Director v. A.P.M. and K.A.B. Date:, 2011 BCPC 449

Citation: Director v. A.P.M. and K.A.B. Date: 20111208 2011 BCPC 0449 File No: [removed for posting] Registry: Nanaimo 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: A.M.B , born [removed for posting] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: A.P.M. PARENT AND: K.A.B. PARENT File No: [removed for posting] Registry: Nanaimo IN THE MATTER OF THE FAMILY RELATIONS ACT , R.S.B.C. 1996 C.128 BETWEEN: A.P.M. APPLICANT AND: K.A.B. RESPONDENT REASONS FOR JUDGMENT OF THE

HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Director: K. Rongve Counsel for the Parent: L. Allen Counsel for the father : L. Wansbrough Place of Hearing: Nanaimo , B.C. Date of Hearing: Date of Judgment: December 8, 2011 [ 1 ] THE COURT: (orally) The matters before me are on Court file [deleted for posting]. This is an application by Ministry of Child, Family and Community Services and is in the matter of the child A.M.B., date of birth, [deleted for posting]. I also have before me on file [deleted for posting] a Family Relations application.

The original matter was under the style of cause A.P.M. as the applicant and K.A.B. as the respondent. The actual Family Relations application before me is that of K.A.B. for the sole custody and guardianship of the Child. [ 2 ] The Director seeks an order with respect to the Child under the Child, Family and Community Services Act ("CFCSA") that the child A.M.B., date of birth, [deleted for posting] ("the Child") needs protection and further seeks an order pursuant to s. 49(5) that the Child be placed into the continuing custody of the Director on the basis that there is no significant likelihood that: (

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

b) the parents will be able to meet the child’s needs. [ 3 ] As indicated above, before me is also an application by the father, K.A.B., (the “Father”) under the Family Relations Act , which was filed on March 29, 2011, seeking orders for sole custody and guardianship of the Child, and a restraining order against the mother, A.P.M., (the “Mother”) to prevent her from interfering and harassing the Child and the Father, except for the purposes of arranging access. [ 4 ] The child protection matter and the Family Relations Act application were scheduled to be heard at the same time.

The Father failed to attend at the hearing, although he was represented at the hearing by legal counsel, Ms. Wansbrough. The Mother attended at the hearing with legal counsel representing her. Ms. Allen was only very recently appointed to act as counsel on behalf of the Mother. In fact, they only met after the commencement of the hearing to which the Mother arrived late. An application for an adjournment was made on behalf of the Mother. That adjournment application was denied, and I provided a separate set of reasons. [ 5 ] The matter then proceeded to hearing.

Some accommodation was provided to the Mother and Ms. Allen in order to permit Ms. Allen to familiarize herself with the background of these matters. She did an admirable job. [ 6 ] Only two witnesses provided testimony. One was Katalin Bennett, a social worker with the Ministry of Child, Family and Community Services, and a person designated by the Director under the CFCSA . The other was the Mother. [ 7 ] This matter dates back to August of 2009 when the Child was approximately five months of age.

The chronology of the events is useful and may be summarized as follows: [ 8 ] The Mother and the Father and the Child came to the attention of the Director on August 28, 2008, as a result of an RCMP attendance at the family home in order to deal with two domestic violence incidents involving the Mother and the Father on August 27, 2008. Drugs and alcohol were involved. The Child was present, and in the midst of one of the altercations. This led to the arrest and the incarceration of the Father. [ 9 ] A Ministry social worker, Ladona Pinder attended at the family home.

At that time and following further investigations during the next three weeks, the social worker learned that there had been a lengthy history of domestic violence and significant drug and alcohol abuse in the home, involving the Mother and the Father. This reached back to when the Mother and the Father resided in Calgary and continued after they moved to Nanaimo. [ 10 ] The Child is the sixth child of the Mother, and the third child of the Father.

Two of the children of the Mother, aged 12 and 14, have been in the care of their maternal grandmother for some 12 years due to the concerning lifestyle choices of the Mother. Another child of the Mother was in a similar arrangement. Two other children of the Mother and the Father’s relationship have been taken into care and adopted outside of the family. [ 11 ] Following the Father’s release from jail on September 15th, 2009, and in response to the concerns of the Director, the parents

agreed that they would not reside together, nor was the Father to be in the family home when the Mother and the Child were present. This arrangement was put into place on September 18th, 2009. The parents failed to abide by this no contact arrangement. The non- compliance continued. [ 12 ] The Mother became increasingly uncooperative with the social worker. On September 25th, 2009, the Ministry social workers took steps to remove the Child as a result of the ongoing contact between the parents. [ 13 ] The Mother fled the women’s shelter where she was residing with the Child and departed for Calgary.

The Mother and Child were located in Calgary and returned to Nanaimo on September 29th, 2009. The Child was taken into care on or about that date. [ 14 ] A presentation hearing was heard on October 13th, 2009 at which time, pursuant to s. 35(2)(

a) of the CFCSA , an interim order of custody of the Child in favour of the Director was made. [ 15 ] An application for a protection hearing was filed on November 4, 2009, which was opposed by the parents. [ 16 ] The matter went for mediation on February 15, 2010. Plans were agreed to in order to permit the return of the Child to the parents. The parents subsequently did not live up to the expectations of the Director. [ 17 ] The matter was scheduled to go to hearing on September 21, 2010, at which time a consent three-month temporary order was made in favour of the Director pursuant to s. 41(1)(

c) of the CFCSA . [ 18 ] The Director filed an application for continuing custody on November 25, 2010. The matter was referred to a family case conference on April 21, 2011. [ 19 ] The Father filed his Family Relations Act application on March 29, 2011. [ 20 ] The family case conference proceeded on April 1, 2011, with both parents present. It was not successful. The matter was put over to May 16, 2011, for the purposes of fixing court dates. The Mother was not present, but the Father was present on May 16, 2011. [ 21 ] The matters were set for a pre-trial conference on September 12, 2011.

Neither parent attended. The matters were adjourned to a further pre-trial conference on November 7, 2011. The Mother did not attend. [ 22 ] On November 21, 2011, an order was sought by the Director and obtained from the court extending the temporary custody order until December 7, 2011. [ 23 ] The Court Plan of Care filed by the Director on November 16, 2009, provided for an overall goal of returning the Child to the parents’ care.

It provided for domestic violence counselling, drug and alcohol counselling, and family therapy. [ 24 ] From November 2009 through to August 12, 2010, there were three separate risk reduction service plans created for the Mother and the Father. The purpose of each of the plans was to identify those things that the parents must do to address the concerns of the Director in order to realize the goal of returning the Child to the parents. [ 25 ] The parents agreed upon the goals and the strategies set out in the plans and to their willing participation by signing the plans.

They both received a copy of each plan. [ 26 ] The risk factors identified in each plan were family violence, alcohol and drug abuse, and a history of abuse/neglect relating back to the child protection involvement of the parents when they were in Alberta.

A large number of services and programs and family counselling were made available to each of the Mother and the Father under the plans, as well, such programs were made available to them as a couple. [ 27 ] The evidence of Social Worker Bennett confirms that neither party was able to achieve any amount of minimal success in addressing the concerns of the Director nor following through with the various services and programs that were put in place for their benefit. The domestic violence continued, with the Father assaulting the Mother in their home in the presence of the Child on April 25, 2010.

Criminal charges ensued. [ 28 ] Both parents had relapses which entailed significant use of alcohol and crack cocaine. According to the third risk reduction plan dated August 12, 2010, the police were involved with the family on four or more occasions since the Child’s removal in September 2009, and such incidents involved the Mother’s use of alcohol.

This evidence was not challenged by the Mother. [ 29 ] Both parents either refused to participate in or to successfully complete the various programs designed to deal with the abuse within their domestic relationship or their drug and alcohol addictions. [ 30 ] On November 22nd, 2010, there was a further domestic assault in which the Father assaulted the Mother. The Father was convicted and sentenced to three days in jail, with a one-year period of probation. [ 31 ] Following the parents’ separation, the Father entered into his own risk reduction service plans dated January 31, 2011, and April 28, 2011.

Family violence and drug and alcohol abuse were the risk factors that were identified. Again, the Father failed to comply with the plans and failed to complete the counselling and courses outlined in the plans. These plans were to assist the Father in obtaining the return of the Child. These plans coincided with the timeframe in which he filed his application for sole custody and guardianship. [ 32 ] The Mother also entered into her own risk reduction service plan dated February 18, 2011.

Besides family violence and alcohol and drug abuse, a further risk factor was identified therein, namely the Mother’s unstable housing situation. At various times she had either no fixed address or was essentially homeless and living in shelters. Again, the Mother failed to comply with the plan and failed to complete the counselling and courses outlined in the plan or to satisfactorily address the risk factors.

[ 33 ] Both parents had relapses with drug and cocaine use throughout the time period covered by the plans. As a result of the parents’ behaviour, the Director was required to reduce the level of access of the parents to the Child. Relatively open access to the Child became more limited and increasingly supervised. In November of 2009 the parents had weekly supervised access. In December of 2009 the parents had a combination of supervised/unsupervised visits, including overnights with the Child. [ 34 ] This was all pursuant to a transition plan.

That transition plan was cancelled on April 26, 2010, due to the incident of domestic violence in the home in the presence of the Child and due to the concerns of drug and alcohol abuse. [ 35 ] It was replaced by weekly supervised access to the Child in mid-December of 2010. The Mother left Nanaimo in mid- December of 2010 and did not return until mid-March of 2011. Thereafter she had weekly visits with the Child until she departed on April 17, 2011, to return to Alberta.

She had no visits with the Child and limited contact with the child since April or May of 2011. [ 36 ] The Father continued with supervised access up until April 19, 2011. Conflict problems arose between the Father and the access supervisor. At that time he had entered into a new relationship. Family violence issues marred that relationship. There has been very limited contact by the Father with the Child since June of 2011, notwithstanding attempts by various support providers to contact him to arrange for access.

He has become increasingly uncooperative and belligerent with Ministry officials and indicated a lack of interest in pursuing cooperation with them or for further contact with the Child. [ 37 ] In her evidence, the Mother indicates that she had to leave Nanaimo in order to break away from the negative influences that have led her to relapse into both drug and alcohol abuse. She moved back to Alberta to move in with her parents. She indicated that she started to attend programs to deal with her drug addiction issues. In early 2011 she completed a five-week residential rehabilitation program in Saskatchewan.

She had a further relapse with cocaine drug use subsequent to that, in or around July of 2011. [ 38 ] She has entered into programs with Narcotics Anonymous. She has had individualized counselling.

She continues to battle her drug addiction issues, but has maintained a period of 145 days free of alcohol and drug use. [ 39 ] She attended and completed a daily treatment program in Calgary between November 14th to November 25th, 2011, after she had indicated that she would be attending at the trial or a hearing of this matter. [ 40 ] She also testified that within the last couple of weeks she decided to return to live and find work in Nanaimo. She arrived in Nanaimo the day before the hearing. She has no sources of income. She has not arranged accommodation. She has a small support network in the area.

She has no intention of entering into a relationship with the Father. She admits that she has to continue to battle her drug addiction issues. She sees alcohol as less of an issue for her. She suffers from depression. She has not sought medical treatment or psychological counselling on a consistent basis, but does take some medication. She had a previous attempt at suicide in the earlier part of 2011. [ 41 ] She wants a chance to "prove that she can be there for her daughter" and seeks the Child’s return. [ 42 ] Ms.

Bennett’s evidence is that the Child is a happy and thriving two-and-a-half-year old with no specific needs and of which there are no outstanding concerns. The Child has been in a positive foster care situation since she was about six months old. She sees her foster parents as her parents. She has no real relationship with her biological parents. She has no contact or relationship with her other siblings, half-siblings, or grandparents. [ 43 ] The Director has not embarked specifically upon a long-term plan of care pending the outcome of this hearing.

What is contemplated is that adoption of the Child within the family unit would be a first priority. As a second priority, adoption outside of the family would be pursued. THE POSITION OF THE DIRECTOR [ 44 ] The position of the Director may be summarized as follows. The Mother and Father have a domestic violence history, drug and alcohol issues, and child neglect issues that have persisted for an extended period of time. [ 45 ] These issues have continued since the Child was taken into care.

Specifically for the Father, violence, drug abuse, and child neglect remain outstanding risks and concerns. [ 46 ] Specifically for the Mother, the risk of violence being rendered upon her, child neglect, and a lack of a stable home environment are identified as continuing concerns. The Mother has had a frequent history of relapsing with drug and alcohol abuse, notwithstanding various programs in which she says she has participated.

This history of drug and alcohol abuse spans back for a period of some nine years. [ 47 ] Both of the parents have made minimal and sporadic efforts to abide by the risk reduction service plans. There has been a failure to take any reasonable steps on their part to change their situation. Both parents have disengaged with the Child. The Director says this is a pattern that is consistent with the parents’ involvement with their other children. [ 48 ] There has been minimal contact and a loss of interest by the Father in the Child.

There has been virtually no contact by the Mother with the Child for over six months. [ 49 ] The Mother continues to be transient and has not been able to establish a stable living environment. She does not have a permanent plan in place with respect to the Child, and only appeared back in the picture in just the last few days, immediately prior to the hearing. [ 50 ] The Director says there has been no significant change in the circumstances that existed and that gave rise to the Child being taken into care. The Director says the Child is and continues to be at risk if returned to the parents.

[ 51 ] The Director also indicates that the Director has worked diligently with the parents, as outlined by the various plans that have been put into place.

With respect to the specific issue of violence, the Director says that the Mother has completed no programs in order to deal with the continuing violent relationships in which she has been engaged, although it is evident from the testimony of the Mother that she has not been involved in a relationship for approximately one year’s time. [ 52 ] The Director takes some issue with the extent of the programs and treatment that the Mother has received for the past several months.

They indicate that there is no clear evidence before me that the purpose of some of the programs that she participated in was actually to deal with drug and alcohol addiction. [ 53 ] Notwithstanding the fact that she may have had treatment, it is the position of the Director that that treatment has been unsuccessful.

By way of example, they point to the situation that followed the residential treatment program in the earlier part of 2011 in which the Mother attempted to commit suicide. [ 54 ] With respect to the issue of a stable residence, the Director points out that the mother, for the past period of time since the Child was taken into care, has had no less than about seven new and different residences. [ 55 ] It is the position of the Director that it is in the best interests of the Child that a stable life and home situation be established for the Child, and that there must be protection against placing the Child into an unstable situation.

It is the position of the Director that if the Child were to be returned to the Mother, she would face the problem of having to deal with the Father concerning access or access issues. THE POSITION OF THE MOTHER [ 56 ] Dealing now with the Mother’s position, she is seeking what is generally referred to as a "last chance order." That order is available under s. 49(7) of the CFCSA . On behalf of the Mother, it is submitted that there is insufficient evidence before me in order to make the order being sought by the Director under s. 49(5). [ 57 ] It is conceded that the Mother has an addiction issue.

However, it is contended by the Mother that she has engaged in a number of programs in the last 12 months which are designed to deal with and have to a certain extent been successful in providing some solution to her drug addiction issue. [ 58 ] In that regard, it is pointed out that she has been attending Narcotics Anonymous meetings three to four times a week. She underwent an intensive two-week program in Calgary in early November. She has taken steps to address her mental health issues. She has a measure of support within the Nanaimo community, although not as extensive as would be beneficial for her.

She has taken steps upon her arrival in Nanaimo to make first contact with resources that could provide her with drug and alcohol counselling. That is described as a top priority for her. [ 59 ] With respect to the domestic violence issues, it is contended on behalf of the Mother that it is clear that she does not wish to resume any relationship with the Father.

It is submitted that this relationship itself has been the cause of much of the domestic violence that has permeated her life. [ 60 ] She has, admittedly, not completed programs relating to domestic violence, but she has spoken to the Haven Society for the purposes of seeking enrolment in the programs that they offer to deal with this particular issue in her life. [ 61 ] With respect to access, it is submitted on behalf of the Mother that she did enjoy regular access to the Child.

However, because of financial issues and due to the fact that she was in recovery in Alberta she wasn’t able to exercise access in the manner which she would have preferred to have done had she had the ability to be in Nanaimo. [ 62 ] With respect to the plan of care for the Child, the position taken by the Mother is that the Director has no concrete plan in place at the present time.

Accordingly, time should be given pursuant to the last chance order to permit the Mother to fulfil certain arrangements that would be in the best interests of the Child. [ 63 ] It is also indicated that by granting a last chance order pursuant to s. 49(7), that this would be the least disruptive of the measures available for the Child. It is submitted that the Mother might apply to set aside the continuing order in the future, and that this, in itself, would prove to be disruptive. ANALYSIS [ 64 ]

Section 2 of the CFCSA sets out the guiding principles which deal with child safety and well-being issues, and are the ones that I must take into account.

Section 2 provides, under the heading "Guiding Principles," as follows: This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: (

a) children are entitled to be protected from abuse, neglect and harm or threat of harm; (

b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children

rests primarily with the parents; (

c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; (

d) the child’s views should be taken into account when decisions relating to a child are made; (

e) kinship ties and a child’s attachment to the extended family should be preserved if possible; (

f) the cultural identity of aboriginal children should be preserved; (

g) decisions relating to children should be made and implemented in a timely manner. [ 65 ]

Section 4 of the Act deals with what is in the best interests of a child. It reads as follows: 4(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child’s best interests, including for example: (

a) the child’s safety; (

b) the child’s physical and emotional needs and level of development; (

c) the importance of continuity in the child’s care; (

d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; (

e) the child’s cultural, racial, linguistic and religious heritage; (

f) the child’s view; (

g) the effect on the child if there is delay in making a decision. [ 66 ] Counsel has referred me to two decisions. These decisions relate to where last chance orders have been granted. The first case is British Columbia (Director of Family and Child Services) v. W.(M.). It is a decision of our Provincial Court. The citation is 2003 BCPC 396 , and is also found at Carswell B.C. 2839. That particular case relates to an 11-year-old aboriginal child. [ 67 ] In that particular case, the Mother, as in this case, had a long and extensive history with child protection matters.

Also there were issues relating to drug and alcohol abuse. In that particular case a last chance order was made. As I read the decision, a considerable amount of weight was placed on the fact that the child in question was an aboriginal child, and that there was family support for the mother. Also there was a finding by the Court that there was a significant likelihood that the circumstances that led to the child’s removal would likely improve within a timeframe that is reasonable.

Considerable weight was also given to the relationship between the child and mother and also the age of the child. [ 68 ] The second case that was provided to me is C.(P.) v. British Columbia (Director of Family and Child Services) . Again, this is a decision of our Provincial Court of British Columbia. The citation is 2002 BCPC 126 and it is also reported at [2002] Carswell B.C. 932 .

[ 69 ] This involved a two-year-old child. Again in this case, the mother was dealing with a very significant drug issue. She had been in a number of residential programs for extended periods of time. She had a number of health issues including being HIV positive, and, as I understand it, was also suffering from hepatitis. She had been attending residential program which extended for a period of some six months. She had achieved a period of being free and clean of drug use for about six months. [ 70 ] A significant factor in that case which was relied upon by the Court was the steps actually taken by the mother.

There is a provision in the judge’s reasons which I think is quite telling and which is found in paragraph 32; it reads as follows: Ms. P.C. has indicated a willingness to learn and to seek out resources, so this factor was of little concern to me. And as her health appears stable, this was also not of a primary concern to me. What I had to focus on then, was whether there is a significant likelihood that the circumstances that led to Ashley P.C.’s removal will improve within a reasonable period of time, or whether there is a significant likelihood Ms. P.C. will be able to meet Ashley P.C.’s needs.

In this deliberation I had to decide what a reasonable period of time might be where Ashley P.C. is concerned, and I’ve had to do this in the context of s. 2, as well as 2. 45, which sets out the general time limits for children at such a tender age. Continuing at paragraph 34: Based on the evidence in this case, and in considering s. 2 of the Act, and in particular sections 2(a),(b),(c),(

e) and (g), as well as the plan of care and Ashley P.C.’s best interests, I am satisfied of the significant likelihood that the circumstances that led to Ashley P.C.’s removal, that is, in particular, Ms. P.C.’s drug addiction, is likely to improve within a time frame that is reasonable in consideration of Ashley P.C., her age, and what is in her best interests. I am also satisfied that there is therefore a significant likelihood that Ms. P.C. will then be able to meet Ashley P.C.’s needs. I do not believe that it is in Ashley P.C.’s best interests now to make a continuing custody order.

Then I note the last sentence of paragraph 34 which should be underlined for emphasis: She has enjoyed a relationship with her mother throughout her young life, and it seems that Ms. P.C. and Ashley P.C. ought to be afforded this "last chance" to be reunited. [ 71 ] As noted above, in that particular case the Court did in fact grant the last chance order. [ 72 ] With respect, I must say that the circumstances before me are somewhat different.

I have considerable concerns that the steps that have been taken by the Mother have been very focused in terms of a timeframe, only within the last few months, and one might say specifically within the last few weeks, approaching the hearing of this particular matter. I have concluded that her recovery plan with addictions is, at best, very fragile. [ 73 ] I am mindful of the fact that she has previously made an attempt to return to Nanaimo and to establish herself. In doing so, she took approximately a month to plan that return.

That particular attempt failed in March of 2011, which necessitated her returning back to Calgary and to gain further support from her family in Alberta. [ 74 ] In the two decisions that I’ve been referred to, it is evident that the parents in those cases were working in a cooperative manner with the Ministry. That has not been the situation in this particular case. There has been a significant period of time extending back to when the Child was first taken into care in 2009 for the Mother to demonstrate that she is able to work cooperatively and in a positive manner with the Ministry. She has failed to do that.

The Father has failed to do that. [ 75 ] Based on the evidence I have heard and taking into account all of the circumstances, when I apply the test under s. 49(5) of the CFCSA, I first of all must note that there is not, in my view, a significant likelihood that the circumstances that led to the Child’s removal will improve within a reasonable time or that the parents, in this case specifically the Mother, will be able to meet the Child’s needs. [ 76 ] I have concluded that at the time that the Child was taken into care, the Child was in need of protection.

Given the present situation of the Mother and the lack of a well-thought out plan as to how she can best accommodate the needs of the Child, it is doubtful in my view that she can accomplish what she would be required to do, even if I were to make a last chance order for her. [ 77 ] As I say, she has failed to work in concert with the Director in the past, and I have not seen anything in the evidence before me which would allow me to conclude that her attitude in that regard has changed for the better. CONCLUSION

[ 78 ] Accordingly, I will grant the order being sought by the Director in this case, namely that there will be a continuing custody order granted pursuant to s. 49(5) of the CFCSA. [ 79 ] Now, that leaves the issue of access to the Child during the continuing order. In my view, given the recent arrival of the Mother back in Nanaimo it would be appropriate for there to be a meeting between the Ministry officials and the Mother in order to work out a plan for access.

I will consider myself seized of this matter for the purposes of dealing with that particular issue. [ 80 ] That leaves the application of the Father. I have received no submissions with respect to that application, so on that particular -- [ 81 ] MS. WANSBROUGH: I would just suggest that you dismiss it. [ 82 ] THE COURT: I accept that invitation and I will make a dismissal order with respect to the Father’s application. Is there anything else that needs clarification? [ 83 ] MS. ALLEN: No, thank you. [ 84 ] MS. WANSBROUGH: Thank you, Your Honour. [ 85 ] THE COURT: All right.

That concludes my reasons for judgment. (REASONS CONCLUDED)