CFCSA Director v. C.H. Date:, 2016 BCPC 382

Citation: CFCSA Director v. C.H. Date: 20160713 2016 BCPC 382 File No: F-2034 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Division IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: S.D.H. , born (D.O.B.) BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: C.H. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. WOLF

Counsel for the Director: D. Garling Counsel for the Parent: L.A. Berezan Place of Hearing: Powell River , B.C. Dates of Hearing: May 9, 10, 11, 12, June 8, 9, 10, July 11, 2016 Date of Judgment: July 13, 2016 INTRODUCTION [ 1 ] The Director has applied for an order that S.D.H. (S.H.) be placed in the continuing custody of the Director. [ 2 ] S.H. was born (d.o.b.) and is currently ten years old. Her father is not party to these proceedings and her mother is C.H. [ 3 ] C.H. has had some interactions with BC’s child protection agency.

NOTABLE INTERACTIONS WITH BC MINISTRY [ 4 ] On May 21, 2009, there was an allegation that C.H. yelled at S.H. On June 2, 2009, information from the interprovincial desk for Alberta Child Welfare Services in Calgary was provided to the BC Ministry of Children and Family Services. It appears the only history in Alberta, where they lived prior to moving to Powell River, was a complaint that C.H. let her daughter run around nude after bathing.

The Alberta file was closed and there was a determination that S.H. was not in need of protection. [ 5 ] Ultimately, the investigation with respect to the May 21, 2009 incident was discontinued as it appeared that C.H. had left the Powell River area. [ 6 ] On January 15, 2010, upon learning that C.H. was now a resident of Powell River there was some follow-up and social worker Adelberg wrote her conclusions in the CF&CS investigation report: “S.H. is a pleasant, easy going child who gets along well with adults and children, plays nicely and is compliant with instruction and direction. … C.H. seems very engaged with her daughter and is always talking about her … there are no red flags regarding the family.

They seem quite connected and all of S.H.’s needs are met by mom. … There are no notable issues, certainly no cp [child protection] issues… SW Adelberg completes a home visit. No hazards noted or safety concerns. No evidence of drugs or alcohol and cases of non- perishable food are visible.’ [ 7 ] C.H. was provided some support materials and contacts in case she needed some assistance with some of her mental health issues and the file was concluded. [ 8 ] On August 5, 2011, a pedestrian in a Safeway parking lot called 911 as S.H. - who was five at the time - was left in a car unattended.

Upon police investigation, C.H. was rude and offensive in her language, constantly calling the individual who called 911 a ‘cocksucker crackhead.’ Her language was so belligerent that the officer had to ask her to stop repeating the phrase. [ 9 ] The social worker attended the residence and an August 11, 2011 report concluded that ‘the house was fine… no alcohol and or drugs… and S.H., while very active seemed very well cared for.’ [ 10 ] On September 15, 2011, a Powell River Child, Youth & Family Services Society service report indicated that while there may be ‘not potential safety issues’ and ‘no history of violence or physical abuse’ … “C.H. can use foul and offensive language when conversing, upset or to make a point.” [ 11 ] On September 23, 2011, a letter was sent to C.H. by the Ministry of Children and Family Development setting out nine things that she should do.

The letter is found at tab 8 exhibit ‘12’ of the proceedings. There is ample evidence to support the submission that C.H. did each of these nine things asked of her. [ 12 ] The other main interaction with the Ministry, and the ultimate reason for the initial removal arose from an incident that occurred on April 21, 2014. On that date C.H. had taken S.H. to a medical appointment in Courtenay.

After the appointment she and S.H. stayed at a friend’s home in Courtenay, rather than returning right away to Powell River. [ 13 ] The child service file recording covering the period of April 2014 to August 2014 sets out the incident, from the Ministry’s perspective. Found at tab 29 in exhibit ‘12’ the report states: “C.H. stayed with some individuals who she identified as being good friends. While staying at the home C.H. was drinking and became intoxicated and the other adults in the home were engaged in a domestic violent incident requiring RCMP attendance.

RCMP attended and reported that C.H. was intoxicated, un-cooperative, violent and unable to care or protect her child. S.H. was removed and placed in Ministry Approved Foster Home. … During this time C.H. presented with behaviours associated with Asperger’s Syndrome.”

[ 14 ] Since this time it appears that C.H. has consistently been “verbally and physically abusive towards the social workers and used vulgar and inappropriate language.” [ 15 ] Currently, after a failed attempt to return S.H., the child continues to live with her maternal aunt. [ 16 ] I recognize that there were many other police interactions. However, while the number of those interactions is high, sometimes they involved disputes between C.H. as landlord and her tenant, or even as C.H. as a victim of theft.

ISSUE [ 17 ] The only issue before me is whether I should place S.H. in the continuing custody of the Director or return her to C.H. ANALYSIS [ 18 ] I will begin my analysis by summarizing the position of the parties. Next, I will set out the relevant legislative framework. I will then analyse the factors in s. 49(6) before reaching my conclusion. The Director’s Position [ 19 ] The Director believes that there is a history of abuse and neglect.

While they admit that there “are some good moments of parenting,” they argue that C.H. has: impulse control issues, moments of anger and violence, lack of insight, and a lack of follow through on expectations. [ 20 ] They submit that S.H. is afraid to go home. Further, the Director submits that neither S.H. nor the Director believe there is any likelihood that the circumstances that give rise to this environment of physical or emotional harm will change. C.H.’s Position [ 21 ] C.H. wants S.H. returned to her or in the alternative placed into the care of S.W., a member of her church that resides in Powell River.

EVIDENCE OF S.C. [ 22 ] I am expected to consider the past conduct of C.H. to children previously in her care. As such, I have had the benefit of hearing from her eldest 29-year old daughter who was raised by her. Her Historical Evidence as To How She Was Raised [ 23 ] The Director’s first witness was S.C., who is C.H.’s daughter. S.C. is C.H.'s eldest daughter. She is an adult mother to her own child and lives in Manitoba.

She told the court her observations as to how she was raised by C.H. [ 24 ] She testified that at one point she was told that her mother had been diagnosed with chronic fatigue syndrome - and that her grandmother had said it was some other mental illness. Physical Abuse to Her by C.H. [ 25 ] She describes a complicated mother-daughter relationship.

She says that C.H. used to “throw things at her,” that she was hit “starting at four and not ending until she moved out at seventeen.” She testified that these hits were painful and out of anger, not discipline, and based this opinion on ‘knowing the difference.’ There appears to be limited physical abuse, but she describes one instance where her mother, in trying to force her to take some non-prescribed medicine, grabbed her by the hair and took her to the ground.

Home Environment [ 26 ] S.C. described being left to fend for herself at age 12, 13, and 14, ‘often for a whole weekend where she was left very little food to eat.’ She described the state of her home at one point as having carpets that were full of dog feces and urine. Other Third Parties in Home [ 27 ] S.C. provided a detailed account of being sexually abused and emotionally and psychologically tormented at the hands of one of C.H.’s boyfriends.

One particularly disturbing series of events involved a boyfriend of her mother who used to wake her from her bed and pour things on her such as shampoo or cooking oil and then put flour on her. [ 28 ] When C.H. was asked about this bizarre abuse, she testified that she did not know that it was being done by anyone else and

thought that perhaps S.C. was doing this to herself in some sort of ‘acting out.’ She told the court that at one point she put her daughter downstairs to sleep, away from the oil and flour, in hopes to stop the behaviour. In short, she told the court that she did not know her daughter was being abused by her boyfriend at the time. She only learned of the terrible sexual abuse years later. She told the court that she would never have let such abuse continue if she had only known. [ 29 ] S.C. recounted numerous men in her home being abusive towards her mother.

This evidence was not challenged in cross- examination and it is open for me to consider that C.H.’s romantic partners’ choices may not have been very healthy in the past. Emotional Abuse [ 30 ] She believes as a result of being raised by her mother she missed out on having a mother talk to her about ‘make-up, hair, boys and that she lacked a general sense of guidance that others had.’ I believe her on this point, but in my view ‘lack of guidance’ falls short of physical abuse or neglect. [ 31 ] S.C. is seeing a psychologist.

Her Evidence as to How S.H. is being Raised Physical or Emotional Abuse by C.H. [ 32 ] Her contact with C.H. was limited. Although she describes trying to develop a friendship with her by telephone and remembers visiting with her a few times. Home Environment [ 33 ] She told the court that she observed that S.H.’s hair was tangled, her nails were long, and the house was in disarray.

Specifically, she recollects on one visit that the kitchen was covered with papers; everything in the fridge was spoiled to the point that there was “black ooze coming from the fridge.” Physical Abuse by C.H. [ 34 ] She testified that she never saw S.H. hit by C.H. but that she ‘heard a slap’ and then saw S.H. crying to the point of ‘almost throwing up.’ On one occasion she and family members decided to call the Ministry about some of this physical behaviour. Other Third Parties in Home [ 35 ] On one visit she thought that a homeless looking person showing up to the house was a little inappropriate. A

Summary of S.C.’s View [ 36 ] I take it from her evidence that she was shouted at, had things thrown at her, was struck under the guise of discipline and otherwise neglected when she lived with her mother. Her fear is that S.H. will suffer the same sort of abuse and neglect. In short, to use her words, she ‘sees S.H. as a younger version of myself.’ [ 37 ] She told the court that she has had great difficulty maintaining healthy relationships and blames a large part of this on the way her mother raised her. Ms.

Berezan respectfully submits that S.C.’s evidence should be given little weight as her recollections are coloured by sexual abuse and a revision of historical events. In other words, I take it that her current opinion may be overly tainted by her reflections of her past. To a limited extent I agree. C.H.’s previous parenting to S.C. is something that I take into account but the circumstances of S.C. are very different than the circumstances of S.H. EVIDENCE OF M.H. (CHILD’S AUNT) [ 38 ] I am in a position to consider the plan of care.

Integral to the plan of care as suggested by the Ministry is M.H.’s involvement. [ 39 ] Ms. M.H. is a 50-year old sister to C.H. S.H. has been with her for approximately two years. They live in the lower mainland area with S.H .(1) , her 24-year old son. M.H.’s Historical Evidence as to Her Relationship with C.H. [ 40 ] M.H. describes C.H. as a person who when they were growing up “would punch or hit more” and as a person who was always involved in arguments.

She describes incidents where C.H. would “call her mother names” and “hit her and scream at her.” She also said that she “has seen her hit her father.” Although, her description really recounted an incident where her father supposedly grabbed a sweater of C.H. who turned around and gave almost what sounded like a pretend slap to his arm. [ 41 ] In

summary, M.H. believes because C.H. “was rough with me all through growing up; always yelled and screamed” and would “come home and take it out on the family” and that she believes that S.H. is also the victim of similar abuse.

To use her words “I am worried about her [C.H.] being violent.” Physical or Emotional Abuse of S.H. [ 42 ] She describes an incident where she saw C.H. grab S.H. in a very rough manner in what she believed to be an inappropriate way. [ 43 ] In cross-examination, counsel was easily able to elicit that, according to M.H.; C.H.’s behaviour was mostly many years ago, when C.H. was in Middle School and High School.

M.H. confirmed that she had not been hit by C.H. as an adult, but that C.H. had ‘come at her’ a few times. .When asked if she could remember if there were other incidents of violence from C.H. to S.H. that she

personally witnessed, M.H. replied “No.

Not off the top of my head right now.” [ 44 ] In direct examination, she told the court that when S.H. came to her home that “she [S.H.] was afraid of C.H. and afraid of being hit, that she was hit a lot; especially when her mum would drink; she would pass out and she would be alone.” She told the court that S.H. “told me she was hit lots of times, when her mother was drunk she chased her around the house and hit her on the back of the head.” [ 45 ] In both direct and cross-examination, M.H. was candid about her opinion that S.H. could sometimes be a bit dramatic and even lie.

But her aunt said that when S.H. “talks about home life” the story never changes. In short, she believes S.H. [ 46 ] I found M.H.’s perspective on this point to be honest and forthright. For her own reasons, which she was able to convey to the court, she believes S.H. in her accounts of physical and emotional abuse and neglect. Other Third Parties in M.H.’s Home [ 47 ] M.H. lives with her 24-year old son.

M.H. testified that he helps a lot with chores as well as taking care of S.H. and she describes the relationships between the two as being “good.” More specifically, that S.H. loves her son. [ 48 ] It is unclear what the home environment would look like without M.H.’s son in the home. However, in cross-examination M.H. indicated to the court that she had no reason to believe that her son would be going anywhere in the near future.

It appears that M.H.’s home has very few visitors, other than family and friends. [ 49 ] In short, it appears the environment of M.H.’s home is stable and suitable for a child of S.H.’s age. While I am certain that M.H. is able to provide a good home to S.H., there is some evidence that suggests finances and supports might be limited if the placement continues. Home Environment - By M.H.’s Testimony [ 50 ] S.H. is in full time school. Her activities include crafts, puzzles and swimming in the summer and she goes to regular Sunday school.

She is also involved with dance, music and arts, as well as her regular classes. [ 51 ] On cross-examination, it was suggested that S.H. did not get out much, or had very little interaction with others. M.H. told the court that there were “a couple of play dates, a couple of days with grandmother, reading, crocheting, time at a waterpark” and that they went for ‘drives, went shopping and had meals together.’ A

Summary of M.H.’s Testimony [ 52 ] I found M.H.’s testimony to be sincere. She came across as a loving, caring, soft-spoken person. She impressed me as an Aunt that only wanted what was best for her niece. She impressed me as being particular sensitive to her niece’s choice of food, allergies, and overall well-being. [ 53 ] It appeared obvious to me that M.H. had good intentions. She wanted to help keep S.H. in a family environment rather than a non-familial foster home. It does not appear to me that it was ever her intention to have S.H. on a continuous basis.

Her placement there was always in M.H.’s eyes to be a temporary bridge until she could return home. Any suggestion that she ‘was in it for the money’ is based on a pure fantastical notion. LAUREL HILTON’S TESTIMONY [ 54 ] Ms. Hilton is a social worker who took over the file around April 2014. Her view was that C.H. placed S.H. in inappropriate situations of physical harm and verbal abuse. She provided testimony as to the type of assessments that were done and the way that the Ministry weighs risk.

Ultimately, after the completion of a vulnerability and safety assessment there was an attempt to return S.H. to C.H. [ 55 ] She testified that “over the course of the relationship we had started giving her unsupervised access with her child, including having C.H. participate in school and community activities. She was working cooperatively, but then we started to get reports of concerns about the visits.” [ 56 ] I take it from her testimony that there were two concerning incidents. First, C.H. stayed overnight at a friend’s place.

The problem seems to be that she should be spending time at home with her, not at somebody else’s place and that there may have been an inappropriate teen in that residence with some history with the Ministry. Second, a report was received by the Ministry that C.H. was having a conversation with a paedophile at the beach while in the company of S.H. [ 57 ] It was upon receiving this information regarding the beach incident that social workers immediately attended to C.H.’s home and removed S.H. again.

Once more it was reported that C.H. was aggressive, verbally abusive and inappropriate with her language and demeanour upon the termination of this visit. [ 58 ] Ms.

Hilton also raised the point that S.H. and C.H. had a relationship with a death row inmate jailed in the U.S. and that ‘the Ministry would not condone that interaction.’ [ 59 ] She was asked by Director’s counsel “If there was any therapeutic regiment that would assist C.H. in going forward” to which she responded ultimately that when you are dealing with parents and mental health issues there are ups and downs, and that it is difficult to plan such a regiment.

No doubt C.H.’s constant aggressive, rude behaviour makes cooperative planning difficult. [ 60 ] On cross-examination she told the court that she was not aware of any instance where S.H. was physically hurt. In fairness, I took her testimony to be clear on a few points. She believed that C.H. was not able to regulate her own emotional responses. She believed the beach incident to be totally inappropriate. Finally, as a result of her interactions with C.H., I believe she legitimately feared

C.H. and was not happy with C.H.’s general rude, abusive and, arguably, scary behaviour. EVIDENCE OF ALSTON MILLER [ 61 ] Mr. Miller is a social worker who provided a long list of concerns.

C.H.’s ‘mental health issues, impulsivity, lack of boundaries, lack of insight regarding the reasons behind the removal, inability to communicate with professionals and inability to receive feedback’ were some of them. [ 62 ] He confirmed that C.H. voluntarily admitted herself into a Mental Health Unit to achieve a more detailed medical assessment as to her situation. [ 63 ] It appears, by review of the doctors’ reports and notes, as well as Mr. Miller’s account of that hospital stay, that nothing positive came from her stay in the hospital. She was described as essentially being a troublemaker.

One doctor noted that the session had to be terminated and security was required due to the volatility of the situation. It appears her relationship with Doctor Bell became negative to the point that the Doctor was not willing to treat her anymore. [ 64 ] On this point, it is my view that advising the Doctor that C.H. was hanging out with paedophiles was the turning point in this relationship. [ 65 ] It was Mr. Miller`s view that C.H. could control her behaviour. He qualified this position with the comment that “when there is a need for correction we see the behaviour that Dr.

Ramirez is describing.” I will survey some of the medical information later in these reasons. [ 66 ] Mr. Miller described his relationship with C.H. to be positive at the beginning. But it appears as time went on, it deteriorated. He took the court through a number of emails that he gathered sent to others by C.H. It is clear that C.H. has two sides to her. Even Dr. Ramirez describes C.H. as often charming. The emails tendered in court show the other side. S.H.’s Wishes According to Mr. Miller [ 67 ] Mr. Miller described S.H.’s wishes, as gathered by him in his three interviews of her.

These important conversations are found at tab 4 exhibit ‘14.’ [ 68 ] S.H. still loves her mom and wants to have contact but does not think that her mom has the ability to parent her. She wants to live with her aunt. She would like to visit her mom at Christmas, in the spring and summer as well. [ 69 ] In the middle of this hearing, I ordered Views of the Child report in hopes to obtain more information as to S.H.’s wishes. This report is also an exhibit to these proceedings. I have carefully considered its content and will discuss further details later in these Reasons. [ 70 ] Mr.

Miller also testified that the current placement of S.H. with her maternal aunt was fully supported by the Ministry. It was by all accounts, a positive, healthy environment. Mr. Miller’s Conclusion [ 71 ] Mr. Miller clearly states his view at the conclusion of his testimony in chief examination. “I believe she loves and cares for the child but cannot meet the needs of the child.” MEDICAL INFORMATION [ 72 ] All the Doctors’ reports concerning C.H. are found at tab 39 in exhibit ‘13’ of these proceedings.

While they are too lengthy to duplicate in these Reasons, I have thoroughly reviewed all medical documentation. [ 73 ] There is medical information to support that C.H. has Asperger’s, borderline personality disorder, ADHD and sleep apnea issues. [ 74 ] On August 13, 2015, Dr. Ramirez wrote that C.H.’s ‘Asperger’s is more evident in times of stress/distress, and this does hinder C.H.’s ability to present herself well, particularly in regards to her emotions.’ … ‘She is open to parenting suggests/support should her daughter return to Powell River.’ [ 75 ] In another medical record, Dr.

Ramirez confirmed that C.H. “is endorsing extreme mood dysregulation in the context of her BPD traits. Her main trigger has been her youngest daughter being removed from her care.” C.H.’s counsel submits that there is no ‘Ability to Parent Assessment Report.’ She further submits that other information needs to be taken with a grain of salt as they reflect the current status quo situation, not historical previous acts of good parenting. I agree. [ 76 ] Ultimately, one way or the other, it appears to be Dr. Ramirez’s prognosis in terms of changing behaviour was not positive.

The Doctor wrote, and this court absolutely agrees, “Just because she has Asperger’s or borderline disorder does not give her the right to act in the way she acts.” I fully agree with this comment.

THE CASE FOR C.H. MS. C.G.’S TESTIMONY [ 77 ] Ms. G. is a mother of four and attends church with C.H. and has known her for five years. She described C.H. as a loving attentive mother. She described S.H. as a happy, friendly child. She further described C.H. as an “amazing person who was always friendly and calm” and as a person with deep empathy. She told the court that she had never seen any violence, that S.H. was always well cared for and well fed, and that she believed C.H. was a good mother and always very gentle with C.H. MR.

W.’S TESTIMONY [ 78 ] He is the manager of a local community centre that provides services to people with low income or mental health issues. He described his interaction with C.H. as always calm. She has never yelled, never been aggressive and has never been under the influence of any drug or alcohol.

He told the court that it was his experience that “she recognizes her challenges and is open to support no matter where it comes from and that it is his impression that she will do anything to get her daughter back.” [ 79 ] In cross-examination of both of these witnesses it was elicited, and not lost on me, that these two individuals’ opinions were based on somewhat limited interactions either at church or at the community centre. J.T.’S TESTIMONY [ 80 ] Unlike Ms. G. and Mr. W., Ms. T. has had almost daily contact with C.H.

She is C.H.’s tenant and lives in the same duplex as C.H. [ 81 ] She describes C.H. as “a good parent. A loving parent. S.H. is always well dressed, clean, loved, and fed.” She has never seen C.H. discipline S.H. Although, she did say she can hear everything next door and has heard C.H. raise her voice a few times trying to move S.H. along when she was running late for school.

She is very familiar with C.H.’s house and described it as a “little messy sometimes, but not dirty, no garbage overflowing, but often lots of papers.” [ 82 ] In answer to a question put to her by me, she said that she had never seen C.H. smoke cigarettes or pot in the house or around S.H. and had never seen C.H. drink to excess. [ 83 ] Ms. T. came across as an honest, knowledgeable parent. It was obvious to me that she knew what good parenting required and that she was of the view that C.H. was a good parent. TESTIMONY OF M.V. [ 84 ] Ms. V. was also a witness for C.H.

She described her incredible journey where over the course of her lifetime she became the mother to twelve children. She recounted her interactions with C.H. at church and ultimately described S.H. as a loving and compassionate girl, who was always well fed and at all times had child appropriate activities to do when out in the community. While she admitted that C.H. could be a little moody, she never saw her angry and always saw her being a good parent. TESTIMONY OF S.W. [ 85 ] Ms. W. has three children and has known C.H. and S.H. for about five years. She has been an informal ‘support person’ for C.H.

She testified that she has attended all court appearances, been at each of the visits between C.H. and S.H. and been in most of the meetings or telephone conferences that took place with C.H. and the Ministry. [ 86 ] She testified that she was at one of the first meetings between C.H. and the social worker, Ms. Hilton. She clearly and calmly recounted her memory of the meeting. She told the court that the conversation was immediately aggressive. That Ms. Hilton basically said ‘if you screw with me I will be your worst nightmare.’ Ultimately, whether it was these actual words uttered is unknown.

However, I accept Ms. Hilton’s perception that it was not a gentle meeting, with mutual conversation and communication working towards a mutual goal. Ms. Hilton further clarifies her view when she said “The Ministry and C.H. were just having such a hard time coming to common ground.” [ 87 ] She describes a journey where there was little to no contact with the Ministry. She says there was never a meeting, even though she was told there would be a ‘round table discussion’ regarding access.

She testified that “we always thought there was going to be a resolution, but there never seemed to be anything coming from the Ministry to put the family back together.” She described the relationship between C.H. and the Ministry as being always ‘adversarial’ that there was “never anything constructively given to C.H.”; that she was never told to do this and that, then maybe…” [ 88 ] She describes C.H. as “one of the smartest and kindest people I know … incredibly bright and self-aware.” She describes S.H. as a much loved child.

She describes S.H. and C.H.’s visits as “stunningly joy filled” where “S.H. would run into her mother’s arms and want to be very, very close with her.” [ 89 ] Found at exhibit ‘G’ is a letter to the Ministry from Ms. W. detailing incidents of ‘unprovoked animosity shown towards C.H.’ inviting input and further discussion as to what can be done.

[ 90 ] Ms. W. is so willing to help the re-unification of C.H. and S.H. that she has offered to be a foster mother to S.H. and supervise visits with C.H. if necessary. She told the court that she had not received any information from the Ministry on this topic. They have not even acknowledged her application other than Mr. Alston’s communication over the phone that “we have no intention of bringing S.H. back to Powell River.” [ 91 ] Mr. Garling politely submitted that perhaps Ms. W.’s impressions of C.H. are guided by interactions where she would avoid situations where friction would occur. Respectfully, Ms.

W. did not come across as an individual who placated C.H., but as a person who genuinely interacted with her in a respectful manner. Of course, she does not shoulder the burden of uncomfortable situations created by removals of her child, as the Ministry does, and this may lead to more cooperative discussions. TESTIMONY OF C.H. [ 92 ] C.H. testified that she is 50 years old, on a long-term disability that comes from being employed as a secretary at a high school for twenty-five years.

She is the mother of two children, S.C. and S.H. [ 93 ] She is currently residing in a duplex and was residing there with her daughter S.H. at the time of the apprehension. The other half of the duplex is rented by J.T. for the last few years. [ 94 ] She was asked to describe her daughter S.H. by her counsel. She said she is a happy little girl and took the court through numerous pictures that covered most of S.H.’s life. [ 95 ] She explained the pictures in a somewhat cursory fashion.

For example, that is to say, she simply said this was ‘S.H. at the Zoo’ or ‘this is us hiking.’ [ 96 ] I think an objective description of some of the pictures is useful.

They are found in Exhibit 5 and are entitled “Photographs.” May 2016: Visit in Lower Mainland August 2015 - Visit in Langley • child looks happy, healthy, appropriately dressed with eyewear July 2015: Visit in Langley • child looks happy, healthy, appropriately dressed with eyewear April 2014: Day of Removal • child looks happy, healthy, appropriately dressed Other Pictures found at Tab 4 of Exhibit 5 • child looks happy, healthy, appropriately dressed, playing in a yard with a swing set and her dog; • in the hospital, smiling, surrounded by stuffed toys and eating healthy treats; • hiking in snow, dressed warmly, with appropriate footwear; • In 2011 playing on a beach, happy and appropriately dressed; • In 2012 at a hospital getting tested for allergies, but still smiling; • at a church event surrounded by other children and elders; • dressed in overalls with a hammer and child tool kit taking a children’s carpenter’s course; • in a restaurant carrying a stuffed toy, swimming in a pool, in a huge tub filled with bubbles, showing off her carved pumpkin, being licked by a horse, sniffing flowers, next to a bike wearing a bike helmet, eating with her Sunday school fellow students, playing dress up with a friend - again, while holding at least two stuffed toys; the list goes on. [ 97 ] I certainly acknowledge that pictures only reflect the moment and the Ministry has already acknowledged there are moments of good parenting.

However, the pictures show to me the life of a happy, clean, well fed child, around other people, and always appears to be taken care of. The April 4, 2014 Incident - COURTENAY REMOVAL [ 98 ] C.H. testified that she had taken S.H. to the hospital in Courtenay to get some tests done for her asthma. After the hospital, they went to McDonald’s, and stopped on the way back to her friend’s place to buy a six-pack of beer and some ice cream for S.H. [ 99 ] She testified that they ate dinner and S.H. went to bed at 8:00 p.m. After having some beer, C.H. then went to bed in the downstairs suite at her friend’s place.

The next thing she remembered was “the police came to the door, rushed in and came right over to

us, ripped the blankets off and started getting into our faces.” She told the officers that she had drank some alcohol but ‘that was hours ago.’ Apparently, there was a call to the police about a domestic dispute that may have taken place between her friend and common law partner. No details regarding this incident have been put into evidence. [ 100 ] As I understand the evidence, C.H. may not have been polite in this interaction with the police officer. I am assuming, as it is not in evidence one way or the other, that she may have been loud, even aggressive or rude in her use of language.

In any event, according to C.H., C.H. then says an officer said ‘Listen lady, you and your girlfriend are going to cells and your kid is going into a foster home’ to which she responded ‘You can’t just come into people’s house and do that.’ At this point C.H. describes her arm being twisted, her face being slammed into something and being taken off to cells in handcuffs. [ 101 ] I should note that I fully believe C.H. on her version of events. When weighing a second-hand version of her being ‘drunk as a skunk’ with C.H.’s detailed account of what transpired, I am left with two different stories.

Unfortunately, for some inexplicable reasons there is no police report or police notes regarding this incident. I am told that we do not have the benefit of this information as it was a Courtenay matter and thus the records are difficult to obtain. Notes, other eye witnesses, including police officers, all could have been used to provide alternative evidence. In any event, C.H.’s testimony with respect to the April 4, 2014 incident is fully accepted by me. [ 102 ] She said that she had never seen her friend and her friend’s spouse ever be violent to each other.

If she thought there was a history of violence between them that she would never have stayed there. In cross-examination she said ‘she had known her for 20 years and never saw any problem.’ [ 103 ] She denied being intoxicated, but did agree that her behaviour was aggressive and loud. In cross-examination she one hundred percent agreed that she was argumentative. She testified that at no time was she not able to take care of her daughter on that day. C.H.’s Response to M.H. and S.C.’s Testimony [ 104 ] C.H. adamantly denied any knowledge that her daughter was being abused in her early years.

She testified that once she learned of it she has been trying to support her daughter in going to the police to bring charges against the individual. [ 105 ] She told the court that she always had food in the house and that S.C. was difficult sometimes but that they never fought and she never hit her. She did describe an incident where she was hit over the head by her daughter. The incident described was similar to the one that S.C. described to the court as well. [ 106 ] C.H. was very clear that there was no physical violence tolerated in her home growing up.

She told the court her father was a very strict preacher and that there would be no way anybody could ever hit anybody in her home. The Safeway Parking Lot Incident [ 107 ] C.H. told the court that she was just bringing S.H. back from the hospital and that S.H. was asleep in her car seat. She left her in the car seat so that she could run into a pharmacy to fill a prescription for her daughter and that she was only gone a few minutes, and now realizes it was the wrong thing to do.

The Beach Incident - Paedophile [ 108 ] I pause to note that it appears to be agreed by all parties that the conversation that took place at the beach was NOT with a sex offender. In fact, by all accounts, it appears the person she was speaking to may have been a brother to an individual who may have some sort of sex offender history. In short, the information passed onto the Ministry was false. [ 109 ] It is unfortunate that this false information was shared with her psychiatrist.

The domino effect, or fallout from this false information may have greatly impacted her relations with her doctors. [ 110 ] In an attempt to elicit some collateral concepts as to how C.H. would respond to a situation, such as coming across a paedophile on the beach, counsel for the Ministry asked ‘what would you do in that scenario?’ C.H. said, “I probably would have asked the person to leave because they would have conditions not be around children; I probably would tell the police what was happening.” The follow- up question of “Would the child be in danger?” was put to her, to which she responded “Yes.

But this man was not a danger.” I found her answers, at most times, to be insightful and honest. [ 111 ] C.H. told the court that she has done everything that she can to show she is serious about her obligation as a parent. She has quit drinking and smoking pot. She has taken every course that she has been asked to take, plus more. [ 112 ] Mr. Garling submitted that C.H. tends ‘to invert’ or ‘genuinely mis-remember’ her evidence. I tend to agree with this submission. I too found her to do this. But I did not find her testimony on key points unbelievable. [ 113 ] By way of short

summary, when a child has been placed in the temporary custody of the Director as S.H. was here, the Director may apply for a Continuing Custody Order (CCO) by giving notice to each parent of the application. The parents have the right to be parties at the hearing of a CCO. Sections 49(4) and (5) set out circumstances under which a court may or must make a CCO. [ 114 ] Section 49(6) sets out the factors for consideration which include the child’s best interests:

(4) The court must order that the child be placed in the continuing custody of the Director if ... (

b) a parent is unable or unwilling to resume custody of the child.

(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.

(6) Before making a continuing custody order under subsection (5), the court must consider (

a) the past conduct of the parent towards any child who is or was in the parent’s care, (

b) the plan of care, and (

c) the child’s best interests. [ 115 ] I recognize that before I make a CCO, I must consider past conduct, plan of care and the child’s best interests. However, I wish first to address two other questions. Is C.H. unable to resume custody of the child? [ 116 ] If so, then I must order that the child be placed in the continuing custody of the Director. [ 117 ] Re V.(E.) , [1996] B.C.J. No. 2789 (QL (Prov. Ct.)) provides me with some legal guidance.

While that case had to do with physical injuries, it does stand for a principle that I believe holds firm in our case. “The State does not have the right to remove children from their parents merely because others, generally foster parents, might be better able to raise them. That right only arises where the state can show that children were in need of protection… All parents, even those with limited means and less than average natural ability, are otherwise entitled to try to care for their children. [ 118 ] What are her abilities? She has an income that supports a residential home.

On this point, I noted mid-hearing that there was very little information regarding the home. As a result of my concerns, I asked Ms. Berezan, counsel for C.H., to attend at C.H.’s residence and provide a report as an officer of the court regarding the state of the home. C.H. was not given notice of this visit but cooperated fully. I applaud Ms. Berezan for her ‘over and above the call of duty’ efforts. [ 119 ] In a letter dated June 27, 2016 she provided a detailed written account of the home. Accompanying pictures show a slightly messy home.

However, they also show a home with shelves stocked with canned vegetables and a fridge stuffed with healthy foods such as organic yogurt and other items. [ 120 ] As for a home, C.H. has one. In my view, the home is entirely appropriate for S.H. [ 121 ] S.H. can go to school. I also note that S.H. had an impeccable attendance record while living with her mother. She would have access to swimming lessons, church and other supports, including friends in Powell River.

Will circumstances that led to removal improve given time? [ 122 ] I believe the circumstances that led to the removal, that being the April 2014 Courtenay incident were unique. At that point in time, if we are to believe the officers assessment of the situation, S.H. was in need of protection. [ 123 ] C.H. was supposedly intoxicated, had no supports such as family or friends present to take care of S.H., and she was not in her own home. [ 124 ] In Powell River her circumstances are quite different. This court has heard that she has ample friends to support her.

She has access to community organizations and medical professionals that can assist her. I accept her evidence, as well as others who have testified on her behalf that alcohol is no longer an issue, if it ever was. [ 125 ] However, I believe C.H.’s personality must be considered in the equation. Most certainly her profane and often inappropriate interactions with social workers have to be part of the reason that S.H. was removed. It is not her Asperger’s, but her behaviour that must be considered. [ 126 ] Intricately linked to her behaviour are her physical and mental disabilities.

Regarding her sleep deprivation, it appears a few months ago she has received medical support and is on a sleep apnea machine. Consequently, it appears she is sleeping better and finds that this positively affects her disposition. [ 127 ] Nevertheless, there are still her mental health disorders. Ultimately, will these conditions improve with time? I understand her submission that as time goes on some of the personality features associated with BPD may dissipate or entirely disappear. However, I believe there is a lack of medical evidence to support her submission.

[ 128 ] It is Ms. Berezan’s submission that Director’s counsel has not met the burden to show that S.H. has been harmed in any manner at all. It may be the case that there is no clear medical information showing that S.H. is suffering from anxiety, depression, withdrawal or self-destructive or aggressive behaviour; but to say that she has not been emotionally harmed in this manner is to forget that emotional harm, while defined by our statutes, should be considered more broadly in attempting to appreciate the impact of a parent’s actions on their children. [ 129 ] I agree with Mr.

Garling’s closing submission that we cannot overlook the feelings of this young girl. She has an understanding of how she feels around her mother. She has an understanding of what she believes would be good for her. For example, she thinks being with her stepsister has benefits over being with a strict aunt. No matter what this court decides, her feelings are important. They are an indicator that she would like things to be better. [ 130 ] A June 27, 2016 report generated by Dr. Chotem, a registered psychologist sets out a few of her feelings.

At page three of the report she is quoted as saying “I don’t want to live with mom.” She is able to verbalize why. She says her mother stays in bed all day, randomly hits her and calls her names when she is drunk but “she’d be pretty good if she didn’t drink and smoke.” She has preferences, and her mother is not number one on that list. She talks positively about coming to Powell River to live with a different person, who she was previously cared for by.

She is mature and bright enough to say at page 6 that “If my prediction is right, she’ll be a way better mother if she gets help and stops drinking and smoking.” [ 131 ] If C.H. has had any doubts as to what her daughter believes, she should read this line of the judgement over and over again. It is not C.H.’s sister, or daughter S.C., or the social workers speaking here.

It is her daughter, who obviously loves her - but even at her age is smart enough to know her mother needs to be a better mom. [ 132 ] I find the question that I am left with is: Are C.H.’s mental health concerns a barrier to her being able to resume custody of her child? I do not believe they are. But measures must be put in place to ensure that C.H. and S.H. receive all the assistance they can to live happy, healthy lives.

I believe there are ample supports that can be put in place to ensure that this life is together, and for the time being at least, in Powell River. [ 133 ] With the greatest respect to others that may have a different view, I do not believe that S.H. is in need of protection.

I do not find that there is any risk that S.H. will be harmed. [ 134 ] There is little to no reliable evidence upon which I can determine with any degree of certainty that she will fall into a category of being ‘emotionally harmed’ or neglected. [ 135 ] Whatever the history has been, it is a reference point for us to understand what can be done, and what needs to be done, to assist C.H. [ 136 ] I echo back to the principles of the Child, Family And Community Service Act that yes, children are entitled to be protected from abuse, neglect and harm or threat of harm; and that a family is the preferred environment for the care and upbringing of children; and if, as I find here, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided. [ 137 ] After balancing the child’s emotional needs, and her level of maturity, I believe that she and her mother have the ability to heal from this horrific and potentially emotionally scarring two-year time period away from each other. [ 138 ] I fully appreciate that she has ties to her extended family and now to the neighbourhood that she lives in.

I recognize transferring schools from grade five to grade six can be scary. And I know that she has things she would like to do, like bible camp this summer. For the trauma of moving and leaving behind what is familiar, I apologize and accept full responsibility. It is not her fault. It is not her mother’s fault. It is not the Ministry’s fault. [ 139 ] The delay caused, has been due to court calendars and lack of court time and other systemic issues. There are other factors, but it is this court that accepts full responsibility for the delays.

I apologize to S.H. for taking so long to reach a final resolution in your case. [ 140 ] As a matter of law I find that C.H. is able to resume custody of her and I believe that with proper supports in place, C.H.’s ability will only get better. [ 141 ] It is apparent to me that in the past there have been signs of good parenting. For example, S.H. is a smart, well-adjusted healthy, happy child, who goes to school, is well fed, and appropriately cared for. [ 142 ] It may be that C.H. has made some mistakes. For example, she regrets leaving S.H. alone in a vehicle.

She also no doubt regrets the way she has behaved to social workers and the police officer in Courtenay. [ 143 ] Mr. Garling quite appropriately asks the court to see C.H.’s efforts, as historical efforts, as failed efforts, as we see that even after taking courses, seeking counselling and other attempts, the removal still occurred. However, I see her past efforts as an indicator that she has the ability to listen. She has the ability to follow through and that she is willing to do the work to be a better parent. A complete list is attached on Ms.

Berezan’s letterhead dated June 27, 2014 made as an exhibit to these proceedings. [ 144 ] If she at first has denied that alcohol has played a role in all of this, she now takes responsibility for her actions and is willing to ‘do whatever it takes to get her daughter back.’ She made it clear to me that she has made mistakes, regrets her mistakes and wants to be a better mother. I am told that she has quit drinking alcohol. She is now sleeping better due to receiving medical help. She has sought out help from her community, her church, her friends, community centre volunteers and the list goes on.

She has not sat idly by - she has fought hard to get where she is today - and I expect that she will have to continue with her efforts. [ 145 ] But those efforts will not be alone. The phrase. ‘it takes a community to raise a child’ comes to mind.

[ 146 ] If she does not listen to this court’s recommendation, then she will be at risk of further interventions by the Ministry and by this court. [ 147 ] Respectfully, while at some level continued assistance from the Ministry is preferred, I do not believe having the Ministry supervise any conditions for C.H. is required. With respect to ‘preferred,’ it is possible that C.H. may need their assistance to ensure the best counselling for S.H. is accessible.

I recognize if the Ministry is not supervising, there may be limited access to counselling or programming; however, I hope if asked for assistance, they will do the best they can. [ 148 ] And while I do not have the legal authority to order other individuals to supervise C.H., I am relying on the goodwill, good intentions and abilities of people in the community such as Ms.

W., as well as others that have testified on C.H.’s behalf in these proceedings. [ 149 ] It is my view that C.H., as a symbol of her love for her daughter and as a symbol of her promise to her community and this court, agrees to what I might call a ‘social contract’; that sets out terms and conditions that will allow her to reach out for support where and when required; that will allow S.H. the comfort of knowing that if things are not going well, she has a place to go; and that allows her network of community supports to be part of the process of making C.H. a better parent; and more importantly part of the process of creating and sustaining a healthy, happy environment where S.H. can thrive, as I believe she will, given time. [ 150 ] You have counsel here.

I will provide a copy of the potential social contract to you, your lawyer and Director’s counsel. You might or might not agree to its terms. That will be a decision for you and you alone to make. [ 151 ] This case will then cease. I am hopeful if you agree to the terms, then the lead social worker will be able to explain to S.H. that she is coming home to a better home and a better mother than the one she remembers. [ 152 ] Attached to these reasons I provide a copy of the social contract. [ 153 ] The immediate expectations of this court are 1. that Mr.

Miller shall immediately let S.H. know that she is coming back to Powell River. 2. that there will be a plan in place for the transition that will allow her to: a. establish greater contact with her mother by phone or social media over the next few days; hopefully to discuss some sort of ‘summer fun’ camps that she may be able to attend that interests her and that can assist with the transition; b. a chance to say goodbye to her friends and family there. 3. Ms. H., a. get your house in order, b. use your community supports. The Honourable Judge A.

Wolf Provincial Court of British Columbia I C.H. understand that this is not a legal document but on good faith promise to make best efforts to: Be the best mother I can to S.H. by, 1. Abstaining absolutely from the consumption or possession of alcohol or drugs as defined in the Controlled Drugs and Substances Act except those as prescribed by a licensed medical doctor. 2. I will abstain from smoking cigarettes in the immediate presence of S.H.

3. I will maintain a clean and sanitary environment for S.H. in our home. 4. I will allow S.W. or her delegate to visit and inspect the home at any time to make sure the home is clean. 5. I will allow S.W. or her delegate to interview S.H. at any time for any purpose. 6. I will always provide proper meals to S.H. and ensure that there are proper food items in the home at all times, stored appropriately in a sanitary manner. 7. I will register S.H. in at least one activity based in the community, preferably one that S.H. wants, such as swimming or bible camp. 8.

I will make sure S.H. goes to school and provide her all the support she needs to become comfortable again in Powell River. 9. I will continue to meet with my doctors to ensure that I am mentally healthy. If I choose not to take medications as prescribed by my psychiatrist or physician, I will immediately advise S.W. or her delegate as to the reasons. 10. I will continue to meet with Mental Health and Addiction Services and other mental health agencies and professionals on a regular basis and attend at, participate in and complete any such programming that is suggested. 11.

I will ensure that S.H. attends to: (1) all medical appointments, and that she receives (2) ongoing child psychotherapy (e.g., art, play or talk therapy) that helps her express rather than act out feelings and thoughts; and (3) supports that help her resolve conflicts. 12. I will allow and assist S.H. to go to S.W.’s place for visits, whether temporary or overnight, and will see this as a ‘cooling off time period’ or ‘temporary respite.’ 13.

I will always love S.H. and support her in developing her own relationships with all members of our family and will help her keep in contact with them by telephone, written and social media. 14. These promises will be ongoing and may be adjusted after having a consultation or conference with my support group as defined by S.W. _____________________________ ______________________________________ C.H. WITNESSED BY S.W. SIGNED JULY 13, 2016 BY BOTH MS. H. AND MS. W.