Director v. H.P. Date:, 2010 BCPC 326

Citation: Director v. H.P. Date: 20101210 2010 BCPC 0326 File No: 79247 Registry: Kelowna 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: D.D.P., born [DOB] D.A.P., born [DOB] D.M.P., born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: H.P. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Director: D. Boon & C. Wendell Appearing in person: H.P. Place of Hearing: Kelowna, B.C.

Dates of Hearing: 2010: October 25-28; November 17-19, 23 Date of Judgment: December 10, 2010 I. INTRODUCTION [ 1 ] H.P. is the single mother of three children: age twelve D.D.P. , age nine D.A.P. and age seven D.M.P. There are two separate fathers, but neither have had any involvement with these proceedings other than one father consenting to the Director’s application. The children were removed June 24, 2008 and on October 15, 2008 a consent finding of need of protection was made. On July 7, 2009 the Director applied for a continuing care order.

The children have remained in the same foster home since removal nearly 2 ½ years ago. [ 2 ] The mother has had two separate lawyers and multiple lay advocates in this matter, and it has been set for hearing on multiple occasions. When the matter commenced before me on October 25, 2010 the mother again had no counsel, but her request for yet another adjournment to get counsel was denied. The court has now heard eight days of evidence. [ 3 ] The primary issue is the parental capacity of the mother. She has been diagnosed with a moderately severe personality disorder.

She disputes the diagnosis, and alternatively submits that even if she has such a personality disorder, she has the capacity to parent her children. She sees the issue more as her being penalized for being impoverished economically. She acknowledges that a June 2007 motor vehicle accident injury temporarily limited her parental capacity, but she has now sufficiently recovered to be able to properly parent her kids.

II. THE FACTS [ 4 ] Age forty-two H.P. was born in 1968 and raised in Edmonton in an abusive and dysfunctional family. Her two older brothers continue to live in Edmonton. Her father was an alcoholic who physically abused his wife and children. H.P. recalls at least one occasion where her intoxicated father kicked her in the head with his boots. She also recalls her two brothers being physically abusive to her. At times her parents separated and her mother and siblings lived in shelters. By the time H.P. was fifteen, her mother also became an active alcoholic.

H.P. told her social worker that she was raped on two occasions when she was in her teens, once when she was on a trip with a boyfriend to Toronto and once when she was age eighteen and living in Edmonton. In 1989 when H.P. was twenty, she moved out of her parent’s residence. [ 5 ] In 1993 age twenty-five, H.P. met A.R. and the couple moved to Kelowna. A.R. is a non-status native who never practiced any native culture. Both worked in Kelowna, H.P. as a secretary and A.R. as a tire repairman.

In 1995 H.P.’s mother moved from Edmonton to West Kelowna, which prompted H.P. and A.R. to move from Kelowna to West Kelowna to be closer to H.P.’s mother. [ 6 ] H.P. claims A.R. was never physically abusive, but was emotionally abusive and he also abused alcohol. On [DOB] their first son D.D.P. was born, and two weeks later the family moved from West Kelowna to Peachland . In 2000 when H.P. was pregnant with their second son, the couple became engaged. That euphoria was short lived and days prior to the [DOB] birth of D.A.P., the father A.R. moved out.

Immediately after the birth of that second son, H.P. moved to Penticton with her two young sons and she lived there on social assistance as a single parent. [ 7 ] In 2002 in Penticton, H.P. started living common-law with A.F. That was a short lived relationship and A.F. moved out before the [DOB] birth of their daughter D.M.P. Around that same time, H.P. moved back to West Kelowna and lived in a duplex with her three children, which was nearby the residence of her mother.

Also living with her mother was H.P.’s young cousin M.P. [ 8 ] Between 2002 and 2007 the child protection Ministry received eleven child protection complaints regarding the family. Eight of those involved complaints of H.P. having an unsanitary home. The court did not hear particulars of those investigations, and therefore little weight can be given to it, other than to say this was a family that was on the radar of the child protection Ministry for many years prior to the June 2007 removal.

As a result of some of those investigations, between 2003 and 2004, in-home supports were put in place. [ 9 ] In September of 2004 H.P. and her three children moved from West Kelowna to a home in Peachland , and the oldest child started grade 1 school in Peachland . His teacher testified that D.D.P. was well integrated into the class and his mother often helped in the classroom by reading to the children. [ 10 ] In September of 2006 the family moved next door to a substandard “rent to own” home that was eventually condemned for health reasons.

In February of 2007 the child protection social worker told H.P. that it was not acceptable for the children to be living in such an unhealthy environment. In June 2007 when the substandard home was condemned, the family temporarily moved back into the next door residence of Mr. W. (paternal step-grandfather of the youngest child).

Arrangements were in place for the family to move on July 1, 2007 from Peachland to Rutland into subsidized housing associated with the Metis Housing Association. [ 11 ] On June 17, 2007, days prior to the scheduled move to Rutland, H.P. was a passenger in a motor vehicle accident where she suffered a significant whiplash head injury. She was diagnosed with “Post Concussion Syndrome”. She suffered from headaches and had limited flexion in her neck. She acknowledges this had a temporary negative impact on her parental capacity.

She could not walk more than a block and she required a lot of rest, which made it difficult to keep up with her three children. [ 12 ] On July 1, 2007, while the mother was recovering from her injury, the family moved from Peachland to Rutland, with social assistance paying for that move. She claims it was the biggest mistake of her life to move to the Rutland complex. She was hospitalized in September of 2007 for two days for her post concussion syndrome symptoms. On November 20, 2007 the Ministry received the eleventh child protection intake.

On December 6, 2007 a further complaint was made to the Ministry that the oldest child D.D.P. had medical needs which were not being properly addressed. Over the next two months the social workers continued their child protection investigation. In December of 2007 H.P. was again hospitalized for six days for complications with her post concussion syndrome.

At that time her doctor concluded that H.P. had an excellent prognosis, but she required further work on her headache management as well as on her emotional distress. [ 13 ] The Rutland home was a nice three-story, four-bedroom townhouse, in a forty townhouse complex. For the first three months, H.P.’s uncle named Brian lived with them and helped H.P. with some parental duties. H.P. testifies that shortly after moving in, she and her family were the victims of a local youth gang that was involved in lots of violence and property destruction.

Her tires were slashed, her cat was injured and she was threatened with violence if she did not stop making complaints to the police. Records show she had made ten complaints to police during the eleven months she resided in Rutland. She claims that on three occasions the youth gang members broke into her home and committed thefts and did property damage.

The last break and enter into her home was on May 9, 2008, when the gang members wrote graffiti all over her inside walls. [ 14 ] On January 15, 2008 the social worker attended the residence and spoke with H.P. and noted one of the children was home sick from school and also noted that the uncle was also present. The social worker informed H.P. about another child protection investigation they were conducting on the family. H.P. advised that she was in no condition to talk because she was still suffering from her post concussion syndrome and she needed to rest.

With the uncle being present to help H.P., that investigation did not proceed with any haste. [ 15 ] By April of 2008, the Ministry was receiving complaints of H.P. giving cigarettes and alcohol to the children in the complex and becoming sexually involved with some of the children. No direct evidence has been called of any such events. There is a history of members of the youth gang tagging her home in an attempt to make her life miserable and run her out of the complex. It is unclear whether these child protection complaints were legitimate child protection concerns, or just vindictive mischief.

However, with these types of complaints coming in, it is understandable that the social worker was seeing the matter as having a much higher priority. H.P. testifies that in April of 2008 she first started making plans to move her family to the coast. The social worker was having difficulty

being able to interview the children to see whether they would confirm any of the child protection allegations. [ 16 ] On May 5, 2008 the social worker went to the school to talk with the two boys. She discovered that the children were not at school that day. On May 6, 2008 the social worker went back to the school and spoke with the boys and noted they looked dirty. The social worker then immediately attended at the home and left a business card at the door after not getting a response to knocking. The day thereafter a second card was left at the door for H.P. without any response.

The protection investigation was expanded to include concerns of poor school attendance by the children and a concern that D. was doing most of the parenting for his two siblings. [ 17 ] After the older child D.D.P. came into foster care, he told his foster mother what he had experienced when living in the Rutland complex. Once he was beaten up by other youth in the complex. He said his mother had let some boy into the residence and that boy terrorized him. He also said that on another occasion one youth in the residence tried to light him on fire using hairspray and papers.

There is no doubting that D.D.P. was living in fear at the Rutland complex. [ 18 ] In May of 2008 there was an ongoing police investigation where a youth in the complex allegedly sexually abused some other young girl in the complex. On May 20, 2008 the social worker received a report that the offender may have also sexually abused H.P.’s 4 ½ year old daughter D.M.P. Again the social worker attended at the mother’s residence and left a card after receiving no response to knocking. [ 19 ] On the morning of June 3, 2008 the social worker again attended the home.

The four year old D.M.P. could be heard inside, but H.P. was not in the residence. After ten or fifteen minutes, the child let the social worker into the residence. Immediately obvious was the sexual graffiti which was still on the indoor walls. One such graffiti read, “Penis lover”. The social worker was aware the graffiti had been on the wall since April 28, 2008, which was more than a month earlier. Every room in the home was cluttered and the social worker asked the child to gather up some of her clothing so that she could go with the social worker.

Shortly thereafter H.P. arrived at the back door and said she had just been next door using the phone. H.P. falsely told the social worker that the family had already moved out of the residence and were staying in a hotel. The social worker, H.P. and D.M.P. went to the police station where the child was interviewed.

Arrangements were made for H.P. to meet the social worker at the boy’s school at 2:30 p.m. so that the two boys could also be taken to the police station for interviews. [ 20 ] In spite of that arrangement, H.P. picked up her two sons at 2 p.m. and fled to the coast with all three children, leaving most of their family possessions in the Rutland residence. This all happened in the context of school staff calling the social worker prior to the mother leaving the school and the mother refusing the request of the social worker to remain at the school with the kids until the social worker’s arrival in ten minutes.

H.P. claims she had already conducted her own investigation and she was convinced her daughter had not been sexually abused, so no police interview of her sons was needed. The twisted logic of H.P. was that she needed to leave town before speaking with the social worker because this was what she needed to do to protect her children from the youth gang in her complex and their many false accusations. [ 21 ] The social worker perceived the unannounced flight to Vancouver as an attempt to circumvent the child protection investigation.

The boys had been pulled out of school four weeks before the end of the school year. H.P. claims she made this move with the blessing of the school principal and the local R.C.M.P., but no such witnesses were called, and the Director rightfully challenges the hearsay evidence of H.P. on this point.

A province wide child welfare alert was made such that H.P. could not receive her next social assistance cheque without the intervention of the child protection social workers. [ 22 ] The family arrived in Vancouver in the evening of June 3, 2008 and they stayed for three weeks at a shelter in West Vancouver called the Spirit Lodge. H.P. had no money. She was trying to arrange for the Ministry to pay for her to live in a supportive housing project in White Rock. On June 14 th and 16 th H.P. attended at the social assistance office in East Vancouver asking for gas money.

That money was given, but the Kelowna child protection social worker was also contacted. [ 23 ] On June 24, 2008 the children were removed by the Ministry once the Ministry discovered the exact location of the children at the Spirit Lodge. The children were flown back to Kelowna and the impoverished mother also found a way to make in back to Kelowna after getting $200 from Mr. W. The following day the Presentation Report was before Judge Cartwright and an order was made placing the children in the interim custody of the Director. The mother’s access was to be supervised at the discretion of the Director.

At that hearing H.P. was represented by an experienced local family lawyer named Mr. Newcombe , and he continued to represent her thereafter. Upon her return to Kelowna, H.P. was given a ten day notice of eviction from her Rutland residence and in the days that followed she moved back in with her step-father-in-law Mr. W. in Peachland . [ 24 ] The June 2008, grade four, final school report card for D.D.P. showed he was a “C” student absent 42.5 days and late 36 days (14 of the absent days was in June after the family fled to the coast).

The report card was consistent with statements such as, “D.D.P. is making minimally acceptable progress. Similarly, the report card for D.A.P. showed he had been absent 37 times and late 36 times (13 of the absent days were in June). The teacher wrote on D.A.P.’s report card, “D.A.P. did not attend Pearson School in June and before this time he had numerous absences and was often late.

These frequent absences affected his ability to learn all the concepts covered in Grade Two.” The foster mother noted that in June of 2008 when D.A.P. first came into care, he could not yet tie his own shoes and he behaved like a child much younger than his actual age. [ 25 ] On July 18, 2008 Dr. Lee Rasmusen , F.R.C.P. saw H.P. regarding problems associated with her motor vehicle injury. The presenting problem was that H.P. was having memory problems. The purpose of this assessment was not to perform an Axis 2 assessment regarding possible personality disorders.

The primary purpose was to address possible residual Axis 1 problems dealing with the motor vehicle head injury. The doctor’s comments regarding not exhibiting any personality disorder symptoms that day should not be taken as a diagnosis that no such personality disorder existed. Dr. Rasmusen stated in his two page report: She does not have any anxiety disorders, she does not appear to be exhibiting symptoms of a personality disorder, does not abuse drugs, use illicit drugs or abuse/use alcohol... Her mental status examination was unremarkable.

There are no suicidal or homicidal thoughts and there is no thought disorder. There is

no evidence of psychosis as well. At this time I feel that H.P.’s primary diagnosis is that of chronic pain and in my opinion, she is not exaggerating this. I do not feel the cognitive problems are significant and I do not feel she has any psychiatric disorder, including Post Traumatic Stress Disorder. [ 26 ] In August of 2008 H.P.’s mother died and in September of 2008 her father also died.

H.P. had multiple stressors in a fifteen month window of time: the June 07 motor vehicle accident, the July 07 move to Rutland, the Spring 08 youth gang tormenting her, the June 08 flight to the coast, the June 08 removal of her children, the August 08 death of her mom, and the September 08 death of her father. H.P. had been cut out of her mom’s will a few months prior to her mom’s death and her cousin M.P. was the sole beneficiary of that $500,000 estate. [ 27 ] In the months that followed the June 2008 removal, H.P. learned that the Ministry would not approve of her access to the children happening at Mr.

W.’s residence, given the criminal record of Mr. W.’s wife. On October 15, 2008, while H.P. was still represented by Mr. Newcombe , a consent order was made, which included a “finding of need of protection” and a three month temporary custody term in favour of the Director, expiring on January 15, 2009. [ 28 ] In December of 2008 H.P. moved into the Edgewater Inn, which was a block away from Mr. W.’s residence. That month H.P. proposed a plan to the social worker for age seventy-one Mr. W. to have custody of the children. At that time Mr. W. and H.P. had an argument and Mr.

W. told the social worker that the children should remain in foster care and not be returned to H.P. [ 29 ] In January 2009 H.P. received her $29,000 ICBC settlement proceeds. Unfortunately, after paying legal fees and repaying some debts, H.P. actually only had $5,000 of those settlement proceeds remaining. She arranged housing in Osoyoos , where she hoped she could eventually live with her children.

Most of those settlement proceeds ended up being poured into that rental place and storage place in Osoyoos , in spite of the fact that she never actually moved to Osoyoos . [ 30 ] In January of 2009 the second child D.A.P. was diagnosed with ADHD and started being medicated. [ 31 ] On February 4, 2009 a consent three month extension order was made, expiring May 4, 2009. In April 2009 H.P. was in the hospital for a month as the result of the discovery of a tumour in her liver. On April 22, 2009 a second consent three month extension order was made, expiring on July 22, 2009.

In April 2009 the Ministry file was transferred to social worker Karen Sam. [ 32 ] The June 2009 grade three school report card for D.A.P. showed he had only been absent 3 days and late 3 days. He had met the widely held expectations for children his age. He had received Learning Assistance with his writing skills. However, emotionally he was struggling and it was decided that he should repeat grade three.

This was in part because of his small size (a December birthday), and his recently diagnosed ADHD which resulted in his needing more healthy social development. [ 33 ] On July 7, 2009 the Director applied for a continuing custody order. Even after the filing of that application, the Director recognized that the actual hearing could take more than a year to be completed, and plans were still in place to continue working with the mother towards a return under supervision. Ms. Sam believed H.P. was providing lots of conflicting information and little progress was being made on the risk reduction plan.

During the July 6, 2009 unsupervised access visit, H.P. purportedly told her oldest son that he might have to stay in foster care forever. The social worker started contemplating whether future access visits should be supervised. [ 34 ] In August 2009 H.P. moved from her residence at the Edgewater Inn back to the home of Mr. W. Ms.

Sam testifies that prior to that move, the residence of H.P. was very unsettled (a Kelowna home on Dehart for addicted women never went through; a move to a farm in Peachland never went through; a home in Penticton never materialized; a two to three month stay in Peachland at the home of her advocate Ms. Percy; then to her father-in-law Mr. W.’s Peachland residence). H.P. told Ms. Sam that her flight from Rutland prior to the removal was the result of the children being terrified of the social workers.

I suspect this is a veiled reference to the mother’s feelings toward the Ministry workers, and not the feelings of her children. [ 35 ] There was a concern that H.P. was having emotional melt downs in the presence of the children during access visits. It was also a concern that H.P. was confusing her needs with those of her children. She would give graphic detail of her surgery and lift her shirt to show her scars. The two boys attended the “Kids in Control” program to deal with their reactions to their mother.

In August of 2009 the communication between the mother and social worker was very strained and on August 13, 2009 H.P. filed an official complaint against the social worker, requesting a change of social workers. For the last three weeks of August 2009, H.P. had no access to her children. [ 36 ] After September 1, 2009 the mother’s access started up again but it became supervised. Lots of restrictions were put in place as to topics that could not be discussed at the access visits.

With the September 9, 2009 access visit, H.P. directed some unkind words to the foster mother in the presence of the children, which resulted in even further tightening of what could be discussed at the access visits. [ 37 ] In September 2009 H.P. successfully had her social assistance elevated to the disability assistance rate. The disability was Fibromyalgia. In the fall of 2009 H.P. had multiple civil court actions either underway or contemplated. First, outside of the limitation period, she commenced a Wills Variation Act application regarding her mother’s will.

Her niece M.P. is the sole named beneficiary and the estate is purportedly worth $500,000. Second, her brother commenced a Wills Variation Act application regarding her father’s will. H.P. is the sole named beneficiary and that estate is purportedly worth $65,000. Third, H.P. commenced a $50,000 fatality loss application in Alberta regarding her father’s death. As stated earlier, her ICBC action ended in January of 2009 with the $29,000 settlement. Superimposed over all of these actions has been this child protection action which has been ongoing since the June 24, 2008 removal.

She also took Petro Canada to Court over a faulty car wash which derailed her vehicle. She also took Wal-Mart to Court after she suffered a broken toe from a faulty shopping cart. [ 38 ] On September 23, 2009 H.P. met with a Psychiatrist named Dr. Valerie Jones for the preparation of a parental capacity assessment. [ 39 ] On September 28, 2009 H.P. made the first of four trips to Ontario, primarily to speak with her age 18 niece M.P. about her mother’s will and $500,000 estate.

H.P. is incorrect when she now recalls that trip being for the purpose of investigating what family members in Ontario would be interested in having custody of her children, because this first trip was before the Dr. Jones written report

dated October 22, 2009. H.P. was asking M.P. to provide financial assistance so that H.P. would be in a better financial position to have her children returned. H.P. also spent some time with a family friend in Ontario named Linda Austin, who was also willing to provide some assistance to H.P. On October 18, 2009 H.P. returned to British Columbia to receive the report from Dr. Jones and to be present for her daughter’s sixth birthday on [DOB]. [ 40 ] Some of the information gleaned from the October 22, 2009 report of Dr.

Jones includes: ...the client’s presentation was alarmingly naive and psychologically much younger than her years. She overall has a poor understanding as to the impact upon her children of their environment around the time of the apprehension and of her own parenting inadequacies at that time and over the years previously. She expressed a belief that the apprehension was a mistake and a lack of comprehension as to why her children have been in care for this long. She does not see herself objectively and has general deficits in psychological insight...

Psychiatric Diagnostic Conclusion: Axis II Personality Disorder Not Otherwise Specified. This is basically a psycho-developmental disorder with “Cluster B” traits. The scope of this disorder is life long and at a moderately severe level... The Axis II disorder from which H.P. suffers is a personality disorder that has a pervasive impact on every area of her life, including parenting. In DSM IV terms, this is classified as a Personality Disorder Not Otherwise Specified, because it does not fall exclusively or neatly into any of the categories of personality disorder recognized by DSM IV.

In the case of this client, her personality disorder is essentially an arrest of psychological development... The effects of this psycho-developmental arrest upon H.P.’s functioning are numerous and varied. As mentioned previously, her level of psychological development is noticeably immature; at her baseline best, I would estimate this level to be one of a late adolescent.

However, under severe or repetitive stressors, the documented record suggests that the client is capable of regression to a level of early adolescence... ...She is amazingly naive, is unable to see herself objectively, and is unable to accurately interpret the behaviour of others or to understand their expectation upon her. She has limited insight into herself or the objective world. She has poor psychological boundaries and is prone to emotional role reversals with her children, especially her youngest child. She regularly confuses her own emotional needs with the needs of her children.

Her ability to empathize with her children is uneven and unreliable. Because of this poor comprehension of adult roles and rules, her ability to make decisions that would ensure her children’s safety is also uneven and at times unreliable. The client has a poor capacity for insight into these deficiencies as she lacks the basic ability to reason along psychological lines. She makes very frequent use of psychological defences such as minimization and displays a preference to perceive herself in the role of victim.

Along these lines, she sees herself as needing a fair amount of practical assistance and often blames societal systems for not giving her the types of support she requests. At the same time however, she is often resistant to feedback offered to her because of her poor insight and has developed a resistant, confrontational attitude towards child protective workers. Because of these deficiencies in insight, the client’s capacity for meaningful psychological growth and change is limited and could be characterized as modest only. In conclusion, I would assess H.P.’s competence to parent as marginal.

Under the best of circumstances, when her environment is stable and when external psychosocial stressors are minimal, her abilities to problem-solve, to maintain a hygienic environment, to sustain her children nutritionally and emotionally, and to ensure basic safety are likely in the barely adequate range. On the other hand, when external stressors arise and especially if they group together in time, her coping adequacy can easily fragment and dissolve.

Therefore, it is my fairly confident opinion that the client’s three children are safer and more stable in their current environment with continuing supervised contact with their mother. If, and when, custodial responsibilities were to return to the client, a multitude of support systems would, in my opinion, have to be in place to ensure ongoing sustenance and safety of the children... Unfortunately, the poor insight and resistance of H.P. in regards to such external intervention presents an obstacle to these above recommendations ever becoming effective.

In my opinion, an ongoing flight risk also exists. [ 41 ] On October 28, 2009 H.P. and the social worker met after both had read the report of Dr. Jones. The social worker told H.P. that notwithstanding the continuing care application, if H.P. was prepared to remain in British Columbia and work on the risk reduction plan, there was still a possibility of the children being returned to her. That plan involved three elements.

H.P. was to get one on one counselling to deal with her historical issues; she was to attend a parenting program to learn age appropriate expectations for her children; and she was to find appropriate housing for the children. H.P. said, “I am going to Ontario and I am going to tell the children that it is all because of the Ministry.” The social worker replied that H.P. should not discuss that with the children. H.P. said it was too late because she had already told the kids. [ 42 ] On October 30, 2009 H.P. told her social worker that she was torn between moving to Ontario and remaining in British Columbia.

She stated that she did not agree with the “Personality Disorder” diagnosis of Dr. Jones, and she wanted to get a second assessment in Ontario. [ 43 ] On October 31, 2009 H.P. made her second trip to Ontario. With this trip H.P. wanted to permanently move to Ontario. H.P. and M.P. developed a plan where M.P. would lend H.P. $100,000 (from the Estate of H.P.’s mother) so that H.P. could purchase a home in Ontario where the two women and the three children could reside.

H.P. intended to repay the loan with money she hoped to receive from one of her civil court actions. (The irony in that plan is that with the main action involving her mother’s estate, her young relative M.P. is the sole named beneficiary.) The interim plan was that H.P. and the kids could initially live with Ms. Austin until H.P. could purchase her own home in Ontario. [ 44 ] On November 9, 2009 while H.P. was in Ontario, she attended at the Dr. Thompson Hospital Emergency Department requesting a Psychiatric Assessment.

H.P. was denying any symptoms of depression, mania, psychosis or suicide so the doctor dealt with her summarily, finding that there was no apparent axis 1 psychiatric disorder. That second trip to Ontario lasted 41 days and H.P. returned to British Columbia on December 11, 2009 in time for her second son’s ninth birthday on [DOB].

[ 45 ] January 2010 was the last time that social worker Ms. Sam met with H.P. On January 11, 2010 H.P. made a complaint with the Ministry Complaint Line, claiming that the multiple access restrictions were not reasonable. On January 13, 2010 Ms. Sam sent a letter to H.P. confirming the expectations and restrictions during access visits. All future visits were to occur at the Ki -Low-Na Friendship Society building. The final paragraph of that letter stated: If you miss several visits, we will need to revisit access and visits. On October 31 st 2009 you left Kelowna for Ontario with no set return date.

You returned on December 11 th , 2009. I made allowances on this occasion; no more allowances will be made in the event that you leave the community for an extended period of time. All visits will be cancelled. [ 46 ] On January 15, 2010 at 5 p.m. H.P. attended at the Kelowna General Hospital Emergency Ward saying she was experiencing anxiety and felt like she was “in a fog” with lots of personal stress. She was requesting a mental health assessment. The Doctor’s impression was H.P. was suffering a “situational crisis” but had no acute psychiatric problem.

She was discharged at 11:45 p.m. that same night. [ 47 ] On April 19, 2010 the two older children started therapy counselling with Jody Bekhuys , who has a Masters degree in Counselling Psychology. Each child had fourteen sessions with Ms. Bekhuys , and the focus was on addressing Trauma Attachment. The older boy would draw happy depictions and then cry because that was not what his life was like. The second boy was much less verbal and did not have a lot of eye contact. In August of 2010 the boys told Ms.

Bekhuys what they hoped would be the outcome of the court case, and that is noted later in this judgment. [ 48 ] With the April 24, 2010 access visit, the mother told her children that she was moving to Ontario the next day, but she would be back for the July 2010 court hearing. The oldest child’s twelfth birthday was coming up on [DOB], so in the event that the Ministry was not going to allow an access visit upon the mother’s July return, that child’s birthday was celebrated with that [date removed for publication] visit.

At that visit H.P. told her children that she and M.P. intended to take them to Disneyland that summer. M.P. told her children about how M.P. was the sole beneficiary to her mother’s estate under her mother’s will. [ 49 ] On April 25, 2010 H.P. made her third trip to Ontario. It was her intention to make Ontario her permanent residence.

On April 27, 2010 counsel for the Director wrote to H.P.’s lawyer that H.P. had again returned to Ontario and that the Director would not allow H.P. any further access “until we know your client’s intended state of affairs.” Throughout this third trip to Ontario, H.P. continued to receive social assistance in British Columbia. [ 50 ] On May 5, 2010 H.P. sent Mother’s Day cards to the children explaining that she would not be in Kelowna for Mother’s Day. The social workers decided not to deliver these cards, claiming it would be contrary to the best interests of the children to do so.

This was in the context of the children possibly experiencing separation anxiety and the youngest child was especially missing her mother and carrying her mother’s picture around. The logic of this decision is a bit troubling, given a concern of separation anxiety, and the non delivery of the cards being a furtherance of that separation. [ 51 ] The June 2010, grade six, final school report card for D.D.P. showed he was between a “C+” and a “B” student, absent 5.5 days and late 8 days. D.A.P. had repeated grade three. His report card showed that he had only been absent 4.5 days and was never late.

He exceeded the expectations for children his age in Reading and was meeting expectations in other areas. [ 52 ] On July 2, 2010 H.P. purchased a plane ticket to return to Kelowna for the July 5, 2010 hearing. On July 4, 2010 she flew back to Kelowna. There was a disagreement between the mother and her lawyer Mr. Newcombe (involving the mom’s move to Ontario and the mom’s insistence of involving her lay advocate Ms. Chomsky) which resulted in her lawyer either being dismissed or choosing to get off the record as counsel. Another local family lawyer named Ms. Bullick stepped in to represent the mother, but Ms.

Bullick was not up to speed with the matter and she requested an adjournment to better prepare. In any event, the case was second in priority on that assize and the other matter took up all the assize time, leaving insufficient time for H.P.’s matter. [ 53 ] Around July 7 th , the Director made application to vary the access order and cut off all of the mother’s access. The mother applied to have the prior access order followed. Ms. Bullick was not available for this access application, which resulted in the mother dismissing Ms. Bullick as her lawyer.

H.P. chose not to have a lawyer, but to rely on her lay advocate Ms. Chomsky. [ 54 ] The access issue was immediately spoken to before the presiding Judge Takahashi on July 7 th but the Director’s request to adjourn the access application for a week was denied. On July 7, 2010 Pediatric Consultant Dr. Szombathy wrote, It is my opinion that all three of the children are demonstrating signs of an emotional disturbance consistent with “Reactive Attachment Disorder.” I understand that the mother of the three children has recently returned and is requesting access to the children.

In my professional opinion, I believe this would be a mistake at this time as the children are all quite emotionally unstable and I fear that brief and inconsistent contact with their mother will prove detrimental to their emotional well being. [ 55 ] On July 8, 2010 Judge Takahashi Ordered that the previous access Order, giving the mother reasonable access supervised at the discretion of the Director, had to be followed by the Director.

On July 9, 2010 the child protection team leader sent an e-mail to her superior, acknowledging that there had never been any formal diagnosis by a child psychiatrist of the children having any attachment disorder. She was seeking approval of having such an assessment performed. [ 56 ] By way of a letter dated July 9, 2010 Ms. Sam wrote to the mother saying, “Lovely to see you back in Kelowna”. That letter set out how the mother would be given supervised access (by two supervisors each visit) one time per week for two hours each visit.

The request for access on [date removed for publication] for the oldest child’s birthday was denied because the foster family had already made other plans. [ 57 ] The mother’s first access visit ended up being on July 15, 2010 and at that time they again celebrated the oldest boy’s belated

birthday. There were two problems with that visit. First, the mother wanted to give each of the kids the hand written Mother’s Day cards the Ministry had earlier refused to deliver. The supervisor would not allow it. The mother then read the contents of the cards and was subsequently reprimanded for doing so. There is no logic to how these cards created a child protection concern. The cards simply read, “I love you. I’m thinking about you. I miss you.

I wish I could be with you on Mother’s Day.” The second problem involved the mother wanting to give the children journals which included writings by the mother expressing her frustration with the social workers. The supervisor did not allow those journals to be given to the children. It is logical that giving the children the journal was not in their best interest. The mother’s emotional needs were not the emotional needs of her children. [ 58 ] The next access visit was on July 22, 2010 and it seems to have gone off without incident.

On July 29, 2010 the access issue was again in front of Judge Takahashi and he ordered that the mother have specified access to her two boys each Wednesday from 11-3 and with her daughter each Saturday from 11-3. Both the Director and the mother would pick a supervisor. The supervisors would alternate weeks of supervision.

The parties were at liberty to change this specified access by consent without the need of another court order. [ 59 ] H.P. had a false notion that the child protection Ministry in Ontario could force the transfer of the children from British Columbia to Ontario after H.P. became an Ontario resident. Upon H.P.’s July 2010 return to British Columbia, she understood that the children would remain in British Columbia until the case was completed.

This was emphasised in Judge Takahashi’s July 8, 2008 order where he ordered that if H.P. “misses one access visit without an acceptable reason, her continued access will be cancelled provided, however, that she may apply to the Court for a review of the cancellation.” [ 60 ] Notwithstanding, H.P. chose to make a fourth trip to Ontario from August 3, 2010 to August 15, 2010. However, the Director was unaware of the mother’s fourth trip to Ontario. The Director had appealed Judge Takahashi’s July 2010 access orders.

That appeal resulted in the ruling of Justice Rogers on November 16, 2010 where Judge Takahashi’s order was upheld. [ 61 ] Various Ministry workers, the access supervisor and the child therapist had a meeting on August 19, 2010 to discuss the concerns of the therapists regarding possible “Reactive Attachment Disorders” of the children and the fact that the boys were saying they were not wanting the weekend visits.

The Ministry seemed unaware that the mother had just returned from her fourth trip to Ontario because the memo discussed a concern of further impact on the children if the mother should leave for a fourth time.

The memo records that the group believed four hours was too long for visits “but since the court ordered it we must comply.” There was a concern that the children were tuning the mother out on access visits and a decision was made that the children not be forced to make eye contact. “Children need ‘presence’ not presents, therapists say absolutely no to presents as the children need to feel they are important and if mom disappears from their lives then returns with presents it sends a wrong message.” On August 19, 2010 (after the mother’s return from the fourth Ontario trip) the mother had her first visit for the month of August. [ 62 ] In August of 2010 the oldest boy’s therapist noticed that D.D.P. appeared to be more sad, mad, worried, confused and scared.

He told the therapist that he knew court was coming up and he wanted to continue living in his current foster home and he only wanted to see his mom one weekend per month with a sleepover from Fridays to Sundays. He was worried about a return to his mother. He said he thought his mother would be good at first, but not so good at the end and she would not be able to keep doing it in the long term. D.D.P. had said similar words to his social worker and to his foster mother. [ 63 ] In August the second son D.A.P. started drawing dark themes with chaos and suicide bombings.

He told the therapist that he no longer wanted weekend visits with his mother and he just wanted the one weekday visit each week. [ 64 ] On August 20, 2010 Ms. Sam went on holidays and the file was transferred permanently to the current social worker named Ms. Stynes . Ms. Sam returned on September 8, 2010 and continued as the social worker for the children, and Ms. Stynes continued as the social worker for the mother. [ 65 ] On September 3, 2010 the new social worker Ms. Stynes met with H.P. in an attempt to engage her in services.

H.P. made it clear that she did not want any services from the Ministry and she intended to resource her own services. She was unwilling to say what those services would be and simply said, “You will find out at trial.” At that time H.P. was still living as a guest at the home of her advocate and said she would find suitable housing for her family if she regained custody of her children. At that time it was still her intention to move permanently to Ontario. [ 66 ] On September 9, 2010 the twelve year old D.D.P. asked Ms. Sam if he could have an overnight visit with his mother.

This was against the flow of his other multiple requests to have less access. Ms. Sam explained to him that she was no longer the social worker making those access decisions and it was now the responsibility of Ms. Stynes . It is troubling that Ms. Sam, as social worker for the child, did not pass this overnight access request information on to Ms. Stynes . [ 67 ] On September 20, 2010 Judge Takahashi ordered that H.P. participate in another parental capacity assessment which was scheduled for September 27-28, 2010 with Dr.

Michael Elterman , who is a well known and respected Clinical and Forensic Psychologist. [ 68 ] On September 30, 2010 Dr. Elterman provided his 27 page written report. He interviewed several people including the mother and children. H.P. told Dr. Elterman that she still had a plan to move to Ontario because she has no ties now to British Columbia to keep her here. The following portions of that report give it come context: H.P. presented as a friendly but self-absorbed woman who was cooperative but at the same time suspicious and uncertain about trust.

I noted a marked tendency to externalize blame and not accept responsibility for what has taken place over the past several years. There is a systematic tendency to blame the Ministry and others which shows limited insight into what she could have done differently. I did, in fact, ask her whether she would have changed anything in the way that she parented prior to 2007 and her response was that there was nothing really that she would have changed. In my evaluation of H.P., I found her to be someone who clearly loves her children and I have no doubt that she wants what is best for them.

I also have no doubt that in her own mind she has done a good job as a parent in the past and when she says that she would not

have done anything differently, that she actually does not see the issues that have been repeatedly raised by others. The question is then whether she is capable of understanding that what she does has an impact on the children. I think that at times she mistakes her own needs and the children’s needs to the extent that what is good for her must be good for the children...

When I look at the children and having reviewed the file, I think that it is unlikely that the children’s behaviour is the result of simply having been removed from a parent and living in a foster home, but comes from also the disorganization, fear and emotional neglect that they went through before 2008. A central question of parenting capacity is whether the parent is likely to revert back to the type of behaviour that was problematic previously or whether they are going to make necessary changes or even hear from others that changes need to be made.

I suspect that H.P.’s desire to relocate to Ontario is perhaps related to seeking support but at the same time it is likely also intended to escape the type of scrutiny that she has been under over the past few years. Without insight that there was a problem, it seems likely that the conditions which led to the removal are likely to reoccur, regardless of their geographical location. If there is a program of steps to return the children, a number of steps will need to be put into place.

The first is that H.P. will need in- home support relating to the basics of cooking, cleaning and ensuring that there is hygiene for the children in the home. Secondly, I think that H.P. would benefit from more intensive and comprehensive parenting courses that deal with not only the physical care of the children but their emotional needs as well. She also would benefit from individual counselling to better understand the areas where she now assumes no responsibility or does not feel that there is a need for change in her parenting.

Her tendency to blame automatically an outside source and not reflect on her role and responsibility is likely what the psychiatrist saw as a personality disorder in her. By continuously reflecting blame and responsibility outward, H.P. does not allow herself the opportunity to learn, but is constantly seeking an outside source to attribute any problems that arise. This is the lack of insight and the poor judgment in decision-making that has been noted elsewhere.

A return to M.P. is possible but she will need to make substantial changes to how she reacts to situations and show more self-reflection and insight than is currently the case. [ 69 ] On October 23, 2010 the access visit happened at the local gaming centre called Scandia, and it was a celebration of the [date removed for publication] birthday of the daughter D.M.P. The mother claimed she had funding for the activity through the assistance of her friend in Ontario. As it turned out, the bill was not paid and this led to a bit of a falling out between H.P. and her supervisor and her advocate.

The supervisor reluctantly decided to no longer participate in future supervision. [ 70 ] With the falling out between H.P. and her advocate Ms. Chomsky, on October 24, 2010 H.P. moved out of the residence of her advocate and into a woman’s shelter. This hearing was scheduled to commence the following day of October 25, 2010. There was a heated discussion in the hall of the court which was overheard by people that were some distance away. H.P. no longer wanted Ms. Chomsky to be her spokesperson. Ms. Chomsky was also upset at H.P.

The access supervisor was also there and was still unhappy about how the October 23 rd Scandia visit had ended. When the matter was spoken to in court, H.P. requested yet another adjournment of the hearing, asking for time to get another lawyer. Given the children had been in care so long, and given H.P. had already dismissed two prior lawyers in the matter, I directed that the matter would proceed. The court has now heard eight days of evidence (October 25- 28, November 17-19, 23). [ 71 ] H.P. claims that she now intends to live in British Columbia for so long as her children are living here.

If the children are returned to her, she will remain in British Columbia until the conclusion of any supervision order and the conclusion of any school year. She will then move to Ontario with her children. [ 72 ] In early November 2010 H.P. moved from the Woman’s Shelter and into a home in Peachland . It is a hobby ranch and H.P. is looking after the horses for the owner. H.P. would like to move to Winfield soon so that she can be closer to her children.

H.P. has been unemployed since 2002 and she continues to receive disability assistance for her Fibromyalgia condition. [ 73 ] H.P. is seeing her three children under supervision each Wednesday and Saturday for four hours. The two boys continue to express that they no longer want weekend access, or alternatively, that they only have Saturday access once a month or on alternate Saturdays. Both boys continue to say they would like some of their visits without their younger sister being present.

The sister continues to say that she wants her brothers present with all of her access visits. [ 74 ] If a Continuing Care Order is made, the Plan of Care of the Director is to have the children adopted. The mother is not native, but the father of the two boys is a non-status native and as a result, any adoption plan will need to conform to the protocol of native adoptions. The plan is to keep the three children together, and before any adoption placement, the children will continue in the same foster home where they have resided for the past 2 ½ years.

With the oldest son being twelve, the Director has more flexibility regarding whether adoption will occur for any of the children, given the plan of keeping the children together. III. THE LAW [ 75 ] The whole of the Child, Family and Community Service Act has been considered, with particular attention being given to Sections 2, 4, 13, 45, 49 and 68 as set out below: 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 the extended family should be preserved if possible; (

f) the cultural identity of aboriginal children should be preserved; a . decisions relating to children should be made and implemented in a timely manner. 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. 13

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

d) if the child has been, or is likely to be, physically harmed because of neglect by the child’s parent; (

e) if the child is emotionally harmed by the parent’s conduct;

(2) For the purpose of subsection (1 )( e), a child is emotionally harmed if the child demonstrates severe (

a) anxiety (

b) depression , (

c) withdrawl , or (

d) self-destructive or aggressive behaviour. 45

(1) The total period during which a child is in the temporary custody of the director …must not exceed, from the date of the initial order until the child is returned to the parent or a continuing custody order is made,… (a) 12 months, if the child or the youngest child who was the subject of the initial order was under 5 years of age on the date of that order…

(1.1) On application the court may extend, by a specified period, a time limit in subsection (1) if the court considers it in the child’s best interests to do so.

(2) In this section, “initial order” means a temporary custody order made under section 41(1)(

b) or (

c) or 42,2(4)(

b) or (c). 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. 68

(1) Before ordering that a child be placed in or returned to the custody of a person other than a director, the court may consider the person's past conduct toward any child who is or was in that person's care.

(2) In a proceeding under this Act, the court may admit as evidence (

a) any hearsay evidence that the court considers reliable, or (

b) any oral or written statement or report the court considers relevant, including a transcript, exhibit or finding in an earlier civil or criminal proceeding. IV. ANALYSIS [ 76 ] The children came into the interim custody of the Director on June 24, 2008 which was nearly 2 ½ years ago. A consent “finding of need of protection” and temporary custody order was made on October 15, 2008 when the youngest child was still four years old and the kids have been in care under temporary custody orders for over 25 months.

Section 45 of the CFCSA contemplates that such temporary custody orders should not usually be in place for more than 12 months, although the legislation does allow for exceptions when the court feels it is in the best interests of the children to do so. A guiding principle under

section 2 is that decisions related to children should be made and implemented in a timely manner. [ 77 ] Given the earlier consent finding of “need of protection” in 2008, this hearing falls within the principles set out in section 49(5) of the legislation. Is there a significant likelihood that the circumstances that led to the removal of the children will improve within a reasonable time?

Alternatively, is there a significant likelihood that H.P. will be able to meet the needs of the children? [ 78 ] The mother believes she is just the victim of poverty and the kids are simply saying they want to remain in the foster home because they have significant economic advantages in foster care. The court must always be vigilant not to base such an important decision on the limited economic resources of the mother. A guiding principle is that the preferred environment for children is with their family, provided the safety and well being of the children can be met in that home.

This case will not turn on poverty, but rather on whether the mother can meet the safety and well being needs of her children in the long term. [ 79 ] The mother also believes the protection issues were the result of her limited parental capacity while she was recovering from her June 2007 motor vehicle accident. There is no doubt that accident did significantly reduce the capacity of the mother to parent the children. By all accounts, she has now recovered from that accident.

The Director is not alleging any Axis 1 disability reason for not returning the children. [ 80 ] The thrust of the Director’s case is that the mother has a significant Axis 2 personality disorder which has resulted in her being either unable or unwilling to put the needs of her children ahead of her own needs. The expert evidence is that ten percent of the general population has some form of personality disorder and such disorders always limits the capacity of a parent to properly care for children.

However, most people with such personality disorders are capable of adequately parenting their children without the need of Ministry intervention. [ 81 ] The expert evidence is that two percent of the general population (20% of people with a personality disorder) have a sever personality disorder. H.P. falls under this category. Many such people are not able to properly parent children unless significant supports are put into place. The problem is people with such a serious personality disorder often are unwilling to accept such supports.

Their disorder does not allow them to see the parental dysfunction and therefore they see no need to fix anything or to accept supports. Treatment is attempted with such individuals, but often that treatment falls apart when the parent denies having any parental dysfunction and starts to minimize and externalized blame. [ 82 ] The most serious of personality disorders is often referred to as a “Borderline Personality Disorder”. The name is a misnomer because a lay person mistakenly thinks this involves someone who is on the lower borderline of not having any Axis 2 Personality Disorder, as opposed to the correct

interpretation of it being a person on the upper borderline approaching an Axis 1 problem such as psychosis. At times Ministry social workers made this mistake when they improperly referred to H.P. having a Borderline Personality Disorder. [ 83 ] The diagnosis for H.P. is a moderately severe Axis 2 Personality Disorder Not Otherwise Specified with “Cluster B” traits. Again, a lay person might mistakenly think the reference to “Not Otherwise Specified” means her diagnosis is somehow uncertain, inconclusive and not properly a Personality Disorder diagnosis. Such is not the case. Dr.

Jones stated the diagnosis simply means “it does not exclusively or neatly fall into any of the categories of personality disorder.” It was still seen as “a moderately severe disorder that had a pervasive impact on every area of her life, including parenting.” It was referred to as an arrest of her psychological development at the level of 18 or 19 year old adolescence. It was the opinion of Dr. Jones that H.P. becomes easily overwhelmed in the face of life stressors and can revert back to the psychological development of an early teen.

When such stressors are in play, H.P. can “easily fail in the task of ensuring the safety and daily nurturance of her three children.”

[ 84 ] Dr. Jones opined that if H.P. is to regain custody of her children, a multitude of support systems are needed to be in place to ensure ongoing sustenance and safety of the children. The Doctor thought that the poor insight and resistance of H.P. in regards to such external intervention makes it unlikely that such interventions can maintain an adequate level of safety for the children. [ 85 ] Dr. Elterman’s opinion was in no way inconsistent with that of Dr. Jones. Dr. Elterman opined that at times H.P. mistakes her own needs for those of her children. Dr.

Elterman wrote: By continuously reflecting blame and responsibility outward, H.P. does not allow herself the opportunity to learn, but is constantly seeking an outside source to attribute any problems that arise. This is the lack of insight and the poor judgment in decision-making that has been noted elsewhere. A return to H.P. is possible but she will need to make substantial changes to how she reacts to situations and show more self-reflection and insight than is currently the case. [ 86 ] Dr.

Elterman did not express an opinion on the length of time needed to bring about the needed parental capacity changes, but the overall impression is that it would need to be enough time for substantial changes to first occur. The children have now been in care for nearly 2 ½ years, which seemingly has not been enough time for such substantial changes to happen. [ 87 ] The children are clear in what they tell anyone who will listen, including the therapist, the foster parent, the social workers, and Dr. Elterman .

The older boy is aware of this ongoing court case and he is repeatedly asking some of these people whether the judge is listening to what he is telling them to say to the judge. All three kids love their mother and they enjoy seeing their mother. However, they are clear that they do not think their mother can properly look after their needs in the long term. [ 88 ] There is much to consider in this case. I am not of the opinion that the circumstances that led to the children’s removal will be sufficiently improved within a reasonable time.

I believe that without life stressors, H.P. is able to meet the needs of her children. Unfortunately, life is full of stressors for all of us, such that it can not be said, on the balance of probabilities, that H.P. will meet the long term needs of her children. She deeply loves her children, but love alone is insufficient to properly parent her children in the long term. She needs to have the capacity to put her children’s needs ahead of her own emotional needs. The planned move to Ontario is a good example of that inability, given the emotional attachments of the children here.

That example is described in paragraph 41 of this judgment. The flight to Vancouver at the time of the removal is yet another example of the mother placing her needs ahead of those of her children, who struggled with school but were pulled out of school three weeks prior to the end of the school year. V. CONCLUSION [ 89 ] This court orders that the three children be placed in the continuing care of the Director pursuant to s.49( 5) of the CFCSA . [ 90 ] H.P. has leave to apply for access pursuant to s.56.

The Director and H.P. should give serious consideration to the requests of the three children regarding access, given their requests are not unreasonable. After hearing eight days of evidence in this matter, I now seize myself of hearing any such future contested s.56 access application. Any presiding judge can deal with it if there is a consent access order. ___________________ R.R. Smith, P.C.J.