Director v. N.R. and K.T. Date:, 2016 BCPC 231

Citation: Director v. N.R. and K.T. Date: 20160509 2016 BCPC 231 File No: 9788 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: S.L.R. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND CHILD SERVICES APPLICANT AND: N.R. and K.T. PARENTS ORDER OF THE HONOURABLE JUDGE G.BROWN CFCSA MATTER RESTRICTION ON ACCESS s. 3.2 Provincial Court Act

Counsel for the Director: K. Hedman Appearing on his own behalf: N.R. Counsel for K.T. : G. Lanning Place of Hearing: Abbotsford , B.C. Dates of Hearing: January 26, 27, April 15, 2016 Date of Order: May 9, 2016 [ 1 ] THE COURT : These are my reasons for judgment in the file the Child, Family and Community Service Act re: the child, S.L.R. , under number F9788. INTRODUCTION [ 2 ] S.L.R. was born on [omitted for publication] and she is now five years old. Following her removal on May 13th, 2014, she first lived with her older sister, A.T., but she is now in a Level 3 foster home due to her special needs.

S.L.R. has been removed twice from her family and she has been in Ministry care for about half her young life. [ 3 ] S.L.R.'s mother is K.T., and she has not taken

part in this hearing, although her counsel has been present. K.T. has not seen S.L.R. since July of 2015. The Director's concerns with K.T. include her alcohol use, her mental health, and the domestic violence that occurs between her and N.R. [ 4 ] N.R. is S.L.R.'s father and he has acted on his own behalf in this child protection proceeding. I commend him for actively participating in this hearing and he obviously loves S.L.R. He appears to want his child back, but he is conflicted about that position.

In the Spring of 2015 he started having overnight visits with S.L.R. and there was a plan for her to return to his care. However, that plan came to an abrupt end when S.L.R. began acting aggressively and bit N.R.'s arm. He spanked her and said to the Ministry he was "done". He has since expressed a desire to have S.L.R. returned to him, but not under the Ministry's "umbrella". [ 5 ] The Director of Child, Family and Community Services' concerns with N.R. include that he has not acted protectively of S.L.R. The concern is that he enters relationships plagued with substance abuse and domestic violence.

Furthermore, even when N.R. was single and a return plan was attempted, he could not cope with S.L.R.'s unusual behaviours. [ 6 ] This little girl can only attend kindergarten for limited hours with a one-on-one aide present at all times. [ 7 ] The Director is seeking a continuing custody order for S.L.R. A finding that the child is in need of protection is sought as a prerequisite. The Director's plan of care for S.L.R. is to have her adopted with an openness agreement with her parents and her sister, A.T. The Director is opposed to an access order as such an order could interfere with adoption planning.

Other options are available to the court, including a return to the father or possibly a last chance order. The key issue in this case is whether or not a continuing custody order is appropriate for S.L.R. taking into account not only s. 49 of the Child, Family and Community Services Act (the CFCSA ), but also the guiding principles of that legislation. THE CASE FOR THE DIRECTOR LISA DOER : [ 8 ] Ms. Doer is an intake and investigative social worker with the Ministry for Children and Family Development.

She was involved in the most recent removal of S.L.R. in May of 2014. [ 9 ] On April 30th, 2014, the Ministry received a report of domestic violence between K.T. and N.R. when S.L.R. was present. Even though K.T. was the person who was intoxicated and out of control, N.R. was the person arrested by the police. Social Worker Doer spoke to N.R. about the incident and he had, in fact, audio-recorded the domestic dispute. The recording revealed that K.T. was intoxicated and out of control and things could be heard breaking.

S.L.R. was then three years old and she was crying throughout the recording. [ 10 ] K.T. apparently admitted to some drinking, but she denied being intoxicated. Collateral sources confirm that K.T. was drinking to intoxication as often as five times per week. [ 11 ] I should add that the Ministry had previously been involved with this family on over a dozen occasions. K.T. has other children and one of her older boys is said to be a heroin addict. [ 12 ] Following this report, Social Worker Doer put in place a safety plan where S.L.R. was to stay with her older adult sister, A.T.

It was felt that S.L.R. was not safe in the family home due to K.T.'s ongoing alcohol misuse and the domestic dispute which took place in front of the child. [ 13 ] The safety plan remained in place for about a week to allow the Ministry to complete an assessment . Unfortunately, K.T. denied having a problem with alcohol, so the decision was made to remove S.L.R. S.L.R. would remain in the care of A.T. [ 14 ] K.T. remained in the family home with her 16-year-old daughter, E., but E. ended up living on her own under a youth

agreement. According to E., K.T. was very stressed and could not provide lunches. Another child, D., went to live with his father in Chilliwack. An adult child, C., remained in the home and was struggling with drug addiction, according to N.R. [ 15 ] At the time of S.L.R.'s removal, N.R. was not opposed to the placement of S.L.R. with A.T. He was also bound by a bail order which contained no contact terms. [ 16 ] The Director obtained an interim custody order under s. 35(2)(a). The sister and caregiver, A.T., was concerned about S.L.R. S.L.R. was using inappropriate language and she was not yet toilet trained.

The parents were to have supervised visits. In answer to a question posed by N.R., Social Worker Doer agreed that N.R. was essentially homeless at the time of the removal. She noted that he was not asking how he could get S.L.R. back into his care at that time. TRACI BRALEY : [ 17 ] Ms. Braley is the current Family Service social worker and she took conduct of the file in April of 2015. Ms. Braley provided an overview of the Ministry's involvement with K.T. and N.R. [ 18 ] K.T. has a total of seven children, including S.L.R.

Between 1993 and 1995, the Ministry received five reports about concerns that K.T. was misusing substances and concerns about her care of her then three children, C., A.T. and D. The father of those three children acquired custody of them under the Family Relations Act . [ 19 ] From 1997 to present, a further 13 intake reports were received about K.T., and the last five of those involved N.R. as well. In 2003, there were three reports about K.T. abusing drugs and alcohol and providing inadequate supervision to her younger children, D. and E.

Domestic violence was also a concern. [ 20 ] On October 3rd, 2003, K.T. tested positive for cocaine when she gave birth to K., so D., E. and K. were removed.

The children were returned to K.T. in November 2004 under a supervision order; however, K.T. breached the order by drinking and using cocaine so the children were re-removed on May 17, 2005. [ 21 ] In 2004, K.T. did attend for substance abuse treatment at Peardonville, but she was discharged from the residence due to her consumption of amphetamines. [ 22 ] Following the re-removal in May of 2005, D. and E. went into the care of K.T.'s parents and K.'s father gained custody of K., so by late 2005 K.T. had no children in her care. [ 23 ] On [omitted for publication] S.L.R. was born.

N.R. was the father and had been in a relationship with K.T. for some time. Also, during that year, K.T. had made a suicide attempt and she had been in altercations with N.R. In that same year, K.T. did attend treatment with S.L.R. for drug and alcohol use; however, there were reports of K.T. drinking after leaving treatment. [ 24 ] In February of 2011, K.T., N.R. and S.L.R. were living with K.T.'s parents and the children, D. and E. N.R.'s older daughter, S.R., was also in the home. A report was received that D. was worried about his mother, who was inebriated and had tried to stab herself.

A safety plan was then set up with the family by having K.T. leave the home and she was only to attend the home for visits. However, on March 8th, 2011, all four children in the home were removed, including S.L.R. and S.R. The safety plan had broken down and there were verbal altercations between K.T. and N.R. while the children were present. Furthermore, S.R., a teenage girl, was caring for S.L.R., a baby, while N.R. went to work. There was also conflict between K.T. and S.R.

The Ministry felt N.R. was staying out of the conflict and was not protective of S.R. [ 25 ] After the removal in March of 2011, S.L.R. was eventually placed in the care of her older sister, A.T., and the three older children were in foster care. By June of 2011, D. and E. were returned to their grandparents and S.R. went to her mother's home. [ 26 ] S.L.R. was returned to K.T. and N.R. on April 3rd, 2012 under a supervision order. She had been in care up to that time for over one year. [ 27 ] On March 19th, 2011, Dr.

Elterman prepared a psychological assessment of S.R.'s mother, N.R. and K.T. in relation to the care of S.R. Dr. Elterman was of the view that S.R. was facing two dysfunctional situations; her mother, on the one hand, and N.R. and K.T. on the other hand. There were resentments and negative comments coming from K.T. to S.R. S.R. did live with N.R. for some time. [ 28 ] S.L.R. had been returned to K.T. and N.R. in April of 2012 because K.T. had been one year clean and sober and there were no reports of domestic incidents.

K.T. was the primary caregiver of S.L.R. as N.R. was working long hours. [ 29 ] A further report was received in the spring of 2013 regarding K.T. drinking and a domestic assault, but the children did not disclose any concerns. [ 30 ] N.R. called the Ministry in July of 2013 to say that K.T. was drinking again and that she was violent. N.R. had separated from K.T. and S.L.R. was living with him. This intake was closed because N.R. was seen to be acting protectively. [ 31 ] Unfortunately, a further report was received on April 30th, 2014, and I refer to Ms. Doer's evidence in that regard.

S.L.R. was removed and placed with her sister, A.T., and a number of temporary orders were granted supporting that arrangement. Ultimately, A.T. could not care for S.L.R. due to her behaviours. [ 32 ] Most of the Ministry history above concerns K.T. or K.T. and N.R. as a couple; however, there was one historical intake involving N.R. alone. In 2009, N.R. had struck his older daughter, S.R., with a belt. S.R. then lived with her mother and N.R. ultimately united with K.T. [ 33 ] Social Worker Braley testified as to why the Ministry was seeking a continuing custody order for S.L.R. First, the mother had

no stable residence and was not even visiting S.L.R. Secondly, N.R. had been in support of A.T. caring for S.L.R. After the domestic incident in April of 2014, his home had been condemned. He visited S.L.R. regularly, but had no plan for her return to his residence . He also did not acknowledge his role in the dysfunctional relationship with K.T. [ 34 ] N.R. did engage in eight sessions of counselling with Abbotsford Community Services in 2012. The counselling was to address his history of choosing unhealthy partners and to make better choices in the future.

However, N.R. has gone on to have another dysfunctional relationship with a woman named M.S. [ 35 ] Social Worker Braley also expressed that S.L.R. is a very challenging girl. S.L.R. is only permitted to be in kindergarten for two hours per day with an aide present. In May of 2015, A.T. came to the realization that she could not care for her little sister any longer. S.L.R. is now with highly skilled caregivers. [ 36 ] Social Worker Braley is concerned that N.R. does not truly appreciate how challenging S.L.R.'s needs are.

N.R. is also opposed to the child being given medication. [ 37 ] Significantly, there was a Ministry plan to return S.L.R. to her father's care. N.R.'s visits were extended to overnights and he was making daycare arrangements. In June of 2015, N.R. had three nights in a row with S.L.R. However, he called Social Worker Braley and said he was "done". S.L.R. had bit his arm and he spanked her. After that incident S.L.R. was placed with her current specialized foster parents. [ 38 ] N.R. had taken some suitable steps for S.L.R.'s return to him. He went to programs offered by Abby Dads, but he chose to discontinue.

He had a difficult time juggling his work hours as a trucker, his renovations to the condemned home, and care arrangements for S.L.R. [ 39 ] Currently N.R. visits S.L.R. every Sunday from 12:30 to 4:00 p.m. and he phones her on Wednesdays. His visits have been consistent since September 2015. [ 40 ] In November of 2015, N.R. told the Ministry he would "do what it takes" to get S.L.R. back. He would meet with an outreach worker and learn about S.L.R.'s needs and suitable parenting arrangements. N.R. did try to set up a family plan, but Social Worker Braley feels he has not met the goals he set out.

He also engaged in some counselling with Rebecca Schroeder, but in her assessment she says: He is deeply committed to the process of fighting for his daughter's return and yet appears equally fearful that it will occur. [ 41 ] N.R. had lined up certain persons for daycare, but those arrangements fell through. His mother and A.T. are not able to be caregivers for S.L.R. [ 42 ] Social Worker Braley was also concerned that N.R. wanted S.L.R. picked up early last Father's Day 2015. She questions his commitment.

Social Worker Braley also noted that N.R. has been involved in a few domestic incidents with a more recent girlfriend, M.S. Overall, Social Worker Braley is opposed to a return of S.L.R. to her father because she believes any return would fall apart fairly quickly as it did in June of 2015. Social Worker Braley is also concerned about a last chance order as S.L.R. has been in care since May of 2014.

N.R. has had two years to effect the changes necessary for a return. [ 43 ] Social Worker Braley then reiterated the protection concerns she had with K.T., and I will not belabour them as the mother has not engaged in the court process. The social worker has not heard from K.T. since July of 2015, but she has received some reports about the mother drinking. MS. WALLACE : [ 44 ] Ms. Wallace is employed by the Mission School District as an education assistant for children with complex behaviours. She started working with S.L.R. in her kindergarten class in November of 2015. [ 45 ] Ms.

Wallace's services were felt necessary because of S.L.R.'s physical outbursts. S.L.R. has punched her teacher and she placed one boy, classmate, in a garbage can. She punched another student in the chest with quite an impact. When these incidents happen, S.L.R. is taken to the office and her foster parent picks her up. [ 46 ] Following a team meeting, it was decided that S.L.R. should attend kindergarten only from 8:45 a.m. to 10:00 a.m., after first having a one-to-one meeting with Ms. Wallace. It was difficult for Ms. Wallace to engage S.L.R. as trust was a huge issue for this child. Ms.

Wallace defined her role as being S.L.R.'s "external self-regulation piece". Ms. Wallace was there in part to help S.L.R. identify her feelings and allow her to participate in class. Ms. Wallace's role with S.L.R. is a key one. If Ms. Wallace is sick, for example, S.L.R. cannot go to school. [ 47 ] More recently, S.L.R. 's time in class is described as "variable". S.L.R. is a very challenging child. There are days when she will throw a box of crayons and Ms. Wallace responds calmly. [ 48 ] Transitions are very difficult for S.L.R. She has trouble going from one adult to another.

It is important to let her know what is happening in advance. She does not respond well to consequences; she just digs in deeper. [ 49 ] S.L.R. is on a wait list for a Sunny Hill assessment . A.T. : [ 50 ] A.T. is the daughter of K.T. and older sister of S.L.R. She is 26 years old and has a two-and-a-half year old daughter of her own. She has a spouse and she works as a mental health nurse on-call. A.T. is the second oldest in her family, comprising of seven

siblings in total. A.T. was raised by her father as her mother, K.T., had drug and alcohol issues, which are already well documented in this trial. [ 51 ] A.T. was 21 years old when S.L.R. was born in 2010. After the first removal of S.L.R. in March of 2011, S.L.R. was eventually placed with A.T. for about seven months. S.L.R. was then just over one year old and she was fairly easy to care for. [ 52 ] S.L.R. was removed for a second time in May of 2014 and A.T. cared for her from that time until July of 2015. S.L.R. was then three years old, almost four.

This second removal was traumatic for S.L.R. as she had seen her parents fighting and she saw police car s. [ 53 ] A.T. pointed out that she was always involved in S.L.R.'s life, even when she was not her caregiver. A.T. even called to her mother's residence on several occasions due to family conflict. [ 54 ] Following May of 2014, S.L.R. had many challenges. She had urinary tract infections and she was incontinent. Her appetite was poor. Even more concerning, S.L.R. was aggressive with adults and children. She would try to hurt A.T.'s very young daughter and she gave A.T. bruises and bloody noses.

S.L.R. would have a meltdown when she would throw plates or purposely urinate on the floor. [ 55 ] A.T. took S.L.R. to paediatricians and S.L.R. was prescribed medication, but it made her groggy. S.L.R. was placed in daycare, but A.T. could not go to work because the daycare would often require S.L.R. to be picked up due to her aggressive behaviour. [ 56 ] S.L.R. also had difficulties with sleep, but that improved somewhat when she went on Melatonin. S.L.R. also displayed a lot of anxiety. She was stressed about where her parents were.

She also preferred boy's clothes to girl's clothes. [ 57 ] A.T. found it too difficult to care for S.L.R. She could not work or even properly care for her own daughter. S.L.R.'s issues resulted in many meetings with professionals. [ 58 ] After S.L.R. left A.T.'s home, A.T. has maintained contact at least once per week and she has a good relationship with the foster family. [ 59 ] Since S.L.R. has been in the new foster home, A.T. has not observed any bad behaviours. S.L.R. is no longer incontinent with her and she seems happy. [ 60 ] A.T. has not had recent contact with her mother, K.T.

Her mother was never consistent with visiting S.L.R. [ 61 ] A.T. was fully aware of the attempted transition of S.L.R. from her to N.R. in June of 2015. N.R. was to have day visits progressing to overnights. He was to make school and daycare arrangements. A.T. and N.R., in fact, discussed S.L.R.'s struggles with her behaviour. This transition to N.R. came to an abrupt end and he told A.T. he was not able to care for S.L.R. due to his work, her needs, and the renovations on his home.

A.T. confirmed that N.R. ended his Father's Day visit earlier than expected. [ 62 ] A.T. also made clear that she could not now be S.L.R.'s caregiver for the reasons described above. S. K. : [ 63 ] S.K. and her husband are Level 3 foster parents and they have served in that capacity since 1994. They have three children of their own and two foster children, including S.L.R. They have extensive experience dealing with special needs children and S.K. is a registered nurse. [ 64 ] In October of 2014, S.K. first provided respite care for S.L.R., who was then four years old.

S.L.R. did not like her hair being brushed and she often soiled her pants. On one occasion she refused to eat. However, S.K. never saw extreme behaviour until S.L.R. moved in full time. [ 65 ] It was on July 20th, 2015 that S.L.R. came to live in the S.K.'s household full time. There were times when S.L.R. could go into extreme rage; for example, when she could not hold the dog she began punching and pinching and biting S.K.'s teenage daughter.

This rage can surface suddenly, even after S.L.R. has been very sweet and adorable. [ 66 ] At the moment, S.K. is the only person to bathe S.L.R. or organize her belongings. The incontinence is an ongoing issue. S.L.R. now wears girl's clothes without any fuss. [ 67 ] S.L.R. was excited to start kindergarten and school began well. However, in late September S.L.R. was taken out of school for a whole week because she tried to strangle another child. [ 68 ] In January of 2016, S.L.R. exhibited some unusual behaviours; for example, she grabbed S.K.'s private area. S.K. has realized that she must be calm with S.L.R.

S.L.R. picks up on anxious or frustrated behaviour by the parental figure. S.L.R. is on medication and her behaviour towards S.K. is getting better. [ 69 ] The paediatrician has referred S.L.R. to Sunny Hill and work is being done at The Asante Centre. A child psychiatrist and an ADHD clinic are also recommended. S.L.R. has begun play therapy sessions. [ 70 ] S.K. emphasized that S.L.R. needed to be monitored at all times. She cannot be left alone with a little child. DAVID RADER : [ 71 ] Mr. Rader worked with N.R. as a family outreach worker at Abbotsford Community Services.

N.R. attended an anger management workshop facilitated by Mr. Rader. N.R. did not feel anger was an issue for himself. [ 72 ] Mr. Rader also worked with N.R. on service plan goals established by Social Worker Braley. He was helping N.R. with a

parenting plan and some instruction on the ages and stages of child development as they related to S.L.R. They both agreed that without extra support it would be difficult, if not impossible, for N.R. to parent S.L.R. [ 73 ] N.R.'s work

schedule was demanding, yet someone had to be available for S.L.R. at all times. It was difficult to identify a support person for N.R., who was also occupied renovating his home. [ 74 ] N.R. told Mr. Rader that he did not need parenting training as he had raised another daughter. CYNDI FAIRBROTHER : [ 75 ] Ms. Fairbrother is a guardianship worker and her current role is to ensure the needs of S.L.R. are being met. If a continuing custody order were to be granted, she would develop long term plans for the child. [ 76 ] When Ms.

Fairbrother met with S.L.R., S.L.R. stated she could talk to Auntie S.K. (the foster parent) if she were scared. S.L.R. also had positive things to say about A.T. S.L.R. also told Social Worker Fairbrother that when her parents were together it was loud and they fought a lot. S.L.R. missed her mother, but did not say a lot about her father. [ 77 ] Social Worker Fairbrother also spoke of the many services planned for S.L.R., including The Asante Centre, paediatric care, Child Youth and Mental Health, and the HEAL Clinic. [ 78 ] N.R. did attend a care meeting about S.L.R. held at her school last October.

N.R. was not interested in certain resources offered to him and he was opposed to the use of medication. [ 79 ] If a continuing custody order were granted, Social Worker Fairbrother would first explore placement with family. A brother of K.T. may be interested. If no family members are identified to care for S.L.R., a thorough search of approved adoptive families is then conducted. Six families in the Lower Mainland area have already been identified as meeting S.L.R.'s needs. [ 80 ] Social Worker Fairbrother explained that access orders make it more difficult to find adoptive families.

She expects that if a continuing custody order were granted N.R.'s access would reduce to once every one or two months. The adoptive family would likely be part of the visit. The father's visits could evolve to unsupervised visits and possibly overnights. N.R.'s access could be part of an openness agreement and the Ministry realizes N.R. is an important part of S.L.R.'s life. A.T. may have visits similar to the ones she has now. THE FATHER'S CASE N.R. : [ 81 ] N.R. is 46 years of age and he is the natural father of S.L.R.

He lives in a home in Abbotsford which he renovated after it was "condemned" following the events in April of 2014. [ 82 ] On April 29th, 2014, just prior to S.L.R.'s last removal, K.T. got into an altercation with N.R. A.T. had expressed concern about S.L.R. returning to the home due to K.T.'s drinking. During the altercation, K.T. punched N.R. and threw pictures and a bottle at him. S.L.R. was present for much of the altercation. According to N.R., K.T. had fallen during the incident and her older son pushed him. N.R. removed everyone from his house, but the police came and arrested him.

The police allowed K.T. and three of her children back in the home and for the next nine months the home was heavily damaged. Every wall was smashed in. Charges against N.R. were ultimately dropped. [ 83 ] N.R. noted that K.T.'s older son, Chris, was on methadone and his methadone was in an orange drink within reach of the child. N.R. believes K.T. is a good mother when she is not drinking; however, drinking was an issue in 2014 as she had an impaired driving infraction in March of that year. [ 84 ] N.R. was not initially aware of S.L.R.'s removal in May of 2014, but he then engaged in supervised visits.

N.R. worked with Social Worker Braley in an effort to have S.L.R. returned to him. He felt his visits put him in the position of being a "fun dad", but he was not able to act as a regular parent. [ 85 ] N.R. eventually got his home in decent shape by November of 2014 and he started seeing S.L.R. in his home by February or March of 2015. Overnight visits happened between September and October 2015. [ 86 ] During the time of overnight visits N.R. was establishing rules for S.L.R. His bedtime was 7:30 and he was getting S.L.R. into that bedtime routine.

Unfortunately, one evening S.L.R. bit his arm and he smacked her on the backside. N.R. felt he could not control S.L.R. and the overnight visits stopped. A.T. provided N.R. with medication, but he believed kids should not be taking drugs. [ 87 ] As to N.R.'s background as a parent, he explained that he raised his older daughter, S.R., from her birth to age 12. S.R.'s mother, Ms. C., did not cook or clean. S.R. also lived with N.R. when he was with K.T., but S.R. ended up in Ministry care. [ 88 ] N.R. testified when S.L.R. was three years old he would do most of the grocery shopping and cooking.

He also did most of the cleaning and he picked up S.L.R. from daycare. K.T. would often be drinking alcohol with her mother. N.R. said that he and K.T. did share the parenting of S.L.R., including diaper changes and the like. [ 89 ] N.R. believes that S.L.R. has some sort of post traumatic stress as a result of the Ministry's removal in May of 2014. The upheaval was too much for her. [ 90 ] N.R. also acknowledged that his employment takes him away from Abbotsford and he could not be available should something arise at S.L.R.'s daycare or school. He cannot choose to be unemployed to raise the child.

[ 91 ] N.R. had several persons as possible supports, but they did not work out. N.R. also expressed concern about daycare costs as he is paying the mortgage on his home, which is actually owned by his mother. [ 92 ] N.R. expressed some fear of having S.L.R. back as he would not want to fail. He finds the Sunday afternoon visits to be great, but it is hard when they end.

N.R. also stated that he wants S.L.R. back because he loves her, but he also realizes that she needs a mom and friends. [ 93 ] N.R. has been single for a year. [ 94 ] N.R. also was of the view that K.T. would be the worst thing for S.L.R. at this point. As for A.T., he has respect for what she has done and he realizes that it was difficult for A.T. to care for S.L.R. [ 95 ] N.R. summed up his position by saying that he would love to have S.L.R. back home, but he does not want to raise a daughter in fear under the "Ministry's umbrella". There is a concern that S.L.R. could make unfounded allegations.

He also questioned who would be his support. [ 96 ] If a continuing custody order were granted, N.R. would still want overnight visits so he could do some real parenting. It would be very hard to do a brief visit every couple of months. [ 97 ] N.R. wondered why A.T. was given preferential treatment around visitation following a continuing custody order. [ 98 ] In cross-examination, N.R. explained that although he has said unflattering things about K.T., he only says to S.L.R. that "mom is not feeling well".

When S.L.R. becomes older, he will tell S.L.R. of the bad choices her mother made. [ 99 ] Also, during cross-examination N.R. agreed that he is confused. He loves S.L.R., but she has high needs that require parenting full time. N.R. also said he was awaiting surgery for his arm and he would then need time for recovery. [ 100 ] Regarding the incident with S.R. in 2009, N.R. spanked S.R. with a belt because he was siding with S.R.'s mother. The mother was going to punch S.R. in the face. [ 101 ] As to his relationship with K.T., N.R. said it was an on and off relationship and he was naïve about alcoholism.

After S.L.R. was born, K.T. lived with N.R., S.R. and S.L.R. K.T.'s parents lived in the basement with E. and D. Problems ensued when K.T.'s mother began drinking. [ 102 ] K.T. did attend at Peardonville and she was clean and sober for one year. [ 103 ] Currently, N.R. lives alone, but another man and his son are boarders. N.R. describes himself as a "rescuer" who cannot say no to people in need. After separating from K.T., N.R. did have a relationship with M.S., who also developed a drinking problem. M.S. would get angry and N.R. would simply leave.

He was charged with assaulting M.S., but those charges were stayed. [ 104 ] N.R. realized that the Ministry felt he should have protected S.L.R. from being exposed to domestic incidents, but he said in real life arguments happen. He dealt with these arguments by using a swear jar. [ 105 ] N.R. blames the Ministry at least in part for the removal of E., D., S.R. and S.L.R. in March of 2011. K.T. had been sober but for one slip in February of 2011. After the disclosure about K.T. being suicidal with a knife, the Ministry told K.T. to leave the home and she went to her "drinking buddies".

N.R. feels that the Ministry was too drastic in asking K.T. to leave. K.T. did return home and she had an argument with N.R. over dinner. S.L.R. was removed and was in care for about a year, primarily with A.T. as her caregiver. [ 106 ] While S.L.R. was in care after March of 2011, N.R. said he believed in K.T. and he was working on getting K.T. a job and her driver's licence . [ 107 ] Concerning the second removal in May of 2014, N.R. was satisfied that S.L.R. was in good hands with A.T. If he tried to get S.L.R. back K.T. would have attacked him.

He was also homeless. [ 108 ] Insofar as Father's Day 2015 is concerned, N.R. had made prior arrangements with friends so he could not have an extended visit with S.L.R. on that day. IS S.L.R. IN NEED OF PROTECTION ? [ 109 ] Before even considering a continuing custody order, I must be satisfied that S.L.R. was in need of protection at the time of her last removal and that she continues to be in need of protection.

Section 13 of the CFCSA sets out the circumstances in which a child may be found in need of protection. [ 110 ] I will say at the outset that I am satisfied that S.L.R. is in need of protection and that the protection concerns broadly fall under the categories of neglect as specified in s. 13(1)(d), and inability to meet the child's needs as outlined in s. 13(1)(h). [ 111 ] The concerns with K.T. are more readily apparent. She has a longstanding problem with alcohol and her alcohol abuse results not only in domestic turmoil, but also neglect of S.L.R.

She has not even seen S.L.R. since July of 2015. [ 112 ] The protection concerns with N.R. are more subtle. He has left S.L.R. in circumstances where she is exposed to domestic conflict and her needs are not met. N.R., himself, does not abuse substances and he works long hours, but he has left S.L.R. with K.T., knowing of her struggles with alcohol and her propensity to cause serious family discord. This has resulted in a neglect of S.L.R.

Also, as is evident by the failed return plan, N.R. has not been able to meet S.L.R.'s unique needs. [ 113 ] The removals of S.L.R. in May of 2014 and March of 2011 are remarkably similar.

[ 114 ] In 2011, four children, including S.L.R., were affected by K.T.'s drinking and erratic behaviour. The boy, D., saw his mother using a knife in a suicidal manner. N.R.'s older teenage daughter, S.R., was having a tumultuous relationship with K.T. and was also burdened with caring for her little sister, S.L.R. The safety plan requiring K.T. to leave the home had broken down and the children were witnessing verbal altercations between the parents. [ 115 ] If we fast-forward to May of 2014, the same sort of problems exist, but S.L.R. is now exhibiting more concerning behaviours.

Like 2011, in 2014 K.T. is intoxicated and, in fact, out of control. Like 2011, in 2014 the parents are involved in a serious domestic incident, but this time N.R. is arrested. S.L.R. is crying throughout the incident. Like 2011, in 2014 the safety plan breaks down and K.T. refuses to admit to her problems with alcohol. [ 116 ] As I said above, the protection concerns in 2014 are all the more troubling because S.L.R. is now a different, more difficult child.

A.T. observed that her little sister had many challenges not seen earlier, including incontinence and aggressive behaviour. [ 117 ] The two removals of S.L.R. also have to be put in context. K.T. has an extensive history with the Ministry concerning her six other children. The father of K.T.'s three eldest children ended up acquiring custody of them, and the three next oldest children had been removed from her care in 2003 and 2005. Since 1997, the Ministry has investigated 13 intake reports and N.R. was involved on the last five of those reports.

N.R. had to be aware of K.T.'s shortcomings as a parent, yet he allowed her to be the primary caregiver for S.L.R. for much of the time. [ 118 ] N.R., himself, has some limited history with the Ministry. He spanked S.R. with a belt in 2009. I am less concerned with that specific incident, but more concerned that in that year of 2009 he was again in a dysfunctional relationship with a woman, Ms. C. Ms.

C., K.T. and, more recently, M.S. all share similar dysfunctional features and they all got into conflict with N.R. [ 119 ] It is patently clear that S.L.R. was in need of protection at the time of the last removal in May of 2014. K.T. was drinking and there was a serious domestic incident in front of S.L.R. N.R. was not a drinker and he was not the aggressor in that domestic incident. However, he did not protect S.L.R. from being exposed to that environment. He also could not be a caregiver to S.L.R. because he had been arrested and was homeless. [ 120 ] These protection concerns remain today.

K.T. has not seen her child in months and is not even participating in this hearing. N.R. is now single and he continues to work hard as a trucker. He has renovated his home, which was previously condemned. However, to this day N.R. has not recognized the harm caused to S.L.R. by being in an environment where the mother abused substances and was engaged in domestic violence. He casts off these concerns by saying that everyone argues. Most importantly, he has not been able to meet S.L.R.'s needs as exemplified by the failed return plan in 2015. [ 121 ] In conclusion, I find that S.L.R. is in need of protection.

SHOULD A CONTINUING CUSTODY ORDER BE GRANTED ? [ 122 ] These are always difficult cases. S.L.R. has been removed twice from her parents and she has been in care half her young life; yet N.R. comes before the court saying he wants to try again to have S.L.R. restored to his care. He truly cares for his daughter, but he is fearful about parenting a child with such extreme behaviours and he is concerned about not having supports in place for S.L.R. [ 123 ] It is important to bear in mind the guiding principles of the CFCSA as found in s. 2. The safety and wellbeing of children are the paramount considerations.

Children are entitled to be protected from abuse and neglect. That being said, the family is the preferred environment for the care and upbringing of children. Importantly, s. 2 concludes by emphasizing the decisions relating to children should be made in a timely manner. [ 124 ] I also bear in mind all the relevant factors that must be considered in determining a child's best interests as outlined in s. 4 of the CFCSA. [ 125 ] More specifically, the Director in this case is seeking a continuing custody order for S.L.R. with emphasis on s. 49(5) of the CFCSA .

The court may place S.L.R. in the continuing custody of the Director if there is no significant likelihood that the circumstances which led to her removal in 2014 will improve within a reasonable time or that the parents will be able to meet S.L.R.'s needs. [ 126 ] Under s. 49(6), the court must also consider the past conduct of the parent towards any child in their care, S.L.R.'s plan of care and her best interests. [ 127 ] Insofar as K.T. is concerned, it is clear that her circumstances have not changed since the time of S.L.R.'s removal and there is no significant likelihood they will change.

She has a prolonged history of substance abuse and resulting domestic discord. She has not participated in this hearing and she has not seen S.L.R. since July of 2015. I find that she could in no way manage the special needs of S.L.R. [ 128 ] For N.R. the issues are somewhat less transparent. He was part of the domestic violence witnessed by S.L.R. in May of 2014 and he was thereafter unable to care for S.L.R. due to his arrest and being homeless. Since then, he has renovated his home, maintains stable employment, and he never had a substance abuse issue.

He is also single at the moment. [ 129 ] Having said all of the above, N.R. has not demonstrated significant change in that he has not acknowledged the harm caused to S.L.R. by being in a dysfunctional home with K.T. and himself. N.R. kept returning to K.T. despite all the domestic incidents and the prior removal of S.L.R. in 2011. His dysfunctional relationship with K.T. mirrors his prior tumultuous relationship with Ms. C. and his later difficult relationship with M.S. N.R. cannot seem to acknowledge the harm S.L.R. suffered in a home plagued by alcohol misuse and domestic violence.

More importantly, even if N.R. could make such an acknowledgement, he has demonstrated that he cannot meet S.L.R.'s needs as specified in s. 49(5). I again harken back to the failed return plan last year. [ 130 ] It is important to bear in mind that by all witness accounts S.L.R. has special needs. Unfortunately, she can be physically violent

with not only adults, but her peers. A.T. was genuinely concerned for the safety of her own child when in the presence of S.L.R. S.L.R.cannot attend school without a one-on-one aide. That is extraordinary for a girl in kindergarten. At a moment's notice S.L.R.'s caregivercan be called to retrieve S.L.R. from school. S.L.R. also has ongoing issues with some incontinence, anxiety and attention deficit ofsome type. She requires ongoing services from mental health professionals and paediatricians.

In short, she needs a highly skilledcaregiver who can establish trust and routine. [131] I conclude that N.R. cannot meet the special needs of S.L.R. His employment takes him outside of Abbotsford and he has noconcrete supports in place. He is not prepared to compromise his work by being at home and available for S.L.R. That may besomewhat understandable, but, again, he has no family or other support person to take on the caregiving duties. S.L.R.'s life will consistof many appointments with specialists, the school and other aids. [132] Most telling is the attempted return of S.L.R. to N.R. in June of 2015.

The plan fell apart and N.R. ended up spanking S.L.R. The spanking was not so much my major concern; it was the fact that N.R. said he was "done" and he discontinued the overnight visits. He now says he is willing to try again, but he is admittedly conflicted. He is also unwilling to work under the Ministry's umbrella. [133] In certain respects I do not fault N.R. A.T. also came to the conclusion she could not meet S.L.R.'s needs given that she had herown child. I simply find that N.R. is unable to meet S.L.R.'s needs. [134] I have also considered S.L.R.'s plan of care as required under s. 49(6) of the CFCSA.

S.L.R. is five years old. She has spent halfof her life in care, albeit largely with her sister. She needs stability and permanence. Adoption is the best plan to serve her bestinterests. Remarkably, potential adoptive families have already been identified. These people are aware of some of S.L.R.'s specialneeds and the fact that there would be an openness agreement with S.L.R.'s biological family. [135] In

summary, I am satisfied that a continuing custody order should be made under s. 49(5) to serve S.L.R.'s best interests. Neither parent can meet S.L.R.'s special needs and there is no significant likelihood that the circumstances which led to her removalwould be remedied within a reasonable time. This child has already been removed twice in situations where domestic violence waspredominant. [136] I also find that a last chance order under s. 49(7)(

c) is not appropriate. N.R. has had plenty of time to come up with a viableparenting plan and he has not been able to do so. Furthermore, the attempted return last spring did not succeed and in my view that waseffectively his last chance at trying to parent S.L.R. full time. SHOULD AN ACCESS ORDER BE GRANTED FOLLOWING A CONTINUING CUSTODY ORDER? [137] There is no doubt that S.L.R.'s parents and her sister, A.T., are important people in S.L.R.'s life. A.T. has been a caregiver forS.L.R. following both of her removals.

S.L.R. still misses her mother even though there has been no contact for at least nine months. [138] Although there was some reference to S.L.R. not asking about her father, I find that there is a bond between the two of them. Hecannot meet her needs as a primary caregiver, but he is a significant figure in her young life. [139] Under s. 56 of the CFCSA, the court may order access following a continuing custody order if it is in the child's best interest andis consistent with the plan of care.

The wishes of the child are to be considered where the child is 12 years old or older. [140] The Supreme Court of Canada in New Brunswick v. L.(M.) (SCC), 1998 2 SCR 534 considered theappropriateness of making an access order at the same time the court was making a permanent guardianship order in favour of the state. At paragraph 39 the court stated as follows: My consideration of whether access should be granted is based on the following principles. First, there is no inconsistency in principlebetween a permanent guardianship order and an access order. Second, access is the exception and not the rule.

Third, the principle ofpreserving family ties cannot come into play in respect of granting access unless it is in the best interests of the child to do so, havingregard to all of the other relevant factors. Fourth, an adoption, which is in the best interests of the child, must not be hampered by theexistence of a right of access.

Fifth, access should not be granted if its exercise would have negative effects on the physical orpsychological health of the child. [141] I also note that at paragraph 50 of that case the court goes on to say that: If adoption is more important than access for the welfare of the child and would be jeopardized if a right of access were exercised, accessshould not be granted. [142] In S.L.R.'s case, I am satisfied that an access order could limit the adoption pool. Six families have already shown interest inadopting the special needs child, but this is with an openness agreement, not court defined access.

An access order could limit theadoption pool and prolong the adoption process, which would not serve S.L.R.'s best interests. [143] I am also satisfied the Director would in good faith explore an openness agreement which would allow the parents and A.T. tohave visits, not just correspondence with S.L.R.

N.R.'s access time may be reduced, but it could also increase in due course, dependingon how the adoption unfolds. [144] Bearing in mind all of the above factors, I am not prepared to make a s. 56 access order, but I do expect the Director to fullyexplore an openness agreement which includes A.T. and S.L.R.'s parents. ORDERS [145] Based on the reasons given above, I make the following orders:

(1) The child, S.L.R., is found to be in need of protection.

(2) Pursuant to s. 49(5), S.L.R. shall be placed in the continuing custody of the Director. G. BROWN Provincial Court Judge