DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE, 2019 BCPC 209

Citation: British Columbia (Child, Family and Community Service) v. S.D. 2019 BCPC 209 Date: 20190726 File No: F-12620 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: M.D. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: S.D. and L.L. PARENTS CFCSA Matter - Restriction on Access, s. 3(6) Provincial Court Act ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Director: W.E. Bernt Counsel for the Parents: A.G.

LaCroix Place of Hearing: Duncan , B.C. Dates of Hearing: July 25 and July 26, 2019 Date of Judgment: July 26, 2019

Introduction [1] THE COURT: The Director seeks an interim custody order under s. 35(2)(

a) of the Child, Family and Community Service Act(hereinafter referred to as the "Act") with respect to the Child, M.D., (date of birth [omitted for publication]), (hereinafter referred to asthe "Child"). This matter comes before this Court at the presentation hearing stage. [2] The parents of the Child are S.D. and L.L. They are the biological parents of the Child and the Child was in their care at thetime that the Director's representatives removed the Child. L.L. is hereinafter referred to as the "Mother". S.D. is hereinafter referred toas the "Father".

The Mother and the Father are collectively referred to as the "Parents". [3] The Child was removed from the Parents in around April 26, 2019, and has been placed in a residence of persons who areserving as temporary foster care parents. They are friends of the Parents themselves and have a child of the same age. [4] The Parents oppose the application for the order being sought by the Director. An extensive amount of evidence has beenpresented at this presentation hearing. The bulk of the evidence was provided by social worker Kim McLeod, who is one of theinvestigating social workers in this matter.

I have also heard evidence from the Father and A.N., who is serving as the present caregiverand foster parent of the Child. Nature of a presentation hearing [5] I must instruct myself that s. 33.3 of the Act provides that: A presentation hearing is a

summary hearing and must be concluded as soon as possible. [6] The issue at a presentation hearing is not whether the Child is in need of protection. The essential issue that the Court must dealwith is what is the best way to care for the Child until there can be a full and complete examination at the protection hearing stage. (SeeB.(B.) v. British Columbia (Director of Child, Family and Community Service), 2005 BCCA 46) [7] The Act prescribes a two-stage procedure for the presentation hearing.

The first stage deals with whether the removal wasjustified under the Act; that is, were there reasonable grounds to believe that the child needed protection, was there immediate danger tothe child's health or safety, and were there less disruptive measures available? If the Court concludes that the removal was not justified,then the child must be returned to the parents. If removal was justified, the Court then considers the best way to care for the childpending the protection hearing. (See Re M.S., [1998] B.C.J. No. 2204 (QL) (B.C. Prov.

Court)) The Court must be satisfied that therecontinues to be objectively reasonable grounds to believe the child is at risk of harm. (See British Columbia (Director of Child, Familyand Community Services) v. L.(G.M.), 2014 BCPC 284) [8] The Director need only establish a prima facie case at the presentation hearing stage as to the appropriate interim custodyorder. Any conflict in the evidence on this issue is resolved in favour of the Director. (See B.(B.) v.

British Columbia (Director of Child,Family and Community Services) [supra]) [9] Earlier decisions under the Act which had effectively denied a hearing to the parents have not been followed by later SupremeCourt decisions. [10] The presentation hearing provides a hearing for both the parents and the Director. Viva voce evidence may be presented andthere is a right of cross-examination although the presentation of the evidence must be brief. The Court's function at this stage is not tomake findings of credibility.

Conflicting facts are left to a full determination at the protection hearing. (See British Columbia (Director ofChild, Family and Community Services) v. F.(R.); see J.(A), 1997 CIB.L.D.296 (BC Prov. Court); British Columbia (Director of Child,Family and Community Services) v. Schneider, [1996] B.C.J. No. 2227 (QL) (Prov. Court) appealed on other grounds; [1996] B.C.J. No.2387 (QL) (S.C.) leave to appeal refused; (BCCA); and B.(B.) v.

British Columbia (Director of Child, Family andCommunity Services)) [11] I must further instruct myself that if the evidence suggests a risk of harm to the child, the test is much lower than a balance ofprobabilities. (See T.(K.M.) v. T.(J.D.) [1999] B.C.J. No. 822 (QL) (B.C. Prov. Court)) [12] British Columbia (Director of Child, Family and Community Services Act) v.

H.(M.), 2008 BCSC 701 held that a judgepresiding at a presentation hearing may order interim custody to the Director if satisfied: One: At the time of removal there were objectively reasonable grounds to believe that the child was then in need of protection, and that eitherthe child’s health or safety was in immediate danger, or no other less disruptive measure that was available was adequate to protect thechild; Two: At the time of the presentation hearing, there continued to be objectively reasonable grounds for believing that the two essential elementsrequired by s. 30(1) continue to exist; and Three: In the opinion of the judge, the degree or extent of the risk that a child will be harmed if returned to the parent is of sufficient magnitudeto require that the child be kept in the interim custody of the Director, pending a protection hearing.

[ 13 ] I must further direct myself that the Court must be sure to review whether there are no less disruptive measures when considering whether to make an interim custody order. (See British Columbia (Director of Child, Family and Community Services) v.

S. (L.D.) , 2018 BCPC) That case stands for the proposition that a court may find that the Director had not been "active and diligent in attempting" to find alternatives to removal. [ 14 ] I must further direct myself that orders that may be made at the presentation hearing's conclusion may be as follows: 1. an interim custody order in favour of the Director (see s. 35(2)(a)); or, 2. an interim order that the child be returned to or remain with the parent apparently entitled to custody under the supervision of the Director (see s. 35(2)(b)); or, 3. an order that the child be returned to or remain with the parent apparently entitled to custody (see s. 35(2)(c)); or, 4. an interim order that the child be placed in the custody of a person other than a parent with the consent of the other person and under the Director's supervision (see s. 35(2)(d)). [ 15 ] In this particular situation before this Court, neither party is seeking an order under s. 35(2)(d), sometimes referred to as a "out- of-care order." Circumstances Based on the Evidence [ 16 ] The Ministry's attention was drawn to the Child in this instance as a result of investigations of the daycare facility operated by the Mother.

Reports were received that an infant child, who is identified in the evidence as "[omitted for publication]" (hereafter referred to as "Child D"), had suffered a medical emergency which necessitated the calling of an ambulance and attendance at the daycare facility located in [omitted for publication], British Columbia. [ 17 ] Child D was taken to the Cowichan District Hospital, then subsequently taken to the Victoria General Hospital, for what appeared to be a serious non-accidental injury believed to have occurred while the Child D was at the daycare facility.

There were a number of other injuries that also required medical attention. The injuries suffered by Child D were significant, included a fractured skull and also damage to the occipital portion of the skull. There is also indication that there was a significant hematoma. [ 18 ] The Child D has been under medical care since that point and the Child D has been referred to obtain what is referred to as a VISCAN report. The VISCAN procedures are undertaken by a specialized group within the Vancouver Island Health Authority.

It is anticipated that there will be a report available from VISCAN with respect to Child D in August of 2019. [ 19 ] It became apparent that there was also some history of other children being hurt and sustaining injuries while at the daycare operated by the Mother. There was an event in 2017 at which time a child identified in the evidence as [omitted for publication] or [omitted for publication] (hereinafter referred to as the "Child J") suffered similar injuries both to his skull and to other portions of the body.

That resulted in Child J obtaining medical treatment and identification of a skull fracture, not dissimilar to the one suffered by Child D. There was resulting medical treatment and an RCMP investigation followed by an investigation conducted by the Ministry of Children and Family Development. [ 20 ] During the period of time that the investigation of Child J's mishap occurred, the Parents had entered into a safety plan with respect to their own child, who is the subject of these proceedings. [ 21 ] The investigation in connection with Child J conducted by the Ministry of Children and Family was inconclusive.

The Mother submitted to a polygraph examination, which she passed successfully. The polygraph was conducted, as I understand it, by the RCMP. As a result, the safety plan involving the Parent’s Child was suspended and the Parents resumed care of their Child.

Therefore, rather than the allegations of injury to the Child J reaching a conclusion of either substantiated or unsubstantiated, the file was simply determined to be inconclusive; that particular conclusion provided the rationale for the Director closing its file and withdrawing from any further involvement with the Parent’s family. [ 22 ] The further involvement of MCFD with the Parent’s family, of course, was triggered by the events involving Child D, and as a result of that, safety planning was instituted. The Parents entered into a safety plan for their own Child at an early stage.

There were variations made to that safety plan which are evidenced in writing and which are before the Court. The safety planning procedures continued until immediately prior to the Child being taken into care, at which point legal counsel for the Parents informed the Director that the Parents were withdrawing from the safety planning procedures. [ 23 ] Since that time, the Child has remained in the care of A.N. (“A.N.”) and her partner, S.B. (“S.B.”). A.N., as I understand it, and S.B. have been responsible for the supervision of the Parents when they have had visitation with the Child.

Those visitations have occurred on a regular basis and continue up to present date. The visitation usually occurs at the A.N./S.B. residence. In her evidence today, A.N. described the visits and spoke in very positive terms about the parenting capabilities of both Parents as well as the emotional bond between the Child and the Parents. [ 24 ] A.N. also spoke in terms of some of the emotional upset that she has witnessed in recent weeks. She indicated that the emotional effect of the Child has deteriorated. The Child is becoming what she described as more withdrawn.

She is excited to see her Parents and very happy and loving towards them when she does see them, but the Child has become more withdrawn and less compliant with accepting directions; however, the Child has maintained significant interest in seeing her Parents and is questioning why she cannot return to live with them. This existing living arrangement has been explained to the Child in terms that the Parents are assisting the police and accordingly the Child must continue to reside with A.N. and S.B.

The Child was initially accepting of that explanation, but has been continuing to express questions about it and has also been expressing concerns about wishing to return to the care of her Parents. [ 25 ] The Parents’ evidence was presented by the Father. He described the living arrangements that the Child enjoyed prior to being

removed by the Director. The Parents reside in a modern home in the [omitted for publication] area, which has been converted to permit the licenced daycare operations to continue. The Child is an only Child of these Parents. Clearly, the Child is an active child, apparently does well at school, and has a very active life. She is apparently well-supported by her Parents and they do a number of things as a family. [ 26 ] The Father testified that there is a strong desire on their part to be reunited with the Child and to continue with their parental responsibilities and for looking after the Child.

There is a description from the Father that he has never witnessed the use of physical force or punishment being applied to the Child by the Mother. He denies that it is a parenting strategy that either of them employ. He went on to provide alternative descriptions of their parenting arrangements and the treatment of the Child, including the forms of discipline employed by the Parents. It is fair to say that these can be characterized as being positive in nature. [ 27 ] The matters relating to the current RCMP investigation have been described by the social worker, Ms. McLeod, in her testimony.

The RCMP detachment in Lake Cowichan turned the investigation over to the Vancouver Island Major Crimes Unit of the RCMP. The investigation has been continuing for some time. The RCMP have yet to complete that investigation. According to what she has been able to be discerned, Ms.

McLeod, says the RCMP are a short period of time away from making a recommendation to Crown counsel with respect to charges. [ 28 ] It is surmised from the information obtained to date from the RCMP by the representatives of the Director that there may be charges pending against the Parents or either of them, although the nature of those charges is uncertain.

There is also a measure of uncertainty as to whether or not it is the Parents who are being considered for charges rather than some other individuals. [ 29 ] It also appears to be somewhat unclear as to whether or not those charges relate only to the Child D, or whether there is consideration of charges involving the Child J or even involving a third child who had sustained injuries while at the daycare some months ago. That third child is being described as “Child L”. [ 30 ] The Director sought information from the RCMP.

At Tab 6 of Exhibit Number 1 is a letter dated July the 3, 2019 from the RCMP, which provides a synopsis of the investigation that has taken place and specifically mentioning Child D. There was an email exchange preceding the delivery of that letter report which Ms. McLeod was seeking on behalf of the Director. That email appears at page 1 of Exhibit Number 2. [ 31 ] In cross-examination, that email chain was placed before Ms. McLeod and she was questioned with respect to it. The RCMP email, dated June 24, 2019, reads in part as follows [as read in]: Cst.

Jill Bonnet is the lead investigator for this file and can discuss this with you because I'm sure you realize that if MCF releases sensitive information, it could be detrimental to the investigation.

Also, I would assume that any document you receive from us will show us that we can't support MCF taking [the Child] into custody as we've uncovered no evidence to suggest she is in harm's way. [ 32 ] Having re-read the first paragraph of the email, I conclude that the author of the email, Corporal Matt Picard, may actually may have intended to make the point that the lead investigator, may not be in a position to discuss some of the contents of the RCMP's investigation, because of the prospect that it could be detrimental to the ongoing investigations. [ 33 ] When that particular email was placed before Ms.

McLeod, she explained that she did not interpret that email as saying that there were not child protection concerns with respect to the Child of the Parents. Rather she testified that there is a difference in the mandate of the RCMP, which is conducting a criminal investigations, and the mandate of the Ministry of Children and Family, which is responsible for child protection concerns.

Therefore a different conclusion may have been reached by the RCMP, which may not be the same conclusion ultimately reached by MCFD once they complete their own investigation. [ 34 ] As I previously indicated, at present time the Director's investigation has been delayed in being completed pending the results of the RCMP investigation and the recommendation and approval of any charges that may flow from the RCMP investigation. It is clear from Ms.

McLeod’s evidence that there is still a significant amount of work to be done in terms of investigation of all of the circumstances surrounding Child D, possibly with respect to the Child L, and, of course, with respect to any child protection concerns that the Director may have with respect to the Child of the Parents, being the subject matter of this presentation hearing. [ 35 ] The timeframe for completing that investigation at this point is significantly unclear.

There are some medical reports still to be received and there are other various steps and procedures that have been planned, but not instituted, by the Director. Those include, but are not limited to, a parental capacity assessment of the Parents. At this point, the Director's representatives have not had an opportunity to have a full interview with the Parents and, as I previously mentioned, have deferred their investigation to the completion of the RCMP investigation. Positions of the Parties Position of the Director [ 36 ] As indicated above, the Director is seeking the interim custody order for the Child.

The Director's position is shaped by concerns for the safety of the Child. Those concerns are based upon the significant pattern of injuries that have apparently been sustained by children who have been in the care of the Mother at her daycare. The Director notes in both the evidence of the social worker, as well as in submissions, that those injuries, apparently sustained by at least three children, are significant in nature. It is my understanding from the evidence of the social worker that as a result of the most recent incident involving Child D that the daycare licence of the Mother has again been suspended.

There was a previous suspension in 2017 involving the investigations concerning Child J. That daycare licence was returned at some earlier time, but as things stand at present time, the Mother is not permitted to be operating her daycare facility. [ 37 ] The whole of those circumstances inform the position being taken by the Director. The Director is saying that until such time as the Director can conduct further investigations, the conclusion that must be the basis of their decision-making is that there is a significant likelihood of physical harm being rendered upon the Parent’s Child.

There is also a significant likelihood of emotional harm to the Child

subject of these proceedings. Although there is no evidence of the Parent’s Child having been physically harmed at this point, nonetheless she may have been exposed to and witnessed violence being perpetrated upon children who have been in the care or who have been under the responsibility of the Mother or possibly the Father at the daycare facility. [ 38 ] The issue as to whether or not there are suitable conditions of supervision that could be applied as a less intrusive intervention have been canvassed.

Director's counsel takes the position that the Director will not and cannot, at this stage, agree to supervision as an alternative. However, the Director's counsel has provided a list of conditions that have been prepared and marked as Exhibit A for identification in submissions as the type of conditions that the Director thinks would be a minimal requirement if the Child were to be returned to the Parents under supervision. [ 39 ] In

summary, the Director says that the threshold required by the Director has been met at the presentation stage, and accordingly, the order sought by the Director should be granted. Position of the Parents [ 40 ] The Parents argue in the alternative, first, that the Director has failed to meet the threshold requirement in the presentation hearing and that the Child should be returned without any supervision or other restrictions to the care of the Parents.

The further alternative argument is that if this Court concludes the threshold requirement at the presentation hearing has been met, then the important goal and in the best interests of the Child is to have the Child returned to the Parents under agreed supervision terms. [ 41 ] Counsel for the Parents has placed before the court for consideration the decision of British Columbia (Director of Child, Family and Community Services) v. J.C. , 2014 BCSC 496 , for consideration.

It is the submission of Parents' counsel that this case amounts to binding authority upon this Court and supports the proposition that if there is a lack of evidence of direct risk or harm to a particular child then that should result in that particular child being returned back to the parents without any terms of supervision. [ 42 ] With respect, I do not accept that this particular decision amounts to a binding authority in this case. I do accept that the outline of the case law by the Honourable Justice Bowden is both correct and provides direction to this Court.

However, given the very nature of child protection hearings, this Court must take into account the specific factual circumstances that surround this particular case. In my view, the factual circumstances in the J.C. case are significantly different than what I have before me and must consider in this case. Analysis [ 43 ] Having heard all of the evidence, I am satisfied that the prima facie case of the Director has been made out and that the requirements to make an interim custody order have been satisfied in this case.

There are a significant number of further investigations that are going to have to be conducted by the Ministry in order to come to the conclusion, as they had previously done when the Mother was investigated as a result of the incident back in 2017, that either the injuries to any children under her care can be substantiated or unsubstantiated. The Director may also, as occurred previously, come to a decision or a conclusion that it is inconclusive.

However, given the pattern of injuries sustained by children in the care of the daycare operation operated by the Mother, there is a satisfactory concern that the Child of the Parents herself may be at risk for immediate physical harm or psychological harm.

I am satisfied that the case presented by the Director satisfies that particular requirement and hence the order being sought by the Director should be granted. [ 44 ] However, I also have to take into account the whole of the circumstances and make a determination as to whether or not as to the order being sought by the Director, there are less disruptive measures that are available to the Director. In this case, I am satisfied that the present arrangements have adequately addressed the protection concerns of the Director.

However, I am of the view that given the continuing investigations that are being undertaken and the time required for those investigations, that there will be significant resulting delays. Conclusion and Orders [ 45 ] I am satisfied that conditions of supervision can be adequately crafted in order to deal with the concerns of risk to the Child, both mentally and physically.

Accordingly, I am of the view that the order that should be made in this case is that the Child should be returned to the Parents, but under the terms of a supervision order. [ 46 ] The terms of an order for interim return under supervision have been discussed by counsel. I have considered some amendments to those terms. In my view, one of the most important considerations is that the Father must have a significant role in the life of the Child.

I say that based on the fact that so far as I can determine, there has been no specific allegation that he had any direct involvement in the operation of the daycare setting and hence there seems to be little to suggest that he is the subject of the criminal investigation. I say that mindful that at this point, the results of that investigation are entirely speculative. Also, I am mindful that the Director's investigation will no doubt look into both Parents to address child protection concerns. [ 47 ] Therefore, the terms of supervision will be as follows: 1.

The Child must reside in a residence in which S.D. is ordinarily a resident. L.L. and S.D. must allow the Director or the Director's agent to visit and inspect the home and meet directly with the Child, M.D., at any time, whether scheduled in advance or not, and as often as the Director deems necessary to insure the safety and well-being of M.D. 2. L.L. and S.D. will attend, participate in, and complete a parenting capacity assessment with Dr. Anthony Dugbartey and will follow through on the recommendations of that assessment. 3. L.L. and S.D. will meet with their social worker as required. 4.

L.L. and S.D. will work cooperatively with the Director. 5. L.L. and S.D. will not use physical forms of discipline with the Child.

6. L.L. and S.D. will enrol the Child in a summer program that is pre-approved by the Director and will insure that the Child attends this program on a regular basis. 7. L.L. and S.D. will sign a consent to the release of confidential information enabling the Director to speak with any service providers that the Child is involved with. 8. L.L. and S.D. will insure that the Child sees their physician, Dr. Khanam, as is necessary and at the direction of the Director and will follow through on any medical recommendations. 9.

L.L. and S.D. will sign a consent to release of confidential information enabling the Director to speak with Dr. Khanam about the Child and any concerns with respect to their ability to safely care for the Child. 10. L.L. and S.D. will work with a family support worker in their home. 11. The Director must remove the Child if L.L. or S.D. fail to comply with Term Number 1 of the supervision order. 12. The Director may remove the Child if L.L. and S.D. fail to comply with Terms 2, 3, 4, 5, 6, 7, 8, 9, or 10 of the supervision order. [ 48 ] That concludes my reasons and the orders.

Is there anything else I need to deal with? [ 49 ] MS. BERNT: Yes, Your Honour. Just for the purpose of the order for Madam Clerk, Your Honour, that order would be pursuant to s. 35(2)(b), an interim supervision order on those 12 terms. (REASONS CONCLUDED)