CFCSA v. MR and TH Date:, 2014 BCPC 249

Citation: CFCSA v. MR and TH Date: 20140730 2014 BCPC 0249 File No: F15196 Registry: Port Coquitlam 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: JJH , born [DOB] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: MR PARENT AND: TH PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. CRAIG

Counsel for the Director: Timothy Watkins Counsel for the Parents: Milan Uzelac Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: Aug. 6 & 7, Oct. 24, Dec. 2 & 3, 2013; Feb. 13 & 14, Mar. 28 & Jun. 17, 2014 Date of Judgment: July 30, 2014 INTRODUCTION [ 1 ] This is an application by the Director for a finding that the child, JJH, was in need of protection on January 20, 2013, and an Order that he remain in the care of the Director for a period of six months.

The parents oppose the application and seek an Order that JJH be returned to live with them, subject to a six month supervision Order. [ 2 ] By all accounts JJH is a loving and beloved 12 year old child. This is not a case in which JJH was removed from the home as a result of any physical or emotional abuse or chronic neglect. JJH has been diagnosed with Autistic Spectrum Disorder, considered at the high level of the spectrum, and has significant special needs.

JJH was initially taken into the care of the Ministry of Children and Family Development (“the Ministry”) in April of 2012, with the consent of his parents, to enable him to undergo an intensive autism intervention. He remained in the care of the Ministry until January 18, 2013 by consent. [ 3 ] When that agreement expired, JJH’s parents declined to sign any further agreement that he remain in care and he was formally removed from the home by the Ministry. The Ministry deemed that his parents were unable or unwilling to properly meet his particular needs.

The parents dispute this claim and contend that JJH’s overall needs would be better met if he was returned to the family home. The long term goal of the Ministry is to return JJH to his parents care on certain conditions. [ 4 ] There is a lengthy history of interactions between JJH’s parents, MR and TH, and staff with the Ministry. Their relations have been troubled in the past and continue to be strained today.

JJH, his parents, and his siblings have all suffered emotionally as the parties involved in his care have struggled over the years to address his needs and assist him in his development. [ 5 ] The hearing of this matter took nine days over the course of a 10-month period. The Director called four witnesses in its case: (

a) Karen McKitrick, the team leader for Family Services in Maple Ridge working on the file since June 2010; (

b) Jennifer Tiegen, the social worker from the Family Services Team working on JJH’s file since August 2012; (

c) Susan Barker-Voisine, the social worker for Children and Youth with Special Needs (“CYSN”) on the file from November 2009 to January 2013; and (

d) Wendy Counsell, behavioural consultant for JJH from January 2011 to date. [ 6 ] In addition, both parents testified after the Director closed its case. Issues [ 7 ] There are two main issues that must be decided by the Court: 1. Was JJH in need of protection under s. 40 of the Child, Family and Community Services Act (“the Act”) on January 20, 2013, the date of his most recent formal removal from his parents’ care? 2. If JJH was in need of protection on that date, is it in JJH’s best interests to remain in the custody of the Director for a period of 6 months under s. 41(1)(

c) of the Act, or to be returned to his parents under a 6 month supervision Order? I will deal with each of these issues in turn by addressing the evidence, position of the parties, and governing legislation before coming to my conclusions. 1. Was JJH in need of protection on January 20, 2013? [ 8 ] The issues at trial focused on a time period beginning in November of 2010. However, there was evidence of prior involvement between the Ministry and JJH’s family from August of 2006 to April of 2008 as a result of concerns raised by members of the community. The concerns focused on the family’s difficulty addressing JJH’s special needs and tension in the family home.

[ 9 ] The file was closed in 2009 after a determination was made that the family did not require further involvement by the Ministry. In May 2010 the Ministry became involved again when the Autism Consultant at JJH’s school reported problems being faced by the family. According to this report, the family was overwhelmed with trying to meet JJH’s needs. [ 10 ] As a result of this report social worker Susan Barker-Voisine contacted the TH/MR family to offer support. TH declined the offer. [ 11 ] On November 25, 2010 a social worker from Sunnyhill Hospital contacted Susan Barker-Voisine with concerns for the family.

Dorothy McNaughton was working with the family as the hospital was assessing JJH’s sleep issues. She described the family as overwhelmed and exhausted. Ms. Barker-Voisine advised Ms. McNaughton to have the family call her if they wished assistance. TH called her that same day and an appointment was made for December 1, 2010. [ 12 ] At this meeting, MR and TH discussed with Ms. Barker-Voisine a range of problems they were having. Ms. Barker-Voisine identified a number of difficulties, many of which had been reported in the past and were ongoing.

These issues continued over the course of the next several months as the Ministry started working with the family to provide support services. Difficulties being faced by JJH and his family

a) JJH’s difficulties [ 13 ] JJH slept very little. MR testified at trial this had been an issue since JJH’s birth. By 2010, the parents were suffering significantly from their own lack of sleep as they took turns staying awake when JJH was awake. TH worked graveyard shift. MR would stay awake to supervise JJH until TH returned from work at 2:00 a.m. or later. TH would then stay up with JJH to ensure his safety and keep him occupied so the others in the family could sleep. In the morning he would drive all 3 children to school and then return home to sleep.

TH reported that he was exhausted. [ 14 ] JJH had very limited speech and communication abilities. He would occasionally use one to two word phrases, and other times communicated with other sounds or actions, sometimes aggressive actions. [ 15 ] JJH was destructive with property in the home and combative at times, particularly at bed time when his parents tried to get him to sleep. [ 16 ] JJH regularly escaped from the home and would run into traffic putting him into danger.

At times his escapes were not immediately detected by the parents, putting him at further risk while he was running free in the community unsupervised. [ 17 ] JJH had difficulty with some personal care issues. He would not brush his teeth and could not be taken to a dentist due to his difficulties with his behaviour arising from his autism.

b) Marital conflict [ 18 ] JJH’s parents had difficult times in the course of their relationship that caused additional stress for the family. The parties separated for a period of time in 2008 after their second child J was born. In April of 2008 TH went to RCMP to report that he had been assaulted by MR. MR admitted to this incident in her testimony at trial, saying “life is messy”. She added that there were no charges and they did not split up as a result of the incident. [ 19 ] This conflict between the parents arose again on occasion over the next several months.

On April 15, 2011 TH told Wendy Counsell during a telephone call that MR was throwing objects at him. Ms. Counsell heard MR yelling & swearing in background. TH also reported to Ms. Counsell that MR had thrown an ashtray through the window. The children were in home at the time. At trial, MR admitted yelling and throwing things that day but denied throwing the ashtray through the window. TH testified at trial that the hole in the window was caused by an ashtray, but it was thrown by him, not MR. [ 20 ] In August of 2011 MR went to the police to report that she had been assaulted by TH.

TH was charged with assault, but the charges were eventually dropped. In the same incident TH wrote derogatory graffiti messages on the walls of the family home directed at MR. This incident will be addressed in further detail below.

c) TH’s Mental Health [ 21 ] In her initial report to Ms. Barker-Voisine, Dorothy McNaughton described both parents as overwhelmed and exhausted. In the meeting between Ms. Barker-Voisine and the parents on December 1, 2010 TH reported that he suffered from depression.

d) MR’s Physical Health [ 22 ] MR suffers from Guillain-Barre Syndrome, a condition that causes slight paralysis on the right side of her body. This condition renders her unable to drive and causes MR additional difficulties when pregnant. In addition, MR has carpal tunnel syndrome which causes difficulty with the functioning of her hands at times.

e) Parent’s Evidence Regarding Difficulties [ 23 ] JJH’s parents do not dispute the difficulties they were facing, but both testified that they were managing to function, nevertheless. They had worked with various medical professionals in JJH’s younger years to have him properly assessed. They had accessed resources in the community and taken programs to assist in their communication with JJH, including the More Than Words Program.

[ 24 ] Both parents testified that JJH was attending school successfully at [school] in Maple Ridge, after some difficulties with his first school. In addition, JJH had a happy home life. The family first lived on an acreage property in Maple Ridge, which provided an idyllic upbringing for JJH. Unfortunately, as JJH got older he learned to escape from this property and put himself in danger as he ran without supervision on busy streets. [ 25 ] As a result, the family moved in with MR’s parents for a two year period. JJH continued to escape the home on a regular basis, whenever he found an opportunity.

Finally, the family moved to another home in Maple Ridge approximately 3 years ago where they remain today. The property has a pool and a trampoline for the children’s enjoyment. MR and TH both report how much JJH enjoyed living on this property and spending time with his siblings. JJH was close to all of his siblings and adored by everyone in the family. His penchant for escaping remained in the new home, however, and he went missing several times. [ 26 ] JJH’s parents had not accessed government funding for children with autism in the time leading up to 2010.

The funding available was $22,000 per year for children 6 years and younger, and $6000 per year thereafter. MR testified that she had never been told what it could provide and how to access it. TH testified that it took too much effort to access the funding, given the limited support it provided.

In addition, it was clear from TH’s evidence that he was proud of his ability to provide for his family, and not one to turn to the state for assistance. [ 27 ] MR and TH agreed that staff from the Ministry assisted them in accessing autism funding, and other funding, but that it did not provide them with the material they needed to help JJH.

They agreed they received funding for respite care, but complained that the workers provided were inconsistent and unpredictable. [ 28 ] MR and TH both testified that for years, they had worked with different doctors and other professionals to have JJH properly assessed and treated. JJH was given different medication at different times. At times the medication would work, but then stop working. They eventually took JJH off some medication, Trazadone, when they believed it was not helping JJH and may be causing his behaviour to escalate.

Doctors eventually came to agree with the parents and took JJH off all medication in 2012 after discovering it had no positive benefits. [ 29 ] The parents agree that MR had ongoing health difficulties during this time period, particularly when she was pregnant in 2011, and that this added to their struggles. In addition, TH was suffering from depression and feeling overwhelmed. But, MR testified that this did not stop him from functioning well as a father.

She said he was highly functional; worked full time graveyard shift, came home and took his shift with JJH for the rest of the night, drove the kids to school, and came home to sleep while the kids were at school. In addition, when living on the acreage, TH spent much of his time fixing up the property; removing two ponds, creating a mini-golf course, and repairing the home.

When they moved in with MR’s parents, TH spent all his spare time fixing up their previous home for resale. [ 30 ] TH agrees that he suffers from depression, but described it as depression related to the difficulties he had finding support for JJH. He disagreed with the belief of Ministry staff that he needed to see a doctor to have his depression treated. He believed his depression would be addressed if JJH’s needs could be addressed. He said his depression was nothing then, compared to what it has been since JJH has been in care.

Strained Relations Between Ministry Staff and Parents [ 31 ] Both parents testified that they had let staff from the Ministry into their lives reluctantly. TH said they had needed help with JJH from the Ministry in the past but had not received it. Or, any help that was provided was too much work to get, with all the meetings and bureaucracy it entailed. [ 32 ] On all accounts, the parent’s relationship with the Ministry was guarded and fraught with difficulties. The parents did not trust the officials from the beginning. They perceived blame from Ministry staff for their parenting of their children.

In turn, they argued at trial that they suffered from bureaucratic sloth and dysfunction at the hands of the Ministry. In addition, both parents testified that they lost further faith in Ministry staff when they were provided with a string of behavioural interventionists and respite care-givers that did not work out. [ 33 ] There is a discrepancy as to the reasons for these placements not working out. Witnesses for the Director testified that the workers resigned due to difficulties they had with parents cancelling appointments.

In addition, in some cases, it was discovered that JJH had higher needs than initially expected and the workers were not adequately skilled to meet these needs. [ 34 ] The parents blame the various workers for being irresponsible, disappearing without notice, and not attending to JJH’s specific needs. [ 35 ] In my view, the inability to find a steady respite caregiver for JJH was likely as a result of a combination of the factors identified by the Ministry staff and the parents. It is clear that JJH’s needs were evolving during this time period and everyone was trying to address those needs.

Because the parents did not trust the Ministry staff, they were not fully engaged in the process. They would not return calls or take the initiative to follow up with the Ministry when things did not work out with a respite caregiver. In fairness to the parents, this was an emotional issue for the family.

They would have high hopes with each new worker, only to be disappointed when it did not work out. [ 36 ] Unfortunately, the difficulties with finding a steady caregiver added to the mistrust the parents had for Ministry officials and fueled their tendency to blame them. [ 37 ] I did not find on all of the evidence that the Ministry staff were being slothful when working with the family. Nor do I believe that they failed to address the parents’ concerns. On the contrary, they made significant efforts to engage with the parents on an ongoing basis.

Efforts were made to address the parents’ concerns and take their wishes into account. [ 38 ] For example, the Ministry hired Jennifer White as respite care-giver at parents’ request. Jennifer had been JJH’s special

education assistant at the school and had a positive relationship with JJH. Because of this, the parents trusted that she could address JJH’s needs. The Ministry gave preference to her over a care-giver they had proposed; [ 39 ] In addition, according to the Director’s witnesses, Ministry staff repeatedly tried to give the family space when requested in order to keep them engaged with staff and accessing resources. This included giving them a hiatus in the summer of 2011 so the family could spend time together without Ministry involvement.

The parents’ take a different view of the Ministry involvement and describe it as constant and stressful. They recognize there were times when staff took extra measures to provide supports, but describe it as not being worth the effort in the end.

It was clear to me on the evidence that the Ministry took significant extra efforts to assist the family and was constantly hopeful the parents would further engage the services offered. [ 40 ] Another example of these efforts came in 2011 when Ministry staff went to significant lengths to ensure that the parents received a behavioural interventionist and respite caregiver of their choosing. Melanie Walker had been requested by TH, and was approved of by MR. Although she was not a Ministry-approved caregiver at the time, Ms.

Barker-Voisine made considerable effort to have the necessary interviews and home studies conducted so that she was approved on an expedited basis. [ 41 ] At the same time, witness for the Director described the ongoing difficulties they experienced with parents’ lack of follow- through. For example, an At-Home Application for support services was sent to the parents by Dorothy McNaughton in late 2010. By February 2011 this application still had had not been filled it out. Ms.

Barker-Voisine had the parents retrieve the application from the garage and processed it on their behalf after MR filled it out. [ 42 ] In November 2010 the Sunnyhill Sleep Hospital Clinic was working with the family to try to address JJH’s sleep issues. By March of 2011, staff at the hospital determined they could not proceed with the assessment because the parents had not been able to follow-through with the data collection required for the sleep study. [ 43 ] The difficulty with follow-through by the parents was also experienced by Wendy Counsell when she started working with the family.

Behavioural Consultant Involvement With Family [ 44 ] In January of 2011 Wendy Counsell was hired by the Ministry to work with the family as a behavioural consultant. Ms. Counsell has significant experience working with families with children with autism. She worked as a behavioural interventionist with autistic children for six years prior to becoming a behavioural consultant. She has worked as a behavioural consultant for the past 15 years. In that capacity, her task is to first spend time studying the child, his behaviour, and learning his triggering behaviour.

Based on those observations, she develops a behavioural support plan specific to the child. She then uses this plan to educate the care-givers of the child and teach them how they can use behavioural and communication strategies with the child to teach him how to behave in a more functional and socially acceptable way. [ 45 ] Ms. Counsell met with JJH’s parents in January of 2011, and then made observations of JJH at home and at school. She noticed that JJH was successful at school and enjoyed being there. He followed a structured and predictable

schedule that was conveyed to him using PECS (Picture Exchange Communication Systems) and a scheduling board. [ 46 ] Ms. Counsell testified that it was more difficult to impose the same structure and predictability for JJH at home. It was difficult for the parents, who had to deal with their 2, then 3 other children, in addition to health issues, financial pressures and generally busy lives. [ 47 ] Ms. Counsell said she had some initial difficulty connecting with the parents, but eventually was able to provide them with some PECS and scheduling tools to assist the family in their communication with JJH.

She testified that the parents were initially excited about the new systems she had offered. However, when she contacted them the following week, they had stopped using them with JJH. They told her JJH did not like the new system so they had not continued with it. [ 48 ] Ms. Counsell said she suggested an alternate system for the parents involving an iPad to communicate with JJH. She asked the parents to provide further information to her regarding JJH’s preferred activities and preferred treats, but they did not follow-up with her.

She said the greatest difficulty she had implementing a behavioural support plan for JJH was due to the non-participation by the parents. [ 49 ] Ms. Counsell testified that JJH needed an Intensive Autism Intervention to address his behavioural issues and teach him how to function at home and in the community. This was not new information. JJH’s need for such an intervention had been first identified in a Diagnostic Assessment report of May 2, 2007 co-authored by JJH’s pediatrician, Dr. Archer, two psychologists and a speech-language pathologist. [ 50 ] Ms.

Counsell testified that she needed the parents to learn the strategies for a behavioural intervention and implement them consistently to be effective. She recognized in cross-examination that this takes time and patience and the parents had very busy lives. She also agreed that JJH is at the higher end of the spectrum for autism, but stated he is not the most extreme case and would benefit significantly from the strategies. [ 51 ] Unfortunately, JJH’s parents were unwilling and/or unable to learn and implement these strategies.

The impression I got from the evidence of MR and TH was that they did not believe these strategies would be effective and were not willing to commit the time to learn and implement them. The PECS and scheduling board that was provided to them by Ms. Counsell were used for less than a week before it being consigned to the garage. [ 52 ] MR and TH both testified to having a communication system with JJH that sometimes involved pictures that they had been using for years. This system was not described any further by the parents in their evidence at trial. Whatever the system they were

using, it does not appear to have been capable of addressing JJH’s evolving needs. The difficulties the family had been having in the home and the community with JJH increased as he got older and stronger. This caused further strain on the family. Incidents in Summer 2011 [ 53 ] MR testified that by the summer of 2011 she and TH were exhausted by the ongoing difficulties they were having in their interactions with Ministry officials. In addition, everyone in the family, particularly JJH, was very upset by the fact that their most recent respite care worker, Deanna, had resigned.

Both parents testified about the disappointment they felt at this, since JJH had grown very attached to Deanna. They wanted to take a break from Ministry involvement and services so the family could enjoy the summer together. Ministry staff agreed to give the family some time on their own in the hope that they would re-engage services after the summer. [ 54 ] During this period of reprieve, two incidents occurred that caused further concern for JJH’s well-being. On August 10, 2011 the police contacted the Ministry to report that JJH had been found unsupervised running through traffic.

The parents had not filed a missing person’s report until one hour after he had gone missing. [ 55 ] After learning of this, social worker Lisa Smith called JJH’s parents on August 15, 2011. TH advised her that the family still did not want any services until the end of the summer. [ 56 ] The next incident came to the attention of the Ministry on September 6, 2011. On that day, MR called Wendy Counsell to report that on August 23, 2011 TH had pushed her against the wall, broken every window in the house, and written graffiti on the wall. The children were at home at the time. MR told Ms.

Counsell she now wanted all services previously refused “due to TH’s unwillingness to change”. [ 57 ] An officer from the Ridge Meadows RCMP also reported this incident to the Ministry. The officer reported that MR had reported to the police that TH had assaulted her earlier in the day when she had dropped a fan. She said he grabbed her by the wrist and pulled her toward him, then pushed her away so hard that she hit the wall. MR told the police that TH was angry with her because JJH had gone missing earlier in the day when she had gone for a nap.

The police attended at the residence to arrest TH and reported that the home was in complete disarray; there were derogatory messages written on the wall in paint directed at MR, there was no back door, and the windows were missing or wide open. The police advised MR she could not live at the home due to its condition. [ 58 ] MR was charged with assault and a warrant was issued for his arrest when he could not be located by police. [ 59 ] In her evidence at trial, MR denied that she had been assaulted by TH Instead she described it as a verbal argument caused by their frustration after JJH had escaped again.

She testified that JJH spent the whole summer of 2011 trying to escape to get to his grandmother’s to the computer. During the same period, JJH was not sleeping, he was taking apart things to tinker with them, he regularly moved their televisions around and dropped them to the point that they went through 4-5 televisions that year, and he was stealing lighters and using them to solder wires together on different toys. [ 60 ] MR said she was pregnant with her fourth child, it was hot, and the family felt stressed from the pressure she said was still being put on them from the Ministry.

In addition, they were suffering from financial pressure as they tried to keep up with replacing items in the home that were being damaged by JJH. She had fallen asleep and JJH had escaped again. TH found him two houses away and brought him home. [ 61 ] MR testified that the panic and frenzy between herself and TH over JJH’s escape escalated when she dropped a fan and broke it. She said she and TH argued about the fan but there was no physical altercation.

She agreed that she left the home with her children after the argument and reported the matter to the police, but denied any assault. [ 62 ] I did not find this evidence credible. On this explanation, there is no reason for her to make a complaint of assault to the police, or move with the children to her mother’s residence for several weeks. I believe that MR was attempting to protect TH when she gave this evidence and trying to cover up the fact that she was assaulted by him. [ 63 ] In his evidence at trial, TH denied having assaulted MR on this occasion.

He admitted that he “did some stuff to the house” that he regrets, including writing the abusive graffiti on the walls. He rationalized his behaviour by saying there was no one in the house at the time and he knew the walls were to be painted in any event. [ 64 ] On the evidence before me, I find that TH did assault MR on this occasion. All of the objective supporting facts point to an assault having occurred. I believe TH and MR did not want to admit this at trial, for fear of it jeopardizing their case.

The incident is an indication to me of the difficulties the family was having at the time coping with a number of issues and the strain it was putting on their relationship. [ 65 ] When MR reported the incident to Ms. Counsell on September 6, 2011 and requested services, Ministry staff made significant efforts to arrange support services for the family. These services were confirmed with MR at a meeting on September 8, 2011. According to Susan Barker-Voisine’s notes of the meeting MR advised that she and the children were living at her parents and there was a “no contact” order place on TH.

MR said she wanted all services available, including respite care for JJH and daycare for the other children. She was also willing to consider respite for JJH at a foster home or group home. As a result, Ministry staff made efforts to engage these resources. [ 66 ] In the same time period, Ms. Barker-Voisine gave MR the telephone number for after-hours support and told her they could contact her anytime and she could be at MR’s home in 10 minutes time if she needed assistance. This was not a part of the services normally provided.

It was an indication to me of the lengths the Ministry was willing to go to keep the family engaged with support services. [ 67 ] MR’s willingness to work with the Ministry did not last long. On September 22, 2011, social worker Lisa Smith attended the

family home to find TH, MR, and the children together. Ms. Smith reported that she felt threatened by TH driving erratically in the driveway and revving his car at her. She left and returned with police and TH was arrested. [ 68 ] At trial, MR denied that she or TH knew about the outstanding charge against TH. I do not accept this evidence. It is contrary to the notes made by Susan Barker-Voisine at a meeting on September 8, 2011.

As noted earlier, MR told Ministry officials that she was staying with the children at her mother’s home and that there was a “no contact order between [TH] and her”. [ 69 ] TH testified that he did not know about a no-contact order, but suspected there may be something. I believe TH either knew about the outstanding charge, or ought to have known about it and was willfully blind to it. [ 70 ] After this incident, MR cancelled all services previously requested from Ministry advising that “trust has been broken”. [ 71 ] On September 29, 2011 TH went to see the family doctor, Dr. Archer.

He was emotionally distraught to the point that Dr. Archer was very concerned about him and suggested he get help for his depression. TH testified that within weeks of this incident he arranged to see a counsellor through his employee assistance program. He attended counselling regularly for over a year and took eight months off work for stress leave. Supervision Order [ 72 ] On October 5, 2011 the Director made an application for a Supervision Order Without Removal. According to Ms.

McKitrick this was made as an attempt to engage the parents in the formation of a support plan for JJH that included regular respite for the parents and for TH to get a mental health assessment. There was also concern about a risk to the baby who was due to be born soon. [ 73 ] The parties attended mediation and on October 27, 2011 a six-month interim supervision Order was made by consent.

One of the conditions of the Order was that the parents “work with support services arranged by the Ministry, including but not limited to Children & Youth with Special Needs social worker, behaviour consultant, and other services deemed appropriate through the Integrated Case Management process”. [ 74 ] On October 30, 2011, MR gave birth to Baby G. [ 75 ] As a result of efforts by Ministry staff, Melanie Walker was approved of as a respite caregiver and to work as a behavioural interventionist with JJH. Ms. Walker was to receive ongoing support and training from Wendy Counsell. MR approved of Ms.

Walker on November 18, 2011, and she started providing respite care on December 19, 2011 for three nights per week. It became clear within several days of this arrangement that JJH was too distraught to be away from his home at night time. As a result, the care was changed from overnight to Monday to Friday from after school up to bedtime. [ 76 ] JJH’s respite care with Melanie Walker initially went very well. On January 11, 2012 MR was very happy and didn’t need anything changed. On January 31, 2012, MR was “over the moon” about the respite care. MR testified that for the first few months JJH was with Ms.

Walker it was “wonderful, it seemed perfect”. JJH loved Ms. Walker and she loved him. He was eager to go to her house and everything seemed to be working out. [ 77 ] Throughout this time period, TH was not allowed in the family home due to the no-contact order placed upon him as a result of the assault charge. Ms. McKitrick testified that Ministry staff lobbied the Crown to have the order lifted so TH could return home. In January 31, 2012 the assault charge against TH was dropped and he was able to return to the family home.

JJH’s Difficulties Increased [ 78 ] Despite the initial early success with JJH’s respite care with Melanie Walker, by April of 2012, JJH was having significant difficulties that led to a number of incidents that raised heightened concerns about the safety of the other children in the family home and JJH’s ability to function in the community. Incidents at home [ 79 ] On one occasion JJH was found jumping with Baby G on the bed. There was a concern that JJH felt Baby G was like a toy and did not understand the risk to her safety.

On another occasion, TH reported that JJH threw a glass jar and it smashed near Baby G with glass shattering all over her, although she was not injured. MR testified that JJH had been upset at the time and was running around in a circle. He had then smacked a glass ashtray off the TV. It smashed on the floor and the glass shattered on everyone, including Baby G. Both parents testified that JJH was always very gentle with his siblings and would never do anything intentionally to hurt them.

That being said, there was a concern by everyone at the time about the potential consequences of such behaviour. [ 80 ] This concern was shared by TH. At a meeting he attended on April 13, 2011 with Ms. Barker-Voisine, Wendy Counsell, and Melanie Walker, he reported the incident and said “something had to change” since the baby was not safe. [ 81 ] During this time period, it was noted that JJH was being more combative and destructive at home.

This was a significant concern because JJH was now a ten year old with a large build who could cause more serious damage. [ 82 ] MR testified that JJH only started being combative after his second admission to Children’s Hospital and while living at Melanie Walker’s house. This was not consistent with the other evidence. Back in 2010, the parents told Dorothy McNaughton from Sunnyhill Hospital that JJH had “thrown toys through the TV, and torn the mantle off the fireplace”. On December 2, 2010 the parents had reported to Ms. Barker-Voisine that JJH “has behavioural outbursts several times per day.

He clears shelves, breaks toys and household items. He has head-butted [TH] and knocked out [TH’s] teeth”, that he “reacts with violence” when they try a calming bed time routine and “becomes agitated and combative if left in his bedroom”. In addition, JJH would have melt-downs when taken into the community. His behaviour would erupt if he was not taken to his preferred locations.

[ 83 ] Both parents at trial tended to minimize JJH’s aggressive behaviour at home prior to Ministry intervention. They blamed JJH’s escalating behaviour on his removal from the family home. There is no question JJH’s behaviours escalated when he started spending less time in the family home. But, there were a number of significant problems, including combative behaviour, well before JJH was placed in the care of the Ministry. Incidents at school [ 84 ] Initially JJH did well at school. TH testified that he only attended four days per week and for less than full days, but while at school he functioned well. Ms.

Counsell testified that the school ensured that JJH had a special education assistant (“SEA”) with him at all times. This worker cycled every 20 minutes with another worker. However, in April of 2012 JJH threw rock at his SEA and was asked not to be returned to the school until his behaviour stabilized. Sexualized behaviour [ 85 ] According to Wendy Counsell this had been noticed first when JJH was still living at home. JJH would verbalize sexual noises while at school. MR testified that she noted JJH’s behaviour starting to change as he hit puberty.

According to the Ministry reports the sexualized behaviour escalated to include episodes of urination and violent masturbation. Incidents in Melanie Walker’s care [ 86 ] Starting in April 2012 and continuing the next several months there were a number of incidents where JJH assaulted staff working with Ms. Walker. In addition, he kicked out windows on the van at least twice. Police had to be called in a number of instances. [ 87 ] There were various explanations for JJH’s escalating behaviour.

Ministry witnesses and the parents understood that JJH was having great difficulty with the change in his routine while at Melanie Walker’s home and not in the family home. There is no question that he missed his parents and siblings and missed being at home. In addition, while JJH was in her care, Ms. Walker was attempting to implement some of the strategies recommended for the behaviour support plan created by Wendy Counsell. Ms. Counsell testified that JJH resisted the structure imposed and limits being placed on him.

For example, when being taught how to shower and brush his teeth independently, he pushed back. He liked things the way they had been before when these expectations had not been placed upon him. Hospital Admissions April 3-5, 2012 [ 88 ] JJH was admitted to Children’s Hospital on April 3, 2012 as a result of the escalation in his behaviour. TH and Karen McKitrick both testified that this incident was very emotional and difficult for JJH and TH, who was present. JJH was very resistant and had to be physically restrained by hospital staff and police officers. He repeatedly cried out for his father.

He had to be sedated and put into a protective rubber room. [ 89 ] TH testified that he still has nightmares of this incident. He said it was cruel and inhumane and he will never forgive himself for his

part in it. After giving this evidence at trial, I suggested to TH that he was blaming himself unnecessarily. It was a very difficult situation for everyone involved and he was not at fault for anything. [ 90 ] TH said he felt badgered into agreeing to JJH’s hospital admission by Melanie Walker and Dr. Price. He testified that they told him they had to take JJH into care because the other children were at risk. [ 91 ] While in the hospital, doctors assessed JJH and put him on new medication to attempt to alleviate JJH’s agitation.

They made a number of recommendations which they set out in a report and discussed with the family when JJH was discharged from the hospital on April 5, 2012. [ 92 ] In a Discharge

Summary report of April 6, 2012 Dr. Chan noted: A family meeting was held prior to [JJH’s] discharge. The gathered history was consistent with the picture of predictably worsening challenges associated with a child with notable autistic features and intellectual delay in the context of very limited implementation of the usual interventions for autism.

As mentioned above, his parents describe significant challenges accessing resources and described a need for increased supports.” The report warned that JJH was at a short-term and long term risk of “accidental injury, self-harm and aggression towards others” associated with his autism. April 14-26, 2012 [ 93 ] Concerns about JJH’s behaviour and its risk to others continued after his first stay in the hospital. It was during this period of time that the incident with the glass jar shattering near Baby G occurred and JJH’s first suspension from school happened.

As a result he was readmitted to the hospital on April 14, 2012. [ 94 ] Once again, doctors performed additional assessments and recommended changes to JJH’s medication to address the escalating behaviour. In a Discharge

Summary of April 25, 2012 Dr. Furlong noted that “[JJH’s] violent behaviour put his younger siblings at risk”. As a result, his parents had reluctantly recognized that JJH would need to go into care to protect these children. [ 95 ] This report noted a concern that JJH was suffering from worsening dental pain. He did not brush his teeth and had never had

any dental work done. While in the hospital, he received a full dental treatment, including a tooth extraction while under sedation. [ 96 ] On April 26, 2012 JJH’s parents signed a Voluntary Care Special Needs Agreement. This agreement provided that JJH would reside with Melanie Walker and have 2:1 supervision at all times. The agreement also provided for an Intensive Autism Spectrum Behavioural Intervention for JJH. Ms. Walker was to continue to receive support and training from Wendy Counsell. [ 97 ] On April 28, 2012, JJH returned to school.

During this time, Melanie Walker had difficulty with him because he wanted to go home to his parents. The parents, Melanie Walker, and Wendy Counsell agreed it would not be in JJH’s best interests for the parents to visit JJH until he had accepted his new placement. This was a difficult time for JJH. [ 98 ] On May 7, 2012 JJH was sent home from school again after he hit a SEA in the face requiring medical attention. The school again asked that he not be returned until his behavior stabilized.

Then on May 11, 2012 the school advised that JJH could not return due to the risks related to his unpredictable behaviour. [ 99 ] On May 9, 2012 JJH hit Jessica, a staff person for Melanie Walker, while travelling in the van causing swelling and bruising to her face. The police attended. [ 100 ] On May 22, 2012 JJH started masturbating during a behavioural escalation. On the same day he kicked out a van window and struck Jessica in the head when in the back of a police vehicle June 26 - July 16, 2012 [ 101 ] As a result of these incidents, JJH was re-admitted to Children’s Hospital on June 26, 2012.

He was discharged July 4, 2012 but then taken back to the hospital the same day after he had an outburst and kicked out the windows of the van. [ 102 ] In a Discharge

Summary of July 13, 2012, Dr. Chan noted: [JJH’s] episodic aggression was felt to be of great concern but longstanding in nature and a result of several factors (such as autism, intellectual delay, learned behaviour, severe communication deficits, and several disruptive changes in his life). He noted further that: It was apparent that knowledge of [JJH’s] triggers, and the behavioural and communication strategies were the most effective intervention for [JJH’s] aggression and behaviour.

He recommended the video prepared by Wendy Counsell for behavioural intervention with JJH as “very informative and helpful in managing JJH’s aggression and behaviours” and something that should be viewed by all people involved in JJH’s care. [ 103 ] Karen McKitrick testified that the “hospital was clear that JJH needed to be in full time foster care with his needs being met on a full time basis 2:1 or 3:1”. [ 104 ] On July 13, 2012 there was a hospital discharge meeting with MR and TH attending via conference call. At that time, Dr.

Chan recommended a different placement for JJH because Melanie Walker could not meet his extraordinary needs. The parents asked if JJH could return home but were told that it would be too risky for the other children. The high level of supervision JJH required could not be met given the demands of caring for 3 other children, including an infant. JJH was assessed as requiring 24 hour support and supervision. JJH in Care of Ministry [ 105 ] On July 16, 2012 JJH was discharged from the hospital into the care of Hollyburn Family Services facility in Delta, which had established a 2:1 staffed resource for him.

This was intended to be a temporary resource before JJH was transitioned to a longer term placement. Staff at the facility was provided with training material from Wendy Counsell. MR and TH viewed the facility prior to JJH moving in. [ 106 ] JJH was visited by Susan Barker-Voisine on July 18 & 24, 2012 and found to be happy on the first visit and calm and relaxed on the second visit, with his sleep improving.

He continued to have incidents, however, including on August 4 and 6, 2012 when he is reported to have pinched a staff member, ripped her shirt, and broken her glasses. [ 107 ] On August 13, 2012 JJH was moved to the Pathways facility in Vancouver, which had promised to develop a facility in Maple Ridge expressly for JJH.

Both the Ministry staff and JJH’s parents had hoped that a resource for JJH could be found that was close to the family home to enable family visits. [ 108 ] A number of problems arose during JJH’s stay at Pathways; he escaped from the home on two occasions, he struck a staff member in the face, kicked six holes in the wall and kicked in a closet door. In addition, Ministry staff were critical of the services. The communication system was not being used with JJH and he did not have proper bedding.

Furthermore, the agency reneged on its promise to create a residence for JJH in Maple Ridge. [ 109 ] As a result, on October 1, 2012 JJH was moved to the Starlight Program in Burnaby, and back into the care of Hollyburn Family Services, where he remains today. This is a home that has been designed specifically for JJH and has staffing at a 2:1 ratio. JJH is the only person in the home, other than the staff.

[ 110 ] These moves were very difficult on JJH and the family, and a concern for all of the people working with JJH. They added to the instability JJH suffered in the months prior with his various hospital admissions. [ 111 ] In the meantime, the Voluntary Care Agreement had expired on July 26, 2012. Karen McKitrick testified about the concerted efforts she and Jennifer Tiegen made to obtain the parent’s consent to a renewal of the Agreement.

When that was unsuccessful, JJH was formally removed by the Ministry on September 14, 2012 and a presentation hearing was commenced September 20, 2012. [ 112 ] On October 31, 2012 the parents signed a second Voluntary Care Special Needs Agreement, to expire January 18, 2013. Included in the terms of this Agreement was the requirement that JJH receive intensive autism intervention while at the Starlight Program in Burnaby. [ 113 ] When that Agreement expired on January 18, 2013, the parents declined to sign a further extension. JJH was formally removed on January 20, 2013.

A presentation hearing was commenced on January 31, 2013. On February 14, 2013 a consent interim Order was made and the protection hearing commenced on February 21, 2013. The matter proceeded through a Family Case Conference, Pretrial Conference and Trial, which commenced August 6, 2013. Legislation Applicable to Determination of Whether JJH In Need of Protection [ 114 ]

Section 2 of the Act sets out the guiding principles behind the consideration of this issue: 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 of 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; (

g) decisions relating to children should be made and implemented in a timely manner. [ 115 ] Under s. 30(1), the Director may "remove" a child (i.e. take a child into his care) if he has reasonable grounds to believe the child needs protection and no other less disruptive available measure is adequate to protect the child. [ 116 ]

Section 13 of the Act lists the circumstances when a child is deemed to be in need of protection, although the list is not exhaustive. The relevant portions of this

section state that a child needs protection: • if the child is deprived of necessary health care (s. 13(f)); • if the child’s development is likely to be seriously impaired by a treatable condition and the child’s parent refuses to provide consent to treatment (s. 13(g)); • 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(s. 13(h)); and • if the child is in the care of a director or another person by agreement and the child’s parent is unwilling or unable to resume care when the agreement is no longer in force (s. 13(l). [ 117 ] Counsel for the Director points out when reference is made to the parent’s willingness or ability to care for the child in subsections 13(

h) and (l), the words must be interpreted to mean an adequate level of care. Position of the Parties [ 118 ] The Director argues that the parents deprived JJH of the necessary health care when they failed to take measures to ensure that an intensive autism intervention was completed for JJH. This failure amounted to a failure to provide consent to treatment of a treatable

condition that was likely to seriously impair JJH’s development. In addition, it is argued that JJH’s parents were unable or unwilling to provide adequate care for JJH when they were unable or unwilling to do the autism intervention at home and are unwilling to agree to a continuation of the intervention which has been ongoing for JJH since being in the care of the Director. [ 119 ] The parents argue in reply that none of the circumstances under

section 13 of the Act have been made out on the evidence at trial. Instead, the evidence has shown an escalation in JJH’s behaviour since living away from his parents, which, when compared to his behaviour when living at home, illustrates he was not in need of protection while living at home. They say that it is only since being out of their care that JJH’s behaviour has become so aggressive. In addition, they point out that JJH has not attended school since being in care.

Yet, when living at home, he attended school regularly. [ 120 ] The parents argue that the guiding principles in the Act state that the family is the preferred environment for the upbringing of children. JJH ’s removal from that environment has deprived him of the many benefits of being raised in the family home, benefits such as interactions with his siblings and parents, being put to sleep each night by his parents, and nurturing his relationships with his parents and siblings. [ 121 ] The parents point out that there is no suggestion in this case of any physical or emotional abuse to JJH by the parents.

Nor is there any suggestion that JJH has been neglected in the home. They disagree with the Director’s arguments that they failed to provide necessary health care or were unable or unwilling to provide adequate care for JJH. They provided the best they could for JJH in a difficult situation which became more difficult with every effort they made to work with the Ministry and the services being offered. The ultimate effect is that JJH has become institutionalized and has missed out on quality time with his family. The visits they have been offered with JJH while in care are a poor substitute for family living.

They do not agree that these visits are helpful for the family and argue instead that they are harmful for JJH and the children. [ 122 ] Counsel for the Director points out that I only need to make a finding that JJH was in need of protection as of the date of his most recent removal on January 20, 2013.

Because JJH remained in the care of the Director after his first two removals with the consent of the parents, there is no need for me to make a finding that he was in need of protection at those times. [ 123 ] I note parenthetically, that the parents should not take from this that their decision to sign a Voluntary Care Agreement in April and October of 2012 has in any way prejudiced their position with respect to my determination on whether JJH was in need of protection in January 2013.

In my view, the parents’ decision to sign the voluntary care agreements was an indication of their attempts to work with the Ministry in finding the appropriate care for JJH They signed these agreements reluctantly and as a last resort. [ 124 ] The Director argues that by January 2013 JJH was well into the intensive autism intervention undertaken by Starlight staff. Removing him from the residential placement and returning him to the home would place him in the same environment which he had previously been where his special needs were not being properly addressed.

In all likelihood, he would revert to his previous behavior, and the family would once again be unable to cope. Analysis – Was JJH in Need of Protection? [ 125 ] It is my view after taking into account all of the evidence that JJH was in need of protection at the time of his removal on January 20, 2013 given his parents inability to meet his special needs. I believe that JJH’s parents were unable or unwilling to provide JJH the support he needed to survive in the community. This was not because of some inherent failing on the part of the parents.

Rather, it was because JJH has a serious condition that required constant supervision and skilled intervention. [ 126 ] JJH’s need for an intensive autism intervention was identified by a number of professionals over the course of many years. It had been identified by the family doctor, Dr. Archer and other professionals who authored the Diagnostic Assessment of May 2, 2007 after assessing JJH when he was five years old. The need for this intervention was reiterated by Wendy Counsell when she first became involved with the family in January of 2011 when JJH was nine years old.

It was urged for again by the doctors at Children’s Hospital that assessed JJH several times in his various admissions to the hospital in 2012. [ 127 ] On the information provided to the Ministry at the time, including from TH, something had to be done to address JJH’s increasingly difficult behaviour and the safety risk to his younger siblings. [ 128 ] In April 2012 Dr. Chan predicted that JJH’s behaviours would worsen over time given the “very limited implementation of the usual interventions for autism”.

With this in mind, I do not agree with the parents’ submission that JJH’s escalating behaviours could be blamed on the Ministry taking him out of the care of his parents. I agree that part of the reason for the dramatic escalation in his behaviour was being away from his parents and the family home. But I believe the difficulties with JJH’s aggression and combativeness would have increased in any event as he got older and stronger and did not receive an intensive autism intervention. [ 129 ] Dr.

Furlong was of the opinion that JJH’s violent behaviours put the younger children at risk and he needed to go into care to protect those children. In July 2012, Dr. Chan recommended the intervention strategies that had been developed by Wendy Counsell to help address JJH’s issues. JJH’s parents had proven to be unable or unwilling to implement those strategies. [ 130 ] As he grew older and stronger, JJH’s need for this intervention became more apparent. His parents were unable to prevent him from escaping from any residence they lived in after he reached a certain age.

At times his escape from the home was not detected for a period of time. He was found by the police at times running in traffic or at a busy intersection. This placed him in danger. [ 131 ] One of the arguments made by the parents is that, while being in care, JJH has missed out on the many benefits he would have experienced while living with his family. There is no question JJH has lost out on many things. But the ultimate goal is to have JJH returned to the family to once again enjoy these experiences.

All of the Ministry witnesses shared the hope that JJH could one day return home. [ 132 ] It must be noted, however, that the home life JJH was experiencing prior to going into care was not quite as idyllic as suggested in the submissions of counsel for the parents. There is no question that JJH’s home life was filled with love and caring by the parents

and the siblings. But, there were also significant difficulties. [ 133 ] Not the least of these difficulties was JJH’s lack of sleep. This was affecting JJH’s parents significantly when he lived at home, to the extent that one parent had to be awake with him at all times. This was very difficult for parents of four young children who were dealing at the same time with health and financial issues.

The environment in the family home prior to JJH going into care was stressful, to say the least. [ 134 ] It was under these circumstances that JJH initially was taken into care, with the reluctant agreement of the parents. It is significant that, when taken into care, it was recognized by all of the professionals that JJH needed 2:1 supervision. He was not getting this at home, since the parents were incapable of that, given the other responsibilities in their lives. [ 135 ] JJH remained in care with the parent’s agreement until January 20, 2013.

By that time, the parents had lost faith entirely in the Ministry and wanted JJH to come home. [ 136 ] No one can predict with certainty what would have happened if JJH was returned to his parents’ care at that time. But on the evidence before me, I believe it is likely that he would have returned to his previous difficulties, and likely of a more severe nature. He was older, stronger, and had suffered from significant instability in his relationships and placements. He had not seen his father since April of 2012, because his father had not gone to visit him while he was in care.

Since being discharged from the hospital in July of 2012, he had only seen his mother once, when she came to visit him in December 2012. [ 137 ] In addition, he had been at three different homes since being released from the hospital. He had been at the Starlight home since October 1, 2012. They had initiated the intensive autism intervention gradually.

Staff at the Starlight Program recognized that JJH had suffered from instability in his placements in the previous months and understood that he needed an opportunity to build relationships with the staff, learn to trust them and feel safe. [ 138 ] Staff at Starlight had started a communication program with JJH that he had responded to very positively. They had developed a self-care routine in which they were teaching JJH how to bathe and wash his hair independently. They were experimenting with methods to teach him to brush his teeth on his own.

In addition, calming techniques and activities were being used with JJH to help him settle down to sleep, an address his at times explosive behaviour. JJH was showing slow, but steady progress in all of these areas. (Monthly Progress Report October – December 2012). [ 139 ] JJH’s Progress Report for January 2013 showed that he slept an average of 7.5 hours that month. He still woke up repeatedly, but at least he was starting to sleep more regularly and for longer periods. Conclusion – JJH Was in Need of Protection [ 140 ] I believe that JJH was in need of protection on January 20, 2013 pursuant to s. 13(

f) of the Act . He was in need of the autism intervention and he would have been deprived of that need had he been returned to the family home at that time. In my view, he needed to stay in the Starlight Program to obtain the necessary health care he was receiving and would not have received at home. [ 141 ] I also believe JJH’s development would have been seriously impaired by his ongoing autism if he was not able to continue the intervention that had been started at the Starlight Program. I did not hear any expert evidence or legal argument as to whether autism could be considered a “treatable condition” under s. 13(

g) of the Act . However, on the evidence before me from Wendy Counsell, many of the behaviours are treatable and can be managed for many children with autism. As such, I believe this

section is also applicable. [ 142 ] Finally, I believe that under s. 13(

h) and 13(l), JJH’s parents were unable to provide adequate care for JJH at the time, given his need for the autism intervention and the need for constant supervision by full time staff. [ 143 ] This was not a matter of interventionist Ministry officials dictating to parents about how to raise their child. It was an ongoing response to issues which were getting increasingly difficult with JJH. In my view, the Ministry took a measured approach throughout. They made ongoing attempts to engage the family in response to concerns raised by members in the community.

They attempted all available less disruptive measures before removing JJH from the parents’ care. Issue 2 - Is it in JJH’s best interests to remain in the custody of the Director for a period of 6 months under s. 41(1)(

c) of the Act , or to be returned to his parents under a 6 month supervision Order? [ 144 ] Having found JJH was in need of protection at the time of his removal, I must go on to consider the plan of care proposed by the Director and make a determination as to what is in JJH’s best interests for his ongoing care under

section 41 of the Act . [ 145 ] The Director submits that JJH has made significant progress while in care and should undergoing continuing treatment through the Starlight Program to build on these successes. To allow this to occur, JJH ought to remain in the custody of the Director for a period of six months. The Director maintains that the overall plan remains to have JJH returned to his parents.

In written submissions, the Director committed to using its best efforts to work toward that goal during the period of a six month temporary custody Order and to reassess only after an ongoing bona fide effort was made to achieve that goal. [ 146 ] The parents maintain that the only appropriate outcome of the proceedings to date is for the Court to Order that JJH be returned to his parents, subject to a six month supervision Order.

They maintain that it would be in JJH’s best interests to allow him to return to live in the family home, return to school in their community, and renew his relationships with his parents and siblings. JJH’s parents have suggested that they could work with the Ministry to design an appropriate transition of JJH back home.

If any issues or concerns arise in the transition, these can be addressed at a separate hearing. [ 147 ] In determining what placement is in JJH’s best interests, I have taken into account the events leading up to JJH’s placement in care as previously reviewed, his progress since being in care, and his parents’ concerns regarding JJH remaining in care for a further six month period.

JJH’s Progress While in Care [ 148 ] When JJH first went into care he continued to have ongoing difficulties with his aggression, communication, and sleep. In addition, he was able to escape from the residence where he was being supervised with a 2:1 staff to client ratio. However, since settling into his placement at the Starlight Program, he has made significant progress in a number of respects. [ 149 ] Jennifer Tiegen testified that since JJH has settled into care at the Starlight Program, he has shown ongoing improvement in all of the areas that had caused difficulty in the past.

Monthly Progress Reports from the Starlight Program were filed at trial to confirm this progress. Ms. Tiegen testified that the intensive autism intervention implemented with JJH has established a structured routine of daily activities. This routine incorporates some choices for JJH for his preferred activities and some time spent on his non-preferred activities, such as ABA Therapy to help prepare JJH for school. JJH is communicating with verbal requests as well as using the PEC system.

He has gone from verbal communications of one or two words to 5-7 word sentences. [ 150 ] JJH has also learned some personal hygiene skills, such as bathing and brushing his teeth independently. Although he has escaped from his residence since being in the care of the Ministry, I am told that this issue has been addressed at his current residence. Ms. Tiegen testified that JJH is learning how to ask for things so he does not feel the need to escape as part of the intensive autism intervention. He is also being taught safety in the community in the event that he does manage to escape again. [ 151 ] Ms.

Tiegen testified that JJH’s sleep has improved significantly since settling into the Starlight Program. He now averages 7½ hours of sleep per night. He typically wakes up once or twice a night, but is easily prompted back to sleep.

In addition, the number of critical incidents has dramatically decreased since JJH has settled into his placement, become familiar with the staff and improved his communication skills. [ 152 ] In an interim report of September 2013, Wendy Counsell noted that JJH’s behaviour had improved dramatically as a result of the implementation of the intensive autism intervention by staff in the Starlight Program. Ms. Counsell testified that by that date JJH was following the scheduling system, he understood his regular routine, and responded to verbal and PEC instructions.

His routine included almost daily trips in the community to places such as Granville Island, Stanley Park, Playland, Extreme Air Park, going swimming, hiking, and shopping. [ 153 ] In addition, JJH is now able to use full sentences when making requests. The program is teaching JJH that he does not always get what he wants. His days are mixed with preferred and non-preferred activities.

Even though JJH is expected at times to engage in non-preferred activities, the number of aggressive outbursts has significantly decreased in frequency and duration as he is learning self- calming techniques. [ 154 ] Finally, JJH was reported to be sleeping much better, at times for 10-11 hour stretches. Although he would wake at times in the night, he was able to occupy himself until he fell back to sleep. [ 155 ] Ms.

Counsell testified that JJH had been dramatically successful in all of the areas of concern in the initial referral. [ 156 ] There was a remaining concern, from the Court’s perspective, that has yet to have been addressed, at least as of the last day of evidence in the Director’s case. JJH has not been in school since he was taken into care.

Although he was accepted back at [school] Elementary and was accepted at [school] Elementary, these schools are both in Maple Ridge and too far to travel to, given his current placement. [ 157 ] Wendy Counsell testified that there is an elementary school near to JJH’s current residence with a fantastic learning enhancement program. Jennifer Tiegen testified that JJH has been accepted at this school, [school], which is considered a specialized school for children with autism.

Although JJH is ready to return to school, his attendance was delayed because the person hired to work in the program with JJH was in a car accident. It was hoped that he will return to school by January 2014. I expect that JJH will return to school soon, since he has been deemed “school-ready” for some period of time, and it would be beneficial to his continued progress. Limited Visitation by Parents [ 158 ] Since going into care, JJH has not been visited regularly by his parents or siblings.

When JJH was first taken into care, it was agreed by all the parties that JJH’s parents should not visit for a period of time. The belief was that it would be better for JJH to stabilize in his new home, without the constant pull towards his parents that JJH inevitably felt when he saw his parents. But since that early period, everyone involved in JJH’s ongoing care have expressed their wish that the parents would visit JJH regularly. [ 159 ] Significant efforts were made by the Ministry to encourage JJH’s parents to visit him.

Wendy Counsell developed a family visit plan that was designed to address JJH’s need for structure and predictability. The only requirement was that staff at Starlight be given at least one hour advanced notice of the visit so they could prepare JJH and transition in and out of the visit without him getting overly emotional or anxious.

A number of story boards were created to explain to JJH through words and pictures that his family was coming to visit, they would stay for a while, and then say goodbye, but would return again. [ 160 ] JJH’s mother visited him on December 23, 2012, January 5, and February 3, 2013 and has not visited him since. MR testified that this was for a number of reasons. To begin with, she did not approve of the barren conditions in JJH’s room. In addition, MR said that when she visited it was difficult for her to see JJH prefer staff at Starlight over her.

She said “It’s hard as a mother to have your child turn away and need someone else”, “I feel like he doesn’t need me anymore. I used to be his everything and I am nothing now. I get turned away so he can get what he wants from strangers”. [ 161 ] MR also said the visits were hard on JJH’s siblings. They would get emotional and did not understand why JJH could not come home with them. Finally, the logistics were difficult to organize at times.

The family lives in Maple Ridge and JJH lives in Burnaby. [ 162 ] TH testified that he could not visit JJH for the first eighteen months he was in care due to the emotional trauma he felt. Since then, TH went to visit JJH in October 2013 and February 2014. He said he finds the visits extremely difficult because it reminds him of

what they put JJH through. He said it was difficult to leave the visits because they cannot explain that they will be back. He said he does not want to put JJH through any more traumas. He agreed that JJH enjoyed the visits when he attended, but also said it was uncomfortable for everyone visiting JJH in his sterile room. JJH’s siblings were upset when they saw JJH’s first bedroom.

TH agreed that the accommodations have improved since JJH has been moved upstairs. [ 163 ] Ministry witnesses testified that when JJH’s parents made it clear that they did not like visiting JJH in his placement, they made attempts to organize family visits in the community, where the parents may be more comfortable. On one occasion, the Ministry rented out an entire swimming pool facility in Kensington and invited JJH’s whole family. The family declined the invitation. [ 164 ] In November of 2012 JJH started getting regular visits from his maternal grandmother and step-grandfather.

These visits were frequent and ongoing until being stopped after an incident in which there was a misunderstanding between the grandparents and Starlight staff. It was not clear to me at trial whether these visits have since recommenced. It is my sincere hope that they have, since they were a very positive experience for JJH. [ 165 ] All of the witnesses for the Ministry testified to the pleasure JJH had from his visits from his family. He was prepared for the visits, enjoyed his time with his family, and then successfully transitioned to a new activity after his family left.

These witnesses all believed that JJH would benefit greatly from more visits from his parents and siblings. [ 166 ] In cross-examination, Wendy Counsell agreed that JJH had suffered from the dislocation of his family. But she did not agree that this was an extreme factor for JJH. She said the extreme part for JJH was the limited contact the family has had with him since he has been in care. Parents’ Concerns [ 167 ] JJH’s parents argue that JJH’s continued placement in Starlight is not in JJH’s best interests. MR disagreed that JJH has made any significant progress since being in care.

She said there was no speech from JJH during her visits and, if anything, he has regressed. [ 168 ] The parents argue as well that JJH has become institutionalized. This was denied by Wendy Counsell in cross-examination. She reiterated that JJH has an active day program with a variety of activities in the community. He interacts well with staff in the home and when out in the community. [ 169 ] As previously noted, both parents objected to JJH’s living conditions. MR described them as “despicable”. TH described them as “inhumane”.

His bedroom was in a basement suite with no decoration or furnishing other than a mattress on the floor. There were no mirrors and Plexiglas covered the windows. [ 170 ] It was clear from the evidence that JJH’s room was barren because of his tendency to damage and/or dismantle items. The glass in the windows was replaced with Plexiglas as a safety measure, since JJH had broken windows in the past. This need to adapt a residence to address JJH’s issues was not new. TH testified about the need to “[JJH]-ize” each residence they lived in because of JJH’s tendency to damage or dismantle items.

Having said that, JJH should be allowed to live in an environment that exudes the warmth and comfort that a ten year old child would enjoy. [ 171 ] Ms. Tiegen testified that because of JJH’s habits, his toys and playthings were kept locked in a cupboard and taken out when JJH was to play with them. In addition, as JJH’s behaviour improved, the plan was to move JJH’s living quarters to the upstairs of the residence, which was being renovated. Since Ms. Tiegen testified, that renovation has been completed and JJH has been moved upstairs.

Everyone, including TH, agreed that this was a better space for JJH. [ 172 ] An additional concern of the parents with JJH spending another six months in the custody of the Ministry is his continued loss of time with his family in the routines of the family home. TH described the artificiality of the visits he had with JJH at his placement, saying it was uncomfortable for all. Conclusion Regarding JJH’s Placement [ 173 ] I share the concerns expressed by the parents over JJH missing out on valuable time growing up with his siblings in the family home.

I share as well the concern that JJH has lost time developing relationships with his siblings while he has been in care. As noted by the parents, JJH’s siblings would be the most appropriate people to take care of JJH in the future as his parents age, if they are able to. [ 174 ] Having said that, I do not believe it is in JJH’s best interests to return to his parents’ care at this time. I prefer the evidence from the Ministry witnesses about JJH’s progress since being in care over that of his parents.

The fact is, the parents have not spent enough time with JJH since he has been in care to make a reliable assessment of his progress. [ 175 ] It may be that JJH has shown such progress in part because of the fact that he has less stimulation while at his new placement. But I do not believe that means he has become institutionalized. Staff at the Starlight Program have created full days for JJH with a variety of activities in and out of the community that are to his benefit.

He has responded positively to these activities. [ 176 ] I believe that the barren living conditions JJH faced when first in care were unfortunate, but understandable to a certain extent, given his history. I am hopeful he will continue to thrive now that he has been moved to the more pleasant environment upstairs. [ 177 ] It is my view that the parents’ concerns about JJH missing out on his relationships with his parents and siblings could be alleviated to a great extent by regular visits. So, as well could their concerns that JJH become institutionalized.

I do not wish to minimize the difficulty these visits are for JJH’s parents and siblings. But, it seems to me these difficulties would minimize over time as

they got used to visiting and continued regularly. [ 178 ] In addition, in my view, the parents could make the visits easier for JJH’s siblings by explaining matters clearly and honestly to them. I think JJH and his family members could all benefit from these visits if the parents could embrace them with a more positive outlook. In addition, the family could also have visits with JJH at various places in the community.

Ministry staff had offered this option in the past and I was not given any reason by the parents to find otherwise. [ 179 ] There is no question that visits from his family are very positive for JJH’s development. Since JJH has seen so little of his siblings and parents, in my view, increased regular visitation would be a necessary requirement in any event if JJH was to be eventually transitioned back to living in the family home. [ 180 ] I do not believe an Order returning JJH to the care of his parents is realistic at this time.

The parents have not learned or attempted to learn the behavioural strategies that have been used with him as part of the autism intervention. They do not appear to have attempted to access the online training in behaviour support. Since JJH has been in care, his parents have not once reached out to Wendy Counsell for information or training regarding the behaviour support plan. This has been offered to the parents by Ms. Counsell more than once in the past. They have never looked at video prepared by Wendy Counsell for JJH that was recommended by Dr. Chan. [ 181 ] In cross-examination Ms.

Counsell agreed that the parents have very busy lives and it takes time to view the video, review material, and learn the strategies. I note, however, that the parents spent many hours in court over the 9 days of trial. They clearly are interested in investing time for their son.

I believe the parents could make great strides in their chances of having JJH back home again if they were to devote and equal amount of time to learning the behaviour strategies and visiting JJH. [ 182 ] If JJH were returned home now, it is likely, in my view, that he would revert to his previous behaviour and all the work he has done to date would be for naught. His parents have not provided any evidence as to how they intend to address JJH’s ongoing needs if he was returned to the home. They simply propose a return to the same environment.

They suggest that JJH’s could be transitioned back to the family home under a six month supervision Order. But the history of relations between the parents and the Ministry suggest this is not a realistic option unless something changes. I do not believe it would be successful until JJH’s parents demonstrate a willingness to work with Ms.

Counsell or staff in the Starlight Program. [ 183 ] In addition, I believe JJH’s parents would have a better chance of working with the Ministry in the future if they were able to refrain from blaming the Ministry for the many difficulties they have faced over the years with JJH. They need to understand as well that they are not to blame for these difficulties either. The unfortunate reality is that JJH suffers from an illness that is difficult to manage.

Cooperation by everyone involved in JJH’s future is the best way to ensure that his best interests are addressed. [ 184 ] The Ministry witnesses all agreed that the long term plan is to return JJH to his parents. Ms. Counsell agreed that JJH’s best environment would be in his home with his fa

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