Director v. D.L.D. and J.L.C. Date:, 2016 BCPC 73

Citation: Director v. D.L.D. and J.L.C. Date: 20160304 2016 BCPC 0073 File No: F22978 Registry: Port Alberni 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: D.D.D. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: D.L.D. PARENT J.L.C. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY

Counsel for the Director: K. Rongve Counsel for the Parents: R. Johnson Place of Hearing: Port Alberni , B.C. Dates of Hearing: February 16, 17, 2015 Written Submissions Received: March 9, 23 & 27, 2015 Date of Judgment: March 4, 2016 Introduction [ 1 ] The Director under the Child Family and Community Services Act R.S.B.C. 1996, c. 46 (the “ Act ”) seeks two orders under the Act namely: (1) a finding that the Child D.D.D., born [d.o.b. omitted] (the “Child”) was in need of protection pursuant to section 40 (1) of the Act when he was taken into care by the Director (2) an order pursuant to section 41 (1) (

d) of the Act that the Child be placed in the continuing custody of the Director after consideration of the points outlined in section 41 (2) of the Act. [ 2 ] The Director submits that it has met the burden placed upon it pursuant to the Act in relation to both the finding and the order being sought. [ 3 ] [J.L.C.], the Mother of the Child (the “Mother”) and [D.L.D.], the Father of the Child (the “Father”) oppose both the finding and the order being sought. [ 4 ] They submit that the evidence does not support a finding that the Child was in need of protection thus the matter should come to an end and the Child be returned to them. [ 5 ] Alternatively, they submit that if the court finds the Child is in need of protection that the Continuing Custody Order (“CCO”) sought by the Director is not in the Child’s best interests and further submit that any concerns of the Director concerning potential harm to the Child are better addressed through a 3 to 6 month supervision order, with specifically crafted terms, all to be made under section 41 (1) (

a) of the Act . [ 6 ] The protection concerns of the Director first arose out of a set of circumstances predating the birth of the Child by some 15 months. At that time an infant, (the “Deceased Infant”) for whom the Father was one of the two birth parents, died within a month of the Deceased Infant’s birth while in the care of his birth parents, from a condition which the Director concluded was a case of “Shaken Baby Syndrome”.

Notwithstanding the implementation of a safety plan for the Child, the Director’s representatives shortly concluded that there were further child protection and safety concerns for the Child arising from the background of the Mother and the Father and some materially negative features of their relationship. [ 7 ] The Mother of the Child is sometimes referred to in these reasons as “J.L.C.” and the Father is sometimes referred to as “D.L.D”. The Mother and Father are sometimes collectively referred to as the “Parents”. The Child is sometimes referred to as “D.D.D.”.

The Deceased Infant is sometimes referred as “T.D.” The Paternal Grandmother (as herein defined) and the Maternal Grandmother (as herein defined) are sometimes collectively referred to as the “Grandparents”. Agreed Statement of Facts [ 8 ] The Director and the Parents, through their respective legal counsel have filed an Agreed Statement of Facts as Exhibit 1 containing the following agreed facts (the “Agreed Facts”) set out below and which now incorporate the various defined terms set out in these reasons: Factual Issues 1. The Child was born on [omitted for publication]; 2. J.L.C. is the Mother of the Child; 3.

D.L.D. is the Father of the Child; 4. D.L.D. was the Father of the Deceased Infant who died on June 21, 2008 at the age of approximately one month; 5. The Deceased Infant died of injuries which Dr. N. Jain of BC Children’s Hospital deemed non-accidental and of a type consistent with “shaken baby syndrome”; 6. J.L.C. was not the Mother of the Deceased Infant; 7. Police investigated the Deceased Infant’s death. They interviewed the mother of the Deceased Infant and D.L.D. shortly after the

Deceased Infant’s death in 2008. No charges have ever been filed against either parent or anyone else; 8. The police continue to have an “open” file relating to the Deceased Infant’s death and the death remains unexplained; 9. After the Child was born, he resided with J.L.C. and with D.L.D.’s mother, [K.F]. (the “Paternal Grandmother”) and then with J.L.C. and her mother [L.M.] (now known as [L.V.K.]) (the “Maternal Grandmother”) all under a safety plan devised by the Parents, Grandparents and the Director; 10.

On December 19, 2012, a supervision order (the “December 2012 Supervision Order”) was made in relation to the care of the Child by the Honourable Judge Gouge following allegations by the Director that the Parents were using alcohol to the extent that intimidation/verbal violence and damage to the family home was occurring and the RCMP were being called to the Parents’ home; 11. On June 18, 2013, the Child was nominally removed from the care of the Mother following allegations by the Director that the Mother was allowing unsupervised visits between the Child and the Father; 12.

The Child’s physical residence did not change. He was placed in foster care with J.L.C.’s mother, namely the Maternal Grandmother and has resided with her ever since; 13. Until June 18, 2013 the Mother had access to the Child on the condition that she was not to be alone with the Father and the Child during her time with him. Since June 18, 2013 the Mother has had access supervised by family members; 14. The Director has required continued supervised access to occur between the Child and the Father; 15.

The Mother and the Father have both completed the Triple P Parenting Program: the Mother in 2011 and the Father in 2014; 16. The Father attended Mental Health and Addictions Services Adult Intake Services on February 21, 2013 for a substance assessment, which concluded “Client provided history does not indicate need for admission to Adult Addiction Services”; 17. The Mother attended Mental Health and Addiction Services Adult Intake Services on May 19, 2013 for substance assessment, which concluded “Reported substance use does not indicate need for treatment”; 18.

The Mother attended two counselling sessions with Laurel Lenormand, BSW, M.Ed., RCC of Port Alberni Family Guidance Association and attended a further session with the Father between June to August 2014; 19. Dr. Laura Mills was retained to complete a parental capacity report in relation to the Child and the Father and the Mother (the “Mills Report”); 20. Dr. Laura Mills issued her report on November 17, 2014; Issues relating to Expert: 21. The parties acknowledge that Dr.

Laura Mills can be accepted by this Court as an expert in assessing parental capacity to provide care to children and the assessment of the children’s needs; Issues relating to Documents: 22. The parties have created a Joint Book of Documents [see Exhibit 1]. The parties acknowledge the authenticity of the documents provided by the other but do not necessarily acknowledge the truth of statements in those documents; 23. Specifically in relation to the document at tab 2, (being a letter of Dr. N.

Jain), in the Book of Documents [see Exhibit 1], the Director has included that document to establish the nature of the injury suffered by the Deceased Infant. The Director is not relying on the information described in any narrative and/or discussion set forth in the report. Background of the Parents and Child [ 9 ] The Mother and Father both testified on their own behalf as part of the Parents’ case. They presented information about their respective backgrounds and also provided information about their lengthy on-going involvement with the Ministry.

I will deal initially about the backgrounds of each Parent and the Child based mostly on the Parents’ testimony. [ 10 ] Subsequently and later in these reasons I will deal with their responding evidence as it relates to the evidence adduced as part of the Director’s case. The Mother [ 11 ] At the date of the hearing J.L.C., being the Mother of the Child, was thirty-two years of age. She has a grade 12 education. She has been steadily employed for some ten years at a local outlet of an international franchise chain restaurant.

She holds a managerial role and therefore supervises a staff of between thirty and forty employees. She is responsible for dealing with both happy and unhappy customers and has been told by her own boss that she has, what I infer to be, a positive way of dealing with customers and in particular with dissatisfied customers. [ 12 ] In her supervisory duties she is also responsible for dealing with staff issues and for providing them with training and feedback as to their performance. She says there is a fair amount of stress in her work.

She testified that she has never missed work because of alcohol or being reprimanded because of anger or alcohol issues. [ 13 ] J.L.C. testified as to her support network including her best friend, the Maternal Grandmother, a sister, and her partner, namely

D.L.D. (also being the Father). She also speaks to her neighbours and to her boss about problems. [ 14 ] She testified about growing up in a family in which she witnessed her own father physically abuse her mother (being the Maternal Grandmother) by hitting her, pushing her and choking her. As I understand it, J.L.C. stood up to her own father and would not let him continue to inflict the physical abuse upon her and she also took positive steps to intervene to protect her own mother and her siblings from this abuse.

This ongoing situation caused her to leave home when she was a teenager and to eventually get her own mother and siblings into a safe house and subject to protective conditions. She was estranged from her own father for a period of time, sought and obtained counselling for the abuse issues and eventually resumed a relationship with her father. They are now on speaking terms. [ 15 ] She testified about entering into her relationship with D.L.D. in late 2008 just before Christmas. They have remained a couple since that time. She got pregnant with the Child early on in their relationship.

After she got pregnant, D.L.D. told her about the Deceased Infant, that the Deceased Infant had died and that there was a resulting investigation including a police investigation. She testified that the D.L.D. did not like to talk about the situation and described him as being sad and frustrated. [ 16 ] She testified further about her relationship with D.L.D. She indicated that the relationship has improved in recent years and indicated that it has been “good in the last couple of years”. They have learned to work together as a team.

They have improved their communication with each other as they have gotten older, such that it has improved from what she described as originally being “hit and miss”. She described the low point in their relationship as occurring shortly after the birth of the Child and the intervention of the Ministry. She stated that things “went downhill” at that point. Alcohol consumption was an issue, they could not discuss anything and disagreed on everything. However, things started to turn around positively after the Child started to live with the Maternal Grandmother.

She stated that as this point, they (being the Parents) both realized they “had to pick up their socks”. [ 17 ] Although they had at one time a historical pattern of arguing, physical violence was not and is not a part of their relationship. She says D.L.D. has never physically hurt her. [ 18 ] In her evidence she admitted that she and D.L.D. have reduced their higher level of alcohol consumption, especially from the level it was at in their teenage years.

In the past few years that alcohol consumption has gone down even more, such that it is described by her as drinking two to three drinks at a time two to three times per month. [ 19 ] She acknowledged that in the past D.L.D. had issues with stress, anger and alcohol and that he behaved negatively towards her. She says now D.L.D. is much better at dealing with these issues. [ 20 ] When asked about her stress reaction and in particular in her dealings with D.L.D., she says that they now respond to domestic conflict by “walking away from each other”; he then attends to his projects and she walks the dog.

She says that it is easier to cope this way. She also testified that as a couple they now use different strategies including talking more openly and taking breaks from those discussions.

I understand these strategies are used to diffuse and reduce any likelihood of D.L.D.’s anger. [ 21 ] As further noted below, J.L.C. testified about an alcohol fuelled argument between J.L.C. and D.L.D. that occurred at her thirtieth birthday in June of 2012 which resulted in some property damage to their residence and the attendance of the police (the “Birthday Party Incident”). [ 22 ] She spoke about the division of labour within their relationship. She says that D.L.D. handles the outside chores while she handles the inside chores, the paperwork and appointments and they share other responsibilities.

In response to a question as to whether or not she “covers” for D.L.D. she replied that she handles things because he has “less sense of urgency” and she is the “pusher” in their relationship. [ 23 ] In 2013 she and D.L.D. purchased a single family house on property which has been fully renovated, with multiple bedrooms and is suitable for providing a residence for the Child. The Father [ 24 ] At the date of the hearing D.L.D. was thirty-one years of age. He was raised by his mother (the Paternal Grandmother) and his stepfather K.F.

In his testimony the Father described himself as having “a pretty good childhood”. He did not like school and encountered problems therefore he left in grade 9 and started working with his own father as a roofer. He continued in that occupation for some fifteen years and has been steadily employed for most of that time as a roofer, or in construction, or recently working as a machine operator in a local mill. He very much enjoyed that last job but was part of a 40 employee lay off at the mill in 2014. He has subsequently earned his living cutting wood.

He anticipates that he will continue to do so while the Parents are dealing with the Ministry and the matters surrounding the Child. [ 25 ] D.L.D. suffered a serious injury when in early 2012 he fell while roofing sustaining multiple injuries and resulting in a three to four months confinement to a wheelchair. He presently suffers continuing problems with his wrist. However he returned to roofing as a means of financially supporting his Family. [ 26 ] D.L.D found roofing to be a stressful occupation.

It became increasingly more difficult when D.L.D.’s own father fell while roofing and was killed, as I understand it, in 2013. That death made D.L.D. sad and prompted D.L.D. to seek other employment in order for him to continue to be alive for his Family. He last worked as a roofer in early 2014. [ 27 ] D.L.D. admits to a number of criminal convictions in his late teens and early 20’s for a number of different types of offenses, some involving physical violence. These included an October 2005 conviction on charges relating to assault with a weapon and robbery.

That conviction resulted in a ten month custodial sentence and he was placed on a 10 year firearms prohibition. His admitted criminal record is set out on page 16 of the Mills Report. [ 28 ] As I understand it, that was his last conviction although he has had from time to time thereafter encounters with the police, the last being the Birthday Party Incident, being a domestic dispute between himself and J.L.C. It was reported to the police, who thereafter

attended but no charges resulted. [ 29 ] In his evidence, D.L.D. testified about the death of the Deceased Infant while in his care and that of the Deceased Infant’s mother. The birth mother of the Deceased Infant was 17 years old and D.L.D. was 25 years of age at that time. He said that he was very saddened by the event and found little time to grieve. He did speak to friends and to his parents. He did not obtain any counselling citing his work obligations and his breakup with the Deceased Infant’s mother as obstacles.

He testified that he told J.L.C. about the fact that the Deceased Infant had died of “unexplained injuries” or “unnatural causes” after J.L.C. became pregnant with the Child. He also indicated that over time he told her about his past criminal record. [ 30 ] He further testified that after the birth of the Child he felt “really good” but that quickly turned to “upset and confusion” as a result of the involvement of the Ministry in the lives of his new Family and specifically the fact that he was told by Ministry social workers that he could not live with the Child.

He acknowledged he now understands the safety concerns of the Ministry for the Child that arose out of the circumstances surrounding the death of the Deceased Infant. [ 31 ] D.L.D. testified that in his view he does not have an alcohol issue at present time. He says he used to drink a lot more in the past starting in his teens and what I understand to be a pattern of daily consumption of alcohol that continued up until the birth of the Child.

He says at present time he keeps alcohol consumption to the weekends and usually in the form of beer consumed with meals and often at family dinners. [ 32 ] D.L.D. further testified to the effect that he “may use to have anger issues” but not now and suggested that in any event these were not significant anger issues.

He suggests that his anger issues changed a couple years ago, which I understand to be by way of an improvement, but not really because of any planning on his part but improvement just happening as a result of him getting older, or what I understand to be behaviourally more mature. [ 33 ] He testified that he and the J.L.C. have a “good relationship” but also conceded that there were “rocky periods” in the past. He confirmed that 2013 was a period of significant stress for him. He mentioned the stress surrounding the purchase of their house during that period and the accidental death of his own father.

He further mentioned the loss of the ability of J.L.C. to have contact with the Child without approved supervision. He indicated that he had not sought nor received any counselling during that period of time.

He indicated that he did speak to family and friends about some of these issues. [ 34 ] He describes himself as being a “quiet person” and that he does not necessarily like to talk about things and tends to withdraw in uncomfortable situations. [ 35 ] He confirmed as accurate J.L.C’s evidence of how they have learned to cope with stress in their relationship and in particular to walk away from each other in order to contain any escalation of their dispute and to prevent it from “turning into a big scene”. [ 36 ] D.L.D. says that since the Birthday Party Incident in June of 2012 that there have been no other incidents of him yelling at J.L.C. and he denies ever having struck her.

The Child [ 37 ] At the date of the hearing the Child had attained the age of approximately 5 ½ years. The Mother provided the Child with primary care until approximately June 18, 2013 when the Child was removed by the Director. The Maternal Grandmother then assumed that responsibility. Since his birth the Child has for the most

part lived in his Grandparents’ residences, first with the Paternal Grandmother and then with the Maternal Grandmother and basically not in the residence of his Parents.[see Agreed Facts numbered 11 and 12]. [ 38 ] The evidence suggests that Child identifies the Mother and the Father as his Parents and has bonded with his Maternal Grandmother and his Parents. [ 39 ] At the time of the hearing the Child had completed pre-school and had entered kindergarten. The evidence suggests that he appears to be doing well in school and he follows directions.

He was described by Social Worker Trevor as a “chatty little boy” who was “interested in his environment”. No special needs were identified. The Child is of average size for his age. [ 40 ] The Child is quite verbal and has started to present with defiant behaviour. That includes defiant behaviour towards the Maternal Grandmother and the Parents and has included incidences of spitting at the Maternal Grandmother. [ 41 ] There were some issues with the Child’s poor interactions in kindergarten in the fall of 2014.

This has necessitated the Maternal Grandmother having to see the school principal about these issues. [ 42 ] The 2014 Plan of Care for the Child, referred to below, says under the heading “Assessment of [Child’s] strengths and needs in relation to Education and Social/Recreational Activities” that the Child “likes to play outside; loves water; loves the waterpark across from day care; will be enrolled in soccer in Kindergarten; likes being on the boat (knows that the first thing is to put on lifejacket) fishing; likes to go on vacation in Victoria etc.” Background

Summary of Earlier Ministry Involvement and Previous Court Proceedings Initial Ministry Involvement and Safety Plan [ 43 ] As set out in the Agreed Facts and as will be described more fully below in the

summary of the further evidence, social workers from the Ministry of Children and Family Development (herein sometimes referred to as the “Ministry ” or “MCFD”) became involved with the Family very early after the birth of the Child in October of 2009. This evidently was due to safety concerns about the Child that were centred around the Father because of the prior unexplained death of the Deceased Infant, all as set out in Agreed Facts 5, 6, 7, 8 and 9.

[ 44 ] Protective intervention services were immediately initiated by the Ministry. [ 45 ] As a result of the Ministry’s intervention and as summarized in Agreed Fact 9, a plan to ensure the safety of the Child was developed by the Ministry officials, including social worker Caroline Trevor (“Social Worker Trevor”), the Mother, her parents and the Father’s parents. The safety plan centered around the Mother and the Child living apart from the Father but within the residence of the Paternal Grandparents or the Maternal Grandmother.

Accordingly, the Director did not take any immediate court action to obtain any court orders relating to the safety of the Child. These safety plan arrangements were settled and put in place in or around October of 2009 and continued thereafter. The First Vulnerability Assessment [ 46 ] As further described in the

summary of the evidence below, a significant gap of over two and half years occurred after the safety plan was implemented. During this gap very limited contact occurred between the Parents and Ministry. The Ministry then once again became actively involved with the lives of the Child and the Parents around April of 2012 when Social Worker Caroline Trevor was re-assigned to their Ministry family file.

A number of assessment and reports were deemed necessary and were therefore completed by Social Worker Trevor, as I understand it, in consultation with her supervisor and other Ministry officials and consultants. [ 47 ] On behalf of the Ministry, Social Worker Trevor first completed a vulnerability assessment with respect to the Parents on August 14, 2012 (the “First Vulnerability Assessment”).

It is noteworthy that the “total neglect vulnerability score” in the First Vulnerability Assessment was in the low range and the “total abuse vulnerability score” was in the “moderate range”. [ 48 ] However when factoring in three “overriding conditions” the “final vulnerability level” was assigned at “very high”.

The three overriding conditions relied upon were first, the “non-accidental injury to a child under the age of two (being the Deceased Infant); second, the severe non-accidental injury to the Deceased Infant; and third, what was characterized as follows: “parental/caregiver action or inaction resulted in death of a child due to abuse or neglect (previous or current)”. Again this is a reference to the Deceased Infant.

The 2012 Strength and Needs Assessment [ 49 ] On behalf of the Ministry, Social Worker Trevor also completed a Strength and Needs Assessment dated September 24, 2012 (the “2012 Strength and Needs Assessment”). In it each Parent was rated under a number of headings. [ 50 ] Both Parents were rated as having alcohol, drug or substance abuse issues based on information set out in the included narrative. The information was to the effect that the Parents fight when they were drinking alcohol and the Father demonstrated anger and caused broken windows at the family residence on two occasions while intoxicated.

The narrative also suggested that the Parents drink every day and an RCMP check disclosed a pattern of heavy drinking and fighting incidents for the Father and his criminal record for violence related offenses including the conviction resulting in a ten month jail term in October 2005. [ 51 ] Under the heading of “Family Relationship” both Parents were rated as having “minor/occasional discord”.

The narrative noted that the Father was “one of two parents of interest in open murder investigation of his first born son” who “died of multiple (recent and historical) physical injuries at approximate seven weeks old”, again being a reference to the Deceased Infant. The narrative continued noting that the Father’s contact with the Child was being supervised by someone other than the Mother and that the Mother and Father wished to live together with the Child.

The narrative concluded that the Father’s parenting “must be assessed prior to reunification including his completion of Triple P Parenting Program; supervision of his son during high stress times, i.e. morning, night and/or meal times with reports to MCFD re: the quality of those interactions”. [ 52 ] The Parents were also rated under the heading of “Partner/Adult Relationships” wherein incidents of “physical violence/controlling behaviour” and confrontation with other members of the Mother’s family were noted because of the Mother’s and Father’s “drinking patterns and resulting negative behaviour.” [ 53 ] Under the heading of “Social Support System” the Parents were rated as having “limited positive support system”.

The narrative indicated that the Mother was completing the Triple P Parenting Program with her Family Support Worker and the Father was noted as “completing the Triple P Parenting Program” with Family Support Worker Zimmerman, who was to provide supervision of the Father’s access with the Child and provide “informationa [sic] and reporting assistance with new Supervisor Debbie Grimes.” [ 54 ] Under the heading “Physical Health” it was noted that health issues did not affect family functioning and the Parents and the Child all appeared to be healthy.

Under the heading “Communication Skills” both Parents were rated as having “functional skills”. It was noted that the Father “takes time to respond and needs to be given space and time, and asked open ended questions to speak for himself and to explain himself”. [ 55 ] The Parents were also assessed and rated under the heading “Parenting Skills/Parent’s Actions Towards Child”. The Mother was rated as “adequately parents and protects [C]hild” and the Father was rated as “inadequately parents and protects [C]hild”.

The narrative noted that the Father’s access to the Child was being “supervised by an approved supervisor who is aware of the reasons for supervision and who can intervene if and when appropriate to provide teaching moments with [the Father] and who is willing to provide adequate weekly reports to MCFD as agreed, for assessment.” The narrative further noted that the Father was working “towards completing safety goals for parenting [the Child].” [ 56 ] Both Parents were rated as having “adequate coping skills”. [ 57 ] Under the heading “Resource Management/Basic Needs” both Parents were rated slightly negatively with a narrative description stating “resources are insufficient or not well-managed”.

The narrative noted a lack of planning on the part of the Mother in obtaining another home for herself and the Child notwithstanding that both Parents were aware that within four months the Paternal Grandmother and stepfather, with whom the Mother and Child had been living, were moving to the Okanagan. The narrative further noted that the Father’s inappropriate behaviour while attending an MCFD family case planning conference on September 11, 2012 which caused the meeting to be terminated. Also, the narrative indicated that the Father was offered individual parenting classes while he was

recovering from a work related accident that occurred on February 4, 2012 but that the Father “chose not to make himself available”. [ 58 ] The 2012 Strength and Needs Assessment also rated the Child who was then age 3 as having “adequate emotional adjustment”, “adequate family relationships” and as having “medical needs” that impair functioning. [ 59 ] The 2012 Strengths and Needs Assessment identified the three most serious needs and the greatest strengths. This information was subsequently utilized to complete a Family Plan, as described below.

The First Family Plan [ 60 ] A Family Plan dated October 31, 2012 was completed by Social Worker Trevor on behalf of the Ministry (the “First Family Plan”). It identified the Parents’ “Top Three Priority Needs to be Addressed”, with the greatest need being listed first. [ 61 ] The first listed Top Priority Need for the Parents was alcohol, drug or substance use/abuse.

In order for the Parents to have strong socially appropriate coping skills, such that they were managing stress that did not involve alcohol, it was strategized that the Parents would attend for assessment at the Adult Mental Health and Addictions and follow through with recommendations for treatment. [ 62 ] The second listed Top Priority Need was the relationship between the Parents.

The goals were to address the Father’s previous conviction for assault and to prevent further RCMP interventions for anger/violence and for the Parents to achieve open and respectful communication with each other and extended family. This was to be achieved through individual counselling on the part of each Parent as well as couples counselling with approved counsellors. [ 63 ] The third listed Top Priority Need was characterized as “Social Support System” and was focused on the safety of the Child.

In particular the safety concerns were identified as resulting from the “unresolved criminal situation” involving the death of the first born infant of the Father (being the Deceased Infant). The stated goal was for the Ministry to remain involved with the Father and any Child “until such time as that criminal investigation is resolved leaving no further safety concerns for any Child with [the Father] or [the Child] becomes an adult”. [ 64 ] The First Family Plan contemplated that the Father would complete the Triple P Parenting Program re: pre-schoolers.

The Father’s access to the Child would be supervised by an approved supervisor who was aware of the safety reasons for the supervision and who was capable of “intervening if and when appropriate to provide teaching moments” with the Father and “will provide weekly written reports to [Ministry social workers], as agreed for assessment.” [ 65 ] The First Family Plan also addressed the “Child’s Needs”. The First Child Need identified was for the Parents to understand the Child’s cues and behaviour and in particular to manage the Child’s behaviour effectively in high stress times.

This was to be accomplished by the Father completing the Triple P Parenting Program and through the supervised access being undertaken by the Father. It was specifically noted that the Mother was not to supervise the Father’s access with the Child. [ 66 ] The Second Child Need identified was characterized as “Peer/Adult Social Relationships” and the goal was for the Child to be visible in the community (as well as his Parents) and to ensure that the Child has “safe adults in his life whom he trusts”.

The indicators of that goal were for the Child to have consistency regarding where he lived and with whom he lived and for extended family members to see that the Child “is involved”. The specific strategy was for the Mother and the Child to live separately from the Father. Court Proceedings and Interventions The December 2012 Supervision Order [ 67 ] As previously noted following MCFD’s early initial intervention in October of 2009 the Director did not initiate any court proceedings for a considerable period of time until December of 2012.

Because of apparent continuing concerns as set out in the Form 1 Presentation Form and the Form F Report to the Provincial Court of British Columbia and filed December 19, 2012 (the “December 2012 Presentation Documents”) the Director sought and obtained the December 2012 Supervision Order whereby the Child was returned to the Mother under supervision pursuant to

section 33.2(2) of the Act , all as set out in Agreed Fact number 10. [ 68 ] The grounds that were raised at the presentation hearing by the Director and which were the basis for the application for a supervision order and which appear in the December 2012 Presentation Documents were as follows: 1. The Deceased Infant died while in the Father’s care; 2. The Mother was unable to be the supervisor of the Father’s time with the Child because prior to the Child’s birth the Father did not tell the Mother “any information regarding the circumstances of [the Deceased Infant’s] death; 3.

The Mother “continues to not accept [the Father’s] personal responsibility to work with MCFD support services to reduce any risks of harm to their son, [the Child]; 4. “[The Father] has not completed a parenting program nor has he worked effectively or cooperatively with support services”; 5. “Reports of abuse of alcohol resulting in intimidation/verbal violence; damage to the family home, and RCMP interventions”. [ 69 ] The December 2012 Supervision Order was granted, at the presentation hearing by consent as an interim supervision order in the presence of both Parents, aided by duty counsel.

Although the entered form of the order does not specify it, I understand that the intended term was for six months (the “December 2012 Supervision Order”). The December 2012 Supervision Order was directed at the Mother who was to have Child remain in her care under supervision. [ 70 ] There was no finding made at this presentation hearing that the Child was in need of protection.

[ 71 ] I note parenthetically that under

section 29.1 of the Act , the Director may apply for an order that the Director supervise a child’s care if the Director has reasonable grounds to believe that the child needs protection and the supervision order would be adequate to protect the Child.

Section 33.2 (1) of the Act only requires that the Director must present to the court a written report that includes the grounds for making the application and an interim plan of care for the child, including the Director’s recommendations about the terms and conditions to be included in supervision order. [ 72 ] The test under

section 33.2 (2) is that the court must be satisfied that there are reasonable grounds to support the Director’s concerns regarding the child. If that test is met thereafter the court must make an interim order at the conclusion of the presentation hearing that the Director supervise the child’s care. [ 73 ] The terms of the December 2012 Supervision Order are material to the issues presently before the court and therefore may be summarized as follows using the defined terms set out in these reasons: 1.

The Father shall only to be in the company of the Child together with a third party with written approval by the Director or the Director’s agent or with the Director or the Director’s agent present; 2. The Father’s care of the Child will not be so supervised by the Mother at this time; 3. No physical discipline will be used with the Child by anyone including either Parent; 4. The Parents or either of them shall provide the Director or the Director’s agent with the location of the Child’s overnights; 5.

The Parents or either of them shall continue to reside at their separate addresses and shall not change their places of residence without first informing the Director of any proposed change at least ten working days in advance of such a change; 6. The Parents or either of them will ensure that there are no incidents of intimate partner violence including destruction of property and/or swearing/verbal abuse by either party and should such incident occur, that either party immediately contact the Director or the Director’s agent during office hours or after office hours at [telephone number provided]; 7.

The Mother and the Father will participate in parent training and capacity assessments as directed by the Director or the Director’s agents; 8. The Mother and the Father shall ensure that there is no consumption of nonprescription drugs or alcohol or being under the influence of nonprescription drugs or alcohol while in the presence of the Child or twenty-four hours prior to access; 9. The Mother and the Father shall ensure that the Child is not exposed to any threats, intimidation, verbal abuse or physical violence; 10.

The Mother and the Father shall attend Adult Mental Health and Addictions for the purpose of an assessment and treatment plans following confirmation by Social Worker Trevor that a written referral has been provided to that agency requesting those services; 11. The Mother and the Father shall consent to releases of information with the Director or the Director’s agents and their approved counsellors for the sharing of the Mother’s and the Father’s participation, assessments and treatment plans with the Director; 12.

The Mother and/or the Father must allow the Director or the Director’s agents to visit and inspect the home and meet directly and privately with the Child at any time, whether scheduled in advance or not, and as often as the Director deems necessary to ensure the safety and well-being of the Child; 13. The Director may remove the Child if the Parents failed to comply with the supervision terms and conditions 4 and 9 of the order. The Director must remove the Child if the Parents failed to comply with the supervision terms and conditions 1, 2, 3, 5, 6, 7, 8, 10, 11, and 12 of the order.

The Second Family Plan [ 74 ] The Ministry caused a further Family Plan dated April 10, 2013 to be completed by Social Worker Trevor (the “Second Family Plan”). There are very few differences between the First Family Plan and the Second Family Plan. The Second Family Plan has two additions to the provisions relating to “Social Support System”. Under the provision relating to “Indicators” added mention is made of the completion of a “Parenting capacity assessment”. Under the “Strategies” portion added reference is made to the Ministry scheduling and contracts with “approved psychologist”.

Under the provision relating to “Child’s Needs” and specifically “peer\adult social relationships” a provision has been inserted under strategies as follows: “supervision order [Mother] and [the Father] live separately from [Child]”.

The Family Vulnerability Reassessment [ 75 ] During this period of time, Social Worker Trevor on behalf of the Ministry also prepared what is described as a “Family Vulnerability Reassessment” completed April 15, 2013 (the “Family Vulnerability Reassessment”) which appears to be a different MCFD standard form than was used to produce the First Vulnerability Assessment. [ 76 ] At the time of its completion this Reassessment records that the Parents were residing together in the Family home, the Child was residing with the Maternal Grandmother and she was supervising the Father’s visits with the Child and with the Mother present.

In the Family Vulnerability Reassessment there is noted one previous “neglect or abuse child protection investigation and family development response” and that the family had previously received ongoing child protection services, further noting that “primary parent has a history of abuse or neglect as a child” (apparently being a reference to the Mother).

Although there had been no “new family development response or investigation of child protection concerns since the initial vulnerability assessment or last reassessment” the narrative indicates that reports had been received by MCFD of the Parents’ alcohol abuse and a verbal altercation coincidental with the

Mother’s birthday celebration (being a reference to the Birthday Party Incident) during which time the Father was reported to have left the residence and on two separate occasions thrown rocks breaking two separate windows and resulting in an RCMP attendance at the residence. The number of police attendances is not specified. [ 77 ] The Family Vulnerability Reassessment therefore concluded that there was conflict present in the relationship.

The narrative goes on to state in somewhat confusing and ambiguous language “when sober, observed that [the Mother] with [the Father] tends to take over and talk for [the Father] with the [social worker] and with the [family social worker]”.

It is unclear as to whether the Parents were ever observed not being sober by any MCFC social worker, which I do not understand from the evidence to be the case and hence the use of the term “sober” appears to be gratuitous. [ 78 ] In the accompanying narrative it was noted that the Father was making progress with Triple P Parenting sessions and with Family Support Worker supervised access with the Child. The Reassessment indicates that the Father was taking initiative and responding to the Child’s needs in appropriate ways. It further notes that alcohol/substance assessment for both Parents had not started.

It further states that both Parents did not agree to the Director’s application for supervision then before the court. A “total vulnerability score” of 9 was assigned thereby placing it in the “very high level”. The “discretionary conditions” were applied again saying that the Father was “one of two parents of interest in open murder investigation” of the Deceased Infant. Therefore the final vulnerability level was determined as “very high”.

Applications for Temporary Custody and a Continuing Custody Order Removal of the Child [ 79 ] The Child was removed from the care of the Mother on June 18, 2013 for the reasons noted in Agreed Fact number 11. [ 80 ] In the Report to Court-Form A along with the Presentation Form 1 filed June 20, 2013 (collectively the “June 2013 Presentation Documents”) the Director cited the Mother’s continuing lack of acceptance of the Father’s personal responsibility to work with MCFD support services to reduce any risk of harm to the Child, the Father’s failure to complete a parenting program and his failure to work effectively or cooperatively with support services.

The events leading up to the December 19, 2012 Supervision Order were recited in the June 20, 2013 Report to Court. That Report to Court also refers to the breach on June 4, 2013 by the Mother of the December 2012 Supervision Order by permitting the Father to be present for a short unsupervised visit with the Child at the Parents’ home. Further there is an allegation that the Mother had been writing the written supervisors report for the Paternal Grandmother regarding the Father’s supervised visits with the Child.

The Report to Court also states that the Father and the Paternal Grandmother had smoked marihuana during an access visit with the Child. [ 81 ] Thus on June 18, 2013 the Child was removed from his Parents’ care. It goes on to note that the Child has been living with the Maternal Grandmother since approximately November 2012. The June 20, 2013 Report to Court recommended that the Mother at the discretion of the Director have supervised access and further that the Father’s access be supervised by a Director approved caregiver and at the discretion of the Director.

These events are described in Agreed Facts numbered 11, 12, 13 and 14. Interim Custody [ 82 ] An interim custody order of the Child was granted to the Director on July 10, 2013 (the “July 2013 Interim Custody Order”). Application for Continuing Custody Order [ 83 ] On July 17, 2013 an application that is presently before the court was filed by the Director seeking a CCO for the Child pursuant to section 41 (1) (a). A Court Plan of Care was also filed with the court by the Ministry on July 17, 2013 (the July 2013 Court Plan of Care”).

It described the overall goal for the Child as: “Permanency planning, including transfer of custody and/or adoption, in consultation with immediate and extended family members.” It noted that the Child was residing in an approved restricted foster home with the Maternal Grandmother and her spouse. It further noted that “permanency planning to include the development of arrangements for safe access with immediate and extended family members important to [the Child].” The actual permanency plan is further described in the testimony of Social Worker Trevor and as summarized below.

The circumstances set out in the December 2012 Presentation Documents and the June 2013 Presentation Documents are the basis for the seeking of the CCO. Second Vulnerability Assessment [ 84 ] The Ministry also caused Social Worker Trevor to complete a further vulnerability assessment on September 19, 2013 (the “Second Vulnerability Assessment”). The form of it is in a slightly different format than the First Vulnerability Assessment. [ 85 ] The “total neglect vulnerability score” out of a maximum of 14 was at 4 which was an increase from the First Vulnerability Assessment figure of 1.

The increase appears to be based on a report received by MCFD indicating that the Parents were not abiding by the terms of the December 2012 Supervision Order. Furthermore there is an indication that the Father did not inform the Mother how the Deceased Infant had died, and that the Father had not denied responsibility in the Deceased Infant’s death nor had he come up with any explanation for the [Deceased Infant’s] injuries or death and also notes the Father’s “history of convictions with violence”.

Substantially all of these concerns were previously mentioned in the First Vulnerability Assessment. [ 86 ] The Second Vulnerability Assessment further indicates that “MCFD will continue to be involved with this family until conclusion of the criminal investigation”. Adding to the total figures is a reference to the Family’s continuing involvement with the Ministry due to the “current RCMP investigation” relating to the death of the Deceased Infant.

A new risk factor is identified as the Mother, as the “primary parent” not providing physical care consistent with the Child’s needs due to the fact that the Child had been in the care of the Maternal Grandmother since October 2012. [ 87 ] The “total abuse vulnerability score” had fallen to 2 out of a maximum of 11. The Parents past alcohol and substance abuse problems were no longer contributing to the score. However the continuing concerns for the MCFD involvement and the fact that the

involvement initially arose out of the “current open criminal investigation” impacted the “Final Vulnerability Level” such that it was assessed at “High”. In making this assessment it is noteworthy that the language used refers to the existence of “Cases with non- accidental injury to an infant under the age of two” and “Death of a sibling as a result of abuse or neglect in the family (previous or current)”. These were characterized as “Overriding Conditions”.

Applying these overriding conditions resulted in the assignment of the “final vulnerability level” at “high”. 2014 Care Plan for the Child [ 88 ] On July 14, 2014, Social Worker Trevor on behalf of the Ministry completed a Care Plan and a Care for the [Child] (then age 4) (collectively the “2014 Care Plan”) with the stated permanency goal of transferring of the custody of the Child to a person who is not a parent pursuant to

section 54.1 of the Act . It is noteworthy that under the heading “Significant Life Events” it is stated that the Child “has not lived with both parents since his birth”. It further notes that the Mother had placed the Child with the Maternal Grandmother and her husband as a safety plan in October 2012 and the Child sees the Maternal Grandmother’s home as his home and the Parents home as “his mommy’s home”. Reference is also made to the Child as being a “sibling” of the Deceased Infant and to the Deceased Infant’s death as a result of “multiple unexplained injuries”.

Reference is further made to the “criminal investigation” involving the Father and the mother of the Deceased Infant. Specifically it is noted that the Father had supervised access with the Child and that the Mother was not approved as an appropriate supervisor.

Since that time, the Mother is described as having allowed unsupervised contact by the Father with the Child. [ 89 ] The 2014 Care Plan states that the “Reason for Admission to Care” is: “Likelihood of physical abuse; breech (sic) of supervision order.” The Psychological Evaluation of Parenting Capacity dated November 17, 2014 (“the Mills Report ”) [ 90 ] The Ministry retained the services of Dr. Laura Mills in order to complete a Psychological Evaluation of Parenting Capacity dated November 17, 2014 (herein called “the Mills Report”).

Reference is made below to the relevant findings and opinions set out in the Mills Report.

Summary of Further Evidence of the Director [ 91 ] Three witnesses provided testimony in the Director’s case namely Social Worker Trevor, Dr. Laura Mills, and the Maternal Grandmother. Evidence of Social Worker Caroline Trevor [ 92 ] The primary witness for the Director was Ministry Social Worker Caroline Trevor who provided extensive evidence about the Ministry involvement with the Family.

She was the initial intake social worker and had primary conduct of the file on behalf of the Director from the outset of the Ministry’s involvement with the Family and then again following a 2 ½ year gap up to and including the time of hearing of this matter. Several other social workers were involved in the file during that gap period and therefore assumed primary conduct of the Family’s Ministry file. [ 93 ] Social Worker Trevor provided evidence with respect to a report received by MCFD dated June 19, 2008, concerning the Deceased Infant, prepared by Dr.

N Jain, (the “Jain Report” contained in Exhibit 1 Tab 2). Dr. Jain is a paediatrician with the Child Protection Unit of BC Children’s Hospital. It detailed medical examinations and inquiries made in connection with injuries sustained by the Deceased Infant who was admitted to the intensive care unit at BC Children’s Hospital on June 19, 2008. [ 94 ] Information contained in the Jain Report was in part obtained from the seventeen-year-old birth mother of the Deceased Infant. No reference is made to obtaining information from the Father.

The conclusion reached in the Jain Report was that the Deceased Infant displayed evidence of a “severe brain injury, bilateral retinal haemorrhages, right clavicular fracture, metaphyseal corner fractures of the left tibia and femur, and questionable similar injuries on the right knee. The Deceased Infant also had multiple bruises. A bleeding disorder was ruled out. It was noted that the Deceased Infant had sustained numerous injuries that are traumatic in nature and that the history that had been provided did not explain how these injuries came to be.

The following conclusion is stated: “This constellation of injuries, in the absence of an adequate history makes non-accidental injury the most likely diagnosis. The Ministry of Children and Family Development and RCMP are aware and are investigating”. The Jain’s Report also makes mention of the observation of an “old right parietal cephalohematoma”.

The Deceased Infant passed away on June 21, 2008 in the hospital. [ 95 ] Social Worker Trevor has no direct knowledge of any of the investigations relating to the death of the Deceased Infant but had an early opportunity to read the Jain Report which was available in the MCFD files. So far as Social Worker Trevor knew the RCMP investigation was “still ongoing” at the time of the hearing being some 6 ½ years after the death of the Deceased Infant. However, the Agreed Fact number 6 says that the “police continue to have an open file” relating to the death of the Deceased Infant.

I understand that at some point Social Worker Trevor may have spoken to a member of the RCMP who was familiar with this investigation. The timing and duration of any such discussions is not in evidence. [ 96 ] When the Ministry became aware that the Child had been born of the Father and a new partner, being the Mother, and with knowledge of the prior death of the Deceased Infant, protection concerns about the Child then arose. Social Worker Trevor and her supervisor Dave Dowling consulted Ministry management and a Ministry Child protection consultant.

Social Worker Trevor also undertook some other inquiries and learned of the Father’s criminal record including some violence related matters and the assault with a weapon conviction that resulted in a 10 month jail sentence and a 10 year gun prohibition. [ 97 ] One or two days following the birth of the Child, Social Worker Trevor met with the Mother and Father to inform them of the Ministry concerns arising from the prior death of the Deceased Infant and to discuss a safety plan which included the Father not having any unsupervised visits with the Child and that the Child be with the Mother and in her view at all times.

Social Worker Trevor testified that they discussed a number of strategies and appropriate parenting educational videos, which I understand assist in teaching new parents to deal with the crying and other stressors of a new born.

[ 98 ] Social Worker Trevor testified that her impression was that there was a lack of communications between the Parents and the Mother knew little from the Father about the circumstances surrounding the Deceased Infant’s death and little about the past criminal convictions of the Father. Social Worker Trevor did learn that the Parents were residing together which created some concerns with respect to the safety plan for the Child.

Accordingly, having consulted with her supervisor, Social Worker Trevor returned shortly after the initial meeting and informed the Parents that as part of the safety plan the Father was not live in the same home with the Mother and the Child.

She testified that the Father became angry and “nervous” and immediately left the house. [ 99 ] Social Worker Trevor was concerned that the Mother’s apparent lack of knowledge and her concern that the Mother did not accept any possible responsibility on the part of the Father in the death of the Deceased Infant would not permit her to be able to adequately deal with safety concerns and to protect the Child.

Social Worker Trevor further testified that it was made clear to the Mother that the Father’s supervised access with the Child could not occur under her supervision and that approved supervisors were required. [ 100 ] She testified about the intervention plan and safety plan, which is referred to above under the heading “Initial Ministry Involvement and Safety Plan”.

It was developed at a MCFD Family Planning Case Conference with the Parents and the Maternal Grandmother and the Paternal Grandmother to ensure the safety of the Child, to settle the agreed living arrangements for the Mother and the Child, (being separate from the Father) and to determine those individuals, including other family members, who were approved to be supervisors of the Father’s access to the Child. Approved supervisors had to be aware of the circumstances surrounding the death of the Deceased Infant.

The requirement for written reports regarding the Father’s supervised visitation and any required interventions was also established. [ 101 ] Arrangements were also put in place for a Family Support Worker to assist the Parents and the Child. Social Worker Trevor testified that she cautioned the Mother that if she was unable to follow through with the safety plan then court action would be required.

With all of these arrangements in place, the Ministry did not open a protection file with respect to the Child. [ 102 ] In her evidence Social Worker Trevor indicated that it was made clear to the Parents at the outset that before the Director would consider allowing the entire family to reunite and to live together several things had to occur: the Father would have to do well in the supervised parenting sessions; the Parents would need to attend Adult Mental Health and Addictions for a substance use assessment after information had been provided to that program and the Parents would then be required to follow through with any recommendations made to them for treatment; the Mother and Father needed to attend individual counselling and then, when deemed ready for it, couples counselling with an approved counsellor and the Mother and the Father needed to take Triple P Parenting Programs that related to the age group of the Child. [ 103 ] No documentation confirming the mutual agreements or understandings of the parties that were apparently reached in the fall of 2009 were submitted into evidence.

However these essential terms are set out in the 2012 Strength and Needs Assessment prepared some 2 ½ years later. [ 104 ] Social Worker Trevor testified that Ministry Social Worker Glynn Sutton assumed conduct of the Family’s Ministry file shortly after the safety arrangements were put in place. He apparently continued to deal with the Family from the date of Social Worker Trevor’s apparent re-assignment to other matters in the late fall of 2009 and his conduct of the Ministry file continued until September of 2011.

Thereafter, Ministry Social Worker Tricia Garalek assumed conduct of the file and was responsible for continuing to deal with the Family until April of 2012 when Social Worker Trevor was once again assigned responsibility to handle the file as a support and services social worker. [ 105 ] In her cross examination Social Worker Trevor admitted that during the period following Social Worker Sutton assuming conduct of the file in or around October of 2009 and continuing thereafter through to the end of Social Worker Garalek’s term of responsibility ending in April of 2012, there was very little in the way of documentation or written reports added to the file that raised any issues about any physical safety or other protection concerns for the Child or problems concerning the Father’s supervised access with the Child [ 106 ] I understand from her evidence that when Social Worker Trevor resumed conduct and reviewed the Family’s file there was an absence of an unknown number of supervision reports for an eight month period which the responsible social worker, Ms.

Geralek had not followed up on obtaining nor enquiring about. Thus there had been little in the way of contact between the Ministry social workers and the Parents since the fall of 2011. [ 107 ] In cross examination Social Worker Trevor also admitted that she did not see or know about any reports concerning issues about the Parents’ alcohol misuse, domestic partner violence, anger issues or verbal or physical violence between them during this time frame. [ 108 ] She also indicated that because of the limited information available in the file she had contacted Family Support Worker Vera Lucas to get an update. Ms.

Lucas indicated that the Mother was doing so well that Ms. Lucas’ file could be closed. [ 109 ] The state of the MCFD file and the ongoing level of contact with the Parents was apparently not satisfactory to Social Worker Trevor, who then met with the Mother and Ms. Lucas on May 7, 2012. The evidence supports a characterization of it being a very strained meeting. In that meeting the language used by Social Worker Trevor included the terms “killed” or “murderer” and “suspect” with reference to the Father and with respect to the death of the Deceased Infant.

In cross examination she acknowledged that this went beyond the type of wording utilized in the police reports that she had reviewed concerning the death of the Deceased Infant. The actual report language noted that the Father was “the parent of a five week old child who died of Shaken Baby Syndrome. This investigation is continuing”.

That very strained relation between Social Worker Trevor and the Parents continued and persisted thereafter up at least to the hearing date in this matter. [ 110 ] Social Worker Trevor testified that the Ministry had received three anonymous reports in around September 2012 concerning alcohol misuse by the Parents, and yelling and verbal violence between them, none of which took place in the presence of the Child. [ 111 ] She also became aware of the RCMP attendance at the Parents’ residence in June 2012 following the Birthday Party Incident.

She testified that during her entire period of interaction with the Parents that she had only one direct observation of the presence of liquor in the Parents’ home and accordingly had no direct knowledge of alcohol abuse. She also conceded that she had never seen signs of partnership violence between the Mother and the Father, but she had witnessed the Father getting very angry at meetings between the Parents and herself, resulting in the Father swearing and walking out of the room and the Mother not looking comfortable.

She concluded that this represented a normal occurrence in their relationship. [ 112 ] Against this backdrop Social Worker Trevor completed the First Vulnerability Assessment in August of 2012. It was followed by the 2012 Strength and Needs Assessment completed in September of 2012 which she testified was completed by her relying upon her on going experience and relationship with the Mother and the Father. [ 113 ] As can be noted above in the

summary of this document, several negative conclusions were reached and presented about the Parents in the 2012 Strength and Needs Assessment. [ 114 ] As I understand Social Worker Trevor’s evidence she says she reviewed the 2012 Strength and Needs Assessment with the Parents. The Father became very anxious and had to leave the room with trouble breathing. The Parents denied any issue with alcohol which was contrary to the Social Worker Trevor’s belief.

Social Worker Trevor indicated that she made a referral of the Parents to relationship counselling which was to be preceded by personal counselling by each Parent. [ 115 ] Social Worker Trevor also prepared the First Family Plan in October of 2012 which was based on the 2012 Strength and Needs Assessment. She testified that this First Family Plan was reviewed by her with the Parents and they signed a copy of it although such a signed copy was not produced in evidence.

She further testified that the First Family Plan was designed to address the following concerns that had apparently come to the attention of MCFD: the lack of follow-through and follow-up by the Father on recommended programs, the Father and the Paternal Grandmother (an approved supervisor) smoking marijuana at a birthday party, the allegations that the Mother had been writing the Paternal Grandmother’s supervision reports and MCFD’s concern that the Father was not scheduling access to the Child appropriately. [ 116 ] Social Worker Trevor then testified that she did not make the required written referral for the Parents to Adult Mental Health and Addictions (“AMHA”) also known and referred to as Mental Health and Addictions Services regarding the concerns about their alcohol and drug abuse as contemplated by the First Family Plan.

She subsequently learned that the Parents had in fact attended AMHA in February and March of 2013 but did not tell Ms. Trevor that they were going. Therefore Ms. Trevor was of the view that AMHA had dealt with the Parents without the benefit of having received the written referral from her. She did not explain why no written assessment referral had been provided by her prior to February 2013. [ 117 ] Ms. Trevor also testified that the Parents had not followed through with individual counselling and no couples counselling “to speak of” was completed by them.

However it was conceded the Mother had two individual counselling sessions and while the Father had no individual sessions, the Parents had completed one couple’s counselling session together. [ 118 ] Ms.

Trevor was also critical of the Father for not following through with enough supervised access with the Child and for his delay in completing the Triple P Parenting Program. [ 119 ] According to Social Worker Trevor, this lack of follow-through by the Parents and the receipt of further reports by MCFD about drinking and fighting between the Mother and Father and problems with family members withdrawing from being approved supervisors for the Father’s visits prompted Social Worker Trevor to cause the Director’s application to be made for and resulted in the December 2012 Supervision Order. [ 120 ] The Family Vulnerability Reassessment was completed by Social Worker Trevor in April of 2013.

She testified that it was not reviewed by the Parents since it was a MCFD internal document which she prepared in consultation with her supervisors. Her testimony confirmed that a vulnerability assessment score of between 6 and 8 is considered “high” and that no return would occur within that range.

As previously summarized, the vulnerability assessment score for this family unit was placed above the “high range” at 9. [ 121 ] Social Worker Trevor then testified as to the background that gave rise to the June 18, 2013 removal of the Child and the application for and the granting of the July 2013 Interim Custody Order. [ 122 ] Again, she cited the lack of the Parents’ follow through with the requirements of the Second Family Plan, the fact of the Child had been living with the Maternal Grandmother for some time and had therefore created a strong relationship with her, and the concerns about the Mother allowing the Father to have unsupervised contact with the Child. [ 123 ] The Ministry had received confidential reports about 6 occasions where it is asserted that unsupervised contact had occurred between the Father and the Child.

Social Worker Trevor testified that she did not have exact times of when the alleged visits giving rise to the unsupervised contact had occurred. She conceded in cross examination that she did not know if the anonymous informants had any direct knowledge of the alleged unsupervised contact or whether it was based upon hearsay.

The Presentation Form 1 contained in the June 2013 Presentation Documents references a report received by the MCFD on June 4, 2013 that the Mother had permitted the Father to be present during a short unsupervised visit at the Parent’s home which would have been in violation of condition number 2 of the December 2012 Supervision Order. [ 124 ] A further circumstance that was occurring around this time was the inability of the Ministry to get all necessary assessments in place in order to transfer the Child’s guardianship to the Maternal Grandmother and her indecision to agree to that arrangement. [ 125 ] All of these circumstances led the Ministry to conclude that there was no parent to whom the Child could be returned to safely and therefore a decision was made to obtain a CCO rather than a temporary care order.

The precise date that this Director’s decision was made is unclear on the evidence. [ 126 ] Apparently thereafter, the Second Vulnerability Assessment was completed by Social Worker Trevor on September 19, 2013. As noted above, although the neglect score was only 4 out of a possible 14 and the abuse score was only 2 out of a maximum of 11, the

overriding conditions noted therein, namely, the Deceased Infant’s death and injuries placed the risk assessment at a “high level”. [ 127 ] She testified that the Parents made no progress in fulfilling the terms set out in the Second Family Plan completed in April of 2013. In particular was the Father’s failure to deal with an explanation of the Deceased Infant’s death in counselling. [ 128 ] Thereafter Social Worker Trevor created the 2014 Care Plan on July 14, 2014 the contents of which are also described above.

She testified that this set out the details of the plan to transfer the custody of the Child to the Maternal Grandmother and to permit the Parents to have on going contact with the Child as permitted by the Maternal Grandmother.

Although not specifically stated in the 2014 Care Plan, the Maternal Grandmother, as the Child’s eventual guardian, would therefore have control over the Parents’ continuing contact with the Child. [ 129 ] She further testified that this was the best plan for the Child because of the strong relationship that the Child had developed with the 56 year old Maternal Grandmother and her 58 year old spouse, D.K., both of whom have now agreed to be part of this plan. The Parents opposed this plan.

Therefore the decision was made by MCFD to proceed in this court with a CCO application which was also opposed by the Parents. [ 130 ] A further decision was made by the Ministry to engage Dr. Laura Mills, a Registered Psychologist to prepare a Psychological Evaluation of Parent Capacity being the “Mills Report” referred to above and described more fully below. I understand that the Parents agreed with this process and the selection of Dr. Mills. There is no evidence as to their input, if any, regarding the contents of the letter dated April 7, 2014 prepared by Social Worker Trevor and sent to Dr.

Mills (the “Ministry Evaluation Request Letter”). [ 131 ] Social Worker Trevor testified that the Ministry’s position about obtaining a CCO did not change upon completion and receipt of the Mills Report, which I take to be sometime shortly after its date of November 17, 2014.. [ 132 ] Social Worker Trevor testified that the Child is in need of protection and that a CCO is required based in

summary upon the following alleged facts: (

a) the lack of follow-through by the Parents with respect to counselling and dealing with their historical issues of concern to the Ministry; (

b) the Mother’s actions of allowing the Father to be responsible for his own actions and with the possible resulting risk to the Child; (

c) that the Mother has made her relationship with the Father her priority with limited concern about the Child; (

d) that the Child’s needs are not being met and that these needs are not her priority; (

e) thus the safety concerns about the Child were not being addressed; (

f) specifically a lack of follow-through by the Father with respect to developing his parenting skills and a lack of maintenance of scheduled supervised contact with the Child to develop his relationship with the Child; (

g) the lack of disclosure by the Father about the death of the Deceased Infant; (

h) the lack of proper assessment regarding the Father’s alcohol consumption and use of marijuana; (

i) concerns about the Parent’s ability to manage the emerging defiant behaviour of the Child and their ability to cope with and to manage stress relating to that behaviour. [ 133 ] Social Worker Trevor testified about the lack of timely completion of the Triple P Parenting course by the Father and the apparent reluctance of the Father to complete the course notwithstanding encouragement from Ms. Lucas and Ms.

Zimmerman and the offers made to the Father to accommodate him. [ 134 ] In cross examination Social Worker Trevor admitted that since June of 2013 that there had been no further known or reported breaches of the December 2012 Supervision Order, nor any reports received nor incidences of drunkenness by the Parents, and no reports received of verbal partner violence nor of throwing things at each other. Furthermore the Father appeared to be happier now having gained in town employment. Social Worker Trevor confirmed that a home inspection of the Parents’ residence was conducted on May 2 nd 2014.

There was no indication arising from that inspection of alcohol concerns and no indication of any partnership abuse or violence or anger concerns. There was no evidence of severe levels of stress between the Parents.

Thus, I understand there are no present Ministry concerns about parental alcohol abuse, verbal or physical violence or anger. [ 135 ] Social Worker Trevor admitted that since 2012 to the date of the hearing she had only had one direct observation of the Mother with the Child, being in September 2014 and only one observation of the Mother and the Father together with the Child. [ 136 ] Social Worker Trevor further confirmed that when the Ministry first became involved with the Family shortly after the Child’s birth that the Child was very small and vulnerable.

At the time the hearing the Child was 5 ½ years of age, appeared to be of average height and weight, is visible within the community insofar as he attends school and day care, and has developed verbal skills. She further confirmed that these factors, together with the fact that the Child is now older, amount to a change in the safety circumstances of the Child.

However she qualified this by noting the MCFD policy is that a child should not be responsible for the child’s own safety and it is the responsibility of the parents. [ 137 ] Agreed Facts numbered 16 and 17 confirm the details of the Parents’ attendance for substance assessment. Social Worker Trevor testified that the Ministry eventually received from Mental Health and Addiction Service CI – Community Care (also known as “MHAS”) two MHAS clinical profiles, specifically being one for each of the Mother and the Father. The Father’s assessment was completed on February 21, 2013.

It was based on self-reporting by the Father. As noted in the Agreed Fact number 16 the assessment

with respect to the Father concluded as follows: “Client provided history does not indicate need for admission to Adult Addiction Services”. [ 138 ] Similarly the Mother’s assessment completed on March 19, 2013 was based upon her self-reporting.

As further noted in the Agreed Fact number 17 the assessment with respect to the Mother concluded as follows: “Reported substance use does not indicate need for treatment”. [ 139 ] In her testimony Social Worker Trevor raised concerns about these two MHAS Assessments on the basis that MHAS had not received input from the Ministry in advance of the completion of the assessments and therefore were not aware of the historical concerns of the Ministry about the Parents’ use of alcohol and drugs. [ 140 ] She further testified that the Parents had been told that they were to wait for the preparation of a report to be received by MCFD regarding the Parents interaction with each other when drinking.

I understand from her evidence that it was the intention of the Ministry to pass this information along to MHAS, by way of their input, prior to the Parents attending for assessment. In her testimony Social Worker Trevor explained the delay in getting the information to MHAS arose out of RCMP confidentiality issues and disclosure restrictions which the Ministry was “trying to work out”. I understand that as at the date of the hearing no “protocol” had ever been worked out.

I also gather from her evidence that the Parents were not necessarily made aware of the these protocol issues faced by the Ministry nor the lack of communication by the Ministry to MHAS nor any continuing need to delay attending at MHAS for assessment. Social Worker Trevor testified that her supervisor was asked by her to contact MHAS. There is no indication that contact actually ever occurred.

Social Worker Trevor confirmed that an oral referral could be made to MHAS and that she had spoken with MHAS about the Mother and the Father but was uncertain as to whether or not it was before or after they had attended for their respective assessments. [ 141 ] Agreed Fact number 18 sets out counselling undertaken by the Parents. Social Worker Trevor testified that at some point she became aware of the fact that the Mother and the Father had attended some form of counselling.

She confirmed in her evidence that the Mother had apparently had two sessions of individual counselling saying that she believed that Father had had no individual counselling and that the Parents had undertaken a joint session of counselling. [ 142 ] A letter from Port Alberni Family Guidance Association dated August 1, 2014 authored by Laurel Lenormand, PSW, M Ed, RCC was introduced into evidence as part of the Joint Book of Documents. The letter confirms that the Mother had actually attended three sessions of counselling and the Father had attended two sessions of counselling.

The letter concludes with the following statement: “At this time, no further counselling is necessary. All of their support needs are being met by friends and family. They have stated that if they do need counselling support in the future they would not hesitate to take advantage of it.” [ 143 ] Again, Social Worker Trevor expressed concerns that the counsellor neither had the necessary background information about the Parents as contained in Ministry files nor the Ministry’s historical concerns about the Parents prior to engaging in counselling sessions.

Social Worker Trevor also did not follow up with Laurel Lenormand concerning the contents of her August 1, 2014 letter. [ 144 ] As I understand Social Worker Trevor’s evidence, it is her view that the counselling obtained by the Parents did not address the concerns that the Ministry had individually about each Parent and collectively about them. She also stated that the Ministry’s concerns about the focus of the counselling and the need for solo counselling were discussed with the Parents during one of the family plan meetings.

I further understand from her evidence that neither Social Worker Trevor nor any of the representatives of the Ministry initiated a referral for counselling for the Parents nor provided any counsellor with the required background information but were willing to do so. The reason offered why the Ministry had not proceeded in this fashion was the alleged delay on the part of the Parents to obtain counselling as required by the Ministry. Evidence of the Maternal Grandmother [ 145 ] The Maternal Grandmother presented evidence as part of the Director’s case. [ 146 ] She and her spouse have been married for 5 ½ years.

Both have been involved with the Child since the birth of the Child. The Child has lived with her since summer 2012. She had significant contact with the Child prior to that. She has had the opportunity to observe both the Mother the Father during their sessions of contact with the Child both before and after the summer 2012. [ 147 ] She testified that at present parental contact occurs at least on a weekly basis, depending on the work

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