Director v. K.C. and R.D. Date:, 2016 BCPC 284

Citation: Director v. K.C. and R.D. Date: 20160830 2016 BCPC 284 File No: 6230 Registry: Richmond 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: M.D. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: K.C. and R.D. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. SMITH Counsel for the Director: Betty Gabriel Counsel for the Parent: Mark Thompson, Counsel for the Child : Paul del Rossi Place of Hearing: Richmond , B.C. Dates of Hearing: Oct. 23, 24, 27; 2014; Feb. 13; Apr. 13, 14, 22; May 4, 28;

Jul. 13, 14, 22, 23, 30; Aug. 25, 28; Sep. 16, 28; Oct. 7; Nov. 30; Dec. 1, 2, 3, 11, 14 & 21, 2015; Feb. 5; May 19 & 20, 2016 Date of Judgment: August 30, 2016 Table of Contents A. Introduction 2 B. The Relevant Legal Framework 3 C. Outline of Facts and Procedural History 8 D. The Issues 21 E. Issue No. 1 21 In the context of an application for a continuing custody order, what is the point in time relevant to the determination of the child’s protection needs under

section 40 of the CFCSA ? F. Issue No. 2 28 Was M.D. in need of protection on November 16, 2012, when she was removed from her mother’s care?

a) pursuant to s. 13(1)(e) & s. 13(2) (“emotional harm caused by mother”)

b) pursuant to s. 13(h) (her mother’s inability to care for her)

c) as a result of some other consideration. G. Issue No. 3 58 Is M.D. currently in need of protection? a) s. 13(1)(e) & s. 13(2) - (as above)

b) s. 13(h) “unable” - (as above)

c) as a result of some other consideration. H. Issue No. 4 76 Has the Director established that a continuing custody order must be made pursuant to section 49(4) of the CFCSA ? I. Issue No. 5 77 Has the Director established that a continuing custody order should be made pursuant to section 49(5) of the CFCSA J. Issue No. 6 88 Are there any other appropriate remedies or consideration in this case?

A. INTRODUCTION [ 1 ] This case involves a highly contested application by the Director of the Ministry of Child and Family Development (“MCFD”) for a Continuing Custody Order (“CCO”), permanently removing M.D. from her mother, K.C. [ 2 ] On November 16, 2012 M.D. was removed from her mother’s care by MCFD pursuant to

section 30 of the Child, Family and Community Service Act (“ CFCSA”) and placed into foster care. The stated bases for M.D.’s removal was (

i) that she was being emotionally harmed by her mother’s conduct, (s. 13(1)(

e) of the CFCSA ) and (ii) that her mother was unable to care for her, (s. 13(1)(

h) of the CFCSA ). M.D. had lived with her mother and her older sister, M., all of her life before her removal. She has not lived with them since. M.D. was ten years old at the time of her removal; she turned fourteen last month. [ 3 ] To date, there has been no finding that M.D. was in need of protection from her mother in November, 2012. Such a finding is a precondition to granting the order sought by the Director. [ 4 ] Counsel on behalf of M.D. says that the Director’s application should be granted; in the alternative, that a “last chance” order pursuant to

section 47 of the Act , should be granted, rather than order returning M.D. to her mother’s care. [ 5 ] K.C. opposes the Director’s CCO application and seeks an order pursuant to subsection 49(7)(a), returning M.D. to her care slowly, with a transitional period to permit M.D. to adjust. [ 6 ] On Monday, August 15, 2016, I made an Order pursuant to subsections 49(7)(

c) and 55(4), ordering that M.D. remain in the Director’s care for a further six months, with unsupervised visits between M.D. and her mother, at the discretion of the Director; this discretion is to be exercised in accordance with particular regard for the biological family, as set out in subsections 2(b), (

c) and (

e) of the Act , with regard to M.D.’s views, as set out in subsection 2(d). Subsections 2(

c) and 2(

d) can be approached together, so that M.D.’s views are assisted and guided by a skilled adult, specialized in reunification. [ 7 ] These are my reasons. B. THE RELEVANT LEGAL FRAMEWORK Guiding Principles of the CFCSA [ 8 ]

Section 2 of the CFCSA sets out the guiding principles of the Act : 2. 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 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. [ 9 ] Given the unrestricted language of the

preamble of

section 2, I am satisfied that it requires that the Act be “interpreted and administered” as stated, both by a judge interpreting and applying the Act , and by the Director and the Director’s designates and employees interpreting and administering the Act . Best Interests [ 10 ]

Section 4 clarifies the term “best interests of child” in the context of the Act : 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 views; (

g) the effect on the child if there is delay in making a decision. When Protection is Needed [11]

Section 13 of the CFCSA sets out a non-exhaustive list of situations where a child needs protection (see: S (

B) v. British Columbia (Director of Child, Family and Community Service) (1998), (BC CA), 38 RFL (4th) 138 (BCCA)). In thecase at bar, the Director relies on two subsections: subsection 13(1) (e.) and (h): s. 13(1) A child needs protection in the following circumstances: (e.) if the child is emotionally harmed by the parent’s conduct, and (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. [12] Subsection 13(2) of the CFCSA expands on subsection 13(1)(e.): s. 13(2) For the purpose of subsection (1)(e), a child is emotionally harmed if the child demonstrates severe (

a) anxiety, (

b) depression, (

c) withdrawal, or (

d) self-destructive or aggressive behavior. Removal of the Child [13]

Section 30 sets out when a child may be removed without court order: s. 30(1) A director may, without a court order, remove a child if the director has reasonable grounds to believe that the child needsprotection and that (

a) the child’s health or safety is in immediate danger, or (

b) no other less disruptive measure that is available is adequate to protect the child. Protection Hearing [14] Section 40(1) mandates a judge, at a protection hearing, to determine whether the child needs protection. Continuing Custody Orders [15] The Director now seeks a continuing custody order in relation to M.D. under subsections 49(4) and 49(5) of the Child, Familyand Community Service Act (“CFCSA”): [16] Section 49(4) is mandatory: s. 49 (4) The court must order that the child be placed in the continuing custody of the Director if (

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found, or (

b) a parent is unable or unwilling to resume custody of the child. [17] Given the circumstances of this case, the only issue arising under s. 49(4) is whether K.C. is unable to resume custody of M.D.;her identity and location are clearly known and, just as clearly, she is willing to resume custody of her child. [18] Section 49(5) is discretionary: s. 49 (5) The court may order that the child be placed in the continuing custody of the director if 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 parent will be able to meet the child’s needs. [19] The effect of a Continuing Custody Order is that the Director - not the parent - becomes the sole personal guardian of the child

and the Public Guardian and Trustee the sole property guardian of the child, (s. 50). [ 20 ] Subsection 49(6) of the CFCSA requires a judge, before making a Continuing Custody Order under subsection (5), to consider: (

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 child’s best interests. [ 21 ] If a Continuing Custody Order is not made after an application by the Director, the judge must, pursuant to subsection 49(7), order that the child: (

a) be returned to the custody of the parent apparently entitled to custody; (

b) remain in the temporary custody of a person other than the parent for a specified period up to 6 months, or (c.) remain or be placed in the temporary custody of the director for a specified period of up to 6 months. Psychiatric or Medical Examinations -

Section 59 [ 22 ]

Section 59 provides the means to apply to the Court for a medical or psychiatric examination order with regard to a child or a parent, where such examination will likely assist the Court in: (

a) determining whether the child needs protection or, (

b) making an order relating to the child.

Section 60 Consents [ 23 ] A child can be placed in the Director’s care by consent pursuant to

section 60 of the CFCSA , without there being a finding that the child was ever in need of protection, (see: subsections 60(4) and (5)). C. OUTLINE OF FACTS AND PROCEDURAL HISTORY November 5 - 16, 2012 [ 24 ] Late on November 5, 2012, K.C. took M.D., her ten year old daughter, to BC Children’s Hospital by ambulance, reporting that the child had been experiencing suicidal and homicidal ideation and acting aggressively. She was seen by the on-call psychiatrist, Dr. Saari, early in the morning of November 6, 2012; thereafter, the psychiatrist dealing with M.D. and K.C. was Dr. Chow. Dr.

Chow did not believe many of K.C.’s claims about M.D.’s aggressive and self-harming behaviour and, as a result, recommended to MCFD that M.D. be removed from her mother’s care. [ 25 ] K.C. was a single parent; she earned income as a cleaning lady and was struggling with financial and grief issues, arising from her mother’s death, two years before. M.D.’s sister, M., had recently been in a bike accident and suffered a head injury about two weeks before November 5 th . The family had recently moved, due to financial constraints.

As well, it is now clear, K.C. was dealing with a child with significant mental health issues. It was a difficult time for the C. family. [ 26 ] M.D. had behavioural issues, including aggression, before November 5, 2012. K.C. had had her assessed by a paediatrician, Dr. Behrmann and M.D.’s health was followed by her family doctor. She was involved in some after-school support, including a program called “Super Flux”, involving a counsellor of some kind attending at home and working with her.

As well, M.D. and her sister participated in a hospice-based counselling, arranged by their mother after the death of their maternal grandmother, with whom they were all close. [ 27 ] MCFD had had a file open on the C. family before November 5, 2012. Social worker Julie Cmolik had recently transferred the file to social worker Gordon MacDonald. According to Ms. Cmolik, MCFD had received complaints about M.D.’s absenteeism and lateness in November, 2011, as well as K.C.’s failure to cooperate with the school.

There were also concerns about K.C. leaving the girls alone, as M.D. reported that her older sister mistreated her in their mother’s absence. Notwithstanding these concerns, there was no basis to remove M.D. or her sister as of November 5, 2012. [ 28 ] In February, 2012, MCFD received a report from M.D.’s teacher that M.D. had suicidal ideation; she reported that her sister had tried to strangle her, as well. [ 29 ] On May 14, 2012, MCFD intake notes record a report, also apparently from M.D.’s teacher, that she has become “dark (threatened suicide/more aggressive)”.

The caller said that M.D. was running away from staff; that she was “trying to get attention;” that M.D. fabricated stories, but that there was always some truth to them. She advised that M.D. had said that she wants to go to foster care. The report notes: “The caller stated that, as MCFD knows, M.D. has previously made suicidal threats.” [ 30 ] There is also reference to M.D. describing her mother discussing with her adult subject matters and being drunk, as well as K.C.’s failure to follow up on recommended counselling.

[ 31 ] On November 5, 2012 M.D. dysregulated while in her mother’s care. K.C. took M.D. to BC Children’s Hospital, by ambulance, following a conversation with MCFD’s “After Hours” staff. [ 32 ] The on-call child psychiatrist for the night of November 5 th was Dr. Saari. She interviewed K.C. late in the night of November 5/6; her notes are dictated at four o’clock in the morning on the 6th. She took information from K.C. and noted impressions based on those. M.D. was asleep during this. Dr.

Saari notes that K.C. is requesting medication for M.D.’s behaviour, but questions this approach, when mom’s ability to cope with all the current social stressors is considered. [ 33 ] After M.D.’s admission to hospital, the main psychiatrist who dealt with her in November, 2012 was Dr. Chow. On November 13, 2012 he authored a letter to MCFD recommending M.D.’s removal from her mother’s care, largely based on his view that M.D. was mentally well and that her mother’s description of her suicidal and homicidal ideations were false and, thus, harmful.

While M.D. was in hospital, he had recommended that her visits with her mother be supervised. [ 34 ] M.D. was removed from her mother’s care as a result of Dr. Chow’s November 13, 2012 letter and recommendations, pursuant to

section 30 of the CFCSA . As noted above, the protection concerns relied upon were (

i) that M.D. was being emotionally harmed by her mother (ss. 13(1)(e.)) and (ii) that her mother was unable to care for her, (ss. 13(1)(h)). [ 35 ] After several days with an initial foster family, M.D. was placed with foster mother A.M., and her family, where she has remained. November 21, 2012 - Report to the Court [ 36 ] On November 21, 2012, the Director filed in court a Presentation Form in relation to M.D.’s removal, along with a Report to the Provincial Court, Form A. The Report to Court relies heavily on Dr.

Chow’s views and quotes at length from his November 13 letter. [ 37 ] That Report to Court has never been amended or supplemented. (A duplicate of these two documents was filed on November 22, 2012). December 12, 2012 [ 38 ] On December 12, 2012, while in foster care, M.D. dysregulated and behaved in a manner markedly similar to the aggressive and self-harming behaviour described by K.C. in November 2012 and disbelieved.

M.D.’s behaviour on December 12, objectively viewed, eroded the bases to conclude that K.C. had been materially lying or exaggerating about M.D.’s behaviour in November; it significantly undercut the factual basis to rely on Dr. Chow’s view of K.C. as an unfit or harmful parent. [ 39 ] M.D. was taken by ambulance to Children’s Hospital a second time and remained in the Children’s Hospital psychiatric unit from December 12 - 21, 2012 for assessment, under the care of a psychiatrist other than Dr. Chow - Dr. Wicholas; this type of assessment was what K.C. had sought for M.D., back in November.

December 13, 2102 Consent Order - Richmond Provincial Court [ 40 ] On December 13, 2012, the Presentation Hearing occurred: counsel for the Director (not Ms. Gabriel); then-counsel for K.C., Ms. Powlett-Pepper; K.C. and social worker MacDonald appeared in court. An interim order was made pursuant to subsection 35(2)(

a) of the CFCSA , ordering that M.D. remain in the Director’s custody. The Court was not advised of M.D.’s dysregulation and violence on December 12, 2012; the only documents before the Court were the Presentation Form and the Report to the Court, filed November 21, 2012. [ 41 ] The matter was adjourned to January 17, 2013 for a hearing pursuant to subsection 37(1): this subsection requires that the court set the “earliest possible date for a hearing to determine if the child needs protection,” except in three possible situations, including consensual orders being made pursuant to

section 60 of the Act , without a protection hearing. No protection hearing was conducted on January 17, 2013; all interim orders in this case went by way of

section 60 consents. Thus, there has never been a judicial determination of M.D.’s protection needs. December 21, 2012 - February 1, 2013 [ 42 ] M.D. was released from the psychiatric ward of the hospital on December 21 st , not to her mother, but to the foster parents, for the Christmas break; on January 2, 2013, she was returned to hospital for further assessment until her discharge on February 1, 2013. [ 43 ] There is no clinical finding, as at February 1, 2013, to supplant Dr.

Chow’s opinion that K.C. fabricated M.D.’s suicidal ideations or aggressive behaviour or was otherwise harmful to M.D. in November, 2012. [ 44 ] Dr. Wicholas did not testify, but two of her reports were filed; nothing in her reports indicates that K.C. was a ‘trigger’ for M.D.’s dysregulation. [ 45 ] Notwithstanding this, M.D. was not returned to her mother’s care. [ 46 ] Dr. Wicholas reports five supervised visits between K.C. and her daughter during this period, none of which appear to have been problematic for M.D. [ 47 ] Dr. Wicholas diagnosed M.D. with Complex Post Traumatic Stress Disorder (“PTSD”).

January 17, 2013 - Court Plan of Care [ 48 ] On January 17, 2013, the Director filed in court the first Plan of Care in this case. The “overall goal” was stated to be “to return

[M.D.] to the care and custody of her mother.” [ 49 ] The Plan states that “the child is placed in an approved family care home while she is being assessed at the psychiatry ward at Children’s Hospital.” February, 2013 and onward [ 50 ] Once in the community in foster care, M.D. was seen by Dr. Penfold, an experienced child psychiatrist retained by MCFD to review M.D.’s medication and, as well, to assess whether Dr. Wicholas’ diagnosis of complex PTSD “fit.” Dr. Penfold did not read Dr. Chow’s letter to MCFD recommending M.D.’s removal. [ 51 ] Dr.

Penfold met with M.D. more frequently than she normally did with her other consult patients. She relied heavily on accounts by the foster mother, A.M., with whom she also met, as well as accounts from family support counsellor Tara Dolan and M.D.’s therapist. She never met or spoke with K.C.; at the hearing of this matter, she observed that, in hindsight, this might have been a mistake. As well, she noted that she may have placed undue reliance on the hospital reports: She never met with Dr. Chow and never questioned the view held by Dr.

Chow as set out in his Discharge Report of November 16, 2012 that K.C. was harmful to M.D.; thus, she never questioned the idea that the appropriate relationship to support for M.D. was the foster family, not the child’s biological family. [ 52 ] In addition to meeting with Dr. Penfold, once in care, M.D. also met with a psychological counsellor; initially, Dr. Watkins, and then, Ms. di Melo, a counsellor with a Master’s degree in clinical psychology. Ms. di Melo first met M.D. in September, 2014; foster mother A.M. also attended, along with Ms. Dolan. After that, Ms. di Melo often saw M.D. and A.M. together.

Ms. di Melo testified that she supported the child/foster parent relationship. She had never met K.C. before testifying at this hearing. [ 53 ] M.D. also met with Tara Dolan; Ms. Dolan began with the C. family as a visit supervisor, through Deltassist, a contractor with MCFD. She then also became M.D.’s one-on-one worker, taking M.D. into the community and working with the foster family if issues arose.

In the autumn of 2013, she began seeing M.D. once a week for two hours; she testified that in 2013, one of the goals she was working on with M.D. was how to deal with visits with her mother; she said that the child would feel suicidal about the visits. [ 54 ] Ms. Dolan supervised approximately seventy mother/daughter visits. She testified that she had a pre-arranged signal with M.D., for the child to indicate that she wanted to end a visit with her mother; she testified, however, that M.D. never used the signal. [ 55 ] Ms.

Dolan testified that M.D. was initially quite vocal about wanting to kill herself; would find a string or cord and wrap it around her neck and pull it. When first in foster care, she would be very upset when her mother and sister would leave a visit and would say that she had no family and that she should kill herself. This reaction subsided after four or five visits, according to Ms. Dolan. [ 56 ] Suzy Fong, a counsellor with a Master’s degree in counselling, worked at Deltassist as a healthy families counsellor.

She received a referral through MCFD to work with K.C. in January 2013 to address inappropriate discipline and to support her in parenting her daughters; Adrienna Johnson had worked with K.C. before that. Ms. Fong supervised several of the parent/daughter visits in early 2013, but she did not engage in counselling with M.D. and K.C. In her view, K.C. was not in tune with M.D.’s anxiety and did not engage in opportunities to communicate with her daughter. She said that the visits were to build on relationship between mother and daughter; she also said that she was aware of the restricted topics of conversation.

Visits were suspended for about three months after the December 2012 incident, to permit Deltassist supervisors to get proper training to deal with M.D.’s violent behaviour. Their relationship ended in September, 2013, without the goals identified by Ms. Fong having been met, in her view. She was aware that K.C. was accessing other counselling support in the community; K.C. expressed that she did not like how MCFD was handling things. [ 57 ] Sean McNabb, a counsellor with a Master’s in counselling, received a referral through MCFD to provide support for M.D. and K.C. eleven months after M.D.’s removal.

He met with K.C. in late October and November 2013 but testified that their progress was impeded as a result of M.D. being in foster care and not wanting to participate in the sessions. There was limited opportunity to assist K.C. becoming more in tune with M.D.’s emotional needs because it was viewed that contact between K.C. and M.D. caused M.D. upset. Mr.

McNab agreed in cross examination that K.C. was viewed as not being able to put M.D.’s needs first and that she was “stuck” on the idea that M.D.’s removal had been wrong. [ 58 ] M.D. remained out of regular full time school from January 2013 until September, 2013. She was moved from the Delta/Tsawwassen neighbourhood familiar to her, to Surrey, where the foster family resides. She now attends a school in a district other than where she grew up and attended school. April 3, 2014 - Court Plan of Care [ 59 ] On April 3, 2014, the Director filed a second Plan of Care.

This time, the plan for M.D. is “to refer the child for adoption planning.” April 8, 2014 - Mother/daughter visits suspended [ 60 ] Dr. Penfold suspended M.D.’s visits with K.C. in April, 2014, in large part because social worker MacDonald had told M.D., then twelve, that her mother was angry because of M.D.’s removal and because of M.D.’s current wish not to return to her mother’s care. A.M. reported that M.D. was much improved by the suspension of the mother/daughter visits. [ 61 ] M.D.’s visits with her sister were also stopped.

April 10, 2014 - M.D. made a party [ 62 ] On April 10, 2014, M.D. was added as a party to these proceedings. May 2014 - Court Hearing dates set

[ 63 ] In May, 2014, the hearing of this continuing custody order application was set for five days, to begin on October 21, 2014. That was a serious underestimation of the time required for this matter: this case has taken over twenty (20) court days of evidence. July 7, 2014 - M.D.’s birthday visit [ 64 ] M.D. next saw her mother, after the April 2014 visit suspension, on her 12th birthday on July 7, 2014; she did not see her mother again until May, 2015, when her mother’s access application was granted pursuant to section 55(4) of the Act .

October 16, 2014 - K.C.’s lawyer withdraws [ 65 ] After representing K.C. for nearly two years, five days before the hearing was set to commence, Ms. Powlett-Pepper, counsel, wrote to the court registry, advising that she was withdrawing as counsel of record. October 21 - 24, 27, 2014 - Initial hearing dates [ 66 ] On October 21, 2014, K.C. advised that she would represent herself; having recently received the file from Ms.

Powlett-Pepper, she requested an adjournment in order to review it; the case proceeded on October 23, 2014. [ 67 ] On October 23 rd , Director’s counsel stated that six witnesses would be called: social worker Gordon MacDonald; Dr. Susan Penfold, family support counsellor Tara Dolan; counsellor Suzy Fong; counsellor Shawn McNabb and foster parent A.M. Dr. Chow was not on the Director’s witness list. [ 68 ] The Director’s case did not include a parenting capacity report in relation to K.C.: no such report had been sought under

section 59 during the two years leading up to the hearing. [ 69 ] K.C. stated that she would testify, as would M.D.’s older sister, M.; she stated she anticipated calling other witnesses, and also that she wanted to call Dr. Chow, but could not locate him. Counsel for the Director agreed to call Dr. Chow as their witness, availing him for cross-examination by K.C. That procedure was adopted and Dr. Chow testified on two different days, ten months later, on July 13, 2015 and July 23, 2015.

After July 23 rd , it became clear that the notes he had testified about were mis-ordered and incomplete; he had to be recalled. [ 70 ] In the remaining three scheduled hearing days in October, 2014, social worker MacDonald’s testimony was completed and Dr. Penfold’s begun. Further dates were set. The case ultimately was heard, piece-meal, in February, 2015, April 2015, May 2015, July 2015, August 2015 and September 2015, November and December, 2015 and February, 2016.

Scheduling was complicated by the court’s calendar, counsels’ calendars; that said, unplanned witnesses were called by the Director and unplanned evidence led, including the s. 59 capacity report, discussed below. May 2015 - mother’s access application (s. 55(4)) [ 71 ] On April 20, 2015, K.C. filed an application for access to her child pursuant to section 55(4), noting that she had seen M.D. once in the previous thirteen months.

The application was opposed by M.D. [ 72 ] Notwithstanding this, the application was granted on very limited terms, requiring three phone calls and an in-person visit between the two in May, 2015. [ 73 ] The lack of contact between the sisters was also discussed; while no order was made with regard to the girls, Director’s counsel was encouraged to take steps to ensure that regular contact between the sisters was supported. [ 74 ] Prior to May, 2015, it appears that the Director’s view, and the view of the those associated to the Director, was that M.D.’s interaction with her sister would be negative and harmful, as it was said to be with her mother; that has turned out to not be the case and the girls appear to be rebuilding their relationship.

July 2015 - K.C. represented by counsel [ 75 ] When proceedings resumed in July, 2015, K.C. was represented by counsel, Mr. Thompson. October 7, 2015 - s. 59 parenting capacity report application [ 76 ] On October 7, 2015, after an exchange with the court, Director’s counsel applied for an order for a parenting capacity report in regard to K.C. The order was granted and Dr. Bowden undertook to prepare the report. Dr. Bowden has been a registered psychologist in British Columbia since 1988.

He has previously provided expert testimony relating to issues of child development, child abuse and parental capacity; he has authored approximately one hundred and fifty parenting capacity reports. The report in this case was delivered to the court registry on November 24, 2015. Dr. Bowden testified on November 30, 2015. K.C.’s case [ 77 ] K.C. and M. testified in December 2015, as did Carmen Williamson, M.’s Boys’ and Girls’ counsellor, who has attended some of the sisters’ visits. February 5, 2016

[ 78 ] February 5, 2016 was a date set to permit M.D. to testify if she so choose; I had indicated that some form of accommodation to reduce the formality could be discussed, in order to facilitate her testimony. In the end, M.D. chose not to testify. [ 79 ] On February 5, 2016, counsel for K.C. applied to withdraw - his legal aid funding having ended in December, 2015. The application was dismissed. Submissions [ 80 ] Written submissions were filed by all counsel in advance of oral submissions, which were made on May 20, 2016. I reserved to August 8, 2016.

In early August, counsel were contacted by the registry with regard to a number of cases reviewed by me in preparation of my decision, not referred to by counsel. I received supplemental written submissions from counsel for the Director and M.D. [ 81 ] With that background, I will now turn to the issues. D. THE ISSUES [ 82 ] The issues that arise in this case are: 1. In the context of an application for a continuing custody order, what is the point in time relevant to the determination of the child’s protection needs under

section 40 of the CFCSA ? 2. Was M.D. in need of protection on November 16, 2012, when she was removed from her mother’s care?

a) pursuant to s. 13(1)(e.) & s. 13(2) (“emotional harm caused by mother”)

b) pursuant to s. 13(h) (her mother’s inability to care for her)

c) as a result of some other consideration. 3. Is M.D. currently in need of protection? a) s. 13(1)(e.) & s. 13(2) - (as above)

b) s. 13(h) “unable” - (as above)

c) as a result of some other consideration. 4. Has the Director established that a continuing custody order must be made pursuant to section 49(4) of the CFCSA ? 5. Has the Director established that a continuing custody order should be made pursuant to section 49(5) of the CFCSA ? 6. Are there any other appropriate remedies or considerations? E. ISSUE No. 1: In the context of an application for a continuing custody order, what is the point in time relevant to the determination of the child’s protection needs under

section 40 of the CFCSA ?

The Parties’ Positions [ 83 ] The Director says that when determining whether M.D. is in need of protection under the Act , I may consider evidence relating to the circumstances at the time of removal and over the ensuing period to the time of the CCO hearing. [ 84 ] M.D.’s counsel states that, while the court may look at the protection issue over time, if I find that the child was not in need of protection at the time of her apprehension in November, 2012, the continuing custody order ought not to be made. [ 85 ] K.C. says that the removal was improper and that M.D. ought to be returned to her on that basis.

The time of the child’s removal [ 86 ] In B.B. v. British Columbia (Director of Child, Family and Counselling Service) , 2005 BCCA 46 , the BC Court of Appeal addressed the issue of whether a protection finding was required before a s. 49 continuing custody order could be granted; the court concluded that it was.

In her discussion, Huddart JA specifically refers to the date of removal as the time relevant to the protection assessment: [43] … On that application [for a CCO pursuant to s. 49], the Director must establish on a balance of probabilities the child’s need for protection at the date of removal, unless that finding has been made on an earlier application to extend a temporary custody order (s. 44).

Once the court has made that finding under s. 40, it may consider whether to make a continuing custody order , and if not, whether to return the child to the parents or to make a last chance order. (Underlining added). [ 87 ] Recently, the Court of Appeal in E.B. v. Director , 2016 BCCA 66 referred to . BB. , supra , stating:

[64] …. The concern [there] was not the initial s. 60 consent order, but rather the procedure to be followed on subsequent contestedapplications for continuing custody.

The courts held that on such a contested application, the Director must demonstrate that the child isin need of protection, and cannot rely on the earlier consent order to obviate the requirement of adducing evidence. [88] The language of E.B., supra, is the present tense, suggesting the relevant time to assess protection needs is the time of thecontested application. [89] These cases appear to support M.D. and K.C.’s position that it is the time of removal that is relevant to the protection issue inthe context of a CCO application.

The time of the s. 49 continuing custody application hearing [90] In Re: D.M.J., (BC CA), 71 BCAC 4, the BC Court of Appeal considered an order made in July, 1992; the1992 order required that the children in question remain in their grandmother’s custody, under the Director’s supervision. The appealwas not heard until three and a half years after the order was made. While the question of the need for supervision was still alive at thedate of the appeal, the protection question had become moot because of the delay.

At paragraph 5, MacFarlane JA stated: [5] Other grounds were stated in the factum filed by the appellant. In view of the delay, those other grounds are now moot. Thequestion of whether the children are in need of protection now has been resolved because counsel for the Superintendent assures us thatafter reasonably careful enquiry it is the opinion of the Superintendent that the children, now aged thirteen and fourteen, are relativelyhappy in their grandmother’s care and do not now appear to be in need of protection.

It would accomplish nothing for us to revisit thequestion of whether in law or in fact they were in need of protection three and a half to four years ago. (Underlining added). [91] In Director v. C.M. and A.C., 2015 BCPC 338, the relevant time for the determination of a child’s need for protection arose asan issue: there, the parents of children placed in foster care under the CFCSA urged that the date of apprehension was the point in timerelevant to an assessment of whether the children were in need of protection; the Director urged that the evidence available up to theCCO hearing should be considered.

Judge Koturbash concluded that the latter position was the correct one, citing D.M.J., supra. [92] Similarly, in British Columbia (Director of Child, Family and Community Service) v. J.M. & A.L., 2012 BCPC 333, a decisionrelied on by the Director, Woods PCJ states at paragraph 39: [39] The law is clear that in determining whether a child is in need of protection the court is entitled to consider evidence regardingthe circumstances prevailing at the time of removal and over the period extending from then to the time of the hearing: seeSuperintendent of Family and Child Service v.

Gilmour, [1986] BCJ No. 1793 (May 14, 1986), Vancouver No. CC851987 (BC Pro Ct),Director of Family and Child Service v. Williamson and Williamson, (April 10, 2001), Port Coquitlam No. F3980 (BC Prov Ct.) and Re:D.M.J. and R.J., [1992] BCJ No. 724 (March 30, 1992), Prince George No. 21831 (BCSC).

Evidence over that entire period will speakto, among other things, the possibility that the child will be at risk of future neglect or abuse based on the pattern revealed by theevidence of the recent and not-so-recent past. [93] In J.M. & A.L., supra, unlike here, it was the mother (J.M.) who had a history of serious mental illness, as well as a history ofillicit drug use, relevant to a consideration of protection. The time of the hearing, although no protection need at removal [94] In British Columbia (Director of Child, Family & Community Service) v.

J.C., [1997] BCJ No. 118, Humphries J considered anappeal from a decision where the Provincial Court Judge had found that the original basis for the removal was not proved, but found thatas at the time of the s. 49 application before him, the child required protection on another basis: [4] This hearing, which took place over several months between December 1995 and April 1996, resulted in an order that A, who,regardless of the abuse allegation, had developed a revulsion for her father, was in need of protection pursuant to

section 1(c.) of the oldAct (deprived of necessary care through the death, absence or disability of her parents). In fact, the Provincial Court Judge did notbelieve A and found that she had not been abused.

His order, made under s. 14 of the old Act, (now considered to be made under section49 of the new Act), provided for A to remain in the custody of the Superintendent for a period of 12 months, so that the familycounselling could take place…. [95] Given that the abuse allegations which had underpinned the child’s removal from her parents were not proven, it appears that Awas not in need of protection at the time of her removal.

However, both the Provincial Court Judge and Humphries J concluded that thatdid not end the matter: Given A’s marked negative reaction to her father at the time of the hearing, it was found that the child’s livingwith her father was “impossible at present,” (see: para. 38). [96] A’s mother had had only supervised access to A and her sister, B, since their apprehension, over two years earlier; A’s fatherhad had no access at all to his children over the two-plus years, (para. 3).

Humphries J observed that there was no evidence of A’snegative relations with her parents before her apprehension: [43] The reaction itself [that is, A’s reaction to her father,] exists regardless of its cause. On the evidence presented to the ProvincialCourt Judge, her reaction is severe, and so far appears irreconcilable. It is interesting that there was, as far as I can see, no evidence ofany problems with A’s relationship with her parents before the apprehension, but her expressed reaction to her father has been consistentsince.

There has, of course been no real opportunity to bridge the gap during the intervening period. In fact, almost two and a half yearshave passed during which A has continued to express her wish not to have anything to do with her father and during which she has notseen him. [97] Notwithstanding that this severe negative reaction to her father did not exist at the time of A’s apprehension, Humphries J foundthat it could support a finding of a need for protection under the legislation, existing, as it did, at the time of the application.

[98] In S.F. v. The Director of the Child, , MacAulay J applied J.C., supra, to a case where the Provincial Judge, atthe CCO hearing, had found that the protection concerns alleged at the time of apprehension (physical abuse) had not been proven, butdid find that, as at the time of the hearing, the mother was unable to care for the children as a result of estrangement (s. 13(1)(h)).

Withthis concern current, both levels of court approached the protection issue as not restricted to the time of apprehension. [99] In Re: S.A., A.S. & A.S., 1999 BCCA 356, a temporary order case, the protection hearing judge found no physical abuse, asalleged at the time of the apprehension, but did find that the children were estranged from their parents at the time of the application. The Court of Appeal did not limit the consideration of protection to the time of removal in the circumstances.

Discussion [100] Subsections 40(1) - (3) govern protection hearings; the provisions require the court to determine whether the child needsprotection.

The statute uses the present tense; thus, on a plain reading, the relevant time for the determination is the time of theprotection inquiry by the court. [101] In Re: S.A., A.S. & A.S., supra, MacKenzie JA confirmed that the statutory objective of the CFCSA is to have determinationsregarding children be made in a timely way, which would, in practice, make the time of removal relevant to the protection issue, becausethere would not have been intervening, impactful delay: [18] These children were taken from the custody of the mother on 30 June 1996.

The protracted proceedings make a mockery of thestatutory objective that decisions related to children should be made and implemented in a timely manner…. Lengthy delays in casesinvolving children can make a status quo practically irrevocable. They reinforce existing attachments of children by the simple passageof time.

This case is a sad commentary on the failure to provide timely resolution of child protection disputes, a concern I note was alsoexpressed by this Court in A.E. [102] J.C., supra, S.F., supra and Re: S.A., A.S. & A.S., supra, were decided before B.B., supra, and E.B., supra, and all threeconsidered facts relating to delay not present in those latter appellate cases. The case before me is factually most similar to those firstthree cases involving delay. Conclusion Re: Issue No. 1 [103] When a protection finding is sought swiftly following a child’s removal, (as mandated by

section 37 of the CFCSA), anassessment of a child’s protection needs as of the time of apprehension makes sense: presumably such a limited assessment wouldencompass a consideration of the child’s current needs, as well, since time would not have passed to such an extent that the child’soriginal needs were materially impacted. [104] Where, however, that swift determination does not occur, the child’s needs as at the time of removal may no longer coincidewith her current protection needs. In such a case, and given the mandate of

section 2 of the CFCSA that the paramount considerations ininterpreting the Act be the child’s safety and well-being, I am satisfied that current protection needs must also be considered; at least inthe context of a CCO application such as this, where the determination of a protection need has been delayed for years. [105] The time relevant for an assessment of the child’s protection needs is both the time of her removal and the time of theapplication, in such a case. [106] As a result, M.D.’s protection needs in relation to her mother must be assessed, both at the time of the child’s removal and now. F.

ISSUE No. 2: Was M.D. in need of protection on November 16, 2012, when she was removed from her mother’s care? The Parties’ Positions [107] The Director acknowledges that when K.C. brought M.D. to the hospital on November 5, 2012, there were no grounds forM.D.’s apprehension, in the Ministry’s view: It was Dr.

Chow’s assessment that M.D. needed protection which the Director relied uponin deciding to remove the child; the Director says that this reliance was proper, particularly given the paramountcy of child safety. [108] Citing S(B), supra, the Director says that the starting point for a determination of whether a child needs protection is a“consideration of the safety and well-being of the child… The function of the Judge [is] to decide whether, having regard to the safetyand well-being of the child, the child should remain in the custody of its parents” (citing paragraph 17).

I note that in this case, the factsare more akin to a determination as to whether the child should remain in the custody of the Director, given the years that M.D. has beenin foster care. [109] Counsel on behalf of M.D. submits that the Ministry acted in good faith, relying on Dr.

Chow’s expert opinion, and that this issufficient to establish that M.D. was in need of protection at the time of removal. [110] K.C. says that the evidence does not establish that M.D. was in need of protection when she was apprehended in November,2012: K.C. says that the evidence demonstrates a misapprehension of M.D. and K.C. by the psychiatrist who recommended the child’sapprehension, not a basis, in fact, for the apprehension; further, she says that the evidence demonstrates a failure by the Director to re-evaluate M.D.’s need for protection from her mother when her mother’s concerns were, in large part, validated by M.D.’s behaviour inDecember, 2012, while the child was in foster care. 2.

Discussion [111] Dr. Chow is the sole source of evidence that M.D. needed protection from her mother at the time of her removal: I have

considered Dr. Saari’s Consult Report written by her after she dealt with K.C. around three o’clock in the morning on November 6, 2012; I did not have the benefit of Dr. Saari’s testimony; the report is hearsay, based on a brief interaction that, on K.C.’s description, did not go well between the two; its probative value with regard to M.D.’s actual protection needs is low. Dr. Wicholas’ December 2012 and February 2013 reports do not identify K.C. as harmful to her child. Dr. Penfold testified that she could not say that K.C. caused M.D.’s February 2013 diagnosis - complex PTSD. Dr.

Bowden was of the view that M.D.’s issues are organic, not environmental. [ 112 ] Given the Director’s reliance on subsections 13(1)(

e) and (h), this issue of M.D.’s protection needs at the time of her removal requires a determination of the following questions: Does the evidence establish that: (

i) M.D. was emotionally harmed by her mother’s conduct (s. 13(1)(e))? or that (ii) her mother was unable to care for her or had not made adequate provision for her care, (s. 13(1)(h))? or that (iii) M.D. was, for some other reason, in need of protection from her mother sufficient to justify her removal from her mother’s care? (

i) Was M.D. “emotionally harmed” by her mother’s conduct as at November, 2012? (s. 13(1)(e)) [ 113 ] This first question requires two determinations: (

a) was M.D. “emotionally harmed?” and, (

b) if so, was her mother’s conduct the cause? (See: J.C. , supra, @ para. 34). (

a) Was M.D. “emotionally harmed” as at November, 2012? [ 114 ] Given the language of subsection 13(2), the inquiry as to whether M.D. was emotionally harmed engages an assessment of the evidence to determine if M.D. “demonstrated severe (

a) anxiety, (

b) depression, (

c) withdrawal or (

d) self-destructive or aggressive behaviour” at the time of her removal. The significant evidence on this point comes from K.C., Dr. Chow, Dr. Wicholas’ reports, and from Tara Dolan. Discussion K.C. - Re: M.D., as at November 5, 2012 [ 115 ] K.C. testified about her daughter’s state on November 5, 2012 and leading up to that date. Some of her evidence is corroborated, as discussed below. I found K.C., generally, to be a credible witness. [ 116 ] M.D. was ten years old in November, 2012. Her sister, M., was twelve. They lived with their mother.

M.D. was in a special learning class, aimed at supporting her needs, particularly her aggression; she was the only girl in the class, which was of concern to her and her mother. [ 117 ] M.D. had been experiencing rages for some time before November 5 th , especially after participating in a programme called “Super Flux,” which focused on identifying and coping with emotions.

K.C. described M.D. throwing objects, smashing things and assaulting K.C. and her sister; she testified that M.D. screamed and grunted “like she was not there.” [ 118 ] On November 5 th , M.D. had had problems at school and, once home, had gone out of control, grunting and screaming, trying to grab sharp objects and threatening to kill herself. K.C. said she had never seen anything like it before. She said she sent M.D. for a time-out. She called Dr.

Behrmann, the paediatrician that M.D. had seen before, but was told that she needed a referral from their GP; she called the GP and made an appointment for the following day, November 6 th ; she called the woman who worked with M.D. at the Super Flux program, asking for help with M.D., but the woman did not answer, so she left a voice mail. She called Adrianna Johnson (a counsellor at Deltassist) and left a voice mail on her phone. She then called social worker MacDonald; it was now about 4 pm. He was planning on leaving the office, but said he would put her in touch with MCFD “After Hours”.

She testified that at one point during the evening she stopped M.D. from strangling herself; that M.D. had taken a large butcher knife and referred to stabbing; that while she was on the phone to Mr. MacDonald, M.D. took stickers and was sawing her wrists; that she banged her head into the fridge, walls and china cabinet; that she appeared to settle down a bit but then took her shoelaces and was tying them around her neck while K.C. tried to call Mr.

MacDonald back. [ 119 ] Social worker MacDonald’s notes for November 5, 2012 record an after-hours call from K.C.: she is “at her wit’s end”; M.D. has been raging since the previous Friday; has been assaultive to her mother and her sister; has threatened to kill them and herself and had hidden one of her mother’s large kitchen knives. According to K.C., she had been aggressive at school as well. K.C. had called the paediatrician’s office, but would not be able to get in there for weeks. He notes that K.C. presents as “overwhelmed, exhausted and very frustrated.” [ 120 ] Mr.

MacDonald also notes that K.C. is “aware of the services at Children’s Hospital” and is also aware that “After Hours may be able to have someone attend the home to help keep the peace for the evening”. [ 121 ] K.C. testified that she called After Hours and they said they would call her back regularly, to see if M.D. could calm down. M.D. settled down and while things were calmer, K.C. made dinner, of which M.D. ate little. She suggested M.D. take a shower, something that soothed M.D.; this occurred without incident and M.D. put on her pyjamas and asked to watch a movie.

It appeared that the raging behaviour was over, so K.C. called After Hours and said that M.D. had calmed down. After about twenty minutes, she left the room and returned to find M.D. playing with the butcher knife - the one she had hid; K.C. removed it from her. Around 7 pm, she found M.D. in the bathroom, trying to shave her head. The child started banging her head on the wall repeatedly. K.C. suggested a walk outside, as a distraction.

They walked to a park where M.D. banged her head into the metal poles at the park entrance; appeared to try to jump off a high staircase platform and then ran into the road in front of a car. K.C. carried M.D. back home. Once home, M.D. began smashing things and told her mother that when she was asleep, she was going to stab her to death.

[ 122 ] K.C. called After Hours again, and told them that the situation was worsening and that she did not know what to do. The recipient of the call told her to call an ambulance and go to Children’s Hospital. She told the worker that she had another child at home with a head injury, who she could not bring. Arrangements were made for someone from MCFD to attend the house to stay with M. Once the woman arrived, K.C. called the ambulance.

By then, she testified that it was close to 10 pm and that M.D. was starting to burn out. [ 123 ] The ambulance arrived, along with Delta Police, and K.C. and M.D. went to BC Children’s Hospital. [ 124 ] K.C. testified that Dr. Saari, the psychiatrist who first dealt with the case at the hospital arrived at around three in the morning, stating to the effect that she was not pleased at having been called in for the case and suggested that M.D. be given sedatives and discharged to see how she did. K.C. was not in agreement with that approach and told the doctor that. The Consult Report dictated by Dr.

Saari at 4 a.m. was filed at this hearing. It indicates that Dr. Saari has concerns about K.C.’s ability to cope with the social stressors of the family at that time. [ 125 ] Dr.

Chow then took over the case around ten o’clock the following morning. [ 126 ] Before reviewing his evidence, I will briefly examine evidence that corroborates K.C.’s description of M.D.’s behaviour: (i). a report to MCFD by one of M.D.’s teachers, prior to November 2012, states that M.D. smashed her head into the concrete floor at school; (ii) hospital notes between November 6 - 16, 2012 record the child hitting her head against a desk and against hospital walls, (on one date, noting a “goose egg”); (iii) M.D.’s statements to Dr. Chow that she had threatened to kill people, (Dr.

Chow discounted the accuracy of these statements, because they are inconsistent with his expectations of a ten year old, but fit the Munchausen by Proxy theory in relation to K.C., which I find he was receptive to); (iv) M.D.’s subsequent dysregulations, most notably on December 12, 2012, (discussed in detail, below) and October 2013 and July 21, 2014, as well as other lesser episodes. Dr.

Chow [ 127 ] The BC MCFD Care Plan dated September 26, 2014, describes the “Reasons for [M.D.’s] Admission to Care” on November 16, 2012 as follows: M.D. was removed from her mother’s care subsequent to the recommendation of a CAPE Unit psychiatrist after he and his staff made observations of the mother as well as the mother and child together. [ 128 ] Dr. Chow is the CAPE Unit psychiatrist referred to in this Care Plan. “CAPE” stands for “Child and Adolescent Psychiatric Emergency.” [ 129 ] As of late 2012, Dr.

Chow had been a staff psychiatrist at BC Children’s for one and a half years; he is a child psychiatrist, having completed his general psychiatry and child psychiatry residences at UBC in 2011. [ 130 ] He described the CAPE Unit as a jail-like setting; secure, so that the patients the unit receives have a minimal opportunity to hurt themselves. He testified that there are only five beds on the unit and that this part of the children’s hospital is where the province’s most mentally troubled children are received. He testified that by November 2012, he had seen many mentally ill children.

In his view, M.D. was not one of these. [ 131 ] Some of the bases for this view have since been shown to have less significance for this particular child: for example, Dr. Chow found M.D.’s sleeping on the CAPE Unit upon her admission was inconsistent with a child who had tried to kill herself recently “fourteen times,” as described by K.C. It is clear, on the evidence, that it is not unusual for M.D. to be fatigued after her dysregulation.

Similarly, he found her flat affect inconsistent with such behaviour; this, again, turns out to be how M.D., at times, presents, after a ‘rage.’ [ 132 ] He also found the lack of evidence of physical injury to be inconsistent with K.C.’s descriptions of M.D.’s attempts at self-harm.

This is significant, because the evidence shows that M.D.’s “suicide attempts” are, for lack of a better word, muted: she has simulated wrist-slashing, using a folded paper towel (at Deltassist) and with stickers (at home on November 5, 2012); she has simulated strangulation using a sock, which did not cause much concern on the hospital unit.

In one of the reports from M.D.’s teacher to MCFD, before her apprehension, the teacher describes M.D. as “attention seeking.” In the November 11 th Nurses’ Notes there is reference to an outburst by M.D. (when her mother was not present); the nurse records that M.D. stopped (lightly) banging her head on the wall and looked at hospital staff. [ 133 ] Dr. Chow advised MCFD that in his view, M.D. was likely mentally well and healthy. [ 134 ] He testified that one of his tasks on the CAPE Unit was to identify the cause of a child’s attendance there.

He said the process was one of “funnelling down” possible causes and that, once he determined that M.D. was not suffering from some intrinsic mental illness, he was left to look at her environment, including her school and family. Ultimately, he concluded that K.C. was the problem: he was of the view that she was grossly exaggerating, or outright lying, about M.D.’s condition: put simply, he was of the view that K.C. was trying to convince health professionals, and perhaps M.D., herself, that the child was mentally unwell when, in fact, the child was not. In his view, such behaviour was abusive.

Severe anxiety, depression, withdrawal -ss. 13(2)(a), (b) & (c)

[ 135 ] In November 2012 Dr. Chow was of the view that M.D. was not suffering from anxiety or depression and there is no evidence before me of her severely withdrawing; thus, these three bases referred to in subsection 13(2) of the CFCSA for concluding that M.D. was emotionally harmed are not established on the evidence. Severe self-destructive or aggressive behaviour - s. 13(2)(d) [ 136 ] Dr.

Chow concluded that any incidents of M.D.’s self-destructive or aggressive behaviour, “alleged” (his word) by K.C., including M.D.’s head-banging, were of little clinical significance because she was never in any real risk of injury. Given the setting, this is perhaps understandable. [ 137 ] In his letter of November 13, 2012 to MCFD recommending M.D. (and her sister’

s) removal from K.C.’s care, Dr. Chow writes that M.D. appeared to be “a well, if slightly disinhibited young girl” and did not exhibit any symptoms of a mood or anxiety disorder. [ 138 ] Dr. Chow’s views are inconsistent with a finding that M.D. demonstrated “severe self-destructive or aggressive behaviour” as at the time of her apprehension, such as would support a finding that she was “emotionally harmed” within the meaning of subsections 13(1)(

e) and 13(2) of the Act . [ 139 ] Ultimately, he diagnosed M.D. with Reactive Attachment Disorder, disinhibited type, and recommended the child’s removal from her mother’s care, with some possible follow up by the community mental health team. Dr. Wicholas [ 140 ] Dr. Wicholas treated M.D. when the child was re-admitted to BC Children’s Hospital for psychiatric assessment following her dysregulation on December 12, 2012 (described below), from mid-December 2012 to her discharge on February 1, 2013.

In her report signed February 20, 2013, the psychiatrist describes M.D.’s head-banging as “self-harm behaviour.” Conclusion [ 141 ] I accept K.C.’s evidence with regard to M.D.’s behaviour, set out above; it is clearly aggressive and has the appearance of being self-destructive. I have also reviewed and considered the evidence of Dr. Chow, and his assessment that M.D. was not seriously at risk of harming herself; this is discussed further, below. That said, I agree with Dr.

Wicholas that head-banging is “self-harm” and am satisfied that M.D. engaged in the harmful behaviour repeatedly, at home on November 5, and at hospital. I have reviewed the hospital notes filed at this hearing relating to M.D. for November 6 - 12, 2012. I have, as well, considered the evidence relating to M.D.’s dysregulation on December 12, 2012, when she appeared to dissociate, (as described by Ms. Dolan), discussed in detail, below. [ 142 ] Having considered all of the evidence, I am satisfied that M.D. demonstrated severe self-destructive and aggressive behaviour in November, 2012.

As such, she was “emotionally harmed”, within the meaning of s. 13(1)(

e) of the CFCSA , when she was removed from her mother’s care. (ii) Does the evidence establish that M.D.’s emotional harm was caused by her mother? Parties’ Position [ 143 ] Director’s counsel points to Dr. Chow’s opinion that K.C. was harmful to M.D., stating that it was the basis for the conclusion that M.D. needed protection from her mother and the basis for the child’s removal on November 16, 2012. It appears that it remains the Director’s position that K.C. had caused M.D. emotional harm, as of her apprehension and that Dr.

Chow was correct that K.C. was harmful to her child. [ 144 ] Counsel for M.D. says that reliance should be placed on Dr. Chow’s opinion that M.D. needed protection from her mother; that K.C. was the cause of harm to the child. [ 145 ] K.C. says that the evidence does not establish that she harmed M.D. She says that Dr.

Chow’s opinion on the point does not supply the necessary evidentiary base for such a finding: she submits that the doctor was biased against her from the outset when he dealt with her in November, 2012; that he relied upon unreliable hearsay to found his opinion; that he was receptive to the idea that she was the problem; that he discounted events recorded in hospital notes; that he failed to revisit the foundation for his views about K.C. (and thus, M.D.’s need for protection from her), when M.D. was readmitted to the psychiatric ward a month later, exhibiting many of the behaviours claimed by K.C. and discounted; she says that he offered unreliable testimony at this trial.

Discussion [ 146 ] Distilled, Dr. Chow’s conclusion that K.C. was harmful to M.D. was based on his view that K.C. was falsely describing M.D.’s aggressive and destructive behaviour, presumably for some unhealthy purpose. At the hearing, Dr. Chow stood by this view, notwithstanding that M.D. has dysregulated and behaved aggressively and self-destructively since November 2012, much as described by K.C.: For Dr.

Chow, his recollection of K.C. saying that M.D. had smashed her head “100 times,” was clinically more significant than the fact that M.D. had smashed her head, repeatedly - although likely not one hundred times. Dr. Chow maintained that K.C. describing M. having attempted to kill herself fourteen times, as reported in Dr. Saari’s Consult Report, reveals K.C. to be exaggerating in a manner detrimental to M.D. [ 147 ] Hospital notes dated November 9, 2012 record social worker MacDonald describing K.C. as “crazy-making;” to hospital staff. Dr. Chow testified that he believed Mr. MacDonald to mean this, literally.

On November 9, 2012, the doctor recorded “a well child,

victim of family situation/parenting. New collateral is suspicious for Munchausen by proxy,” (underlining in notes). While he did not examine K.C. and thus could not diagnosis her, he was of the view that K.C. was engaged in false-reporting of M.D.’s “alleged” homicidal and suicidal behaviours and that this was abusive; not having her attend school satisfactorily was, in his view, abusive, and bringing her to the hospital in November - flu season- was not something a responsible parent would do, unless there was something seriously wrong with the child, which he did not accept. [ 148 ] Dr.

Chow has never said that in his view M.D. required protection from K.C. as a result of physical abuse, such as beatings, locking the child up or anything of the sort. [ 149 ] Dr. Chow testified to the effect that concerns about abuse based on fabrications of symptoms would be seriously allayed if the reported symptoms turned out not to be false. [ 150 ] There are two significant areas of evidence relevant to a determination of whether Dr.

Chow was, in fact, correct that M.D. needed protection from her mother because of her false reporting: the first is his letter to MCFD recommending M.D.’s removal; the second relates to M.D.’s behaviour shortly after her discharge on November 16, 2012. November 13, 2012 letter to MCFD recommending removal [ 151 ] In his letter to MCFD recommending that M.D. be removed from K.C.’s care, Dr. Chow sets out examples of K.C.’s statements said to support his conclusion that she was lying about M.D.’s behaviour. I will address two of these examples in some detail: M.D.’s head-banging [ 152 ] Dr.

Chow writes in his November 13 th letter: M.D.’s mother also alleged that M.D. has struck her head against the wall several times in an attempt to kill herself.

Our nurses observed that she had struck her head against her hands softly, but certainly this was not construed as a suicide attempt. [ 153 ] The hospital notes and records filed in evidence do not appear to contain any reference to M.D. having struck her head against her hands, softly or otherwise; there are, however, references to M.D. having struck her head against walls and a desk at the hospital, as well as background inquiries noted with reference to her smashing her head on the concrete floor at school, contained in “collateral” information: November 7 - Nurses’ Notes: Patient’s mother entered room when patient was banging her forehead on her walls .

Patient attempted to kick, punch and bite her mother. Staff intervened to promote safety…. November 9 - Hospital History & Progress notes: re: a conversation with M.D.’s teacher includes: “ Head banging on concrete floor in times of high distress. Has to be restrained…” November 10 - Nurses’ Notes: Child crying quietly, then began to hit her head against the side of the desk ; November 11 - Nurses’ Notes 3 pm: -- secluded this AM after unwilling to clean up crafts mess… was hitting out at staff. Patient reports “things worse than you’d expect.” [Downward arrow drawn] mood after seclusion period.

Hit head against wall (no medical concern - L. sided goose egg). (All underlining added). [ 154 ] Dr. Chow testified that he would expect to see injury if M.D. was engaging in the behaviour described by her mother; as noted above, the Nurses’ notes of November 11, 2012 at 3:00 pm note a “goose-egg” on the left side of M.D.’s head, apparently from smashing her head against the wall. [ 155 ] Dr.

Chow testified that in a meeting with K.C. on November 9 th , she had said that M.D. had hit her head “a hundred times” on November 7, 2012 and that this statement was relevant to his assessment that she was fabricating or exaggerating M.D.’s behaviour. K.C. says that there is no reference to “one hundred” in the hospital notes and that I should approach this specific evidence with caution.

I agree that the hospital records do not appear to refer to K.C. saying that M.D. had hit her head any specific number of times. [ 156 ] In any event, the doctor was of the view that K.C. grossly exaggerated her daughter’s head-banging behaviour and that these exaggerations were of significant concern to him; he noted that the hospital records indicate that M.D. was never at risk of real harm. [ 157 ] The doctor’s statement in his letter to MCFD about M.D.’s head-striking is simply not borne out by the hospital notes; his complete discounting of K.C.’s concerns about this distressing behaviour by her daughter is inexplicable, but for the evidence that suggests that on the scale of self-destructive behaviour the doctor is used to dealing with, M.D.’s was on the very low end.

That said, given the hospital notes and records, I conclude that his description of M.D.’s head-banging behaviour in his letter to MCFD is inaccurate. [ 158 ] I find as a fact that M.D. repeatedly struck her head on hard surfaces while at BC Children’s Hospital between November 6 - 16, 2012 and that, while likely fewer than one hundred times, even if she said that number, K.C. was appropriately concerned and appropriately raised her concerns.

No blood/no such event occurred [ 159 ] In his letter to MCFD, Dr. Chow also writes: On one occasion, M.D.’s mother claimed that M.D. had stabbed herself with a concealed pen and spilled blood “all over the place.” M.D. has been under close observation throughout her stay, and no such event occurred. She was uninjured. [ 160 ] The quote attributed to K.C., apparently reported by MCFD is triple hearsay and K.C. testified that she did not say there was blood “all over the place.” In any event, Dr.

Chow testified that there was no blood on the CAPE Unit involving M.D.; he testified that the presence of even a small amount of blood on the psychiatric unit would be of significance and noted: …[i]t would be fair to say too on -- on such a closed and closely monitored unit if there was blood anywhere on the unit that someone would have commented on it. ‘Cause again this being a hospital blood would be a very conspicuous thing to see, especially in this particular part of the hospital.

I mean, if it’s in the emergency department in the trauma ward where we see car accident victims, sure, some -- a spot of blood here, there is not going to -- not going to cause any concern, but even one spot of blood on a mental health unit is very serious and cause for alarm , (T: July 23/15 @ p. 29, ll. 7-19, underlining added). [ 161 ] Notwithstanding the doctor’s adamant stance that there was not even a spot of blood on the unit, the November 7, 2012 hospital Progress Notes record the presence of blood on the unit: …. there was actually no blood except a pin size prick .

M. who was visiting asked to stay outside so she wouldn’t see the drama and the “blood.” (Underlining added). [ 162 ] A BC Children’s Hospital Mental Health Overflow/Off-Service Form dated November 9, 2012 notes under “Risk Assessment” indicators for the following: Self-injury: stabbing self with fork, pen, controlled head banging; aggression, physical, verbal, homicidal ideation. [ 163 ] The Nurses’ Notes for November 7 th , at 2000 hours read that M.D. stated: “s omeone stabbed me in the leg ….” [ 164 ] I find as a fact that there was blood on the unit, in relation to M.D., on November 7, 2012, albeit, not a lot.

I also find that some event akin to her stabbing herself or poking herself occurred. Given Dr. Chow’s testimony of the significance of blood on the CAPE Unit to him, it is not surprising that the incident was of concern to an untrained parent such as K.C. [ 165 ] Taking all of the evidence above, together, I am satisfied that Dr. Chow was wrong when he advised MCFD that nothing of the like occurred and that K.C. had, in effect, fabricated it all. [ 166 ] I am satisfied that the evidence establishes that the events of November 7, 2012 relied upon by Dr.

Chow and referred to in his letter do not provide a basis to support a conclusion that K.C. was a cause of emotional harm to M.D. Other [ 167 ] In his Discharge Report of November 16 th , Dr. Chow writes: M.D. asked to be locked into her own room in the hospital so as to avoid her mother’s presence. She seemed afraid that she would be harmed by her mother .” In his letter to MCFD recommending M.D.’s removal, however, Dr. Chow writes that M.D. had asked hospital staff to “lock her in her room to prevent her mother from visiting her. She was afraid that she would be harmed by her mother .” (All underlining added).

Dr. Chow was not present at the incident described. His description of M.D. fearing her mother as set out in the letter to MCFD is a positive statement, less tempered than the description of the same event in the Discharge Report. [ 168 ] There is also reference in the letter to K.C.’s allegedly telling hospital staff that M.D. had tried to choke her; Dr. Chow writes that nothing like this happened and that K.C. and her daughter were under observation at all times. He was adamant about this event, in his testimony. K.C. denied it, as described by him. I am not satisfied of the reliability of Dr.

Chow’s recollection or

interpretation of events involving K.C. and M.D. such that I rely on this event in an assessment of K.C.’s potential harm to M.D. [ 169 ] In the letter, Dr. Chow indicates that there is very little mother /daughter attachment; he writes that M.D. and her sister could be at risk of reprisal from their mother, as well as emotional abuse and neglect. Dr.

Chow appeared to disregard indicia of a positive relationship between M.D. and her mother and, as well, could not provide a reasonable basis to suggest that M.D. and her sister were at risk of “reprisal” from their mother. [ 170 ] I will discuss one final point in Dr. Chow’s letter recommending M.D.’s removal, because of its significance to an assessment of K.C.’s actions in relation to her daughter and whether they were harmful: Dr.

Chow notes, as a basis to view K.C. as detrimental to M.D., her advocating for her daughter’s diagnosis and treatment: She continues to insist that something is wrong with her daughter. She insists that we somehow treat her daughter for an alleged psychiatric illness, which quite frankly I am unable to find. She is telling me that she will not take her daughter home because she feels that she will either kill herself or kill one of the other family members. She insists that M.D. stay in the hospital until we find something wrong with her.

I feel that she will be very likely disappointed. [ 171 ] He then writes: I do not think it is safe for M.D. to be discharged to the care of her mother. It ( sic ) think it would be more appropriate that M.D. live

elsewhere with a responsible caregiver until her mother can adequately explain her actions and make a concerted effort to revise her parenting methods….. [ 172 ] As discussed below, M.D. was re-admitted to BC Children’s Hospital just a month later, as a result of her exhibiting self- destructive and aggressive behaviour in December, 2012, much as described by K.C. and discounted as false in November 2012. The child was kept in the hospital for six of the next eight weeks, for assessment - just what her mother was seeking the month earlier. [ 173 ] At the hearing, Dr.

Chow testified that his view that K.C.’s exaggerations and approach to M.D. in November, 2012 had been harmful to the child was not altered by the December 2012 events. Post-November 2012 Behaviour [ 174 ] On December 12, 2012, while at the Deltassist office, M.D. dysregulated: she assaulted workers there; she simulated or took steps to strangle herself with a fabric towel; she smashed her head against the floor; she simulated wrist-slashing with folded paper towels; she bit herself and she bit a worker. She had to be restrained.

The police and ambulance services were called. [ 175 ] In Tara Dolan’s view, she dissociated. This is the same behaviour, more or less, that K.C. described, which was viewed as false. This time, however, it was taken very seriously by MCFD and health professionals. As noted above, M.D. spent many weeks in hospital, being assessed on the psychiatric ward. Dr. Wicholas [ 176 ] Dr. Wicholas was the next psychiatrist to deal with M.D.: she assessed and treated M.D. while M.D. was on the BC Children’s Hospital P1 Unit from December 12 - 21, 2012 and January 2 - February 1, 2013.

This is the unit that K.C. had futilely advocated M.D. go to in November, for assessment. Dr. Wicholas did not testify, but a number of her reports were filed. Wicholas Report Re: December 12, 2012 - December 21, 2012 [ 177 ] On December 12, 2012, when M.D. was returned to BC Children’s Hospital as a result of her aggressive and self-harming behaviour at Deltassist, described above, the diagnosis on admission was “Reactive attachment disorder, disinhibited subtype,” (Dr. Chow’s diagnosis from November). [ 178 ] In Dr.

Wicholas’ report covering the period December 12 to 21, 2012, she writes: Over the last couple of months, M.D.’s mother had been reporting that M.D. was having suicidal ideation. School had also apparently reported that M.D. had voiced suicidal ideation over the last couple years. In November of 2012, she was brought to the BC Children’s Hospital Emergency Room for suicidal ideation by ambulance. Her mom disclosed that she had been violent and voicing suicidal ideation.

During her stay in CAPE, MCFD was involved in an investigation and this resulted in apprehension and placement in A. and B.’s care following discharge. [ 179 ] This passage suggests that Dr. Wicholas accepts K.C.’s reporting of M.D.’s suicidal ideation, corroborated by the school’s reports; she seems to accept that the reported suicidal ideation for which M.D. was brought by ambulance in November 2012 was real. This view, clearly, is at odds with Dr. Chow’s view, upon which MCFD relied to remove M.D. [ 180 ] The passage also suggests that Dr.

Wicholas was under the impression that MCFD was involved in an “investigation” which resulted in M.D.’s apprehension, rather than MCFD’s relying on Dr. Chow’s opinion that the suicidal ideation voiced by K.C. and other concerning behaviours were false or grossly exaggerated. [ 181 ] In her report, Dr. Wicholas describes behaviour by M.D. in December 2012 similar to K.C.’s description of her child’s behaviour in November, 2012: [ 182 ] MCFD received a copy of Dr.

Wicholas’ report. [ 183 ] During M.D.’s stay in hospital in December 2012, hospital staff focused on assessing triggers that may lead to M.D.’s emotional and behavioural dysregulation. These were identified as including: i. peer interactions; ii. expressions of care or closeness by others; iii. other children having visits from their parents when she did not: “This quickly erupted in emotional behaviour dysregulation with yelling and physical aggression,” and iv.

M.D. wanting to go “home.” [ 184 ] Given the evidence of M.D.’s upset at K.C. and M. leaving visits early on in her apprehension, I am satisfied that M.D., at this point, was referring to returning to K.C.’s home - not foster care. [ 185 ] There is no reference to K.C. being the cause of M.D.’s aggressive and self-harming behaviour. [ 186 ] Dr. Wicholas’ diagnosis upon M.D.’s interim discharge on December 21, 2012 was: Complex post-traumatic stress disorder (“Complex PTSD”) Query Attachment disorder disinhibited type

Query ADHD combined type Rule out learning disabilities [ 187 ] When the hospital ward took a break over Christmas, 2012, M.D. was returned to the foster home, not to her biological family; on January 2, 2013, she was returned to the P1 assessment unit for continued assessment arising from her aggressive and self-destructive behaviour exhibited on December 12, 2012. Wicholas Report Re: January 2, 2013 - February 1, 2013 [ 188 ] Dr. Wicholas authored a second report filed in evidence which discussed M.D.’s stay at P1 from January 2 - February 1, 2013.

In the report, she writes: During M.D.’s first week in hospital there were some episodes of severe dysregulation that could be triggered by minor events such as the TV being turned off or an internal emotional state such as missing home . These times of dysregulation escalated to the point that she was physically aggressive to property as well as others and herself . It appeared that she could quickly go into what seemed like a fight or flight response and disassociate whereby she was rocking and chanting to herself.

She would stare with an extremely frightened look in her face and eyes, and could not be calmed by adults’ attempts to verbally reassure that she was safe. In fact, attempts to speak to her and calm her at these times resulted in more agitation and self-harm behaviour (rocking and head banging ). It was necessary for staff to step outside of her visual field and quietly wait outside the door until she calmed herself down. (Underlining added for emphasis). [ 189 ] The discharge diagnosis in this report, after M.D. had been assessed for six weeks in P1, was: Complex PTSD ADHD Query attachment disorder

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