Director v.R.T. Date:, 2014 BCPC 190

Citation: Director v.R.T. Date: 20140618 2014 BCPC 0190 File No: F34762 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: S. T. , born April 16, 2012 BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: R. T. PARENT CFCSA MATTER RESTRICTION ON ACCESS s. 3.2 Provincial Court Act REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. N. HAMILTON

Counsel for the Director: N. Rence Appearing in person: R. T. Place of Hearing: Surrey , B.C. Dates of Hearing: June 9, 10, 11, 17, 2014 Date of Judgment: June 18, 2014 INTRODUCTION [ 1 ] THE COURT : These are my reasons for judgment following a four-day protection hearing. ST was born on April 16th, 2012, at Surrey Memorial Hospital. ST is now two years old. ST's mother is RT. Ms. RT is 48 years old. [ 2 ] In 2011, Ms.

RT had gone through two failed marriages but wanted a child, so she attended at an in vitro fertilization clinic in Seattle, Washington, and paid for a procedure to place a fertilized egg in her womb. Ms. RT was able to select the female donor egg and the male donor sperm. In her evidence at this hearing, Ms. RT said she selected the egg and sperm to make the perfect baby. [ 3 ] On April 16th, 2012, Ms. RT gave birth to ST by Caesarean section. The medical staff at Surrey Memorial Hospital had developed some concerns about Ms. RT prior to and in the days immediately after ST's birth.

In the result, the Surrey Memorial Hospital social worker contacted the Ministry for Children and Family Development Child Protection social workers to report the hospital's concerns. A Child Protection Social Worker, Deepa Sharma, then began an investigation into any safety concerns for ST should he be released from hospital into Ms. RT's care. [ 4 ] At the same time, a series of blood tests were performed on ST as part of the normal course of blood tests given to all new-born infants. ST's blood test results came back positive for a genetic condition called medium chain acyl-coA dehydrogenase deficiency.

This genetic disease is referred to as MCAD deficiency. MCAD deficiency is a serious and potentially life threatening disorder; 25 percent of children who have this disease but are undiagnosed die. MCAD deficiency can lead to the child falling into seizures and coma if their condition is not closely monitored by the parent or caregiver. [ 5 ] When ST's doctors received the news of his positive test results for MCAD deficiency, their concerns for his welfare in Ms. RT's care increased substantially.

The reason for their increased concern was ST's medically fragile state, coupled with their pre-existing concerns for Ms. RT's capacity to safely care for ST. I will return to this topic shortly. [ 6 ] ST's medical team met with Ms. Sharma, the Child Protection social worker, during the final few days of ST's hospitalization to express their concerns about the prospect of discharging ST from hospital into Ms. RT's care. Those concerns were substantial. Accordingly, on May 9th, 2012, Ms. Sharma removed ST from Ms. RT's care at the hospital pursuant to s. 30 of the Child, Family, Community Service Act .

ST has not resided with his mother since that date. [ 7 ] On May 17th, 2012, the Director of Child, Family and Community Service attended court along with Ms. RT and her sister, RRS, and the Director obtained an order that ST be placed into the interim custody of his aunt, Ms. RRS, who would be under the Director's supervision pursuant to a number of supervision terms. Since May 17th, 2012, ST has been raised and cared for by his aunt, Ms. RRS, her husband and her 17-year-old daughter. Ms.

RT has been permitted daily access to ST and she has attended all of his many medical appointments over the past two years. [ 8 ] In this hearing the Director seeks the following orders: Firstly, a finding pursuant to s. 40(1) of the Act that at the time of his removal, ST was a child in need of protection under one or more of the circumstances set out in s. 13 of the Act that define when a child is in need of protection. Secondly, the Director seeks an order pursuant to s. 54.01(5)(

a) permanently transferring custody of ST to his aunt, Ms. RRS. While Ms. RT has not filed an application for ongoing access to ST pursuant to s. 57.01(1)(b), the Director does not oppose an order for ongoing access between ST and Ms. RT provided the access order includes a term that the access may be supervised at the discretion of Ms. RRS. [ 9 ] Ms. RT seeks an order returning ST to her custody. She argues that ST was wrongly removed from her care on May 9th, 2012, and that she is stable and well able to raise her son. BACKGROUND [ 10 ] Ms. RT is originally from India.

She obtained her PhD from the Hindu University in Banaras in India in the field of genetic engineering or biotechnology. She presented her thesis in 1997. She married her first husband in 1997 in India. She was sponsored to come to Canada in the year 2000 by her first husband. After one week together in Canada, her husband left her in Vancouver and returned to the United States. [ 11 ] While in Canada, Ms. RT established a successful natural health consultancy business. She accumulated fairly substantial wealth and sponsored her parents and other family members to come from India.

At one point she owned three homes in Surrey. She

described herself as a multi-millionaire in her submissions before me on June 17th, 2014. Ms. RT brought to court documents to establish her wealth, but I declined to enter those documents into evidence because I told her this case is not about her financial resources to raise ST. [ 12 ] In 2007 Ms. RT married for a second time in India. She sponsored her second husband to Canada and they lived together for two months before he left her. At that time Ms. RT was 43 years old. Ms.

RT wanted a baby and artificial insemination did not work, so she found a clinic in Seattle, Washington, where she underwent an in vitro fertilization procedure on July 28th, 2011, and she became pregnant with ST. Ms. RT paid this clinic something in the order of $20,000 to $30,000 for her IVF procedure. For reasons that will become clear shortly, I am of the view that this clinic placed company profit ahead of the medical wellbeing and long term care needs of the child they were placing into the womb of this hopeful mother. [ 13 ] The physicians at this Seattle IVF clinic told Ms.

RT to stop taking medication she was on at the time of the procedure. At the time Ms. RT was taking Olanzapine along with at least one other medication. Ms. RT's Olanzapine was to control her paranoid schizophrenia that she was diagnosed with back in 2003 in Surrey. When Ms. RT's mental illness is active, she experiences auditory hallucinations. She hears voices of men who want to hurt her. Ms. RT cannot function very well when off her antipsychotic medication. Ms.

RT's evidence was unclear whether she told the doctors at the Seattle IVF clinic that she was on Olanzapine and was a diagnosed paranoid schizophrenic. [ 14 ] Following the medical advice from this Seattle clinic, Ms. RT stopped taking her Olanzapine with the predictable result that she became actively psychotic. Ms. RT admitted herself into the Surrey Memorial Hospital psychiatric ward in January 2012. While in hospital Ms. RT was placed back on her medication.

She discharged herself early and against the medical advice of the doctors because she was concerned about contracting a urinary tract infection from the shared showers in the psychiatric ward. At the time she discharged herself, according to the medical records tendered at this hearing, she was still hearing voices but her psychotic condition had improved. [ 15 ] Other than the period of her pregnancy from July 2011 until January 2012, Ms. RT has consistently taken her antipsychotic medication to control her schizophrenia. Prior to ST's birth, the medical staff had concerns about Ms.

RT's preparedness and ability to care for a new-born child. She had no prenatal care and she was asking questions of the hospital staff that disclosed a concerning lack of knowledge about what to expect in labour and once ST was born. For example, Ms. RT advised that she had obtained her prenatal education from watching a television show called Dr. Oz. Ms. RT brought to trial a substantial volume of handwritten notes from the episodes of Dr. Oz that she had watched to present to me at this trial. I pointed out to Ms.

RT that a television program was probably not the best source for prenatal education given that any questions she had could not be answered. Ms. RT reassured me that the Dr. Oz program was very beneficial to her. Ms. RT also inquired of the medical staff if she could drive herself to the hospital once she went into labour. That inquiry raised significant concerns for the hospital staff. [ 16 ] After ST was born, the nursing staff observed Ms. RT handling ST in a fairly rough fashion. Ms. RT allegedly picked up her son by an arm and on another occasion by his leg.

She was also allegedly observed holding her new-born without properly supporting his neck. Ms. RT denied these incidents, however, in cross-examination she said she simply could not recall handling ST in that fashion. [ 17 ] Once ST's medical diagnosis of MCAD deficiency was confirmed, his care needs changed dramatically. The gist of this diagnosis is that children with MCAD deficiency lack an essential enzyme that allows the body, if deprived of food or nutrients, to switch to start breaking down body fat to provide the necessary nutrition to the body at a cellular level.

As a result of the baby's inability to make this switch, the body will be deprived of necessary nutrition that can affect blood sugar levels and adversely affect the body at the cellular level. These conditions can lead to seizures and a coma. If left untreated, the condition can be fatal. MCAD deficiency is a relatively new medically recognized condition, having been discovered in 1983, so its long-term effect on people is not fully understood. According to Dr.

White, ST's paediatrician, the condition is fatal in 25 percent of children who have the condition where it is not diagnosed. [ 18 ] In order to ensure the ongoing health of a child with MCAD deficiency, the child's caregiver must be acutely in tune with the child's cues. As new-borns, the parents must be on a strict feeding regime to ensure that the child is always receiving proper nutrition. A strict feeding regime of meals every three hours for new-born infants must be rigidly followed. [ 19 ] When ST was in hospital following his diagnosis, the medical staff told Ms.

RT that she needed to be vigilant and feed ST every three hours. Ms. RT set alarms to wake her during the night, but her antipsychotic medication acts as a sedative, so she was not waking up to feed ST on his strict feeding schedule. Ms. RT's inability to independently maintain ST's feeding

schedule raised considerable concern to his medical team. Nurses were having to wake up Ms. RT to get her to feed ST. The obvious concern was what would happen once ST was discharged to Ms. RT's care when there would not be vigilant staff available to ensure that Ms. RT was meeting ST's feeding schedule. [ 20 ] After meeting with ST's medical team, social worker Sharma, in consultation with her supervisor, determined that ST was in need of protection and removed him from his mother's care on May 9th, 2012.

On the basis of the foregoing, I have no hesitation in making the finding pursuant to s. 40(1) that at the time of his removal, ST was a child in need of protection. It is my view that s. 13(1) (a), that he would sustain physical harm; 13(1)(d), that he would sustain physical harm due to neglect; and 13(1)(h), that Ms. RT was unable to care for ST and had not made adequate provision for his care; all would base a finding for ST's need for protection. [ 21 ] ST's medical needs were extremely high. He was in a very fragile medical state. Ms.

RT was simply unable, without significant intervention by hospital staff, to provide the level of care ST needed given those medical needs. He faced near certain medical and health complications if he was to be cared for by Ms. RT alone. [ 22 ] While Ms. RT had her elderly parents living with her, her mother came to the hospital and spent some nights alongside Ms. RT. Unfortunately, the presence of Ms. RT's mother did not improve Ms. RT's ability to independently meet ST's medical and feeding needs, so her presence in Ms. RT's home would not reduce the risk to ST when being cared for by Ms.

RT. [ 23 ] While it is true that Ms. RT bathed ST and changed his diapers, those rudimentary tasks were secondary to ensuring his strict

feeding

schedule was met. There is no doubt that Ms. RT loves and cherishes ST, but love alone was and is not sufficient to safely raise a child with ST's health needs. Accordingly, I find that at the time of his removal, ST was a child in need of protection. [ 24 ] As I indicated at the outset, the Director seeks an order for the permanent transfer of custody of ST to his aunt, Ms. RRS. Ms. RT wants ST returned to her care. The test the Director must meet on this application is set out in s. 54.01(5)(

a) which says: 54.01(5) A court may make an order permanently transferring custody of a child to the person other than the child's parent referred to in subsection (1) if; (

a) there is no significant likelihood that (

i) the circumstances that led to the making of the agreement under

section 8 or to the child's removal ... will improve within a reasonable time, or (ii) the parent will be able to meet the child's needs. [ 25 ] Before making an order transferring custody under subsection (5), subsection 54.01(6) says: 54.01(06) Before making an order transferring custody ... the court must consider; (

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

b) the plan of care, and (

c) the child's best interests. [ 26 ] My view is that s. 54.01(6)(a), "the past conduct of the parent towards any child", is irrelevant in these circumstances. ST is the first child that I am aware of that Ms. RT has cared for. [ 27 ] I asked Ms. RT about her plan in the event that I ordered that ST was to be returned to her care, and she stated quite bluntly she would simply leave the courthouse, go to her sister's home, pick ST up and take him home. I am of the view that this drastic alteration in ST's life would not be in his best interests, but Ms. RT's view was that this would not be a problem at all.

She was of the view that ST will soon forget about Ms. RRS. Ms. RT said that she needs to persuade ST that she is his mother; in effect, Ms. RT's view is that Ms. RRS needs to be excised from ST's life. I have significant concerns that Ms. RT's plan of care fails to recognize the significant role that Ms. RRS has played in ST's life. I do not believe that Ms. RT's plan of care is at all consistent with ST's best interests. [ 28 ] The Director's plan of care allows Ms. RRS to continue raising ST while fully accepting Ms. RT as an important and valuable person in ST's life.

The Director's plan of care provides for maintaining ST's consistency in his caregiver while maintaining Ms. RT as an important and regular influence in his life. While Ms. RT's visits with ST have occurred daily over the past two years, Ms. RRS felt that some slight reduction could be appropriate as it can be somewhat intrusive into Ms. RRS's home life to have Ms. RT over every evening at dinnertime. I am satisfied that Ms.

RRS has exercised her authority around decisions affecting ST in a manner entirely consistent with his best interests and I have no hesitation in expecting that she will continue to do so. [ 29 ] I must also consider ST's best interests in reaching a decision in this case and a child's best interests is defined in s. 4 of the Act . The first is the child's safety. ST's medical condition is currently stable. His feeding needs are not as great as they were when he was a new-born infant, but he still needs a caregiver fully in tune with his cues. Ms. RRS is that caregiver. Ms. RT is not. [ 30 ] Ms.

RT completed the ACT II Parenting Program, which is an intensive parenting course that she took between October, 2013 and January, 2014. By the end of that program, she had made some progress but she was still unable to independently meet ST's needs. The parenting educator from ACT II, Ms. Lopez (phonetic), prepared a report which is self-explanatory and I am not going to go and review it in detail. But I am satisfied that ST's safety is at risk if Ms. RT were to be independently responsible for his care. On the last day of the parenting course, Ms.

RT was unable to get ST out of the program and into her vehicle safely. She let ST go while putting a bag into her car and ST wandered onto the street towards a truck. A staff member from ACT II had to intervene to retrieve ST to ensure he was safe. Now, while I recognize that is an isolated incident, it serves to show that after three months of parenting classes, two times a week for three-and-a-quarter hours each session, Ms.

RT still overlooked the most basic safety needs of her child as she struggled to get a diaper bag into her vehicle while maintaining a safe and watchful eye over ST. [ 31 ] The second factor in s. 4 is the child's physical and emotional needs. ST's medical needs are high. He is developing fine. He is doing well because of the excellent care he is receiving from his aunt. His emotional needs are being met. ST is a happy child. He calls both Ms. RT and Ms. RRS "Mom." [ 32 ] Factor (

c) under s. 4, "The importance of continuity in the child's care." The s. 54.01 transfer of custody sought by the Director ensures ST's continuity of care. Ms. RT's proposal does not and she does not even entertain the prospect of a gradual transition between the two homes. [ 33 ] Factor (d), "the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship." Again, the s. 54.01 transfer of custody order that the Director seeks ensures that ST continues a meaningful relationship with Ms. RT through an access order and Ms.

RRS's commitment to regular contact between ST and his mother. Ms. RT's plan involves ST forgetting about the most important person in his life to this point, that being Ms. RRS. [ 34 ] Factor (

e) is "the child's cultural, racial, linguistic and religious heritage." ST speaks three languages. He is being raised within his extended family. My view is this factor is neutral. [ 35 ] Factors (

f) and (g), "the child's views" and the effect on the child of a delay are both not applicable.

[ 36 ] Returning to the test set out in s. 54.01(5)(a), the question is asked: Will the circumstances that led to ST's removal improve? Well, they have not improved in the last two years, except for marginally. At the hospital the medical team felt that Ms. RT would need significant assistance. As I have indicated, Ms. RT attended the ACT II Parenting Program during the months October 2013 through to January 2014. It is an intensive parenting program. The conclusion at the end of that program by the parenting educator is that Ms.

RT cannot independently care for ST. [ 37 ] My view is that the views of these trained professionals deserve some respect and deference. They have seen Ms. RT with ST. I have not. Ms. RT says, "Trust me" in her submissions. I am not prepared to take a chance on ST's health or life to see if the progress made by Ms. RT is sufficient. Others much better suited to know say that progress has not happened. My view is that the circumstances that led to ST's removal have not improved and will not improve within a reasonable period of time. [ 38 ] A number of witnesses spoke about Ms. RT's concrete thinking.

That was evident throughout this proceeding. I have no doubt about Ms. RT's love for ST, but she demonstrated before me that her goal is the return of her beloved son and nothing inconsistent with that outcome makes any sense to her. She was unable yesterday, after hearing a few days of evidence, to articulate why it is that ST was taken from her in the first place. [ 39 ] I am satisfied, on the basis of all the evidence that I have heard, that the circumstances leading to ST's removal will not improve within a reasonable time and, for the reasons I have articulated, I am also of the view that Ms.

RT will not be able to independently meet ST's needs. [ 40 ] Ms. RT, I accept ST is the most important person in your life. [ 41 ] RT: Yes. [ 42 ] THE COURT: And you're a very important person in his life. [ 43 ] RT: Yes, sir. [ 44 ] THE COURT: And that's not going to change. It's not going to change. You will always be a very important person in ST's life. [ 45 ] RT: For sure, sir, yeah. [ 46 ] THE COURT: But as I have indicated, I cannot take a chance on him. You are going to continue to see him. You are going to go to doctor's appointments with him. You are going to play with him.

You are probably going to walk him to school. You are going to be doing all those things that parents look forward to doing with their children. But I cannot have you independently caring for ST on a fulltime basis. [ 47 ] Now, as he gets older and he becomes more aware of his condition it may be that you get to spend much more time with him. [ 48 ] RT: But I'm not comfortable going to my sister's place. [ 49 ] THE COURT: Okay, well, we're not having a negotiation here, ma'am. I'm just trying to express to you that I understand and I accept how important your son is to you and how important you are to your son.

But at the end of the day, I'm going to be granting the Director the order they're seeking transferring custody of ST to your sister. So -- [ 50 ] RT: Sir, why not me? [ 51 ] THE COURT: Yes, I've tried to -- [ 52 ] RT: Sir, this is very -- [ 53 ] THE COURT: -- I've tried to articulate why. [ 54 ] RT: This is very sad. She's also -- she is already having two kids and I want my son back to me, yeah. [ 55 ] THE COURT: I know. I understand that. Okay, you can have a seat there.

So, for those reasons I find, pursuant to s. 40(1), that ST was a child in need of protection at the time of his removal. [ 56 ] Secondly, I will order, pursuant to s. 54.01(5)(a), transferring custody of ST, born April 16th, 2012, permanently to his aunt, RRS. [ 57 ] The third order, pursuant to s. 57.01(3), I will order that Ms. RT is to have reasonable access to ST, to be determined at the discretion of Ms. RRS and to be supervised at the discretion of Ms. RRS. [ 58 ] And lastly, I will seize myself of all applications in this case for the next two years.

That will expire June 30th, 2016. [ 59 ] I will dispense with the necessity of Ms. RT's signature on that order, and, Ms. Rence, you can draft the order. What that means, Ms. RT, is that Ms. Rence is going to draft up a court order and she's going to file it in the court registry and they'll bring it to me and I'll check it to make sure that it's all accurate and then I'll sign it and you'll get a copy in the mail. [ 60 ] RT: For two years. [ 61 ] THE COURT: No, if you have to come back to court, so, for example, if you're having difficulty, you want some -- better access with your son and Ms.

RRS's disagreeing with you about that, you'll come back and see me, just because I'm familiar with this

case. (ORDER CONCLUDED)