Director v. GM and AJ Date:, 2012 BCPC 175

Citation: Director v. GM and AJ Date: 20120525 2012 BCPC 0175 File No: F 29850 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILDREN: AJ , born [DOB] CJ , born [DOB] DJ , born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: GM and AJ (Father) PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Director: J. Rowbotham

Counsel for the Parent: D. Boyd (for the Mother, GM), Father not Appearing Counsel for the Grandmother (BM): J. Speed Counsel for the Office of the Public Guardian & Trustee No one appearing Place of Hearing: Surrey , B.C. Dates of Hearing: July 4,5,6,11,12,13; Sep 22; Oct 17,18;Dec 21,2011;Jan 16, 2012 Date of Judgment: May 25, 2012 [ 1 ] This is an Application pursuant to Sections 40 and 49(5) of the Child, Family and Community Service Act , R.S.B.C. 1996 and amendments thereto (hereinafter referred to as the “ Act ”). The Application is opposed by the Mother.

The Father did not appear. [ 2 ] This Application was ordered on May 28, 2009, to be heard together with file F30128, Surrey Registry, which was an Application filed by the Maternal Grandmother, BM, seeking sole custody and guardianship of the three Children who are the subject of the Director’s Application. The Mother did not file a Reply, however, through counsel, verbally supported the Application. The Father did not file any Reply nor attend Court.

The Director opposes such Application. [ 3 ] The Written Reasons herein shall also form part of the Written Reasons for the Family Relations Act (hereinafter referred to as the “ FRA ”) matter commenced by BM. Legislation [ 4 ] The relevant sections of the Act for consideration are as follows:

Section 2 – Guiding Principles 2. This Act must be interpreted and administered so that the safety and well-being of children are the paramount considerations and in accordance with the following principles: (

a) children are entitled to be protected from abuse, neglect and harm or threat of harm; (

b) a family is the preferred environment for the care and upbringing of children and the responsibility for the protection children rests primarily with the parents; (

c) if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; (

d) the child’s views should be taken into account when decisions relating to a child are made; (

e) kinship ties and a child’s attachment to the extended family should be preserved if possible; (

f) the cultural identity of Aboriginal children should be preserved; and (

g) decisions relating to children should be made and implemented in a timely manner.

Section 3 – Service Delivery Principles 3. The following principles apply to the provision of services under this Act : (

a) families and children should be informed of the services available to them and encouraged to participate in decisions that affect them; (

b) Aboriginal people should be involved in the planning and delivery of services to Aboriginal families and their children; (

c) services should be planned and provided in ways that are sensitive to the needs and the cultural, racial and religious heritage of those receiving the services; (

d) services should be integrated, whenever possible and appropriate, with services provided by government ministries, community agencies and Community Living British Columbia established under the Community Living Authority Act ; and (

e) the community should be involved, whenever possible and appropriate, in the planning and delivery of services, including preventive and support services to families and children.

Section 4 – Best Interest of Child 4(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child’s best interests, including for example: (

a) the child’s safety; (

b) the child’s physical and emotional needs and level of development;

(

c) the importance of continuity in the child’s care; (

d) the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; (

e) the child’s cultural, racial, linguistic and religious heritage; (

f) the child’s views; (

g) the effect on the child if there is a delay in making a decision.

Section 13 – When Protection is Needed 13(1) A child needs protection in the following circumstances: (

a) If the child has been, or is likely to be, physically harmed by the child’s parents; (

b) NOT APPLICABLE: (

c) NOT APPLICABLE; (

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

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

f) NOT APPLICABLE: (

g) If the child’s development is likely to be seriously impaired by a treatable condition and the child’s parent refuses to provide or consent to treatment; (

h) If the child’s parent is unable or unwilling to care for the child and has not made adequate provision for the child’s care; (

i) If the child is, or has been, absent from home in circumstances that endanger the child’s safety or well-being; (

j) NOT APPLICABLE; (

k) NOT APPLICABLE; (

l) NOT APPLICABLE.

Section 40 – Protection Hearing 40(1) At the protection hearing the court must determine whether the child needs protection.

(2) If the court finds that the child does not need protection, it must (

a) if the child was removed, order the director to return the child as soon as possible to the parent apparently entitled to custody....

(3) If the court finds that the child needs protection, it (

a) must consider the plan of care presented by the director; and (

b) may hear any more evidence the court considers necessary to help it determine which order should be made....

Section 49 – Continuing Custody Hearing and Orders 49(5) The court may order that the child be placed in the continuing custody of the director if there is no significant likelihood that: (

a) the circumstances that led to the child’s removal will improve within a reasonable time; or (

b) the parent will be able to meet the child’s needs.

(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.

(7) If the court does not make a continuing custody order, it must make one of the following orders: (

a) that the child be returned to the custody of the parent apparently entitled to custody; (

b) that the child remain in the temporary custody of the director or a person other than the parent for a specified period of up to 6 months.

[ 5 ] In addition, noting the requirements under the FRA (the Application by BM by Court Order was heard with the Director’s file),

Section 24 states: Best interests of child are paramount: 24(1) When making, varying or rescinding an order under this Part, a court must give paramount consideration to the best interests of the child and, in assessing those interests, must consider the following factors and give emphasis to each factor according to the child’s needs and circumstances: (

a) The health and emotional well being of the child including any special needs for care and treatment; (

b) NOT APPLICABLE; (

c) The love, affection and similar ties that exist between the child and other persons; (

d) Education and training for the child; (

e) The capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise those rights and duties adequately. COURT BACKGROUND [ 6 ] Initially, five children were apprehended and removed by the Director. For two children (both of whom had a different father from the matter herein), the matters were resolved and those two children are not the subject of this matter. [ 7 ] On September 4, 2008, the Honourable Judge Raven gave a Consent Order wherein the Director retained custody of the Children pursuant to

Section 41, and that GM shall have reasonable access supervised at the discretion of the Director. [ 8 ] On April 6, 2009, the Honourable Judge Raven ordered that BM was granted specified access to the Children. [ 9 ] On July 9, 2009, the Honourable Judge Borowicz ordered that, pursuant to Section 45(1.1), the Children remain in the custody of the Director until the conclusion of the trial, which Order was further extended by the Honourable Judge Chen on September 30, 2010, that the Children remain in the custody of the Director pending the conclusion of the Continuing Custody Order trial. [ 10 ] On July 13, 2011, the Honourable Judge Arthur-Leung ordered that GM have access to the Child AJ, for one hour per week and that BM have access to the Child AJ, for one hour per week, subject to conditions and terms.

EVIDENCE EL, Social Worker [ 11 ] EL (formerly known as ED) had conduct of the file from March to June, 2008. She testified that on March 25, 2008, she received a call from the Surrey RCMP that GM was at a shopping mall having seizures, was reportedly homeless and nowhere to go. Prior to such time, the family had been residing at the home of the sister of GM in the basement. EL met with GM, AJ (Father) and the Children and found that the family was dirty, GM was pregnant and stressed and the family was hungry.

She stated that she was unable to immediately find housing for the family so she secured accommodation for them in a local hotel. She reported that she lost touch with the family thereafter. [ 12 ] On April 2, 2008, EL had been advised by the local hotel that the family was there and was to be evicted and would be homeless again, so she contacted GM but GM hung up, and upon receiving no response, EL went to the hotel where she saw GM in the lobby telling EL that this was not a good time to meet. EL found AJ (Father) passed out and mumbling on a hotel bed undressed, so she waited in the hallway.

She reported that the room was dirty, messy, food on the floor, that the Children needed bathing, but that the Children were happy and active. Of note in Exhibit 1, Tab 1 (the Presentation Form), EL noted that the food in the room consisted of “2 bags of chips, part of a left over pizza and an empty jar of peanut butter”. EL testified that when asked, AJ (Father) reported that he had consumed 12 beer the night before and was still sleeping, that he consumed alcohol because he was stressed and denied any use of drugs. GM had reported no pre natal care, had no plan of care for the Children, and was epileptic.

GM reported that BM would be able to assist them. EL directed that the Father AJ leave and to have BM come to the hotel to assist wherein BM asked that they come to her home, but EL refused and insisted that BM come to the hotel, which she did in a cab and was told by EL not to take the Children to her home. AJ (Father) left. EL left and put in an After Hours Alert.

BM left the hotel with the two eldest children (who are not the subject of these proceedings). [ 13 ] An After Hours Alert was submitted, and only after the Social Worker had permitted BM to be with the Children as part of EL’s safety plan, was it determined that BM has an extensive history herself with the Ministry.

EL and any Team Leader responsible for her training and supervision had failed to ensure the safety and well being of any of the Children in allowing the Children to be left with a party, as part of a safety plan, with whom they did no investigation, and a simple check would have determined that BM personally had extensive Ministry involvement. A further troubling piece of evidence from EL was that she noted that there was an absence of fresh fruit and a refrigerator in the room.

Surely a family who has received $700.00 in temporary emergency shelter monies for two adults and four children (with a fifth due any day) would be empathic and common-sensical to know that such funds do not include the luxury of accommodation in a hotel that furnishes a refrigerator and that the minuscule amount of emergency funding from Social Services agencies has to stretch and that fruit is often a luxury, wherein peanut butter is often a staple. [ 14 ] The testimony of EL was troubling from the basic premise of an absence of following proper protocol on background checks before releasing a child to another adult and testimony about what her expectations were for the room and accommodation.

It was void of following safety protocol and void of common sense and compassion as to the expectations of food in that room.

[ 15 ] Exhibit 1, Tab 1, in these proceedings is the Presentation Form indicating EL had asked GM who would care for the four Children should she go into labour, and GM advised that her Mother BM would care for the Children at her sister’s home, which EL pointed out was not acceptable as GM’s sister also had a history of Ministry involvement. EL, without doing any proper and necessary checks, advised GM that BM would have to come to the hotel herself to care for the Children.

BM was contacted by the Ministry, without any safety checks, and secured the consent of BM that she would come to care for the Children should GM go into labour. Despite EL stating that she consulted with a Team Leader and no safety protocols being followed to check BM, EL obtained the consent of BM that she would come to the hotel should GM go into labour and stay there to care for the Children. The father refused to leave for temporary shelter or for drug testing. BM was made aware that the Father was to leave the hotel and not be present.

It was only when After Hours undertook the required safety checks, which EL and her Team Leader should have first undertaken, was it determined that BM had extensive Ministry history and it was then determined that the Children should not be with BM. After Hours re-attended the hotel with the RCMP where they located the Father in the room and that BM had left with two of the Children to her other daughter’s home. BM was contacted and immediately returned to the hotel where she was arrested for an outstanding warrant (which turned out to be in error). The Father was asked to leave the hotel room.

GM went into labour and she was transported to the hospital by ambulance, not knowing where her children would be or who would be caring for her. There was significant trauma and stress to all that never should have occurred. Had EL and her Team Leader undertaken the required investigations before making the incorrect decision to release the Children to BM, the trauma that resulted in the events of April 2 and 3, 2008, certainly would have been significantly minimized or perhaps avoided.

As a result, the Children experienced unnecessary chaos because of the manner in which the actions were undertaken by EL and her Team Leader for which no explanation has been given for the errors made that evening. [ 16 ] While correct in law that the Children had to be removed, the manner in which the process was undertaken and thus resulting in the shifting of the Children from one place to another and the undue stress and uncertainty, all of which no explanation was given in this Court and for which parties should be accountable, the best interests of the Children were not followed.

On April 3, 2008, the four Children (two of whom are not the subject of these proceedings now) were removed and placed in a foster home. [ 17 ] At the time of the removal, GM went into labour and an ambulance was called to attend at the hotel. The Child, AJ, was born on April 3, 2008, healthy, and removed on April 4, 2008, at the hospital by the Ministry and placed in a safe baby’s home upon discharge from the hospital.

AJ was not tested for drugs. [ 18 ] At the initial Court appearance, EL spoke to the Mother, GM, at Court and told GM that AJ showed signs of drug withdrawal, however, of note, no testing was undertaken at the hospital. GM reported that she smokes marijuana due to seizures, but denied any other drug use. GM was sent for a hair test on April 17, 2008. Exhibit 2, Tab 11, in these proceedings shows that the test results indicated that GM tested positive for cocaine use. Two tests were undertaken as GM vehemently denied any drug use with the first result; therefore a second test was done.

The Father, AJ, had agreed to attend drug testing, however, did not attend. [ 19 ] EL referred GM to the Métis Rapid Response programme to assist with housing and parenting. Supervised access was commenced with reports that the parents were dirty and ill kept. [ 20 ] On cross-examination, EL testified that she has been a Social Worker since 2007.

She testified that BM understood the terms of the proposed safety plan that she not go to her home because of an alleged report and that BM was to remain at the hotel with the Children. [ 21 ] On cross-examination, EL acknowledged that the children were happy and healthy with no evidence of any trauma. [ 22 ] On redirect, she testified that the reason for the baby AJ to be removed was because the family was homeless, concern about the lack of judgment on the part of the parents, a lack of safety plan in place, and a possible threat of physical harm to the Child.

Social Worker CR [ 23 ] CR has been employed as a Social Worker for the past 15 years and managed the After Hours Alerts in March 2008 stating that she received the After Hours Alert from EL on April 2, 2008, that included, inter alia, a plan that the Father would not be in the hotel and that BM would be in the hotel room with the Children.

She did a Prior Contact Check (hereinafter referred to as a “PCC”) and was not satisfied, so she contacted EL at home to obtain more information wherein she found out that EL was not aware of BM’s prior involvement and history with the Ministry and thus, the safety plan that EL had put in place was not appropriate nor ever should have been put in place. [ 24 ] Five of BM’s children were the subject of a Continuing Custody Order (hereinafter referred to as a “CCO”); there had been a number of intakes regarding allegations of unsanitary conditions, alcoholism, neglect and possible harm.

CR contacted the Surrey RCMP wherein she was advised that there was an outstanding warrant for the arrest of BM and that BM was to be arrested. CR attended the hotel on April 2, 2008, with the RCMP, wherein GM answered the door stating that BM had just left with the two eldest (who are not the subject of this proceeding). She entered the room to find leftover food, unkempt conditions, and contrary to the safety plan of EL, the Father was in the hotel room. She reminded GM of the safety plan, wherein the Father stated that he returned because he was concerned about GM having seizures.

GM alleged that she was not told that the Father was not permitted to remain. GM went into labour and was taken to Surrey Memorial Hospital. At such time, CR chose not to disclose to GM that the Children had been removed because she feared it would cause undue and additional stress to GM, but she told BM that the Children were being apprehended.

CR reported that two Children were eating leftover pizza crust, the Children had dirty clothes, the room had a distinct odour of cigarette smell, and that all of the Children reportedly had lice. [ 25 ] On April 3, 2008, GM gave birth to AJ, who was removed on April 4, 2008. [ 26 ] On cross-examination, CR was not aware of BM had contacted After Hours. [ 27 ] On cross-examination CR testified that BM had told her that she did not know the Children as they had been in Montreal since 2003 with GM.

She testified that there was no evidence at the time of the removal that GM was stressed in the form of pre labour and that the room had two bags of potato chips, half of a pizza and a jar of peanut butter. She testified that two Children (who were removed,

but now not the subject of this matter) told her that they were hungry. The clothes of the Children were dirty, there was a cigarette smell in the room and the Children had lice. CR testified that there were poor living conditions. She testified that at Surrey Memorial Hospital, GM was upset because she was advised after the birth of AJ that the Children had been removed. She testified that AJ was removed after speaking with her supervisor and there was a fear that GM would leave the hospital with AJ.

It was at such time, after the birth of AJ, that GM disclosed that she had smoked marijuana during her pregnancy with AJ. Social Worker DP [ 28 ] DP was assigned the file in June 2008 until August 2009, at which time the Children were placed in three different foster homes. She testified that her first review of the file noted concerns about substance abuse, neglect, transiency, and concern about inappropriate parenting.

She testified that GM had prior MCFD involvement in 1999, 2002 and in 2003, when the family fled to Montreal. [ 29 ] GM herself had been placed in care in both 1992 and 1994 and five children of BM were the subject of a Continuing Custody Order in 1997 (this did not include GM). [ 30 ] She testified that she relied upon the Intakes and review of physical files, particularly of BM, noting the first concern with BM as a parent was in 1978 with concerns about neglect, an unsanitary home, a lack of supervision, alcohol abuse by BM, and allegations of abuse by BM to her eldest daughter. [ 31 ] She testified that the Father AJ failed to attend any meetings set up by the Ministry, save and except attending one meeting at Sunny Hill regarding AJ. [ 32 ] Exhibit 2, Tab 13, was a Risk Reduction Plan prepared by DP but was not signed by any of the parties.

She met with GM at the Ministry office in June 2008 with BM and a Rapid Response Support Worker, to talk about the risks and how to solve or address the risks to work towards return. She testified that GM was angry as a drug test had just come back showing a positive result for cocaine use and that on such day GM had poor hygiene, had body odour and was very dirty. [ 33 ] The April 2008 positive drug test for both cocaine and marijuana was discussed and GM was sent for a random urine test as she denied any cocaine use that came back with the first test. It tested positive for marijuana use.

DP acknowledged that at all times GM has been up front about her use of marijuana stating that she relies upon it to control her seizures. DP spoke with the physician of GM on January and July 2009, who expressed concern to DP about the use of marijuana by GM and that GM had not been seeing him on a regular basis.

DP testified that GM has had seizures in her presence including one at Court in July 2008 when she was transported by ambulance, once with BM in the Social Worker’s vehicle, once at the Ministry office and at least on four other occasions. [ 34 ] In response to the matter of transiency, from July 2008 to August 2009, GM has not been able to secure housing and often slept on the couch in her sister’s home. DP testified that she wrote to BC Housing for assistance for GM. [ 35 ] GM had a referral to the Métis Parenting Programme for September 2008, but GM did not attend stating that she was confused with the date.

Regrettably after such time, AJ sustained a non-accidental injury while in Ministry care and understandably, the focus was on AJ. The next session scheduled for GM was in January 2009 wherein she did attend the sessions over a 6 – 8 week period. DP spoke with the Métis Parenting Coordinator who reported that GM did attend the sessions but was unable to comprehend the content and was advised that she required more hands on sessions.

She was referred to Act II with the Children DJ and CJ to attend. [ 36 ] She testified that the use of marijuana by the GM is of an ongoing concern as it impacts both on the personal health of GM and also on the young Children. [ 37 ] She reviewed Act II which is an intensive one-on-one for parents that permits longer access time and provides direction and suggestions for parenting skills.

GM attended in June 2008 with both DJ and CJ and received a verbal report from staff that GM had missed two sessions, the first day she suffered a seizure, that there were concerns about cognitive delays on the part of GM, that GM struggled with disciplining DJ and that she struggled with the two boys concurrently. [ 38 ] Exhibit 2, Tab 15, was reviewed in that GM was referred to Surrey Community Services in June 2008 and GM was appointed a counsellor in September 2008 but GM did not attend appointments in both September and November 2008, thus she was placed back on a wait list and she did attend in January 2009, wherein Exhibit 2, Tab 17, indicates that she attended all sessions with a report of March 2009 to DP stating that GM remained in denial about issues, was suffering some cognitive delays and that rather than a pro-active session, GM used it for “venting” sessions. [ 39 ] Tragically, on September 17, 2008, AJ, while in foster placement, suffered a non-accidental injury, the contents of which are not the subject of this proceeding and are the subject of a separate criminal proceeding.

The non-accidental injuries sustained by AJ while in foster care resulted in her not breathing and having to be placed initially on life support. AJ spent a considerable amount of time at BC Children’s Hospital and thereafter time at Sunny Hill. [ 40 ] The medical team meeting of September 22, 2008, reported that AJ suffered permanent visual impairment, permanent brain damage, permanent intellectual and cognitive difficulties and a permanent loss of muscle control. Prior to the non-accidental injury, she was a happy, healthy child.

While in attendance at the meeting at Sunny Hill (Exhibit 2, Tab 41) on November 26, 2008, GM suffered a seizure in the midst of the meeting and was transported for medical assistance. Given the medical documentation attached in these proceedings in Exhibit 2 and the tragedy of the non-accidental injury to AJ that is now permanently left her disabled requiring 24/7 care and shortening her life span, to note and to remark that GM suffered a seizure during one of the medical team meetings is void of empathy and compassion.

It is no wonder that any parent would remain stoic and responsive when hearing such life altering news. Exhibit 2, Tab 42, is the Discharge Report for AJ, who was discharged on January 22, 2009, reporting that the balance of her life requires 24/7 care. She is unable to focus, has a loss of muscle control and requires permanent occupational therapy, physiotherapy, infant development care and specialised medical care for the balance of her reduced life span.

[ 41 ] DP reviewed access visits with the Children. GM initially had access visits through Tin Harbour that were supervised from Fridays at 1 p.m. – 5 p.m. and the Child, DJ, attended the parenting programme with GM. The Children CJ and DJ attended with GM to Act II. Visits were frequently cancelled in early 2009 by GM stating that she was not well; however, from February to August, 2009, she only missed two visits. GM also attended at Kla-how-ya for access visits; however visits were not always consistent. BM also had access arranged, however she would frequently cancel.

Initial visits for GM with AJ were at the Ministry office from April and May 2009, once per week for a two hour period, with the visits being supervised at all times due to the constant care and treatment required for AJ. Access to AJ for BM was also arranged at the Ministry office, however, BM did not attend and such times were afforded to GM. [ 42 ] The Child CJ was described as being active, that his speech is age appropriate, he initially displayed sexualized behaviour, that he suffers from being exposed to smoke.

Both GM and BM smoke. [ 43 ] The Child DJ was moved in his foster placement because he required more supervised care. He is aggressive, he threw things, he was difficult to calm down and he required more supervision at day care. [ 44 ] On cross-examination, DP testified that BM had been an alcoholic in the past and that she attended a treatment centre in 1997. BM had been charged with an allegation of physical abuse of one of her children in 1992; however, nothing further came from such.

There was a Protective Intervention Order placed in April 1999 involving BM such that at that time BM had no access to her children in care. She testified that GM relies significantly on BM and that both for GM and BM, housing remains a significant concern. [ 45 ] On cross-examination, she testified that prior to the non-accidental injury, AJ suffered from “possible” drug withdrawal, however, of note, there was no supporting documentation to support such testimony in this hearing before me. Two Social Workers gave such viva voce evidence with no drug testing done on the Child AJ to support such statements.

Social Worker SC [ 46 ] SC has had conduct of the file since August 2009 to the time of this hearing, which is rare in a Ministry system of being often over-worked and under-funded, thus allowing continuity for all parties and assists the family unit. At the time of receiving the file, she testified that concerns were the health of GM, including her seizures and use of marijuana, the lack of housing for both GM and BM, the inability or lack of GM following through and engaging services afforded to her and the lack of structure for both CJ and DJ.

As for BM, when she took the file, her concerns were the extensive history that BM has had with the Ministry, her lack of stable housing, the eviction from homes, the lack of maintaining a clean home, the inability or refusal on the part of BM to recognize the behavioural concerns of DJ, the allegations of alcoholism and her inconsistency with visits. At the time of SC receiving the file, BM still had one of her own children the subject of a CCO. [ 47 ] SC met with GM in August 2009 to touch base and review Act II.

She testified that GM did not look well, that GM reported to finding Act II very difficult and frustrating. There was discussion about the marijuana use by GM reportedly for her seizures but was not endorsed by her physician. GM self reported that she suffers from memory problems and struggles with stress management.

GM self reported at such meeting that she smokes two joints per day and the Social Worker offered stress and drug management services, however, GM refused such offers. [ 48 ] Housing remained throughout a struggle for GM, including one choice by GM to move into a home with two other men, of whom the Social Worker determined had a prior Ministry file for alcoholism and domestic violence. [ 49 ] One of the key documents to this hearing is Exhibit 2, Tab 9, a signed Agreement Made in Mediation, signed by both the Ministry and GM (witnessed by counsel at the time).

The Mediated Agreement is a pivotal document in these proceedings and thus, the contents are as follows: The Social Worker on behalf of the Ministry agreed: - to refer GM to Act II; - upon receipt of a neurologist report regarding GM stating that she had the capacity to benefit from ACT II, shall ensure that she is re- registered in the Act II programme; - inform the foster parents that they are to advise the Social Worker of all major medical appointments for the Children (GM stated that a reason for such term was – and remains – that she is not advised); - inform both GM and BM in writing of such major medical appointments and subject to the agreement of such medical person, that they can participate and attend; - that DJ’s foster parent is to advise the Social Worker of school events in order that GM and BM could attend; - that both GM and BM would be advised of the assessment processes at Sunny Hill for AJ; and - subject to the availability of the foster parents and the health of AJ, increase the access times for GM with AJ.

A key term of the Mediated Agreement as it pertains to AJ stated: - The Team Leader, LR, agrees to request that there be an exception made so that AJ will not be registered for adoption should she be in the care under a Continuing Custody Order. Ms. R will present this request to the current team leader of the “over twelve” guardianship team, the acting team leader of the “under twelve” guardianship team, the community manager and the guardianship consultant. Under the Agreement, GM agreed:

- to seek a referral to a neurologist and participate in such evaluation; and - subject to the Director obtaining funding, that GM would participate in a parental capacity assessment. Further, subject to funding by the Director, a parental capacity assessment would be undertaken of BM. The Mediated Agreement also stipulated that Tin Harbour visits were to continue as arranged in the document for GM and BM.

The Mediated Agreement further stated, “Each party has received independent legal advice or has had the opportunity to receive independent advice” and that the Agreement, as has been done, can be filed in Court. [ 50 ] SC testified about the Agreement that GM had not seen a neurologist, but was on the wait list, that her plan of care was to return particularly the two boys to GM, however, BM had commenced her FRA application and GM had indicated that she supported the application of BM. [ 51 ] Her testimony reviewed Exhibit 2, Tab 21, which was the September 2009 Act II Report, showed that GM had only attended a handful of sessions, citing illness and unexplained absences.

The Report stated that GM used inappropriate language with one child. The Social Worker met with GM about the report and GM again self-reported poor memory skills and a reliance on BM. GM self reported that she did not like Act II, not liking both the programme and the staff.

It was after such meeting that the Social Worker applied on behalf of the Director for a CCO, stating that there had been no change in circumstances including health concerns of both GM and BM, incompletion of Act II, GM not wishing the Social Worker to attend at her residence, and GM no longer wishing to engage in services. [ 52 ] A referral for Act II was given for BM in February 2010, however, Exhibit 2, Tab 27, Act II Report dated May 2010 states that BM did not attend regularly, did not physically engage with DJ and CJ and was unable to identify goals. [ 53 ] Exhibit 2, Tab 28, is a Risk Reduction Plan which was similar to that between GM and DP, including the ongoing concern about marijuana use and the refusal of GM to address such through services.

There remained an expectation that GM would secure stable clean housing. This Risk Reduction Plan was not successful, citing, for example, that in November 2010, the Social Worker attended the home to find it relatively tidy, but that smoking was a prevalent occurrence in the home. BM was permitted home visits with both CJ and DJ from February 2010 to May 2010, however, the Social Worker received a report that the home was unsanitary, that the yard had garbage, that the Children were not well, and that smoking continued in the home extensively, which was contrary to the health of CJ.

The Social Worker later re-attended the home to still find garbage throughout and the refusal of GM to permit entry to neither the home nor that BM wished to undertake Project Parent.

Access visits for BM recommenced in July 2010, however, there were self reports that the boys returned from access visits hungry and could not remember what they ate when with BM. [ 54 ] In December 2010, the Social Worker received an After Hours Report that there was an allegation of assault at the home of BM and GM with 8 children being found in the home with 6 – 7 adults, the distinct odour of marijuana throughout and unsanitary conditions, therefore home visits were suspended. Community visits were offered, but BM refused. A home visit was made in January 2011 and BM was not present, however GM was present.

The home was found to have boxes throughout, smoke filled, dirty carpets, grimy walls, ashtrays overflowing, dishes piled, dirty clothes, empty sockets in some lights, and two teenagers sleeping on the floor in a closet, therefore the home was deemed unsuitable for access. BM was again offered community visits but she declined.

Since such time, BM has refused to engage in services, has not attended visits on anything close to a regular basis. [ 55 ] She described the Child DJ as being 7 years of age and when she first received the file, the Child was defiant, had behavioural problems, displayed sexualized behaviours and was aggressive. He moved to a specialized foster home in March 2010 and further moved again at the end of 2010 for more specialized care.

Initially he was subject to violent tantrums and picked at his toes when anxious and since such time still is unable to socialize, has difficulties transitioning from one thing to another, requires adult supervision at all times, eats with no sense of when he is full and has made threats that he will jump out of a window. He has a one-on-one Aboriginal support worker at school and he has difficulties interacting with other children, but is good in group sports. Exhibit 2, Tab 34, is the April 2010 HEAL Report for DJ stating that he requires further assessment for possible ADHD.

Exhibit 2, Tab 35, HEAL Report states that he is easily distracted, has a poor sense of boundaries, eats without regulation, has delayed social skills, has an impoverished background, has fine motor skills problems, and is impulsive in nature. The Exhibit 2, Tab 37, Report states that he does not have autism, but suffers from significant attachment disorder, ADHD, post traumatic stress disorder, exposure to neglect and abuse, but does not have FASD.

Both GM and BM deny any history of sexual abuse to DJ by any party. [ 56 ] She described CJ as a five-year-old boy, who will commence kindergarten at the time of her testimony, is very energetic, very social and likes drawing. He, too, displayed early sexualized behaviours, however, that is no longer of a concern.

He has difficulties sleeping, possibly due to anxiety, wanders at night particularly if access visits are missed, has been referred to Sunny Hill to determine if he has FASD, is allergic to smoke and uses a ventilator due to wheezing and coughing and self described to the Social Worker that BM’s home is “like a big garbage can.” [ 57 ] She described AJ (born n 2008) as a three-year-old currently functioning at the level of a 6-month-old child.

She is in a wheelchair, has no vision with her eyes rolling around, clicks her tongue, has very limited mobility including being unable to roll, requires 24/7 constant physical assistance and is not walking. She has weekly physiotherapy, occupational therapy, speech therapy and vision therapy from services and in addition, her present foster parent provides three hours of therapy to her each day. She reacts to stress and has seizures if stressed, including sometimes three per week. She has a low immune system, suffering from respiratory problems, ear infections, UTI and is frequently hospitalized.

The medical report dated December 2010 at Exhibit 2, Tab 46, reports that AJ suffers from seizures which can result in her lips turning blue, stopping breathing and must be physically stimulated to start breathing. She requires a completely dedicated routine 24/7 with full 24/7 care. [ 58 ] The current concerns of GM by the Social Worker are her health and her inability to maintain it, the lack of regular visits, the use of marijuana that is not medically prescribed, any home is dirty and unsanitary, an inability or refusal to follow through with services and including being resistant to counselling.

Her concerns about BM include smoking, unsanitary home and poor health (emphysema,

high blood pressure, problems with mobility, history of alcoholism and inconsistent visits). She expressed a

Section 13 concern of neglect and an unwillingness and inability to properly parent by both GM and BM. She testified that if a CCO is granted, the policy is to register the Children for adoption, maintain them each in their current placement.

When asked if there is an opportunity for exemptions for adoption, she testified that once the CCO may be granted, and then there is that opportunity, with each being reviewed on a case by case basis. [ 59 ] She testified, as the Social Worker assigned to the Children, that no civil case had been commenced regarding AJ while in the care of the Director nor had the Office of the Public Guardian and Trustee been advised.

The Social Worker testified that she would agree to access being continued, but refused to be the subject of an access Order which was troubling, particularly given the injuries suffered by AJ while in the care of the Director were of a non-accidental nature, which have resulted in both significantly shortening her life span and leaving her with extensive physical and mental disabilities that require her to have 24/7 care, thus leaving the very likelihood of this child ever being adopted sadly close to, if not, zero.

Those injuries were of a non-accidental nature and at the actual time of her birth, AJ was a happy, healthy baby who was not tested for any drug symptomology and thus, regrettably with the tragic circumstances that occurred thereafter in no way at all due to GM, it essentially leaves GM virtually unable to ever be able to personally one-on-one care for AJ and thus consider any possible return. This is a unique, tragic one-of incident and thus it is very troubling in that the Memorandum signed by Mediation was not adhered to by the Director.

Had that Memorandum signed by the parties been carried out by the Director, GM’s counsel advised the Court that the Child AJ would not be the subject of this matter before me. [ 60 ] I am very concerned and troubled by the complete absence of empathy, common sense, and compassion displayed by the Ministry personnel itself collectively, both Social Workers, Team Leaders and Supervisors, in not ensuring that the terms of the Memorandum, as it pertains to AJ, were carried out to the fullest.

Given the tragedy sustained and lifetime of sorrow for GM, the request as set out in the Memorandum and to carry it out relating to AJ, is at a minimum the right thing to do. [ 61 ] SC was asked about additional access visits with CJ and DJ, however, she advised that this is not possible due to the foster parenting schedules, but testified that the foster parents communicate with one another and can coordinate such with one another directly.

Both CJ and DJ have rarely seen their sister, AJ. [ 62 ] When asked on cross-examination, SC testified that she is part of the Aboriginal Services Team with the Ministry and that approximately 50% of children presently in care are Aboriginal. Her mandate and responsibilities are only to maintain a file if and when a CCO is granted and thereafter, a file is transferred to the Guardianship Team.

SC testified that she has spent time ensuring that BM receives her own access visits, has mediation, was offered Project Parent and Act II, however, when pressed on cross-examination, acknowledged that BM actually had to go to court to obtain an access Order in April, 2009. With regards to BM’s own grandson, JW, SC acknowledged that BM has been caring for her grandson JW since 1998 and that there have been no Ministry intakes regarding JW.

SC testified that there had been child protection reports regarding AW (the sister of GM and the daughter of BM), including one investigation still open. [ 63 ] On cross-examination, SC testified that BM had missed a number of scheduled access visits, including no access in September 2009, community visits in October 2009 wherein CJ and DJ complained of being hungry after access time with BM, and that she advised BM that for home visits to be a goal, BM required clean and stable housing and BM was and remains unable to do so.

SC testified that on a number of occasions, BM had been told that there were to be no smoking in the home and in the presence of CJ, however, the Social Worker received reports back that CJ would return from access visits coughing due to smoking. [ 64 ] The Mediated Agreement stated that there would be an attempt to secure funding for a parental capacity assessment and that SC testified that she was unable to secure funding, but acknowledged that a Parental Capacity Assessment would have concurrently addressed the medical component and particularly the seizures of GM. [ 65 ] SC testified that she was told by GM that she smokes marijuana, not medically prescribed, because it assists her with her seizures.

SC testified that she encouraged GM on a number of occasions to seek counselling and management to address her seizures rather than smoking marijuana, however, GM refused on a long term basis. Project Parent, MB [ 66 ] The Court heard from MB, who is employed by Project Parent and has been a family counsellor for 12 years. She first met GM in October 2010 and BM in August 2010. Exhibit 2, Tab 31, was the three month report pertaining to both GM and BM dated November 2010.

While Project Parent is normally undertaken within the home, because BM and GM were homeless, the goal was to meet at the office as BM was living in a hotel at the time. There were discussions with BM, historical in nature, about her prior Ministry involvement with her own children and her alcoholism. The report set out that BM missed a number of appointments including simply not showing and illness.

The intent of Project Parent was to work collectively with both GM and BM as they indicated a desire to co- parent, however, the file was later closed due to a lack of commitment and inconsistency on the part of both GM and BM. [ 67 ] On cross-examination, MB testified that she was not aware of the written Mediated Agreement and had only been advised by the Social Worker that a case conference had been scheduled. She testified that from September and October 2010, she had no contact phone number for BM.

Team Leader, EH [ 68 ] EH is the Ministry Team Leader assigned for Aboriginal and Child and Family Services and is the Supervisor of the Social Workers in Aboriginal Services. She testified that on September 18, 2008, a Critical Injury Report was received regarding the Child AJ. The Office of the Public Guardian and Trustee (hereinafter referred to as the “OPT”) was notified, she testified, via a Ministry template, which is standard procedure when an injury sustained, which was completed by the Social Worker and placed via email on a distribution list.

She testified that a follow up report was forwarded to the OPT in November, 2010, as AJ was suffering from increased seizures and that AJ was in a “high risk position”. What is troubling is that EH testified that she had “no knowledge” of any OPT correspondence forwarded or received, however, given the critical nature of the non-accidental injury and that EH is the Team Leader, the lack of follow through when an Aboriginal child sustained life threatening non-accidental injuries, shows a breakdown internally within the system that

is critical. She testified that British Columbia’s Representative for Children and Youth is also included in the email distribution list if the matter is critical or high risk, however, again, troubling for this Court, as Team Leader, EH testified that she was not aware of any correspondence or communication to or from the Representative’s Office as well.

Again, a breakdown for no reason internally of significant protocol failures. [ 69 ] On cross-examination, EH testified that she has had no contact or communication with the Interface Team Leader, that she is not aware of any steps taken (if any) by the Interface Team Leader, that she is not aware if her office has advanced any notice of a claim on behalf of AJ, that she is not aware if any proof of loss on behalf of AJ has been made, that she is not aware of any steps further being taken regarding the critical injuries sustained by AJ, and that she is not aware of any internal steps taken to review how respite workers are selected or chosen.

Further, what is troubling is that as Team Leader for Aboriginal Services, she has not undertaken any steps nor instructed counsel to undertake any steps to contact the OPT and testified that there “may be plans”. [ 70 ] EH was later recalled in this trial to correct prior testimony that she had given. She corrected her testimony to now testify that at the time of the critical incident and non-accidental injury of AJ, the OPT was not notified and the policy would be not to notify the OPT unless a CCO was in place.

This Court cannot imagine why, when a child is in the care of the Ministry and a non-accidental injury occurs while in the care of the Ministry that resulted in a traumatic brain injury, that the OPT not be notified. There arises immediately concerns about the personal and well being and safety of the child and most certainly, any matters arising therein, whether it be criminal or civil proceedings, thus places the Director in an immediate and direct conflict of interest on behalf of the child with whom is placed in the care of the Ministry at the time of the critical incident.

That fails the best interest of the child and most certainly does not assist the family. This is a dangerous, troubling and critical gap in the internal process that does not protect the child nor the family itself, which is contrary to the mandate of the best interest of a child. BM (the Maternal Grandmother) [ 71 ] BM is currently 54 years of age and is a Status Aboriginal from a Williams Lake Band. She has had 8 children in total, including one who passed away immediately after birth and another who still remains in care.

She has battled alcoholism since 18 years of age and in 1998 after treatment, had not consumed any alcohol for a 6-year period. Her daughter AW, with whom she keeps in contact, has 7 children of her own, ranging in ages from 7 to 18, who lives in White Rock. All Ministry files regarding AW herself she testified are closed. BM currently has her grandson JW residing with her full time. Historically, she testified that there are some sexual allegations regarding her children and her daughter AW, however, no criminal proceedings came from such. There was a Protective Intervention Order in 2010.

With regards to the DUI, she testified that she was at a party with her daughter AW and had driven the vehicle after consuming alcohol, failed a breath demand, had pled guilty and that she did not know why the warrant was outstanding at the time of the removal of the Children of GM and that, as confirmed in the testimony of the Social Worker, it never should have been outstanding. [ 72 ] At the time of the removal of the Children, BM testified that the Social Worker contacted her asking her come to the hotel to care for the Children and that the Father AJ (Father) would not be there.

She testified that she did so, that AJ (Father) returned to the hotel room and refused to leave and because she was instructed that he was not permitted in the room, she took two of the Children (who are not the subject of this proceeding) and left. She testified that she immediately telephoned After Hours, leaving a message reporting that AJ (Father) had returned, but that no one returned her call.

She testified that she was contacted and told to bring the Children back to the hotel, she did so, and the police and the Social Worker were present, with GM also there very stressed, which resulted in BM being concerned that GM (being 9 months pregnant) would have a seizure, so she collected some of the clothing and went to put the Children in the car.

BM was arrested for an outstanding warrant (which was in error) and the Children were removed. [ 73 ] With regards to AJ, BM testified that at the time of the non-accidental injury, she and GM were in attendance at the hospital and were advised that AJ was on life support and was bleeding on the brain and had stopped breathing for 25 minutes. She testified that the foster parent saw AJ first which is disconcerting that the very mother of AJ was not first permitted access to see AJ who was on life support.

It was not until the day after the injuries had been sustained to AJ that the police contacted both GM and BM to advise them of the allegations regarding the injuries sustained. [ 74 ] Exhibit 2, Tab 5, was reviewed, which is the access Order of the Honourable Judge Raven of April 2, 2009, which set out access terms for BM to the Children. BM did receive access to DJ and CJ, however, the telephone access as set out in the Order was not followed by the Social Worker.

In addition, noting that a term of the Order states, “With respect to AJ, Grandma shall have access as agreed between the parties”, however, BM testified that DP was prohibiting her access visits to AJ stating that AJ was too ill and that visits would upset the Child. Of note, the non-accidental injury of AJ occurred in 2008, therefore, any medical condition, stability and progress of AJ would have been known at the time of the April 2009 Order being made, therefore, it is again, void of compassion, common sense, and following the spirit of the Order of April 2009 in not permitting BM access to AJ.

Most certainly AJ would have been in a fragile medical state, however, her condition would have been known to the Court at the time of the Order being made, therefore, DP failed to follow the spirit and intent of the Order. [ 75 ] There was no evidence before this Court in the testimony of DP why BM’s Court Order access as it pertains to AJ was not permitted. In addition, such Order stated that BM was to be notified of school events and she testified that save and except a 2010 school event for Mother’s Day tea (which she advised DP that GM as the Mother should attend), she was not notified of any school events.

Again, there was no evidence before the Court in the testimony of DP as to why she did not follow the terms of the Order, thus again, frustrating an Order of the Court, which was contrary to the best interests of the Children both individually and collectively in not seeing BM or not having BM the opportunity to attend school events. [ 76 ] Exhibit 2, Tab 9 (the Agreement Made in Mediation), of December 2009 was reviewed with BM.

BM testified that the Social Worker told her that she had a calendar of the school events for the Child DJ and that BM had asked for them (which would have been in accordance with the April 2009 Order), but that again, the Social Worker failed to furnish them to BM, thus contrary to the best interest of the Children in not doing so. BM endeavoured to obtain the information about school events directly from the school, but for obvious privacy reasons, the school would not release those events and dates.

[ 77 ] BM testified about Project Parent that she failed to attend on one date because she was furnished with the incorrect date and was given the date of a statutory holiday. She stated that she had no relationship with the staff and upon entering into the programme she was not clear of the Social Worker’s expectations from her. Given that it is traditionally a programme from within the home but BM was at one time residing in a hotel, the programme in its purest sense could not be carried out. JW [ 78 ] JW is a grandson of BM and has been living with BM in her care. He attends school part time in the mornings.

He testified that both BM and GM smoke inside the house and that BM asks the children and/or grandchildren to leave the room in order for her to smoke as she cannot always be mobile herself to do so and leave due to her health. He testified that marijuana is smoked in the home. He testified that the health of BM sometimes requires that he assist her to walk or traverse stairs and that if she needs assistance he holds her up.

He has observed GM when she has seizures and described her in the midst of a seizure as staring off to space and physically shake, with the length of seizures being anywhere from two minutes to twenty minutes and when the seizure finishes, he described GM has being a “little off” and “just not herself”. He testified that GM suffers approximately five seizures per month. The Mother, GM [ 79 ] GM testified that she ran away from home at the approximate age of 13 or 14 years of age and travelled across Canada to Manitoba where she became ill, was hospitalized and returned to British Columbia thereafter.

She has suffered from seizures her entire life. [ 80 ] In reviewing the Form A, she testified that upon arrival in Montreal, her finances were extremely limited. She cared for the Children when she was temporarily living in Montreal. She acknowledged that she suffered a seizure while at Guilford Mall and the RCMP attended. After Hours placed herself, AJ (Father) and the Children in a hotel.

She testified that she had misplaced her bank card, so she went to the bank to have the card replaced and to pick up groceries because the motel room for all of them did not have a refrigerator or a stove, so she shopped for groceries daily. She stated that the front desk phoned After Hours reporting that she had left the Children alone in the room, which was incorrect because AJ (Father) was in the room with the Children and she denied that AJ (Father) had consumed any alcohol or there was any alcohol in the room. She did not receive any prenatal care during the pregnancy with AJ.

She acknowledged that there was little food in the room, however, reiterated that there was no refrigerator and stove, so the type and quantity of food to be left in the room was limited and she acknowledged that the room was “a little bit messy”. She acknowledged to smoking marijuana stating that it helps her with stress. [ 81 ] In testifying about the removal of AJ at the hospital, she testified how difficult it was for her in particular the manner in which it was done. Upon the birth of AJ, the hospital staff showed AJ to her and she was not given any physical opportunity to hold her child at all.

She was discharged from the hospital and moved in with BM. [ 82 ] Exhibit 2, Tab 42, was reviewed with GM who testified that prior to the non-accidental injury of AJ, there had been discussions with the Social Worker about increasing her visits with AJ, however, then the non-accidental injury occurred resulting in AJ sustaining a traumatic brain injury. GM stated how traumatic and heart-breaking it was for her to see AJ in BC Children’s Hospital because she was in an incubator and on life support, so she was unable to physically hold or touch AJ and AJ was unable to feel GM, hear GM or see GM.

She was told by the Social Workers that it was medically difficult for GM to see AJ because of her fragile condition and GM respected that and only saw AJ, even now, only one time per week.

When asked about how AJ could be cared for at this time and by whom, GM had believed that BM would be able to care for AJ, however, also in her testimony and to the full credit of GM, she testified that “I can’t say if she’s better with me or where she is.” That no doubt must have been a very difficult decision for any mother to make and to acknowledge in Court. [ 83 ] In reviewing the Agreement Made in Mediation, GM remained firm in her testimony that her understanding and belief in committing and signing the Agreement was that AJ would not be put up for adoption.

Foster Parent CK [ 84 ] CK is the foster parent for AJ. She has First Aid certification, attended two courses at Sunny Hill regarding brain injured children and has received Ministry training. She is married and has two boys of her own. [ 85 ] CK testified as to the routine that is in place with AJ. If she has a good night, she is up between 5:00 a.m. – 6:30 a.m. each day, has breakfast with medications, and commences therapy at 10:00 a.m.

There are weeks and months that will pass in which AJ will not respond to the course of treatments that she received, so it is a very slow process and additional therapy sessions are booked from time to time.

AJ has physiotherapy (which includes muscle exercises and stretching), occupational therapy (which addresses her fine motor skills, feeding, drinking from a cup), vision therapy (her vision is checked every 2 – 3 months, new items are introduced to her, she has a 20/2500 vision, her vision is very blurred, she has light perception, if an item is brought to her at arm’s length she is able to track the object particularly black and white toys, and suffers from critical vision impairment due to the brain injury) and speech therapy (she can currently say “yeah”, “hi” and “dada” with new words gradually being introduced).

She is fed with a bottle, her food is all pureed and she is unable to chew. If she has not had her therapy that particular day, it can take AJ 40 – 45 minutes to eat a meal and if she has had therapy and is exhausted, can take over an hour for her to finish her meal. If she does not cooperate with her feeding, she will hyper-extend and refuse to open her mouth. She is able to roll on her own and hold up her head when she is placed on her stomach, she can sit with assistance and support, otherwise she will fall. She is currently in a wheelchair and travels in a car seat.

She has a standing frame, special chairs, sleeps in a hospital bed with rails and bumper pads, and has a wheelchair. [ 86 ] The Child AJ has a very regimented and strict daily routine of naps, therapy, rehab, and medications, all of which are for the best interests of the Child. Any changes to that routine cause seizures and an inability for the Child to sleep and disrupts her intense therapy sessions.

Even small routines such as bathing are cumbersome as she does not like being bathed and sessions can take 45 minutes to 1.5 hours as she gets upset, arches her back, butts her head, hyper extends, yells, screams and stiffens her body. Even sleeping at night is difficult with the foster parent testifying that she will wake up in the midst of the night at least three times per week and remains up the entire evening thereafter, so the foster parent is up with her, sings to her and stays with her. Respite care for the foster

parent and her family occurs and will be a requirement by the Director to continue to ensure the best interest of AJ and most certainly the physical and emotional well being of this foster parent and her family who, by the end of her testimony, moved all in the courtroom with her commitment, patience, dedication, and love for AJ and her tragic life. [ 87 ] AJ attends preschool every Monday and Wednesday for three hours per day.

She benefits from interaction with others, however, her initial entry to preschool was fraught with tears, crying and head butting, necessitating specialized care for her. [ 88 ] GM has scheduled access visits at the home of the foster parent, pursuant to a Court Order, and it was acknowledged by GM in her testimony how grateful she remains for the foster family to welcome her into their own home so that GM can spend some time with AJ. The visits are one hour per week and the foster parent testified that GM does attend regularly and that if she is not well, she always texts ahead of time.

AJ manages well during visits. [ 89 ] AJ does suffer from seizures. The medical documentation exhibited in these proceedings is unclear the origin of the seizures. Her medications were recently increased, thus resulting in fewer larger seizures, wherein AJ will stop breathing, stare, not move, and her lips and nose will turn blue. She does suffer from seizures from time to time both in the home and at preschool. If she has seizures while on the floor, the foster parent testified that she lies on the floor beside her so that AJ will not bang her head, and if AJ is in a wheelchair, she monitors her breathing.

At the completion of the seizure, she testified that AJ is extremely tired or sometimes will cry for up to 45 consecutive minutes, where she is held, her head is rubbed and she is comforted. [ 90 ] AJ was assessed by the Infant Development Programme and by birth of over 3 years of age, she is physically and mentally at the level of a 4 month old child.

She often suffers urinary, ear and chest infections. [ 91 ] When asked, the foster parent testified that she and her family are prepared to have AJ remain in their care for a long term basis. [ 92 ] On cross-examination, she testified that some initial visits with AJ and GM occurred at the Ministry office, with either the child on a mat or strapped in a wheelchair. She was told by the Social Worker that the visits had to be at the Ministry office. Visits by BM are rare, with her frequently missing visits due to vacation, an ill child and her own personal illnesses. AJ struggles when physically held.

To the credit of the foster parent, she testified that she is comfortable with GM attending her home for access visits rather than the Ministry office which was insisted upon by the Social Worker and not by the foster parent herself. [ 93 ] On further cross examination, she testified again that her and her family are prepared to care for AJ on a long term basis.

There have been discussions by the Ministry about adoption, however, she testified that AJ’s care is extremely costly and requires 24/7 care, therefore, she must be at home to care for AJ and is paid for AJ’s care and if she adopted AJ that would cease and she would be required to work outside of the home, which would be impossible, given the extensive lifetime of care that AJ requires on a 24/7 and one-on-one basis for the remainder of her life. She testified that her own two boys get along well with AJ, play with her on the mat and sometimes assist with her OT.

AJ physically and emotionally reacts poorly to new people being introduced into her life, not liking her personal space invaded, disrupting her extremely close attachment to her foster parent and if a new therapist is in AJ’s life, it will take a number of sessions for her to relax and respond in even a minute form to that treatment.

In response to the visits with GM, she testified that GM is very comfortable with AJ, talks to AJ, that GM does love AJ, that GM sincerely wishes to be with AJ, that AJ does respond to her mother when in her wheelchair, and that she is comfortable with access visits occurring in her home as GM is respectful and grateful for the access visits in the home. [ 94 ] The parties communicate via text and she testified that this works well.

She testified that if a CCO is granted, she is agreeable to GM continuing to have access visits in her home, but that, for the best interest of AJ, they must be scheduled and on a routine and she was agreeable to GM attending hospital visits and preschool from time to time. She was agreeable to introducing some training to GM with the presence of therapists to integrate GM into AJ’s life and she testified that AJ and GM have a good relationship. [ 95 ] On re-direct, she testified that sometimes AJ is taken out of her wheelchair during access visits with GM and that she does show GM how to hold AJ.

She testified that because she does not know BM well and that her access visits have been very sporadic and limited, she is not comfortable with BM in her home. DECISION [ 96 ] The Application of BM seeking custody and guardianship of the Children is dismissed. Such an Application is contrary to the best interests of the Children, both collectively and singularly.

Section 24 of the FRA setting out the principles for the best interests test is paramount and when considering such, the Application by BM is significantly flawed. When taking into consideration the health and emotional well being of each Child, including any and all special needs, it is very clear that BM, even on the most basic level, is unable to care for any of the Children.

She has been essentially homeless, or without consistent housing throughout, and the homes in which she has resided from time to time have been filthy, dirty, unkempt, and she persists on smoking in the home, despite being instructed that such is not good for the health of the Children. The Children, DJ and CJ, are struggling with emotional disorders that require constant committed care and she is unable to provide such. The Child AJ requires very specialized 24/7 care and she is unable to do so. Her health is poor and limits her abilities to keep up with any of the Children. Her employment is sporadic.

She has a long term history personally of her very own children remaining in care, including one who remains in Ministry care. I acknowledge that she has on a long term basis cared for one of her grandsons, however, to his credit and candour in his own testimony, he acknowledged that the home of BM has himself, GM, and BM smoking cigarette and/or marijuana, which was denied under oath by BM.

Even when this Court ensured that some form of access was set out for BM during this hearing in the form of an Order to ensure some consistency between a grandmother and her grandchildren, she frequently failed to attend access visits as scheduled, for various reasons, thus disappointing the expectations of her own grandchildren. She has access to Aboriginal resources and she did not disclose her reasons, when on the witness stand, but refuses to access such resources that are available to her.

I am not satisfied that there is any evidence before me that BM has the physical, emotional, and financial requirements to address and even meet the very basic and daily needs of any of these Children and thus her Application is dismissed. [ 97 ] There is no decision in this matter that will make everyone happy. Nor, however, is it the role of this Court to make everyone

happy. The role of this Court is to ensure the best interests of the Children, taking into consideration the principles and Sections of the FRA , as it pertains to the Application by BM, and the principles and Sections of the Act in the Application by the Director. [ 98 ] What compounds matters is the tragic intervening non-accidental injury sustained by AJ that essentially makes anything, other than her present care, a moot point and essentially impossible for anyone else to care for her as she requires such highly specialized and constant 24/7 care.

The non-accidental injury essentially has, in all reality, taken away any realistic consideration for GM to be custodial party to AJ, given the evidence heard in this matter before me. That is tragic and unfortunate. That, then, brings me to the matter of the Agreement Made in Mediation, which is Exhibit 2, Tab 9, which specifically states: “The team leader, LR, agrees to request that there be an exception made so that AJ will not be registered for adoption should she be in her care under a Continuing Custody Order. Ms.

R will present this request to the current team leader of the “over twelve” guardianship team, the acting team leader of the “under twelve” guardianship team, the community manager and the guardianship consultant.” Counsel for the Director respectfully submits that the signed document simply states that a “request” would be made and that such a “request” was made, but it was declined.

That is not acceptable and falls very short of any reasonable standards in endeavouring not only to resolve the matter regarding AJ and her Mother, GM, but the best interests of this Child, and ensuring that her care and love that exists with GM is respectfully honoured and that such bond is permanently maintained given the circumstances.

The Agreement Made in Mediation is noted that the signatures of both the Social Worker, SC, and GM were witnessed by their own respective legal counsel, therefore, there was a expectation on the part of GM that not only would such a request be technically made, but given the unique situation, that such would be very quickly put in place. In fact, the testimony of GM in this matter before me stated that, as it pertained to AJ, had (and still if) the Ministry agreed that AJ would never be placed for adoption, she would have agreed to the CCO being sought.

What is troubling is that I am unable to find any basis that would be contrary to the best interest of AJ and the Guiding Principles of the Act that the Child AJ not be placed for adoption and there was no testimony on the part of the Director in which I heard any evidence from Social Workers, the Team Leader, or case law in this unique one of regarding only AJ, why a term cannot be put in this Order that AJ not be placed for adoption. This is most definitely not one of a “flood gate” argument. AJ was born a happy and healthy child.

No drug testing of the Child AJ was done at SMH, therefore there is nothing at the time of her birth to support that the Child was the subject of in-utero substance abuse. Tragic intervening matters made that a life altering change to AJ and to her Mother. That tragic event occurred when AJ was in the care of the Director through no fault of GM. That life altering change has in all essence taken away any opportunity for GM to have custody of AJ and be her skilled 24/7 caregiver.

It is absolutely in the best interests of AJ that she remains where she is and to the full acknowledgement of the love of a mother she testified to such. In her own testimony, as heart-breaking as it no doubt was for a mother to state such, GM testified that this hearing would not have occurred for AJ had the Ministry agreed that AJ would not be placed for adoption.

That takes tremendous conviction and love as a mother for GM to agree to such and thus it becomes completely without merit or basis for the testimony that I heard from Social Workers and a Team Leader to simply not agree to such because it is “policy” to do so. [ 99 ] AJ sustained, while in the care of the Director, a life altering and life-shortening non-accidental injury through no fault of GM. The care that she receives, again, to the full acknowledgement of the strength and love of the foster parent, she is receiving the therapy and treatment 24/7 that gives AJ some dignity to her limited life.

To the credit of the foster parent, she welcomes GM into her home once per week in order that GM can spend time with her very own daughter. One would judicially hope and wish to believe that such event would never ever occur to a Child, however, it did and to simply state under oath that for “policy reasons” the Director cannot agree that AJ never be placed for adoption is tragic, void of empathy and compassion, and contrary to all the principles as set out in the Act . In refusing to do so, it has unnecessarily added undue stress to an already fragile GM.

It will be a term of my Order at the end of this decision that AJ not be placed for adoption. [ 100 ] Errors have been made in this matter by the Director, which would not have changed my conclusions, but were not in adherence to the Act . The most glaring is such that despite the life altering non-accidental injuries sustained by AJ while in the care of the Director, not one Ministry staff member notified the OPT.

More so, testimony by the Team Leader in this matter initially told the Court that indeed the OPT had been notified as standard protocol; however, the Team Leader was brought back to correct her testimony that the OPT had not been notified. This error is significant.

A child has sustained traumatic life altering injuries while in the care of the Director in 2008; however it was not until, as the presiding Judge, that I inquired about procedure and pointed out to all counsel on this matter the very basic conflict that existed in asking the Court to grant a CCO wherein the guardianship would be in the hands of the Director. The best interests of AJ were not protected and not one person notified the OPT.

As a result of myself directing all counsel to address this forthwith, an Application in the midst of this hearing was filed, served on the OPT and by consent, the OPT became the Guardian of AJ pursuant to

Section 58 of the Act . AJ and her parents deserved to ensure that her best interests were protected and that AJ and her parents were given the dignity that should be accorded to them in these unique circumstances and that was failed of them. [ 101 ] The removal of the Children was warranted when considering the facts, the Act , and case law, however, the manner in which it was done again falls short of ensuring the best interests of the Children, both collectively and singularly.

The testimony of EL did not follow required internal steps and there were no background checks undertaken regarding BM before contacting BM, asking BM to come to the hotel to care for the Children. In haste, the Social Worker asked BM to come to the hotel to stay with the Children and to ensure that AJ (Father) did not remain. However, her testimony also included concerns and self-reports that the Children were dirty, the Children had lice, there was an absence of healthy and fresh food, and the Children reported they were hungry, however, she wished for them to remain in the hotel with BM.

If those were indeed legitimate concerns and collectively formed a basis for removal, her safety plan allowed those conditions to remain, which is contrary to ensuring safety plan in place for the Children. There was testimony of Social Workers that, despite Court Orders in place regarding access, Social Workers unilaterally did not follow Orders in place. That is not for Social Workers to determine when to and not to abide by Court Orders and is, on a very basic level, contrary to the Guiding Principles of the Act in the best interests of Children and retaining the family unit.

However, that being said, I must also acknowledge that, particularly with BM, while I accept that from time to time she failed to exercise her access due to health reasons, there was also testimony before me that BM simply did not exercise scheduled Court Ordered access in the terms or manner as set out in the Order and thus, no doubt Social Workers were frustrated with significant inconsistency on the part of BM and ultimately BM is responsible for such.

Even when access was sporadically exercised, BM was told not to smoke as particularly one grandchildren physically reacted to second-hand smoke, but self reports by the Child to the Social Workers reported that BM did so and testimony from the Grandson of BM who resides with her supported that BM smokes within the home. BM chose not to abide by the best interest principles for her Grandchildren and it is clear that understandably Social Workers became frustrated with terms of an Order that were very basic and not cumbersome for BM to follow.

[ 102 ] There was testimony that GM and the Children on the most basic of levels needed shelter; a roof over their heads. It was clear from the beginning, and through to the conclusion of this matter, that both GM and BM remained homeless for many periods of time and unable to maintain a stable, clean residence and at the conclusion of this matter, were both homeless.

However, there was also testimony from a Social Worker that when the housing allowance had run out and the family was homeless and did not know where to turn to or the avenue to take to secure shelter, the Social Worker testified that because GM did not ask for assistance, it was not provided to her by the Social Worker. That, too, is not accept

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