DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2020 BCPC 4

Citation: British Columbia (Child, Family and Community Service) v. M.M. 2020 BCPC 4 Date: 20200108 File No: 7611 Registry: Vernon IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: A.D. , born [omitted for publication] J.D., born [omitted for publication] A.L.D., born [omitted for publication] L.D., born [omitted for publication ] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: M.M. PARENT AND: L.M. PARENT AND: A.B. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.

HEWSON Counsel for the Director: Dan Poulin Counsel for the Parent M.M.: Courtney Simmons No one appearing for the Parent: L.M. No one Appearing for the Parent: A.B. Place of Hearing: Vernon , B.C.

Dates of Hearing: November 12, 13, 14, 15, 20, 21, 25, 28, December 9, 2019 Date of Judgment: January 8, 2020 Introduction Nature of the Case [ 1 ] This case is about four young boys and their mother. The boys’ names are A.D., J.D., A.L.D. and L.D. Their mother’s name is M.M. All four boys have high needs, particularly J.D. and A.L.D. Their high needs make parenting difficult. When all four boys are together, the situation is frequently described as chaotic. [ 2 ] They were removed from L.M.’s home most recently on September 16, 2019. She has not seen J.D. or A.L.D. since that date.

A.D. and L.D. were returned to her care on September 20, 2019. Positions of the Parties [ 3 ] M.M. loves her boys, and wants to be a parent to all of them. She would like J.D. and A.L.D. to be returned to her, and to be provided enough support that she can raise all four of her children herself. [ 4 ] The Director would like to take J.D. and A.L.D. into continuing custody, leaving A.D. and L.D. with M.M. General Outline [ 5 ] Counsel for M.M. and counsel for the Director made every effort to present their cases in an efficient, logical manner.

Those efforts included the preparation of an Agreed Statement of Facts and a Joint Book of Documents. Nevertheless, the volume and complexity of the evidence requires a careful review. [ 6 ] This ruling will be broken into parts. First, I will introduce the people involved and the background of the case, including the procedural history and the issues to be resolved. Next, I will review the testimony generally, and identify the applicable law. After that, I will identify the needs of each of the four children, and review M.M.’s ability to meet those needs.

I will discuss M.M.’s parenting plan, as well as the plan presented by the Director. Finally, I will make the findings necessary to answer the questions raised. Overview Parents and Children [ 7 ] The people in this case are important, and require short introductions. More details about each person will be provided, where relevant, later in this ruling. M.M. [ 8 ] M.M. is thirty years old. She was born in Vernon. Her mother is S.H. M.M. had little contact with her biological father. Her stepfather was C.H. She had two brothers. S.H. and C.H. were involved in Vernon’s drug subculture.

They provided little parenting or family structure. M.M. described herself and her siblings as “free run children”. [ 9 ] When M.M. was eleven years old, her mother left C.H., and moved to [omitted for publication]. M.M. described herself as a defiant teen, who hated authority. She said that she had no self-control. Soon after the move to [omitted for publication], her mother dropped M.M. off at a youth shelter. She lived in at least six foster homes. She used alcohol, ecstasy, and powdered and crack cocaine. [ 10 ] She was seventeen when she gave birth to A.D. A.D.’s father assaulted M.M., and was incarcerated.

Shortly after that, around February 2010, M.M. moved back to Vernon. She hoped to have a new start. About a year after she returned to Vernon, she met L.M. They married, and had three children together. Those children were J.D., A.L.D. and L.D. [ 11 ] M.M.’s mental health has long been a challenge. She testified that during her pregnancy with her fourth child, L.D., she was on medication for depression, posttraumatic stress disorder and anxiety.

More recently, she said, her psychiatrist had diagnosed her with Anxiety Disorder, Posttraumatic Stress Disorder, and Major Depressive Disorder. [ 12 ] She no longer consumes street drugs, and rarely consumes alcohol. [ 13 ] M.M. supports herself and her children on income assistance and child tax benefit payments. She supplements this income with money earned buying and selling items she finds at yard sales. She is quite resourceful in stretching her limited income as far as possible. [ 14 ] Several witnesses described M.M. in complimentary terms. M.A.M. and M.P. spoke well of her ability to care for her boys.

Other witnesses found her difficult to deal with. Many family support service providers in the North Okanagan are reluctant to deal with her and her family, because of their history of conflict with her. [ 15 ] M.M. is of Métis and Cree descent. A.B. [ 16 ] M.M. was in a relationship with A.B. in [omitted for publication]. A.B. abused drugs and alcohol, and assaulted M.M. He was incarcerated for lengthy periods during their relationship. [ 17 ] M.M. had a child with A.B. That child’s name is A.D. A.B has played no role in his son’s life. He apparently lives somewhere

in Alberta. He did not appear at this hearing, or participate in it in any way. L.M. [ 18 ] M.M. had three children with L.M. The names of those children are J.D., A.L.D. and L.D. [ 19 ] L.M. trained as a welder. He has been highly inconsistent in meeting his responsibilities as a father. According to M.M., there were never extended periods when he was home with her and their children. She said that when he found employment and received a paycheck, he would disappear. The family has never been able to rely on him. [ 20 ] L.M. now lives in Prince George. He has recently had some limited engagement with his sons.

In the summer of 2019, he assisted M.M. in caring for them on several days. [ 21 ] L.M. appeared in court at the start of the hearing. He attended for several days, but then stopped attending. I was advised by counsel that he had returned to Prince George to pursue an employment opportunity. A.D. [ 22 ] A.D. is M.M.’s oldest son. He was born on [omitted for publication]. A.D.’s biological father was A.B. [ 23 ] A.D. is in grade [omitted for publication] in the French Immersion Program at [omitted for publication] School.

Despite one to one support and a reduced workload, he is generally functioning below grade level expectations. [ 24 ] A.D. has been the subject of several reports and assessments. He is described as a friendly, enthusiastic and cooperative boy. In March 2018, a psychologist determined that he would meet the criteria for fetal alcohol spectrum disorder (FASD), attention deficit hyperactivity disorder (ADHD), and an attachment disorder with disturbances in behaviour. He has epilepsy, which is controlled with medications. [ 25 ] In October 2018, a psychological assessment was prepared by Dr. John Lawrence.

In addition to the previously diagnosed issues, Dr. Lawrence concluded that A.D. demonstrated parentified behaviour, and relational problems with his mother and his siblings. Dr. Lawrence also concluded that he suffered from attachment injuries, and displayed features of posttraumatic stress disorder. [ 26 ] A.D. is currently living with his mother, under the supervision of the Director. J.D. [ 27 ] J.D. is M.M.’s second son, and the first of her three children with L.M. He was born on [omitted for publication]. [ 28 ] Although sometimes described as a delightful young boy, J.D. is challenging to care for.

He has difficulties with self-regulation, impulsivity and a short attention span. He has been diagnosed with ADHD. His mother suspected that he was autistic, but an assessment ruled that out. [ 29 ] J.D. competes with his brothers for attention, and can be physical and violent with his younger brothers, A.L.D. and L.D. He has threatened to kill other children. [ 30 ] J.D.’s multiple challenges cause him to behave in extremely challenging ways. On January 21, 2019 Dr. Locke wrote to Dr.

Cooke describing the way J.D. was behaving in a foster placement: (J.D.) has been urinating in the basement and throughout the house on at least six different occasions, and (the foster parent) may have to entirely change her carpets. He has thrown things around his room and rolls around naked at times, and his most common comments are “I don’t have to” and “I don’t care”. He has threatened to phone police on (the foster parent) because he says that she is not nice, and they will take her to jail. It is incredibly difficult when he has started screaming at times for no apparent reason.

It is like a drill going off (in) one’s head that will not stop and is a very high pitched scream. (The foster parent) often feels like her house looks like a grenade went off. [ 31 ] Since the first time he was removed from M.M.’s care on November 2, 2017, J.D. has been moved to new foster homes nine times. Five of the nine moves to new foster homes have been made necessary because of his behaviour and the inability of different foster parents to care for him.

Two others occurred when he was returned to his mother, and the last two were planned moves to new placements. [ 32 ] Since September 24, 2019, J.D. has been living in a staffed residential foster placement, with one to one care around the clock. A.L.D. [ 33 ] A.L.D. was born on [omitted for publication]. He was M.M.’s third son. His birth was the second time she had given birth within twelve months. [ 34 ] Dr. Lawrence completed a psychological assessment of A.L.D., as well.

Like his older brother A.D., he demonstrated difficulties in inattention, hyperactivity and impulsivity, as well as showing oppositional and conduct related behaviours. A.L.D. also exhibited attachment injuries. [ 35 ] A.L.D.’s behaviour was observed on ten occasions by Deana Van Fleet, a clinical Christian counsellor and mental and emotional health therapist. She wrote: A.L.D. shows deep anger and resentment in particular towards his younger brother, L.D.; he is always angry at and vindictive toward

L.D., and looks ahead for ways to cause pain and damage to L.D., and to set him up in situations where L.D. is shown (by A.L.D.) how to do dangerous and potentially self-harmful things. I consider L.D. to be at risk by being around A.L.D., especially if not watched at all times.

Because of the physical threat A.L.D. is to L.D., [the foster parents] already keep helmets on them when outside and keep them either separated or one constrained to a high chair while the other plays on the floor etc., but that is virtually impossible for one caregiver to do on a consistent daily basis. … Safe choices can be made by A.L.D. (he understands them), but he consistently chooses unsafe and violent choices for L.D. He consistently chooses to hurt L.D. [ 36 ] In the fall of 2018, an occupational therapy paediatric assessment was conducted by Anne Ross.

She found A.L.D. difficult to assess due to his distractibility and frequent noncompliance. He became very angry when required to follow instructions, and attempted to hit Ms. Ross in the face, once with a wooden block. [ 37 ] M.A.M., a friend of M.M.’s, said that for A.L.D., the word “no” was a trigger. [ 38 ] Since his removal on September 16, 2019, A.L.D. has been placed with foster parents. L.D. [ 39 ] L.D. was born on [omitted for publication]. He is just over two years younger than J.D., and just over one year younger than A.L.D. [ 40 ] L.D. is beginning to mimic his older brothers. Ms.

Van Fleet observed him to copy A.L.D.’s screaming, biting, scratching and hitting. [ 41 ] Since September 20, 2019 L.D. has been living with his mother and A.D. in their home in Vernon. Procedural History [ 42 ] The procedural history of this case is not simple. I will not set out the details of every order made. [ 43 ] In July, 2016, shortly after [omitted for publication] was born, M.M. was self-admitted to hospital for anxiety and situational crisis. She was overwhelmed by the challenges of raising four children alone, while addressing her mental health issues.

She entered into a support services agreement with the Ministry of Children and Family Development. [ 44 ] For the following year, M.M. was provided at least ten days per child respite, until she withdrew from services in September 2017. [ 45 ] On October 18, 2017, M.M. contacted MCFD because she was exhausted and was having difficulty parenting her four children, particularly J.D. On October 23, 2017 she signed a second support services agreement.

She was provided with ten days per child per month of respite care. [ 46 ] Shortly after the second support services agreement was made, however, M.M. indicated that she was unable to manage J.D.’s behaviours, particularly his violence towards A.L.D. and L.D. J.D. was removed on November 2, 2017. On November 24, 2017 the court made an Interim Custody Order under section 35 (2) (

a) of the CFCSA. M.M. worked with a parent coach. All parties planned to transition J.D. back to her home in March 2018, but that did not happen. [ 47 ] In March 2019 J.D. moved to [omitted for publication] Alberta, where he would be in the care of M.M.’s mother, S.H. [ 48 ] On April 10, 2018, A.D., L.D. and A.L.D. were removed from M.M.’s home. On April 27, 2018 the court made Interim Custody Orders under section 35 (2) (

a) with respect to those three children. [ 49 ] On June 28, 2019, A.D., A.L.D. and L.D. were returned to M.M.’s care under a three month supervision order by consent pursuant to section 46 (3). On August 7, 2019 J.D. was also returned to M.M.’s care. On August 9 the court made a supervision order under section 46 (3) with respect to J.D. [ 50 ] On September 16, 2019 all four children were removed again. On September 20 the court made interim custody orders regarding J.D. and A.L.D. under

section 42.1 (6) (

a) of the CFCSA . On that same date, A.D. and L.D. were returned to their mother’s care, under the supervision orders made previously in June. [ 51 ] In

summary, at the time that the children were removed on September 16, 2019, all four children were in M.M.’s care under supervision orders made under section 46 (3) of the CFCSA . At the time of the hearing, J.D. and A.L.D. were in the interim custody of the Director under

section 42.1 (6) (a), and A.D. and L.D. were in their mother’s care under the supervision of the Director under section 46 (3). Issues to be Resolved [ 52 ] There are three main issues to be resolved. They are: 1. Are the children, or any one of them, in need of protection? 2. If a child is in need of protection, was he removed in accordance with section 42 (1) of the CFCSA ?

3. If he was removed in accordance with section 42 (1), what order under

section 42.2 (4) is in that child’s best interest? Overview of Applicable Law Guiding Principles [ 53 ] Counsel for M.M., in particular, stressed that the CFCSA must be interpreted and administered so that the safety and well-being of the children are the paramount considerations, and in accordance with the principles set out in

section 2 of the Act . She emphasized two of those principles in particular. The first principle she emphasized, set out in subsection (b), is that 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. The second principle she emphasized, set out in subsection (c), is that if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided. [ 54 ] To those two important principles, I would add a third.

It is set out in subsection (a). That principle is that children are entitled to be protected from abuse, neglect and harm or threat of harm. [ 55 ] Quite properly, counsel for M.M. cautioned me about the possibility of an imbalance in power between a parent and the MCFD. She adopted the words of the Honourable Justice Curtis, of the Ontario Court of Justice, written in a paper titled “Limits of Parenting Capacity Assessments in Child Protection Cases”. [1] Madam Justice Curtis wrote: There is an assumption that, if the protection agency has become involved in a family’s life, there must be good reason.

The assumption implies that these parents cannot properly care for their children without some form of state intervention. The case should be approached from the viewpoint that state intervention is not required in a family’s life, unless proven on credible evidence and after every opportunity has been given to the parents to care for their children without state and court involvement. [ 56 ] Those words do not define the legal tests to be applied here, but they seem like sage advice.

Are the children in need of protection? [ 57 ] Both counsel took the position that the initial issue was whether each child needs protection. Such a finding is called for in

section 40 of the CFCSA .

Section 40 requires that if the court finds that a child does not need protection, it must order that the child be returned to the parent. On the other hand, if the court finds that a child needs protection, it must consider the plan of care and it may hear any more evidence necessary to determine which order should be made under

section 41. [ 58 ] The time period to be assessed in applying

section 40 has been the subject of some uncertainty. This uncertainty has arisen despite the fact that the requirement in section 40 (1) is obviously drafted in the present tense, and despite common sense suggesting that a court should be reluctant to make orders if there is no need of protection at the time of the hearing, even if there might have been such a need at some earlier time when the child was removed. [ 59 ] This issue arose in Director v. C.M. and A.C. , 2015 BCPC 338 . The Honourable Judge Koturbash held: [130] This issue was settled by our Court of Appeal in Re: J.(D.M.) , [1995] BCJ No 2737 (CA) .

In that case trial counsel agreed the relevant date was the day of apprehension. In allowing the appeal, the Court held that the better approach and one more consistent with the spirit of the Act is to consider all of the evidence up to and including the date of the hearing and assess the risk of future abuse or neglect. [ 60 ] I am satisfied that I may consider evidence of all circumstances prior to the end of the hearing, including but not limited to the circumstances of any removal, in determining whether any child has a need of protection.

Were the children removed in accordance with section 42(1) of the CFCSA ? [ 61 ] Section 42 (1) (

a) of the CFCSA requires that the Director remove a child who is the subject of a supervision order made under section 46 (3), if the Director has reasonable grounds to believe that the supervision order no longer protects the child. [ 62 ] If the court is not satisfied that the child was removed in accordance with

section 42 the court must order that the child be returned to or remain with the parent who had custody at the time of removal, and that the supervision order in force at the time of the removal continue to apply. If the children were removed in accordance with section 42(1), what order is now in the best interest of each child? [ 63 ] On the other hand, if the court is satisfied that a child was removed in accordance with section 42 (1), the court must make an order in the child’s best interest. The four types of possible orders are set out in

section 42.2 (4) (

a) through (d), and will be canvassed briefly below. Orders Available under

Section 42.2 (4) [ 64 ] The application of

section 42.2 to the circumstances of the case requires consideration of both the best interests of the child and the nature of the various orders permissible. [ 65 ] In any case, determining the best interests of a child requires consideration of a variety of factors. A non-exhaustive list of factors is set out in

section 4 of the Act . From that section, some of the factors that are significant in this case are: 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, and d. the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship. [ 66 ] The range of possible orders is set out in

section 42.2 (4). The first possibility is a return to the parent or a third party under a new temporary supervision order, for a period of time limited by subsection (5). The second and third possibilities are an order granting temporary custody to a third party with supervision, or an order granting temporary custody to the Director. Those orders would also be for limited periods of time. [ 67 ] The final possibility is a continuing custody order. A continuing custody order cannot be made if it conflicts with section 41 (2). Section 41 (2) (

c) would apply to the circumstances in this case. According to that subsection, a continuing custody order cannot be made unless the nature and extent of the harm the child has suffered or the likelihood that the child will suffer harm is such that there is little prospect it would be in the child’s best interests to be returned to the parent. “Little Prospect” [ 68 ] The test for making a continuing care order in the first instance under sections 41 (1) (

d) and 41 (2) of the Act is much more difficult for the Director to meet than the test when making a continuing care order under

section 49. The order can only be made when the likelihood that the child will suffer harm is returned to the parent is such that there is little prospect it would be in the child's best interest to be returned. "Little prospect", as that term is used in section 41 (2), means something very unlikely, although short of complete impossibility. Needs of the Children [ 69 ] Each of the four boys are different people, and have particular needs.

Some of the needs are common among the four of them, like stable, nurturing relationships with a primary caregiver, clear, consistent directions, clear boundaries and reasonable, fair consequences for misconduct. [ 70 ] The three oldest boys have the most significant needs. Their differences, however mean that their needs are different. The following review is based on the evidence of M.M. and other witnesses as well as the assessments done by paediatric psychologists and psychiatrists, occupational therapists, counsellors and family development professionals.

A.D. [ 71 ] A.D. will require ongoing monitoring for his mental and physical well-being. His caregiver must be able to detect early signs of the return of the sort of crisis that led to his hospitalization in April 2018 following thoughts of suicide.

His caregiver must be able to coordinate mental health treatment services with the service providers and A.D.’s school. [ 72 ] A.D. must not be made to take on parenting responsibilities for his younger siblings, and he should be encouraged to participate in extracurricular activities which will promote a sense of his own identity and independence outside of his family. [ 73 ] A.D. needs to be protected against the aggression of his younger brothers, particularly J.D. and A.L.D. J.D. [ 74 ] According to the report prepared by Dr.

Bruce Pipher, a psychiatrist, J.D. experienced a number of attachment injuries early on. He will require assistance at school, and ongoing monitoring around self-regulation and sensory processing. [ 75 ] Dr. Locke, also a psychiatrist, agreed and diagnosed J.D. with a severe disruptive behaviour disorder meeting the criteria for ADHD of combine type, oppositional defiance disorder and possibly conduct disorder. Dr. Locke went on to say that J.D. had a complex posttraumatic stress disorder profile with a severe history of multiple attachment injuries, and Tourette’s syndrome. [ 76 ] Dr.

Locke concluded that placement for J.D. would be very challenging, but placements since that diagnosis have provided reason for cautious optimism. By most accounts, J.D. gradually became regulated and did well while living with his grandmother S.H. in [omitted for publication]. He was the only child in that home. By the summer of 2019, S.H.’s opinion was that J.D. was “school ready”. Genevieve Sellers, the social worker assigned to the file, agreed with that assessment. Similarly, J.D.’s conduct is improving in the staffed residential placement he has been in since September 2019.

He is the only child in that placement. A.L.D. [ 77 ] Dr. Lawrence, the psychologist, addressed A.L.D.’s needs in the psychological assessment report dated October 18, 2018.

He said: • A.L.D. will require a high level of attention and one to one interactions with his primary caregivers to assist with developing a sense of secure relationship and attachment, and to ensure his personal safety (and) the safety of young children and animals. • A.L.D. will continue to require a stable, consistent and nurturing relationship with his primary caregivers with frequent opportunities for positive interactions and therapeutic bonding experiences.

It is important that he does not return to an environment in which he does not have frequent positive interactions with his caregivers and in which he experiences dysregulated interactions, unpredictable routines, and in which his emotional and physical needs are not met. • A.L.D. requires a high level of parental support and active involvement. He will benefit from one to one interaction with

caregivers so that he can recover from deficits in his relational and attachment development to this time. [ 78 ] Dr. Joanne Seitz, the author of the parenting capacity assessment dated November 23, 2018, as well as the update dated November 4, 2019, felt that those recommendations could apply to the other three children, as well. [ 79 ] According to a note written by Dr. Barbara Picken, A.L.D. had settled in quite well to the placement selected for him after the removal in September 2019. I understand that he is the only child in that placement.

L.D. [ 80 ] Unlike his older brothers, L.D., now age [omitted for publication], has not been the subject of numerous assessments and reports. Nevertheless, from the evidence adduced at the hearing certain patterns became apparent. [ 81 ] L.D. needs to be protected from violence at the hands of his older brothers, particularly A.L.D.

Witnesses described L.D.’s fear of his brothers, and A.L.D.’s desire to hurt him. [ 82 ] L.D. has begun demonstrating a tendency to mimic the observed behaviours of J.D. and A.L.D. “Chaos” [ 83 ] It would be easy to understate the challenge facing someone caring for these children as a group. The scope of the challenge became clearer as the hearing progressed. Genevieve Sellers, the social worker, said that it was difficult to describe the children’s’ behaviours in words. However, day after day, witness after witness, one word kept being used to describe the environment this family was living in.

That word was, “chaos”. [ 84 ] The choice of that word was often made by M.M. herself. Sarah Capstick conducted a home visit with Sarah Vanderheide in August, 2017. She said that M.M. referred to her time with the children as “chaos”. That was corroborated by the note made by Ms. Vanderheide on August 9, 2017. Ms.

Vanderheide noted that M.M. described her four hours with the children as “chaos”, and that she said full-time parenting is too much to ask when even the respite provider cannot take all four children at once. [ 85 ] On November 2, 2017, when M.M. told Nicole Gough that she did not understand J.D.’s brain, and that she wanted to parent him but did not know how, Ms. Gough testified that M.M. also told her that J.D. was causing “chaos” in the home. [ 86 ] In a case note dated March 16, 2018, social worker Laurie Moore described a progress review with M.M.

According to that note, M.M. outlined a new plan she had “to attempt to reduce the chaos in her home and assist her boys.” [ 87 ] In her parenting capacity assessment, Dr.

Seitz noted that at a family planning conference on April 4, 2018, a parenting coach noted that M.M. needed “to learn how to limit the chaos in her life - that there is always something going on in her life that creates chaos - currently it was Ministry issues, before that it was problems with the landlord, before that it was issues with dad”. [ 88 ] On April 8, 2018, A.D. was brought to hospital by ambulance, after expressing suicidal thinking. He was assessed by Dr. François Pretorius, a psychiatrist. His assessment was, “A.D. presents in a situational crisis.

It seems that the home environment is currently quite distressing, and it seems chaotic.” [ 89 ] In her report and recommendations for A.L.D., dated August 25, 2018, Deana Van Fleet summarized her advice for A.L.D.’s foster parent, who was also caring for A.D. and L.D. Ms. Van Fleet recommended that the foster parent be quicker with consequences for A.L.D., “leaving him less room to create chaos and harm to L.D.” [ 90 ] C.H., who had previously been a foster parent for twenty-five years, tried to help M.M. in the summer of 2019.

M.M. was having difficulty keeping caregivers, because of the difficulty they had in working with her and her family, and problems with payment.. C.H. said that she tried to give M.M. a hand. “It was chaotic” she said. [ 91 ] C.H. was asked how caring for the D. children compared to other high needs children she had cared for in the past. She said, “All high needs children fell into the same category, however with these boys, it was so chaotic. The symptoms were so high. With others, I did not see as much anger and fighting and carrying on.

These children were very abusive.” She said she had never dealt with any other children with behavioural issues like these. She cared most recently for A.L.D., and she said that his behaviour became worse when J.D. returned to M.M.’s home from S.H.’s home in [omitted for publication]. [ 92 ] C.H. took several opportunities to recount incidents when the boys behaved well. She testified about how A.L.D. enjoyed going to the airport, or going swimming. She said she had not spent much time with A.D., but that he was a really good kid.

However, almost all the other situations she described involved examples of highly dysregulated and violent behaviour, more than justifying her choice of the word “chaotic” in describing these children. [ 93 ] M.P., a trauma counsellor at the North Okanagan Native Friendship Centre worked closely with M.M. She described M.M. as a very determined and strong individual, who was continually improving her parenting skills. Nevertheless, when asked to describe the four boys, M.P. said, “When all four boys were home, it was very chaotic.

They were all competing for attention, crying, fighting and slamming doors.” When there were less than four boys in the home, M.P. said the situation was calm and manageable. [ 94 ] Dr. Seitz used the words “chaos” and “chaotic” at several points in her parenting capacity assessment. She testified that she had never seen such violent and chaotic children in her entire career. Her observations bore out that choice of words: During the observations, both A.L.D. and J.D. seemed intent on inflicting actual harm on each other.

That this did not occur during the November 8 (2018) visit with four boys was only due to the interventions of the supervisors and M.M. [The supervisor had asked if it was appropriate to intervene (thus directly affecting the family’s behaviours) and I agreed because the situation had become too

dangerous for the children, both physically and psychologically.] A second supervisor was called in. At one point I intervened as well. The supervisor and I made a decision to remove one item which was likely going to be damaged. We later removed a collapsible tent at M.M.’s request. At that point she had completely lost control of all four boys, who were using the tent’s space to evade her and to attack one another. It was difficult to move the tent, because the boys, including A.D., first refused to leave it and then continued to try to walk under it as it was being moved.

The visits were always loud, sometimes extremely so, and chaotic, with each of the boys providing parenting challenges for their mother constantly. [ 95 ] The most chaotic series of incidents described by the witnesses occurred on September 15 and 16, 2019, and ended with the arrest of M.M. and the removal of the children. Genevieve Sellers was the social worker responsible for working with the family. She became emotional while testifying about those incidents. [ 96 ] On September 15, M.M. told social workers that she had lost all of her support due to the violence of the boys.

When the boys were together, she reported that they were “horrendous”. M.M. said that she had not been able to leave her house due to the boys’ behaviours. She was tired, and overwhelmed. [ 97 ] On September 16, M.M. went to Ms. Sellers’ office, along with the four boys and T.G., a support person. Ms. Sellers noted: During this meeting with M.M., the children (J.D., A.L.D., L.D.) were observed to physically attack one another (throwing objects, hitting, kicking, punching, spitting) as well as their mother, SW Sellers and T.G.

The children, J.D. and A.L.D., appeared to seek one another out for physical conflict both when prompted (i.e. hit by the other) as well as unprompted (i.e. when the other was playing with a desired toy). J.D. stated several times that he wanted A.L.D. to die, to kill his mother and that he wished to be left alone. [ 98 ] The sort of continual chaos described by the witnesses was far worse than the scene created by a wilful toddler throwing a tantrum. For children, chaos has a cost. Dr. Seitz observed, “The emotional harm that the children experienced in the observed visits was very significant.

Each of the boys was highly emotional, sobbing and yelling, verbalizing anger at each other and at their mother. Their behaviours at such times were not tantrums; they appeared to be displays of genuine despair and/or (especially in L.D.’s case) fear.” [ 99 ] The boys’ various behavioural disorders, attachment injuries and mental health issues must all be aggravated immensely by the chaos in which they have lived. Eliminating or at least significantly reducing the chaos they live in must be the first step in addressing their needs and pursuing their best interests.

M.M.’s Parenting Capacity [ 100 ] The boys should be returned to M.M., if there is some prospect that her parenting capacity augmented by available supports would be sufficient to address their needs. She believes that she has that degree of parenting capacity, and her belief is supported by friends of hers like M.A.M. [ 101 ] M.M. believes that the Ministry of Children and Family Development has failed her and her family, by not providing adequate supports or parent coaching. In her view, in the summer of 2019 A.L.D. and J.D. were returned to her care too quickly, leading to their removal.

She feels she was essentially set up to fail. Childhood [ 102 ] M.M. grew up without significant parental role models. She and her siblings were left unattended for long periods of time. Her stepfather paid them to drink vodka or smoke cigarettes. Her grandmother was L.A.D. M.M. testified that L.A.D.’s husband was her only real father figure. [ 103 ] At an early age, she demonstrated some of the resourcefulness she has exhibited as a parent, when she obtained meals at local restaurants for herself and her brothers. [ 104 ] As a teen, she suffered sexual abuse while in foster care.

She was further physically and emotionally victimized in a violent relationship with A.B., A.D.’s father. [ 105 ] Nothing in M.M.’s childhood could be said to have prepared her for the obligations and responsibilities of parenthood. Parenting Capacity Assessment [ 106 ] As mentioned earlier, a parenting capacity assessment was prepared by Dr. Joanne Seitz, a psychologist who was retained for that purpose. Dr. Seitz completed her assessment in November 2018, and additionally provided an update in November 2019. [ 107 ] Dr. Seitz was qualified to give opinion evidence, by consent.

The weight to be given to her opinion, however, is limited by three concerns. The first is the possibility that she may have been affected by a concern that M.M. had falsely claimed to have received treatment from a Dr. Kevin Miller. When contacted by Dr. Seitz and by Genevieve Sellers in the fall of 2018, Dr. Miller claimed he knew nothing about M.M. However, he was actually meeting with M.M. almost weekly between July and November, 2018. No explanation was provided to me to explain Dr.

Miller’s statements, but what is clear is that M.M. was not lying about this. [ 108 ] A second concern arises from inconsistencies between Dr. Seitz’s assessment, and her testimony in court. For example, in her assessment she noted that she had to communicate directly with social workers regarding arrangements with M.M., because M.M. repeatedly misrepresented to them what Dr. Seitz had said to her. With respect to M.M.’s intentions, Dr. Seitz wrote, “It is not clear if all of her confabulation was deliberate, or if at times she literally misremembered.” In her testimony in court, Dr.

Seitz was far more definitive. She testified with words to the effect, “Given the frequency and manner of her misrepresentations, I would say it was deliberate.” The shift suggests, without definitively establishing, a bias against M.M.

[109] A final concern arises out of Dr. Seitz’s understanding of the role of an expert witness. In the conclusion to her update of theparenting capacity assessment, in November 2019, Dr. Seitz said, “If the goal of the judiciary is reunification of the family, I have norecommendations because, in my opinion, such reunification would not be in the best interests of the children.” Dr. Seitz was retained todo three things. They were to provide expert opinions about the needs of the children, the mental health of the mother, and the mother’scapacity to safely parent the children.

The goal of the judiciary is not one of her concerns. [110] Subject to those three qualifications, Dr. Seitz’s opinion was that M.M. did not have the capacity to safely parent her childrenwith supports. Dr. Seitz referred to M.M’s inconsistency in utilizing supports, inability to adopt basic parenting strategies, and herinability to hear and respond to advice. [111] M.P. came to a different conclusion. She was not qualified to give an expert opinion, but she observed that M.M. had gainedself-confidence and self-esteem since 2017.

She believed that these character traits carried over into M.M.'s parenting capacity. Relationships with MCFD and Natural Supports [112] Over the last several years, M.M. has been offered parenting support from a variety of sources. Some of the parenting supportwas accessed through the Ministry of Children and Family Development, and some was the natural support of people in the community. [113] M.M. has received support through MCFD and other public agencies from professionals including Melissa Zazelenchuk, JaimeRoyston, M.P. and Anne Ross.

With the exception of her relationship with M.P., those engagements have all ended unhappily. M.M. isdemanding of others, while frequently failing to follow through on tasks or commitments herself. For example, M.M. became angry thatMs. Zazelenchuk stopped at a Tim Horton’s to buy a coffee during one of their sessions. She turned this otherwise unremarkable incidentinto a complaint that she filed with Ms.

Zazelenchuk’s superiors. [114] Conversely, M.M has failed to meet simple yet important parenting obligations, such as connecting A.D. with youth mentalhealth services in the months before his hospitalization for suicidal thoughts in April 2018. [115] M.M.’s history of relationships with parenting support services in the North Okanagan is such that Genevieve Sellers, the socialworker with responsibility for this family’s file, could not think of any person who would be able to provide support services with all thecontact that entails, and still maintain a positive working relationship with M.M. [116] M.M., in her testimony, alleged that the staff at the Ministry of Children and Family Development had a plan. “Their plan was ifthey could break me, they would win and be able to keep my children.” There was no evidence upon which I could find that this wastrue, but the allegation illustrates the tenor of M.M.’s relationship with the Ministry. [117] M.M.’s history of relationships with her family’s natural supports is little better.

Her mother, S.H., cared for J.D. in the spring of2019. M.M. is dismissive of her mother’s efforts, despite evidence that J.D. had become better regulated and was ready to start schoolwhen he returned to Vernon last summer. [118] L.M.’s parents provided some assistance, but that arrangement ultimately fell apart.

M.M. found accommodation in the residenceof I.K., a friend of hers that she referred to as a pseudo-parent coach, but she was asked to leave because of the conduct of the childrenand the damage they caused to the house. [119] M.M.’s aunt, S.M., was part of a plan to take care of the children in the summer of 2019. In September, M.M. said that she had areally positive relationship with S.M. Sometime in October, S.M. left Vernon after a physical altercation with M.M. [120] M.A.M., a friend of many years, regularly cared for the children until she and M.M. had a falling out early in the summer of2019.

The two women had different views of the causes and seriousness of their disagreement. Ultimately, the situation revealed a failureto communicate. [121] The history of M.M.’s relationships with natural supports is likely to continue. Everyone starts with the best of intentions, but thedemands of the children, and M.M.’s own demands, quickly lead to exhaustion and the breakdown of the relationship. Assessing the Credibility of Witnesses [122] Many people testified on this hearing. Unlike anyone else other than counsel and the parties, I have had the opportunity to hearall sides.

Although they may have been making observations about the same things, their testimony was not always consistent. In orderto apply the law that I have just reviewed to the facts of this family's case, I have to find what those facts are. That requires an assessmentof the credibility of the witnesses. [123] An assessment of credibility is a question of fact. The determination cannot be made by following a set of rules. It is a task thattrial judges have faced for many years. Over half a century ago, in R. v.

Whyte, (1947) (SCC), S.C.R. 268 at para 10,Estey J. said: … Eminent judges have from time to time indicated certain guides that have been of the greatest assistance but so far as I have been ableto find there has never been an effort made to indicate all the possible factors that might enter into the determination. It is a matter inwhich so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity andintelligence of the witness, his power to observe, his capacity to remember and his accuracy in statement are important.

It is alsoimportant to determine whether he is honestly endeavoring to tell the truth, whether he is sincere and frank or whether he is biased,reticent and evasive. [124] I am aware that there can be a difference between the strength of a witness' belief, and the accuracy of their memory. For avariety of very human reasons - hopefulness, sympathy, even love - a witness might remember an event differently than the way itoccurred, or not want to remember an event when it is contrary to the way they wish matters had unfolded.

[ 125 ] Accordingly, I keep in mind a number of factors which have proven helpful in the past. I ask myself questions like: • How good is the witness' ability to have observe the event, record it in her memory, and then recall and describe the event accurately? • Is the witness' testimony externally consistent? In other words, is it consistent with the evidence of other witnesses, which I do accept? • Is the witness' testimony internally consistent?

Did her witness change during testimony, or between direct and cross- examination? [ 126 ] I also keep in mind that the demeanour of a witness is a poor indicator of credibility, and that a witness’ rank, uniform, type of employment or level of education tell me little about his or her honesty. Findings of Credibility [ 127 ] The circumstances that ensued when the four boys were put together was described by almost every witness, including M.M.

There is no question that it was chaotic. [ 128 ] M.M. has alleged that the managers and social workers at the North Okanagan office of the Ministry of Children and Family Development worked together to create the conditions under which her boys could be taken into care. She testified that there was a plan to break her. [ 129 ] I could find no evidence to support that allegation. The allegation is inconsistent with the Director's last stated position, which is that A.D. and L.D. should be returned to M.M., without supervision.

On the basis of the evidence led by the parties in court, it appears that social workers like Genevieve Sellers went beyond the call of duty in attempting to assist M.M. The allegation is not credible. [ 130 ] The evidence of witnesses was that the boys tended to become more regulated when they were placed individually and received one to one attention from their caregivers. The witnesses who said this included Ms. Sellers and C.H., who cared for several of the children in the summer of 2019.

M.M., on the other hand, testified that their behaviours escalated while they were in care. [ 131 ] It is concerning that M.M. wrote a text message to C.H. The message was sent on the eve of C.H.'s appearance in court, and said that M.M. hoped that C.H. was not going to lie in court. C.H. was intimidated by the text message, which I infer was M.M.'s intent. I am satisfied that the boys achieved greater regulation and behaved better while in care, because the evidence that supports that finding comes from a variety of independent sources including reliable hearsay.

Alternative Plans of Care [ 132 ] Counsel for the Director and counsel for M.M. both presented plans for the future care of the four boys. Those plans developed and changed slightly over the course of the hearing. Director’s Plan of Care [ 133 ] The Director’s plan of care for J.D. is to explore permanency with S.H.

If that fails, the Director would explore permanency with other family members, and if that failed would search for a family to take J.D. in adoption. [ 134 ] The plan for A.L.D. would be to look to family for a permanent placement, and if no place could be found to find a family to adopt him. [ 135 ] At the start of the hearing, the Director sought a six month supervision order with respect to A.D. and L.D.

By the end of the hearing, the Director’s position was that if continuing custody orders were granted with respect to J.D. and A.L.D., he would abandon his application for supervision orders with respect to A.D. and L.D. M.M.’s Plan of Care [ 136 ] M.M.’s firm belief is that she can cope with the demands of parenting all four children, if provided with respite and adequate supports. She believes that it is all a matter of funding.

She plans to rely on the Child Development Centre at the North Okanagan Neurological Association, and such resources as she might be able to locate outside of Vernon, using a newly acquired and serviceable motor vehicle. [ 137 ] She also referred to the support of her church, and to people she had friended on Facebook. None of the people in either group were identified, nor was there any evidence that she had received any support from people in either of those two groups when she needed it in the past. [ 138 ] This plan is quite different from previous plans presented by M.M.

At the start of the trial, for example, I was told that she was exploring the possibility of having L.M. shoulder part of the burden of parenting these children. Analysis Are the children in need of protection? [ 139 ] There is little evidence that the children need protection against M.M. herself. On the evidence before me, they have not been and are probably not likely to be physically harmed by her. [ 140 ] However, she has proven to be unable to control her four children. When J.D. or A.L.D. become dysregulated and attack each

other, or A.D. and L.D., there is a real risk of physical harm. I have no hesitation in finding that the risk of emotional harm caused by living in an environment of chaos and intra-sibling violence is so high that any of the four children have been and are in need of protection, whenever they live in a situation in which J.D. or A.L.D. live with them. [ 141 ] My finding of need of protection applies to the present time, as well as, if necessary, to J.D.'s removal on November 2, 2017, to the removal of A.D., L.D. and A.L.D. on April 10, 2018, and to the re-removal of all four boys on September 16, 2019.

If the children are in need of protection, were the children removed in accordance with section 42 (1)? [ 142 ] The four boys were removed for the last time on September 16, 2019. On that date, they were in their mother's care subject to supervision orders made under section 46 (3) of the Act. Under section 42 (1) (a), a Director must remove such a child if the Director has reasonable grounds to believe that the supervision order no longer protects the child. [ 143 ] Some of the events on September 15/16 have already been referred to. I am not going to repeat them again.

These were the dates on which the chaos in the lives of these four children reached its highest point. The supervision orders clearly no longer protected the children. The Director had reasonable grounds to believe that, and the removal was appropriate, even before M.M. was apprehended under the Mental Health Act and transported to the Vernon Jubilee Hospital for assessment.

If the children were removed in accordance with section 42 (1), what order is now in the best interest of each child? [ 144 ] Neither M.M., nor any of the foster parents or supports have ever been able to safely and adequately care for the four children together as a group. It is not a matter of funding. It is not a matter of demanding perfect parenting. Highly experienced child protection workers, like Dr.

Seitz, Genevieve Sellers and M.P., all testified that they had never experienced such violence among siblings. [ 145 ] The periods of time in which J.D., and more recently A.L.D., have been able to find some degree of regulation have been when they have been placed with caregivers who were able to give them one to one attention. [ 146 ] A plan for future care which relies heavily on support services and additional caregivers is not in the best interests of the children for two reasons. The first is that the support services required will probably not materialize. The second is that, as Dr.

Lawrence testified, multiple caregivers will further disrupt the boys' attachment disorders. [ 147 ] When J.D. or A.L.D. act violently toward one of their siblings, they suffer an enormous degree of emotional harm themselves. Such violence is absolutely prejudicial to their growth and development as young people. I find that there is little prospect it would be in the best interest of either J.D. or A.L.D. to be returned to M.M. [ 148 ] M.M. has been caring at least adequately for A.D. and L.D. since they were returned to her care on September 20, 2019.

There is no reason for me to think that that situation should not continue. However, having found that I am satisfied that A.D. and L.D. were removed in accordance with section 42 (1) on September 16, 2019, I am restricted to making one of the orders set out in

section 42.2 (4) (

a) through (d). The length of that order is limited by

section 42.2 (5). A.D. and L.D. will remain with M.M. under the director's supervision, but both the length of the order and the terms of supervision will be the minimum reasonably required. Conclusion [ 149 ] J.D. and A.L.D. will be placed in the continuing custody of the Director, pursuant to

section 42.2 (4) (

d) of the Act. [ 150 ] Pursuant to sections 50 (1) (

a) and 60 of the Act, the Director shall be the sole guardian of J.D. and A.L.D. and may consent to their adoption. Pursuant to section 50 (1) (

b) and 60 of the Act, the Director shall be the sole property guardian of J.D. and A.L.D. Pursuant to section 50 (1) (

c) and 60 of the Act, and this order does not affect the rights of J.D. or A.L.D. respecting inheritance or succession to property. [ 151 ] A.D. and L.D. will remain with M.M., under the director's supervision. The order will expire in three months from the date of this ruling. M.M. will ensure that A.D. and L.D. are always in the care of a responsible care provider. She will engage with and follow the recommendations of her psychiatrist, and she will ensure that A.D. and L.D. attend all medical appointments for examination, testing, and treatment in accordance with the advice of medical professionals.

Final Comments [ 152 ] I am grateful for the assistance of both counsel, and for the way that they conducted this case. ________________________________ The Honourable Judge Richard Hewson Provincial Court of British Columbia [1] Curtis, C. "Limits of Parenting Capacity Assessments in Child Protection Cases". (Continuing Legal Education Society of British Columbia, March 2009), at p. 5.1.4.