Director v. B.C. and G.H. Date:, 2017 BCPC 255

Citation: Director v. B.C. and G.H. Date: 20170630 2017 BCPC 255 File No: F39957 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: B.H. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: B.C. and G.H. PARENTS ORAL RULING OF THE HONOURABLE JUDGE G.S. GILL Counsel for the Director: S. Sandhu Counsel for the Parents: S. Glanzberg Place of Hearing: Surrey , B.C. Date of Hearing: June 27, 2017

Date of Judgment: June 30, 2017 [ 1 ] This is a ruling pursuant to s. 35 of the Child, Family and Community Service Act .

It involves the child B.H., age [omitted for publication] who was, on April the 18 th of this year, taken to the hospital by his parents who reported that the child was not being himself. [ 2 ] The child was removed from the care and custody of the parents at the hospital on April 21 st , following consultation between the treating physician, the social workers and Ministry representatives, members of the RCMP and his parents. [ 3 ] Section 30(1) authorizes a child's removal without court order where the Director has reasonable grounds to believe the child needs protection and that the child's health or safety is in immediate danger, or that no other less disruptive measure is available to adequately protect the child. [ 4 ] The circumstances under which the protection may be needed are enumerated in s. 13 of the Act . [ 5 ] In the present case, the Director filed a presentation form alleging removal on the reasonable belief the child needed protection and that no less disruptive measure was available that was adequate to protect the child. [ 6 ] The specific circumstances alleged to give rise to the risk of harm were stated to be that the child has been or is likely to be physically harmed by the child's parent. [ 7 ] The injuries discovered at the hospital were multiple and serious and they consisted of a number of bruises to the face, chin and back of the head, a torn frenulum, a lacerated liver, a fracture to the left humerus and a fracture to the right tibia. [ 8 ] When questioned at the hospital, the parents hypothesized that the leg fracture could have been caused by the child's leg becoming caught between the rails of his crib and then twisted when he rolled over.

They amplified on that explanation subsequently, including at this hearing, and they provided additional possible explanations for most of the other injuries as well. [ 9 ] The father testified that pursuant to some research he did on the Internet, he believes the leg fracture may have been caused by the child spending too much time in his Jolly Jumper. He presents this as an alternative hypothesis to the one offered at the hospital involving the possibility of the child's leg having been caught and twisted between the rails of the crib.

He suggested that the fracture of the child's humerus may have been caused by him repeatedly lifting the child up by the arms and blowing on his belly. He testified the liver could have become lacerated when he took the child with him on a four-by-four excursion which was somewhat rough even though he said the child was secured by a seatbelt. He also felt the Jolly Jumper may have caused or contributed to that particular injury. The torn frenulum was suggested to have been caused by certain baby crackers the child would take and jam into his mouth.

Bruising was similarly suggested to have been self-inflicted by the child taking his toys, and when flailing about with them, bringing them into contact with his own body. The father was at a loss to explain how this could have resulted in bruising to the back of the child's head. He said at no time did he ever observe the child in acute distress during any of these times.

Here I note that distress would be ordinarily expected and easily observable with these types of injuries. [ 10 ] The medical opinion evidence tendered by the Director is that the injuries sustained to the child are non-accidental and consistent with abuse. The injuries would have occurred within the previous two weeks. This evidence is contained in the Form A Report to the Court, as well as in a follow-up medical report provided by Dr. Coburn (phonetic) of the Child Protection Service Unit of the BC Children's Hospital.

The report further notes there to be no history of trauma provided by the parents that would, in the opinion of the doctor, cause these injuries and that rather, the scope and severity of these injuries to four separate areas of the child's body suggest inflicted trauma. [ 11 ] The father, on cross-examination, admitted that he and the child's mother consume marihuana but not directly in front of the child and that, in any event, they have now stopped. He also admitted they had not been truthful when initially reporting that it was the mother and not the father who had discovered the child in distress.

He, and by extension the child's mother, while denying any intentional infliction of harm to the child, are open to any courses or counselling that will assist them in their parenting duties. [ 12 ] On the basis of the foregoing, the parents take the position they have provided a reasonable explanation for how the injuries may have occurred and, therefore, that the child should be returned to them under an interim order with appropriate terms and conditions under the supervision of the Director. [ 13 ] The Director takes the position no such return should be considered at this time, given that the explanation offered by the parents could not have reasonably resulted in those injuries, based on the medical opinion evidence tendered and that as a result, to return to the parents, at least at this stage of the proceedings, would leave the child at risk of further harm. [ 14 ] It is important to point out at this stage of the proceedings it is not the function of the court to determine if the parents are responsible for these injuries or whether the child is or is not actually in need of protection.

In this regard, I am reminded by the test articulated by the Honourable Judge Tweedale in T.K.M. v. T.J.D. (phonetic) where he stated: In a presentation hearing the court does not determine whether or not the child is in need of protection but determines only whether there is admissible evidence which, if believed, could lead to a finding that the child is in need of protection.

If so, the matter is set for a protection hearing. [ 15 ] As regards s. 30 compliance, and based on the independent medical evidence presented, I am satisfied there existed reasonable grounds on the part of the Director to remove the child and that no less disruptive measures were then available under the circumstances outlined in the Report to the Court.

[ 16 ] I do note the Ministry has not yet been able to complete any strengths and needs assessment due to inability to follow up with the parents.

I am left with the impression that while the parents may be not entirely to blame for failure to pursue that assessment, they could have been more diligent in that regard. [ 17 ] The interim plan of care filed with the court involving placing the child with his maternal grandparents is a sound one. [ 18 ] Having regard to the nature and severity of the injuries, the medical evidence as to their likely cause, as well as the existence of an ongoing RCMP investigation into the cause of the injuries, and having due regard to the explanation provided by the parents, I am satisfied there continues to exist reasonable grounds to believe there to be a continuing risk of harm to the child if returned at this stage of the proceedings.

As such, I do not agree it appropriate to order a return to the parents even under supervision of the Director, as it would not, in my view, be possible at this stage of the proceedings and with the information at hand, to articulate appropriate terms and conditions to sufficiently alleviate the continuing risk of further harm to the child by whatever means that might occur. [ 19 ] As such, I direct there be an interim order that the child be in the custody of the Director pursuant to s. 35(2)(

a) and further, that the date set for commencement of the protection hearing be August 3, 2017. (ORDER CONCLUDED)