Director v. D.G. and P.L. Date:, 2017 BCPC 139

Citation: Director v. D.G. and P.L. Date: 20170116 2017 BCPC 139 File No: F37444 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family IN THE MATTER OF THE CHILD FAMILY AND COMMUNITY SERVICE ACT , R.S.B.C. 1996 c. 46 AND THE CHILD: S.M.C.B.J.G. ("S.G.") , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: D.G. and P.L. PARENTS ORAL REASONS FOR JUDGMENT OF HONOURABLE JUDGE D. GAFFAR Counsel for the Director: J. Rowbotham Appearing for the Parents: No Appearance by the Parents Place of Hearing: Surrey , B.C. Date of Hearing: January 16, 2017

Date of Judgment: January 16, 2017 [ 1 ] In giving these oral reasons for judgment, I reserve the right to edit my reasons for minor errors and to add such things as headings if a transcript is ordered. Any such editing will not change any of the underlying reasons or ultimate result. [ 2 ] This matter concerns the young child, S.M.C.B.J.G. (“S.G.”), who was born on [omitted for publication] (the "Child"). The Director of Child, Family and Community Services seeks a finding that the Child is in need of protection, pursuant to s. 40 of the Child, Family and Community Service Act .

If I make that determination, the Director then seeks a continuing custody order which would permanently remove the Child from her parents and place the Child with her aunt, S.C.S. (“Ms. S.”), pursuant to s. 49(4) and (5) of the CFCSA . [ 3 ] The Child was removed from her mother, D.G. (“Ms. G.”), while still an infant in October of 2014. The Child is currently [omitted for publication] years old and has been living with her Ministry caregiver since November of 2014. [ 4 ] Ms. G. subsequently had a second daughter who has since been removed from her mother's care and currently lives with her aunt, Ms.

S. [ 5 ] Ms. G. has had sporadic and usually supervised care of the Child, and later, her baby sister. [ 6 ] The father, P.L. (“Mr. L.”), has never had custody of the Child nor her baby sister. [ 7 ] Neither the mother nor the father has been in contact with the Ministry of Children and Families for several months.

Neither parent was present or represented by counsel at today's proceedings. [ 8 ] The Director seeks the finding that the Child was in need of protection in October of 2014, and is still in need of protection at the present time, essentially due to the parents' unwillingness and/or inability to care for the Child. Their situation is grounded in their substance abuse; Ms. G.’s intellectual and functioning challenges; and Mr. L.’s recent alleged domestic violence against Ms. G.

For generally the same reasons, coupled with the parents' conduct and lack of improved parenting skills over the past two years, the Director submits that the situation has not changed sufficiently since the Child entered the care of the Ministry in October of 2014. [ 9 ] This matter is now at the protection hearing stage of the Child, Family and Community Service process. [ 10 ] I have heard the evidence of the social worker, Stephanie Huggett, who has been dealing with this family since August of 2014. I have reviewed several related court orders, Ministry reports and parenting program reports.

I have also reviewed medical and psychological reports relating to Ms. G. All of the evidence in this proceeding constitutes hearsay. I accept the hearsay evidence as reliable for the purposes of this hearing. [ 11 ] In order to render my decision, it is important to understand the background events concerning the parents and the Child. I have accepted the following as facts. Mr. L. is a First Nations member of the Seton Lake Band. May I have the correct spelling of that? Is it S-e-a or S-e-e? [ 12 ] MS.

ROWBOTHAM: I have it as S-e-a-t-o-n and I'll just confirm it. [ 13 ] THE COURT: I could not find it anywhere in the documents. [ 14 ] MS. ROWBOTHAM: S-e-t-o-n, no "A". [ 15 ] THE COURT: He is now [omitted for publication] years old. He suffers from a substance abuse problem. It is clear that the Ministry has very little information about Mr. L. [ 16 ] Ms. G. is a member of the Nisga'a First Nation. She was assessed in her late teens and early adulthood by medical professionals. In her late teens, Ms. G. was diagnosed with generalized anxiety, depression, suicidal ideation and delusional disorder.

She may have an alcohol-related neurodevelopmental disorder more commonly known as Fetal Alcohol Spectrum. As a result, she faces mild intellectual deficits and has had difficulties functioning in the community. She is now [omitted for publication] years old. Her overriding difficulty has been and continues to be substance abuse, which includes alcohol and hard drugs.

She was under special care in hospital due to a high-risk condition prior to the birth of the Child and the Child's baby sister. [ 17 ] After the Child was born in May of 2014, the Ministry became involved and various temporary and supervision orders were subsequently made. Ms. G. and the Child lived with Ms. S. at that point. Ms. S. provided stability and supervision for Ms. G. and the Child. Unfortunately, Ms. G. began absenting herself from the home for increasingly longer periods of time. [ 18 ] By October of 2014, Ms. G. no longer resided with Ms. S. The Child was legally removed from Ms.

G.'s care but remained with Ms. S. Shortly thereafter, Ms. S. became unable to care for the Child due to the premature birth and medical condition of her own twin daughters. The Child went into foster care where she still remains. [ 19 ] The parents engaged in an intensive parenting program with regards to the Child from April 2015 until June/July 2015. It was clear that both parents loved and cared for the Child. They demonstrated a high level of affection. However, the parents missed 13 out of 23 sessions. The central problem appeared to be consistency and reliability.

The workers were concerned that the parents were not fully invested in the process and had some difficulties reading the Child's cues. Mr. L. withdrew from the services and the Child in June of 2015. The workers observed that both parents struggled with stability, life skills and lifestyle choices. [ 20 ] By February 2016, Ms. G. had her second child. She made efforts to rehabilitate herself and deal with her substance abuse issues in 2016. For a period of approximately six months or so, she was able to do that with her newborn child. During this period of

time, her relationship with Mr. L. ended at some point in the spring of 2016. It appears that they have since resumed this relationship. [ 21 ] Ms. G. relapsed on illicit substances in September of 2016, and she left the Child with her sister, Ms. S. [ 22 ] In November 2016, Ms. G. informed Ms. Huggett that she and Mr. L. were living in a tent on and off in the downtown eastside of Vancouver. She also told Ms. Huggett that they were both using drugs together. [ 23 ] Mr. L. was recently arrested for the alleged physical assault of Ms. G. on the 8 th of January, 2017.

She was taken to hospital due to alleged blows to her face and the back of her head. The police have reported that Ms. G. is now pregnant with their third child. She appeared to be homeless at this time but living in the downtown eastside of Vancouver. [ 24 ] I turn now to the legal principles that I must apply to these proceedings. First, I will deal with the underlying principles. The court is required to interpret and administer this Act in accordance with the following guiding principles in s. 2. The Director says that certain provisions apply. I have added two additional provisions.

I am applying, under s. 2, the following: This Act must be interpreted and administered so that the safety and well-being of Children are the paramount considerations and in accordance with the following principles: (

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

e) Kinship ties and a child's attachment to the extended family should be preserved, if possible; (

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

g) Decisions relating to children should be made and implemented in a timely manner. [ 25 ] The paramount consideration for me is the best interests of the Child. The relevant considerations to this matter are referred to in s. 4: 4(1) Where there is a reference in this Act to the best interests of a child, all relevant factors must be considered in determining the child's best interests, including, for example: (

a) the child's safety; (

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

c) the importance of continuity in the child's care; and, (

d) the quality of the relationship the child has with the parent or other person and the effect of maintaining that relationship. I would add: (

e) the child's cultural, racial, linguistic and religious heritage. [ 26 ] I turn now to the protection hearing aspect of this proceeding. The Director seeks a finding under s. 40 of the CFCSA .

Section 40 requires me to determine whether the Child needs protection.

Section 40 must be interpreted in conjunction with s. 2, the guiding principles that I have referred to above, as well as s. 4, the best interests of the Child, also referred to above. [ 27 ] In addition, I must consider s. 13, which provides instances when protection is needed.

Section 13 uses the term "has been or is likely to be" in combination with specified types of harm. This phrase is both retroactive and prospective.

Section 13 represents a non- exhaustive list of circumstances when a child is deemed to be in need of protection. [ 28 ] The Director has asked me to consider s. 13(1)(a): A child needs protection in the following circumstances: (

a) If the child has been or is likely to be physically harmed by the child's parent. I decline to apply this particular

section to my consideration under s. 13 because I believe there are more applicable provisions. At this particular time, I have heard of no evidence that directly implicates physical harm to the Child. [ 29 ] I do, however, apply s. 13(1): (

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

h) If the child's parent is unable or unwilling to care for the child and has not made adequate provision for the child's care. [ 30 ] I now turn to my finding with regards to s. 40. I find that at the time of her removal, the Child was in need of protection due to the personal characteristics of her mother, and her ongoing substance abuse and difficulties in caring for the Child. I also consider her increasing absences and what essentially amounted to an abandonment of her daughter with her sister. [ 31 ] At the present time, it appears that the situation has worsened. Ms.

G. appears to be homeless, is in the throes of her substance abuse addiction, and has allegedly been subject to physical violence by the father of the Child. They appear to be living in a homeless situation.

[ 32 ] Mr. L. has not had a significant presence in his Child's life other than a period of time between April and June of 2015 when he engaged in parenting sessions. Since that time, I have heard of no significant contact between Mr. L. and S.G. [ 33 ] Given the situation, I find that the Child was in need of protection at the time of removal and continues to be in need of protection at this time. Consequently, I turn to the Director's request that I impose a continuing custody order. I am applying s. 49 of the CFCSA and, in particular, s. 49(4), which reads: The court must order that the child be placed in the continuing custody of the Director if: (

a) the identity or location of a parent of the child has not been found after a diligent search and is not likely to be found; or, (

b) a parent is unable or unwilling to resume custody of the child. [ 34 ] Given the circumstances and facts that I had found earlier in this decision, I find that I must place the Child in the continuing custody of the Director pursuant to s. 49(4)(

b) given that neither parent is able or willing to resume custody of the Child at this time. [ 35 ] I am not applying 4(

a) given that the alleged incident of domestic violence occurred last week on January the 8, 2017, at which time the whereabouts of the parents was known. [ 36 ] I am also inclined to apply s. 49(5) which indicates that: The court may order that the child be placed in the continuing custody of the Director if there is no significant likelihood that: (

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

b) the parent will be able to meet the child's needs. [ 37 ] Again, given the facts that I have outlined above, I find that the circumstances that led to the Child's removal will not improve within a reasonable time and, in fact, at the current time, have worsened. [ 38 ] In addition, I also find that neither parent is able to meet the Child's needs at the present time given their present circumstances. [ 39 ] I have considered the past conduct of the parents towards both this Child, as well as her baby sister, who was, for a brief six- month-or-so period in the care of her mother. [ 40 ] I have also considered the plan of care, which is sound and is pending further inquiries by the Ministry.

The plan of care involves placing S.G. with her baby sister in her aunt's home. This sounds like a reasonable plan. [ 41 ] I have also considered the Child's best interests and, in particular, the provisions that I have cited previously in this decision. [ 42 ] In all of the circumstances and in the end conclusion, I have made a finding under s. 40 that the Child was in need of protection at the time of removal and currently requires protection. [ 43 ] In addition, I do order the continuing custody of S.G. into the care of the Ministry with the plan that she will be placed with her aunt. (ORDER CONCLUDED)