Director v. B.D. and A.O.H. Date:, 2016 BCPC 56

Citation: Director v. B.D. and A.O.H. Date: 20160304 2016 BCPC 0056 File No: F109715 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: A.O.D. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: B.D. FATHER AND: A.O.H. MOTHER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.R. Smith

Counsel for the Director: D. Boon Counsel for the Mother: J.J. Peterson Counsel for the Father: L.L. Kennedy Place of Hearing: Kelowna , B.C. Date of Hearing: February 9, 2016 Date of Judgment: March 4, 2016 [ 1 ] Before me today in Family Court is the matter of a six-month-old child named A.O.H. who was removed from his parents on the 9th of January, 2016. The presentation is contested. The Director seeks having the child in the interim custody of the Director.

The parents seek a return under supervision on the understanding that the supervision would involve 24/7 supervision of extended family members in the home. [ 2 ] All understand that the purpose of the presentation hearing is not to address the protection issues, but rather the interim arrangements until the protection hearing can be held. The courts are to consider whether less disruptive measures have been properly considered by the Director.

In other words, even if the court were to accept the protection issues raised by the Director, in other words, if the court were to accept that those were factual, is there some less disruptive measure that could address those protection concerns besides removal? [ 3 ] This is a very troubling case. The child born on [omitted for publication], was born with his intestines outside of his stomach. They had to be surgically removed. He has spent the majority of his young life in the hospital, at times not thriving as he ought. The last time that he came out of the hospital was in early December.

The child seemed to be thriving. There is a Community Health Nurse that was visiting regularly, at least weekly. [ 4 ] The child was brought to the hospital for a regular check-up of sorts on the 8th of January. The location of the pediatric outpatient clinic, by chance, is the Kelowna General Hospital. The child was seen by Dr. Mark Duncan. It became very obvious to Dr. Duncan right away that the child was not healthy. In particular, the circumference of the head was measured and it was sizeably larger than it ought to have been and this was something that they had been tracking weekly.

The suspicion was some type of subdural hematoma. [ 5 ] The mother explained to Dr. Duncan that she was carrying the child in a car seat and she slipped in the snow and the car seat bumped down on the ground as she fell, but that it, the car seat, was a few inches off of the ground when she slipped and fell. Dr. Duncan ordered a CT scan and admitted the child for observation. [ 6 ] Later that day, of the 8th of January, Dr. Ranchod followed up at the Kelowna General Hospital. The ultrasound showed bilateral subdural collections. The CT scan showed moderate to large bilateral subdural fluid collecting.

It was suspected to be posttraumatic, meaning not congenital, but rather the result of some acute injury. The skeletal survey showed no fractures. The bloodwork was relatively normal. [ 7 ] What caught the attention of Dr. Ranchod, in particular, were two comments made by the mother to two different nurses at this time. The first comment was, "There is no need to check his saturations.

He is dead." That comment was made to the one nurse and then, to a different nurse, the mother told the nurse, "If he misbehaves, just slap him up the back of his head." Not good comments for a 19-year-old mom to be making to the people treating a child where there is some suspicion of shaken-baby. [ 8 ] The doctor concluded, "My impression today is that this is a suspected non-accidental injury.

There is subtle increase in his head circumference and this is secondary to subdural hematomas or cystic hygromas." That last comment confused me when I read the report because my understanding was that something cystic is congenital as opposed to acute. I think it is just another way of saying the doctor really was not sure what the cause was. The doctor then directed that the child be connected with Children's Hospital and that the Child Protection Ministry become involved.

So, in effect, it was the doctor that made this complaint to the Ministry. [ 9 ] There have now been two subsequent medical reports, but they all pretty well say the same thing. Basically, they cannot rule out what caused it, but that they think it highly suspicious of being non-accidental trauma and they believe that is the most likely scenario. The child has just this past weekend been released from hospital and is now in a foster home. [ 10 ] The presentation hearing commenced on the 27th of January.

I adjourned it to today's date to complete because I wanted to get reports from the doctors, again, not in the context of any view to finding need of protection, but rather in the context of knowing whether or not 24/7 supervision in the home would be a less disruptive interim measure. [ 11 ] The paternal grandparents, in particular, who are present here in court, say they are willing to permanently be in the home of the parents in Kelowna.

Those paternal grandparents live in Abbotsford, but they say they are willing to permanently come here to Kelowna until this matter can be resolved and do 24/7 supervision in the parents' home.

The maternal grandparents live in Penticton and they are present in court and they say they are willing to assist in supervision and I gather that there are other extended family members that are willing to be involved with such supervision. [ 12 ] The Director recently spoke with the paternal grandparents and, when the paternal grandparents stated that they did not believe the parents would have intentionally harmed the child or harmed the child at all, the Director was hesitant on having those grandparents provide the supervision.

There might be other reasons, as well, why the Director was not inclined to have the paternal grandparents do the supervision, I do not know, but I do know that there is a family group conference that the Director hopes to hold in the near future to

see what other extended family members could either provide primary interim care or primary supervision. [ 13 ] Over the years as a judge, I have dealt with these types of so-called unexplained injury cases, perhaps a half a dozen times. So it is an area of the law that I am fairly familiar with, going back to the seminal case of Grant where there was an unexplained injury and, years later, it became explained by a congenital problem. Still, the law is clear with regards to these kinds of cases. The Director will not have any onus of proving any particular parent inflicted any particular trauma.

The injury continues unexplained in circumstances where the overwhelming medical evidence is that it is an acute injury as opposed to a congenital problem. The protection concern will continue. [ 14 ] Counsel points out that, with such a young child, it creates attachment problems when children are removed in the first two years of their life. That is true, that potentially it could. That is why these types of protection hearings must be heard quickly.

There is no reason that these types of hearings cannot be heard and completed in a three-month window. [ 15 ] I do not believe that someone should be eliminated as a possible person for supervising simply because they do not believe the injury happened, but on the other hand, I do not believe it is possible to have 24/7 supervision even though other people are in the home.

People do go to sleep, and when, as stated in the last medical report, there is a concern that it could be something akin to shaken-baby, and when this, you know, mother was willing to tell the nurse, "If he misbehaves just slap him up the back of his head," I am not prepared to have a return under supervision no matter who the supervisor is, even if it was a Ministry supervisor. [ 16 ] I now make an order under s. 35 placing the child in the interim custody of the Director pending the completion of the protection hearing. [ 17 ] I order that both parents have reasonable access supervised at the discretion of the Director.

Having said that, I just want to make it clear to the Director, I did not say that the access itself was at the discretion of the Director. It is the supervision that is at the discretion of the Director. The Director is mandated to provide reasonable access. [ 18 ] The parents believe almost of a conspiracy theory here where they are not given medical information with what is happening with the child and I know it is in the context of the police trying to speak with the parents with regards to a potential criminal investigation.

That always complicates any child protection file, but I would just point out that the duty of the Director to disclose is ever present pursuant to s. 64 of the child protection legislation requiring that full disclosure in a timely manner. It is clear that the parties are requesting it. So when they are requesting it, notwithstanding the potential criminal investigation behind the scenes, the Director is duty bound to disclose the medical information. [ 19 ] I need to arrange a nominal commencement date for the protection hearing. You know, I could get a really early date, but I am not sure that is helpful here.

I want to give enough time so that the Director can keep gathering whatever the medical evidence is that they are trying to rely upon here, but I can tell you this, I am going to -- I get the contested nature of this. We are going to arrange a trial date soon. I think if people are available perhaps the 15th of March as the nominal commencement date. Is that a workable date or not? I mean I got the date wrong. I meant to say the 16th of March, the Wednesday. [ 20 ] MS.

KENNEDY: That is acceptable your Honour. [ 21 ] THE COURT: So I adjourn the matter to the 16th of March, 2016, at 9:30 -- 9:29 a.m. for the nominal commencement of the protection hearing. THE HONOURABLE JUDGE R.R. SMITH