 29 ] While in the home, the home support worker reported observing the father yelling at the mother. A further concern arose that the parents might be inappropriately giving I.S.M.S. extra medication to control his difficult behaviours. [ 30 ] The mother told the social worker F.J.A.S. was on the breakfast program and the lunch program at school so the reports of the old or bad food was wrong. The mother confirmed that the school also provided snacks for her daughter and sometimes sent food home with her.

The complaint, however, came in from the after-school program worker and not the school. [ 31 ] On December 18, 2012, an additional call came in from a friend of the mother who was concerned that F.J.A.S.’s needs were not being met as her brother was a child requiring a lot of attention due to his high needs. The caller reported she observed the mother spending most of her time managing I.S.M.S. Again there was a reported concern that I.S.M.S. was given extra medication to keep him calm during a Christmas concert.

The caller also observed some yelling between the parents in their home. [ 32 ] In January of 2013, I.S.M.S. was evaluated and he was diagnosed with autism. Involvement with Educational Needs of I.S.M.S. [ 33 ] I.S.M.S. initially attended Strong Start and then grade one at Queens Park Elementary School. After grade one, I.S.M.S. was withdrawn from public school and was home schooled, initially at the family residence by a worker, but then I.S.M.S. was relocated to the church with a teacher provided through Anchor Academy. [ 34 ] I.S.M.S. did not continue with the home schooling after removal.

He was placed back in or ‘reintegrated’ into the public school system at Uplands Elementary School. In April 2014, there was an incident where I.S.M.S. acted out and ‘attacked’ a teacher and a therapy dog. The school had a meeting with the foster mother and the Director as well as all of the support providers, and I.S.M.S. was removed from public school. In the fall of 2014, he was given a special needs teacher through ARC as well as a CEA.

I.S.M.S. is not in a school setting for his learning needs, but apparently there are plans to evaluate whether he can be brought back to a school setting. [ 35 ] F.J.A.S. attended Parkway Elementary in grade one and then moved to Queen’s Park Elementary in grade 2. In October 2012, as a result of some difficult and confrontational interactions between the mother and a teacher or teachers at Queens Park, the mother was given a letter from the school outlining what behaviour they required of her if she was visiting the school.

In December 2012, the mother was given notice that the school was restricting her access to the school as behaviours deemed inappropriate by the school continued. [ 36 ] It is around this time that the social worker spoke with I.S.M.S.’s teacher at Anchor Academy. It was reported the mother wanted to remove F.J.A.S. from regular school and place her with the Academy for assisted home schooling. The social worker held the opinion that removing F.J.A.S. from regular school would be isolating for her.

Anchor Academy declined to enrol her. [ 37 ] Additional supports were provided to the family: I.S.M.S.’s Children and Youth with Special Needs (“CYSN”) worker began picking him up from school rather than the mother picking him up; the CYSN worker also added additional time he spent with I.S.M.S.; a 3 month referral for a house cleaner was made to assist the mother with laundry and cleaning; a voucher was given to her for a haircut for F.J.A.S.; and funding was provided to her to purchase clothes for F.J.A.S. [ 38 ] Over the time services were provided, the parents ‘fired’ two support workers, apparently because the father did not like the worker telling him what to do and the other worker because they apparently almost broke the washing machine. [ 39 ] The CYNS worker, Robert Turgeon, observed that in dealing with J.G.S. and J.M.S., they were very reluctant to accept services, especially having anyone in their home.

As well, Turgeon felt the parents had little insight into what their behaviours contributed to their son’s behaviours such as swearing, racial slurs, and comments to him that if he did not behave, Turgeon would come and take him away. [ 40 ] The social worker was advised that the family planned to move to Kelowna at the end of February, 2013. The parents advised the father worked in Westbank and they were looking at a school in Kelowna which deals with children who have autism.

However, they did not move in February. [ 41 ] Social Worker Heidi Winkler took over responsibility of the file on February 6, 2013, until August 3, 2014 at which time the file was transferred to another social worker, Scott Gagnon. [ 42 ] To transfer the file, social workers Chiba and Winkler met with the mother and the children at the family’s residence on February 14, 2013. Social Worker Winkler described the residence as unclean and reeking of urine. I.S.M.S. was acting out and seemingly out of control. [ 43 ] The teacher for I.S.M.S. at the time was Michelle Simonin.

She testified that when she first started to home school I.S.M.S. in the family residence, the house was consistently, overwhelmingly unclean, with dirty laundry, dishes and the smell of urine. When I.S.M.S. was transferred to the church location for his education sessions, Ms. Simonin noted that the mother had difficulties with maintaining personal and professional boundaries. Ms. Simonin testified the mother would call her before or after school hours to ask for her help in controlling I.S.M.S.’s behaviours. The mother would also call her during teaching hours, sometimes several times. [ 44 ] Ms.

Simonin testified the parents expected her responsibilities with I.S.M.S. to be far more than his education. She was expected to transport I.S.M.S. to and from school. She declined. She was expected to teach I.S.M.S. life skills. Ms. Simonin directed the parents that they should be teaching I.S.M.S. those skills, such as personal hygiene and toileting. She testified I.S.M.S. would come to school with dirty clothes. [ 45 ] An issue arose between the father and Ms. Simonin whether she should be teaching I.S.M.S. about toileting, as Ms. Simonin refused to take responsibility for the toilet training.

She testified the father was aggressive and confrontational and the pastor of the church intervened with counselling. She reports that the parents were resistant to suggestions.

[ 46 ] After Social Worker Winkler took over the file, she attempted to put further supports into place. One of the difficulties the mother had was the transportation of I.S.M.S. on the public transit system. The mother does not have a driver’s licence and does not drive. Social Worker Winkler attempted to arrange transportation using Handy - Dart.

However, the Dandy - Dart service refused to be involved with transporting the mother and I.S.M.S. as in the past the mother had difficulties managing and controlling I.S.M.S. to the point there was a concern for safety of other compromised riders. [ 47 ] Social worker Winkler testified that on April 23, 2013 she was told by an after school program worker I.S.M.S. had arrived with a ‘goose bump’ on back of his neck and the mother was observed to have some scratches.

On May 1, 2013, Winkler advised she received information of a physical struggle between I.S.M.S. and the mother at a dance studio where F.J.A.S. attended for dance lessons. [ 48 ] Social Worker Winkler testified that from her assessments and from what the mother told her, she felt the mother was exhausted and I.S.M.S. required care during the day to help the mother cope with him. A Voluntary Care Special Needs Agreement for day care for I.S.M.S. was entered into by the parents on May 20, 2013 for the Director to provide day care for I.S.M.S. for the period of May 21, 2013 to August 31, 2013.

The caregiver was to provide care from 8 am to 6 pm each day.

All three meals were to be provided by the care giver, who would ensure that I.S.M.S. attended his school the three days a week he was attending, and attended all of his medical and treatment appointments. [ 49 ] In addition to the day care hours, Monday through Friday, the mother was also given respite hours for the care of I.S.M.S. [ 50 ] The person providing day care for I.S.M.S., C.T., eventually became the foster mother for I.S.M.S. when he was removed about one month later, June 19, 2013. [ 51 ] C.T. testified that during the time she was providing day care for I.S.M.S., in May of 2013, she observed I.S.M.S. as unkempt and extremely hyperactive.

When he first arrived he was not able to carry on a conversation. On assessment by the family Doctor, Dr. Evans, I.S.M.S. was found to be at the 5 th percentile for weight. This improved over the next seven weeks to the 12 th percentile. [ 52 ] C.T. describes I.S.M.S. as being extremely anxious and very labile with his emotions including anger. He has echolalia, where he sometimes repetitively repeats what he has heard. I.S.M.S. wears leg braces and has foot orthotics. He is on medication. He suffers from eating and bowel irregularities.

He consistently and often inappropriately demands attention. [ 53 ] C.T. advises that when I.S.M.S. does not get what he demands, he will have a temper tantrum. On more than one occasion, I.S.M.S. has been physically aggressive to C.T. I.S.M.S. has no concept of safety and regularly attempted to dart away, sometimes into traffic. [ 54 ] C.T. describes I.S.M.S. as one of the highest needs children she has ever cared for. [ 55 ] C.T. noted that the mother had difficulty disengaging with I.S.M.S. when he was picked up or dropped off. C.T. observed that the father has a quick temper.

C.T. has observed him being very critical with I.S.M.S. including calling him a liar. [ 56 ] The Director submits that shortly after the day care arrangement was put into place, the parents decided it was not working. The Director alleges the parents were falling back to their pattern of disengaging in services, when the Director felt the services were necessary for I.S.M.S.

The critical incident which triggered the parents to take steps to stop allowing I.S.M.S. to go to day care was an inquiry by C.T. to the mother about a red mark on I.S.M.S.’s arm when he was dropped off after spending a weekend with his grandmother, C.J.S. The grandmother was providing some respite with I.S.M.S. [ 57 ] The parents, particularly the father, reacted very strongly and they advised the foster mother and the Ministry that they were not going to send I.S.M.S. to day care any longer.

The parents had taken the foster mother’s inquiry as an accusation that the grandmother was abusing I.S.M.S. [ 58 ] Social worker Winkler and her supervisor assessed the withdrawal of I.S.M.S. from the day care being provided and came to the conclusion I.S.M.S. was in need of protection. [ 59 ] The parents submit they did not know that the Director would remove I.S.M.S. if they elected to terminate the voluntary agreement. They argue it was a voluntary agreement.

From the records, it is clear the parents left many messages for the social worker, and it appears the social worker did not respond to the messages left for her, other than to apprehend the children on June 19, 2013. [ 60 ] From the evidence, the following concerns for I.S.M.S. are: 1. Even with supports, the mother is unable to maintain a community standard of cleanliness of the family home to the degree the unclean environment is unhealthy for I.S.M.S. 2.

The children, including I.S.M.S., were often not clothed appropriately, wearing clothes that were dirty and ill fitting, and sometimes not suitable for the weather. 3. The mother has cognitive challenges, including memory difficulties with a limited ability to multi task. She sometimes becomes obsessive about tasks, repeating behaviours numerous times, such as contacting or calling a person about a matter. She has challenges recognizing and respecting professional and personal boundaries when dealing with others. 4. I.S.M.S. has high needs which challenge even a high functioning care giver.

I.S.M.S.’s high needs have overwhelmed his mother on a consistent and chronic basis resulting in the mother becoming frustrated and angry. She is unable to consistently and safely manage and control I.S.M.S. 5. The father works long hours providing little parenting support to the mother, whose job is predominantly the sole responsibility for the care of I.S.M.S. and running the household.

6. The mother has difficulties picking up on cues from I.S.M.S. and does not recognize I.S.M.S.’s developmental stages and needs. This difficulty results in the mother not responding appropriately to I.S.M.S.’s needs. I.S.M.S. is now 13 years of age and becomingstronger and more difficult to physically manage. 7. There is a pattern that the parents tend to isolate the children when they feel threatened or challenged by a social worker orcommunity members.

The parents engage in accessing and using services when the Director is initially involved, but as the Directorwithdraws or closes their file, the parents tend to withdraw and cancel service supports. 8. There appears to be evidence that not only has there been physical aggression with I.S.M.S. with his parents and his grandmother,he is also highly challenging and physically aggressive with the foster mother, educators, and other care givers. 9. I.S.M.S. is a high needs child who requires 24 hour a day care. A high functioning care giver has difficulties with I.S.M.S.’s careneeds.

The Director submits the parents are not functioning at an adequate level to be able to give I.S.M.S. the necessary care herequires. [61] Following the removal of I.S.M.S. on June 19, 2013, the Director then retained Dr. Postuma, psychologist, to conduct aparenting capacity assessment. Report of Dr. Postuma - Parenting Capacity Evaluation [62] The assessment was conducted in September 2013, and the report was prepared dated October 7, 2013. [63] Dr.

Postuma interviewed and tested and observed each parent interacting with the children separately from the other parent andseparately from their interaction with the maternal grandmother. I.S.M.S. was also observed interacting with the foster parents, C.T. andW.T. [64] Ten collaterals were interviewed. Counsel for the parents submitted that the report of Dr. Postuma is flawed in that he failed tointerview or take into consideration additional collaterals on behalf of the parents, and in particular the family doctor, Dr.

Evans. [65] I have also noted the areas where counsel for the parents pointed out incorrect information as understood by Dr. Postuma. [66] From the assessment by Dr. Postuma of the mother, he opines that she has limitations in her emotional intelligence as well ascognitive limitation in her reasoning ability. He found that the mother easily acquiesces to her husband’s direction. When the date forassessing the parents was being arranged, the father told the social worker that unless Dr. Postuma came on the Sunday he would notparticipate. Dr. Postuma arranged his

schedule to accommodate the father and attended at the family home on a Sunday. Dr. Postumathen attended on the Monday to observe and assess the mother, including the psychological testing. Contrary to arrangements, the fatherwas present in the home on Monday. [67] At the beginning of the testing, the mother told Dr. Postuma she had a problem with reading and it was agreed the examinerwould read out the questions. It became apparent to the examiner that the father had situated himself nearby in the house, listening to thequestions and to the mother’s answers.

The father then called the mother on her phone during the examination and assisted her inanswering the questions or changing her answer. Given the deceptive actions of the parents, some of the psychological testing data isunreliable. [68] Dr. Postuma believes that the parenting capacity assessment of the mother and the father must be considered from theperspective of the two parents as a unit, particularly given the dependency of the mother on the directions of her husband. Dr.

Postumaobserved that the mother often turned to and relied on the younger child, F.J.A.S., for assistance in dealing with I.S.M.S. rather than herhusband. [69] Dr. Postuma opined that “it is unlikely that either parent will be able to sustain and implement the treatment procedures to assistI.S.M.S. minimize the problems associated with his medical condition.” [70] From his observations of I.S.M.S. with the parents and with the foster parents, Dr.

Postuma further opined that “The contrastbetween I.S.M.S.’s behaviour with his parents and his foster parents is a clear indication that his parents are primarily responsible formuch of his disruptive behaviour, whatever the contribution of his genetic and biological shortcomings.” The expert further stated that“If the problems which characterize I.S.M.S.’s violent and aggressive behaviour are not addressed quickly, there is a high risk of furthercomplications to his ability to live independently in society.” [71] The opinion of Dr.

Postuma is that the mother’s cognitive limitations and her apparent acquiescence to her husband’s directionare primary reasons for the mother not being able to respond to professional services provided to date. The father is assessed by Dr.Postuma as being unable to accept personal responsibility, and of being distrustful of society and those who attempt to assist him. [72] The expert opined that I.S.M.S. is at a critical juncture with respect to professional intervention. ANALYTICAL FRAMEWORK [73] I will now deal with the issues.

Was I.S.M.S. in need of protection? [74] The Director seeks an Order for continuing custody of I.S.M.S. pursuant to s. 49 of the Child Family and Community ServicesAct (“Act”). In the within matter, on September 20, 2013, the parents consented to an order under s. 41(1)(

c) of the Act, without a findingof I.S.M.S. being in need of protection. [75] In the case of D.M.G. v British Columbia (Director of Family and Child Services), 2007 BCSC 461 , [2007] B.C.J. No.

682 ; 2007 BCSC 461 ; 156 A.C.W.S. (3d) 383 , the court summarizes Huddart, J’s summarization in B.B. v. British Columbia (Director of Child, Family and Community Services) (2005), 36 B.C.L.R. (4th) 108 , 2005 BCCA 46 , of the

interpretation of the Act as follows: 61 … the grant of the temporary custody order under paragraph 41(1)(

c) by consent pursuant to

section 60 triggers the running of time under

section 45 and the right of the Director to seek a continuing custody order under

section 49. At that application, the director must establish on a balance of probabilities the child's need for protection at the date of removal. Once the court has made the finding under

section 40, it may consider whether to make a continuing custody order under sub-section 49(5): B.B. , supra , at para. 43 . Thus, it is clear that a finding that a child is in need of protection, is a necessary prerequisite to the granting of a continuing custody order pursuant to

section 49 … [ 76 ] In determining whether a child is in need of protection, s. 13 of the Act applies. The Director submitted that they are relying on s. 13(1)(

h) of the Act which reads: 13

(1) A child needs protection in the following circumstances: (

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; [ 77 ] From the Director’s submissions and the evidence led by the Director, the basis for the Director’s submissions that I.S.M.S. was in need of protection on June 19, 2013, are that the mother has a disability and the parents lack the necessary capacity to meet I.S.M.S.’s needs, therefore I.S.M.S. has suffered and was suffering from neglect. [ 78 ] I.S.M.S. has been diagnosed with numerous significant cognitive and physical impairments including autism.

This was not diagnosed until January of 2013 when I.S.M.S. was taken for an assessment at Children’s Hospital in Vancouver, BC. Previously, in 2008, I.S.M.S. was assessed for autism at the Health Children’s Assessment Network, with the Autism Spectrum Disorders Program. The mother attended with I.S.M.S. at the 2008 assessment, but I.S.M.S. was not diagnosed with autism. There was a reassessment in 2010.

I.S.M.S. was accompanied by his mother and again he was not diagnosed with autism. [ 79 ] The Director argues that the mother did not have the ability to provide comprehensive and accurate information in regard to I.S.M.S. and as a result he did not get diagnosed with autism until 2013. The notable difference in the two assessments and the third assessment in 2013, again in part, is that the mother was accompanied by the maternal grandmother for the third assessment in 2013.

It was noted in the medical expert’s notes that the grandmother was very helpful with respect to the required information on behalf of I.S.M.S., and that past assessments may have been complicated by the mother’s developmental learning disabilities and recall to the point she had difficulties recalling I.S.M.S.’s behaviours. [ 80 ] The Director argues, in part, as a result of her disability, the mother is overwhelmed by I.S.M.S.’s behaviours resulting in her not being able to parent I.S.M.S. in a safe and consistent manner.

The Director alleges the mother is essentially the parent with almost full time responsibility for the care of I.S.M.S. and historically the Director had concerns with the mother coping with the parenting of I.S.M.S.

In an earlier report, the social worker felt provision of services was a temporary fix, but that it was unlikely the mother would be able to cope in the long term when I.S.M.S. developed increasing needs and challenges, and services would not be able to shore up the parenting difficulties in the long term. [ 81 ] Social worker Winkler stated that in her observations of the interactions of the father with I.S.M.S., although he is much stricter than the mother, there remains a concern of effective consistent and available parenting. [ 82 ] In relation to the circumstances leading up to the removal, the parents argue the social worker refused to respond to their contact and simply went ahead and removed the children.

The failure of the social worker to respond to the parent’s messages and calls could have been handled better. There should have been an answer given to the parents. [ 83 ] However, it is noted that s. 30(4) of the Act gives the Director authority or duty to remove a child whether or not there is a family conference, mediation or other alternative dispute resolution scheduled or in progress, or a court date, or any other steps that have been taken under the Act with respect to the child.

I take that to mean, that despite the fact there was a voluntary agreement in place at the time I.S.M.S. was removed, the Director had the authority to proceed with removal.

Ultimately, as is set out in s. 2 of the Act , the Director is charged with the safety and well-being of the child. [ 84 ] On reviewing all of the evidence, including the evidence from numerous witnesses, I find the Director has proven, on a balance of probabilities that I.S.M.S. was in need of protection on June 19, 2013. [ 85 ] Once the Director has established, on a balance of probabilities, that a child is in need of protection and the Court has made that determination, the Court must assess the evidence before it to determine the appropriate care arrangement within the strictures imposed by the Act.

Have the circumstances which caused the Director to remove I.S.M.S. improved? Are the circumstances likely to improve? [ 86 ] I find that there is absolutely no question that I.S.M.S.’s parents love him very much. The question is whether the best efforts of the parents are sufficient to provide safe consistent care for this young boy. I.S.M.S. is growing and physically maturing, and his needs are also increasing. [ 87 ] The parents provided a plan for I.S.M.S. They now live in [omitted for publication] which is a small community located close to Keremeos.

They argue they have the support of the grandmother, who resides nearby. The grandmother has the full time care of I.S.M.S.’s sister. The parents say they have located programs for I.S.M.S. in Keremeos as well as arranging for his schooling through Anchor Academy, the educational organization who previously provided I.S.M.S.’s assisted home schooling. [ 88 ] The father’s work

schedule took him away from home from around 6 am to 7 pm in the evening. He gave evidence that his work

schedule has changed and he is now more available during the day and would be available to help parent I.S.M.S. and assist with

the transportation of I.S.M.S. to his appointments. The parents say this is manageable even though they now live about an hour outside of Penticton. They submit that as they now live close to the grandmother, she will be able to help the mother with the parenting of I.S.M.S., as well as transportation. [ 89 ] Dr. Postuma commented that the area where the parents now reside have limited resources suitable for the extensive needs of I.S.M.S. [ 90 ] C.T. gave extensive evidence on the on-going care of I.S.M.S. since his removal and placement with her, as a foster mother.

I.S.M.S.’s care has been challenging even to a highly able and capable foster mother such as C.T. [ 91 ] In detailing the care I.S.M.S. requires, there was evidence about his care that was chilling: I.S.M.S. has been aggressive and on occasion uncontrollable. Under the care of a respite care giver, while C.T. was away on holiday, the respite care giver tied I.S.M.S. to a chain link fence and also to his bed as the worker was unable to control I.S.M.S. It was confirmed that the respite care giver was fired.

Several respite workers have quit due to the high needs of I.S.M.S. [ 92 ] This highlights the need for high level monitored professional care for I.S.M.S. He is vulnerable. He is dependent on the adults who care for him. He is challenging and has periods of emotional and physical aggression. The highest degree of professional intervention and care must be afforded to him. The greatest amount of vigilance must be accorded this young boy.

He must be given the opportunity of accessing the highest level of services available without interference. [ 93 ] In relation to the Director’s plan for I.S.M.S, there is a concern that his current foster parent will not be continuing to care for I.S.M.S. in the long term.

Again this is indicative of the overwhelming amount of care this young boy requires, and how care givers can simply burn out with the amount of work required for I.S.M.S.’s care. [ 94 ] The Director advises I.S.M.S. is in the care of a paediatrician, a family physician, and he attends music therapy, physio, has a worker through ARC and a one on one worker, in addition to a CEA with respect to his education. A plan to re-integrate I.S.M.S. back into a school setting is being evaluated.

I.S.M.S. requires a team approach to his medical, psychological, and behavioural challenges as well as his day to day care. [ 95 ] The expert, Dr.

Postuma, opined that the parents would continue to interfere in and reject the necessary professional interventions that I.S.M.S. needs, and would continue to negatively influence I.S.M.S.’s disruptive and aggressive behaviours. [ 96 ] On considering the evidence, in I.S.M.S.’s best interests, given his extremely high needs, and considering the circumstances and plans put forward by the parents, which I recognize were put together with the best intentions, I find the plans do not support a return of I.S.M.S. back to his parents.

Should there be a ‘last chance order’ granted to the parents? [ 97 ] On reviewing the evidence, I do not find that a last chance order would be in the best interests of I.S.M.S. The Director has been involved with this family over numerous years all the while providing significant services. I find that even with the continued provision of significant services, the parents will not be able to safely parent I.S.M.S., and his safety and well-being would be put in jeopardy. Should the Director be granted a Continuing Custody Order? [ 98 ] The Director will be granted a continuing custody order for I.S.M.S.

Should the Court grant the parents post-CCO access? [ 99 ] The Director has consented to the grandmother, C.J.S., having post-CCO access to I.S.M.S. There will be an order, by consent, to that effect. [ 100 ] The parents have applied for post-CCO access to I.S.M.S. I have reviewed the evidence, and I particularly note the evidence of C.T. in describing how I.S.M.S. is happy to see his parents. I acknowledge J.G.S. and J.M.S. love I.S.M.S. very much.

It is hoped that J.G.S. and J.M.S. will accept this very difficult decision and assist the Director in its efforts to provide I.S.M.S. with the required professional services and care that he needs. [ 101 ] I find it is appropriate and in the best interests of I.S.M.S. to have contact with his parents, and I order that J.G.S. and J.M.S. shall have post-CCO access to I.S.M.S., at the discretion of the Director and supervised at the discretion of the Director. THE HONOURABLE JUDGE M.E.

SHAW CORRIGENDUM – Released February 4, 2016 [1] The cover page was changed to add the Grandmother, C.J.S. as a party as well as the Grandmother’s counsel, A. Campbell. [2] Paragraph 60, sub paragraph 6, an ‘s’ was added after the apostrophe with I.S.M.S. [3] Paragraph 74, in the first sentence the reference to the ACT is corrected to be the Child, Family and Community Services Act (“ Act ”). In the same paragraph in the third line, the full name of the CFCSA is changed to Act . A period was added to the end of the first sentence after the word (“ Act ”).

[4] In paragraphs 75, 76, 83 and 85, the reference to the ACT is changed to the Act . [5] In paragraph 87, the words “[omitted for publication]” are taken out of the paragraph as a potential identifier and the paragraph now reads: The parents provided a plan for I.S.M.S. They now live in [omitted for publication] which is a small community located close to Keremeos.