Director v. C.P. and C.D. Date:, 2016 BCPC 203

Citation: Director v. C.P. and C.D. Date: 20160706 2016 BCPC 203 File No: F69766 Registry: Nanaimo 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: N.C.C.P. , born [omitted for publication] BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: C.P. PARENT AND: C.D. PARENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE COWLING

Counsel for the Director: M. Greves Appearing in person: C.D. Counsel for C.P. : T. Senko Place of Hearing: Nanaimo , B.C. Dates of Hearing: December 8, 2015, May 9 and 11, 2016 Date of Judgment: July 6, 2016 [ 1 ] This is an application for a continuing custody order pursuant to s.49 of the Child, Family and Community Service Act . It concerns the child, N.C.C.P. (hereinafter referred to as “N.P.”) born [omitted for publication] in Prince George, B.C. and removed June 27, 2013 at Nanaimo, B.C.

C.D. is the mother of N.P. and C.P. his father. [ 2 ] N.P. was born premature at 27 weeks and transferred from Prince George to B.C. Children’s Hospital in Vancouver. He had complications at birth due to also being exposed prenatally to methamphetamine. In August of 2012 he was transferred to a hospital in Kelowna as the parents had moved to Penticton where C.D.’s father lived. In October N.P. was released from hospital in Kelowna but shortly thereafter was back in hospital in Prince George.

C.D. says that around this time her father made a false complaint about N.P.’s care to the Ministry. [ 3 ] Due to various Ministry concerns, a plan was formulated in Prince George whereby N.P. was to be cared for by C.D. and C.P and Ms. C.D.’s mother (M.D.) acting as joint custodians. M.D. (age 43) lives in Edmonton and works as a heavy equipment operator in the Fort McMurray area. The Ministry let the parents leave B.C. to go to Edmonton with N.P. on this basis. [ 4 ] C.P. and C.D. left Edmonton with N.P. around April of 2013 and came to Nanaimo via Prince George.

In Nanaimo they were said to be staying with C.D.’s aunt, P.M., who took N.P. to the hospital on June 23, 2013, due to a burn injury to his chest. The parents were believed to be in Victoria at the time and were not readily contacted.

P.M. was not able to provide the hospital with requested information regarding N.P. [ 5 ] The hospital called the Ministry due to issues arising from the events of the 23 rd and as the responding social worker checked into the matter a number of concerns developed: 1. that N.P., as a premature baby and also as one possibly affected by prenatal drug use, was not receiving proper post-natal care; 2. that the parents were transient and appeared to move to prevent or avoid Ministry involvement; 3. that both parents had involvement with the criminal justice system; 4. that both parents had substance-abuse issues; 5. that the plan for joint custody with M.D. had not been implemented; 6. that there was a risk that the parents would move away with N.P. again. [ 6 ] As a result N.P. was removed on June 27, 2013 and has been in foster care ever since.

The parents were not present at the time of removal which took place at P.M.’s residence. [ 7 ] The initial plan was for N.P. to be returned to his parents under supervision by January of 2014 but continuing issues with drug use, criminal activity and failure to follow through with programming caused the Ministry, by October of 2014, to set a date in February of 2015 for a continuing custody order hearing. This hearing was adjourned due to a medical emergency of C.D.’s counsel. [ 8 ] In May of 2015 both parents were on court orders to have no contact with each other but C.D. was pregnant with C.P.’s child.

Due to a complication she was admitted to Nanaimo Regional General Hospital in late May of 2015 when 7 months pregnant. There were continuing concerns as to prenatal drug use. After it was indicated to C.D. that there would likely be a removal of the infant she left the hospital without notice or approval on May 25 th and left for Edmonton where she resumed living with C.P. who also left B.C. at that time. [ 9 ] Their child, J.P., was born there prematurely on the [omitted for publictation] and has been supervised or in care in Alberta thereafter.

J.P. was released from hospital on July 6, 2015 and removed from C.D. on July 30, 2015. [ 10 ] In August of 2015 the Ministry placed N.P. with relatives of C.D. (on her father’s side) at an undisclosed location in B.C. with a plan that this family would become permanent caregivers for N.P. This family wishes to remain anonymous albeit C.D. believes she knows who they might be. This placement is said to be approved of by the Metis Association of British Columbia. N.P. is said to have some Metis heritage through C.D.’s father. C.D. says she is not close to her father and was raised primarily by her mother.

She also does not believe that her father has any significant Metis heritage. [ 11 ] At the time of the initial hearing in this matter on December 8, 2015, both C.P. and C.D. were in custody in Alberta correctional facilities for fraud charges. They had been arrested in July of 2015. Both were able to appear in December by video and C.P. had the assistance of counsel. C.D. did not. Their adjournment request was refused as to the presentation of the Director’s case but they were granted an adjournment to May 9, 2016 to present their evidence. C.D. was released from custody on January 21, 2016 and did attend in

May but had not arranged counsel. C.P. did not attend possibly as there are said to be outstanding warrants for him in B.C. They live together in Edmonton where he is doing some scaffolding work and they also receive assistance. C.D. says that she and C.P. are working with the Ministry in Alberta to regain custody of J.P. by the end of June, 2016. BACKGROUND OF PARENTS: [ 12 ] C.D. is now 26 and went to grade 12 in the Prince George school system. She has worked as a server, general labourer and in retail sales. She has used crystal meth to varying degrees since about age 15.

She met C.P. in Prince George in 2010-2011. He is about 14 years older than she and has some background as a mixed-martial arts (MMA) fighter. C.D. has had a fairly continuous criminal record since age 18 (see Exhibit 13). Primarily for fraud, property and breach offences. Her longest jail sentence being an effective sentence of 6 months jail arising from her arrest for fraud charges together with C.P. in late July of 2015. C.D. agrees she used drugs during her pregnancy with N.P. but says she stayed clean during her pregnancy with J.P. She agrees she had a relapse on her birthday in March of 2016.

C.D. has also used cocaine. [ 13 ] Both C.P. and C.D. have been charged but not convicted of more serious offences in the past. This is mentioned as it appears to have been of concern to some of the social workers who had dealings with them in B.C. [ 14 ] C.P.’s criminal record is thought to be more extensive than that of C.D. and his drug use perhaps less but there is not a complete file about him. He is said to have some connection to the Victoria area through his family.

In 2014 he went to an in-custody rehabilitation program offered through Guthrie House at the Nanaimo Regional Correctional Centre while serving a 6 month sentence for fraud-related charges. C.D. went to a program from April to October of 2014 through a VisionQuest facility but did not complete the program.

She either left because she did not like certain aspects of the program or was asked to leave because of a positive test (Exhibit 1, tab 3, page 7). [ 15 ] C.D. indicates that she hopes to continue working with the Ministry in Alberta to address their concerns about her lifestyle issues which are very similar to those from B.C. She feels the Ministry in Alberta provides more support than did B.C. She hopes to take courses which will lead to a cosmetology degree and permit her to find employment in beauty salons.

She knows that N.P. and J.P. have never met each other and that she has had no contact with N.P. since May of 2015 and only sporadic contact since June of 2013. She nevertheless hopes to regain custody of both boys and reunite her family in the near future. WHAT IS KNOWN ABOUT N.P. [ 16 ] As indicated earlier there were concerns about N.P. as he was born prematurely at 27 weeks and tested positive for prenatal drug use (crystal meth).

It was noted that at the time C.D. claimed the test was in error and that N.P. showed no signs of withdrawal. [ 17 ] There were concerns as to a lack of record as to proper follow-up care after his release from hospital in October of 2012 but N.P. is said today to be a healthy and happy child in the placement where he has been since August of 2015. [ 18 ] There is little or no independent evidence as to what sort of care N.P. received while in the direct custody of his parents between about October of 2012 and June of 2013.

There are concerns that the parents overly relied on other caregivers such as M.D. and P.M. [ 19 ] C.D. says that she has other family members on her mother’s side besides her mother who could be considered as placements for N.P. if he was not to be returned to her but the present social worker, Mr. Croome, says there is no record on file of any contact in that regard. [ 20 ] Ministry notes of contact between N.P. and his parents show appropriate behaviour and general parenting skills and normal love and affection.

It does not appear that N.P. has been in the presence of both his parents at the same time since approximately February of 2014. Virtually all of the observed contact presents as having taken place under very controlled circumstances and of limited duration. [ 21 ] It appears that C.D. missed very few of her weekly visits with N.P. other than for a gap of about 2 months when she started the VisionQuest program in April of 2014. [ 22 ] The Ministry notes that C.D. and C.P. have also been in consistent violation of various criminal court orders (bail, probation, CSO) not to have contact.

See for example C.D.’s conditional sentence order of Sept.24, 2014 (Exhibit 8). MINISTRY POSITION: [ 23 ] The concerns of the Ministry remain much as they were when N.P. was taken into care in June of 2013 and as reflected in the Plan of Care set out at Tab 5 of Exhibit 1. [ 24 ] The Ministry has not had success working with either parent and found them to be deceptive and untruthful about aspects of their programs related to getting N.P. returned.

Amongst other issues C.P. is thought to have kept his head shaved to obstruct drug testing. [ 25 ] The Ministry has observed failures as to the ability of both parents to stay clean and to avoid criminal behaviour. It sees the flight from hospital in British Columbia in May of 2015 as irresponsible and a continuation of transience and avoidance issues. [ 26 ] It is aware that C.D. is asking the Court to consider a “last-chance” order pursuant to s. 49 (7) of the Child Family Community Service Act .

It submits that this is not in the best interests of N.P. and that the parents have in practical effect already had two such orders by virtue of the adjournment from February 15, 2015 to December 8, 2015 and the further adjournment from December 8, 2015 to May of 2016. [ 27 ] The Ministry in B.C. is aware of the ongoing efforts of C.P. and C.D. to get J.P. back in Alberta but do not believe it to be in the best interests of N.P. to jeopardize his present placement by postponing a decision in this case to see how that transpires and to transfer

N.P. again even if C.D. and C.P. or either one is successful in achieving and maintaining the return of J.P. POSITION OF THE PARENTS: [ 28 ] It is presumed that C.P. is supportive of C.D.’s request for a “last -chance” order although he did not attend the last two days of the hearing and had not been in touch with his counsel. Mr.

Senko basically appeared as a friend of the court as to the May 2016 dates. [ 29 ] It is acknowledged that the outstanding warrants for C.P. in British Columbia (believed to be for failing to appear and breach charges), are a disincentive to his participation. [ 30 ] C.D. says that while in-custody in Alberta from the end of July 2015 to January of 2016 she again worked on her substance abuse issues and also took other programming as shown in Exhibit 9-12 inclusive.

These exhibits speak of C.D. being “respectful”, “eager” and “reliable” in various contexts. [ 31 ] C.D. says that she and C.P. did some couples counselling while in jail at the same time in Alberta and also one-on-one counselling. She has been following through on her drug prevention program and has been clean since her relapse together with C.P. on her birthday in March of 2016 which she says she self-reported for the first time. She has been taking a Triple-P parenting program and has regular visits with J.P. ANALYSIS [ 32 ] C.D. presented in Court as courteous, concerned and competent.

This appears consistent with some of the observations made of her in Exhibits 9 through 12. [ 33 ] This has to be measured against the fact that she has a proven capacity for fraud and has in the past misled the Ministry as to her participation in programs. It is also to be assumed that C.D. would present differently if her substance abuse issues were not being managed. [ 34 ] She has downplayed the relocation issues of concern to the Director and says they should be considered in light of the health issues the family had to deal with and their economic circumstances.

It presents that the prime factor in their moving from place to place relates more to issues of criminal activity than to avoidance of the Ministry per se. [ 35 ] C.D. stresses that she and C.P. are having more success working with the Alberta Family Ministry than they had in B.C. and the preliminary reports from Alberta are consistent with this. [ 36 ] There appears no reason to doubt C.D.’s affection and general commitment to her children but there is an issue as to her overall priorities and life-style choices. [ 37 ] There is little meaningful information as to the dynamics of C.D.’s relationship with C.P. and whether they are more functional apart or together. [ 38 ] C.P. and C.D. can contend that they essentially absconded to Alberta for J.P.’s birth to avoid his apprehension but it remains that by doing so they jeopardized the health of J.P., they lost additional contact with N.P. and reverted to the same behaviour in Alberta vis-à-vis drugs and crime that was of concern in B.C. [ 39 ] In a more typical case where there had been Ministry involvement with a child’s family for as long as N.P. has been in care the Court would expect more documentation and assessments than are present here.

This presents as partly a function of the lack of cooperation and the movement of the parents and also possibly the Director presuming that the parents would not make a presentable case from a starting point where they were both in jail on the first day of trial. LEGAL CONSIDERATIONS: [ 40 ] The provisions of the Child Family Community Service Act which are relevant to my decision in this matter are as follows: 49

(1) Not sooner than 60 days before a temporary custody order expires, the director may apply to the court for a continuing custody order.

(2) At least 10 days before the date set for hearing the application, notice of the time, date and place of the continuing custody hearing must be served as follows: (

a) on the child, if 12 years of age or over; (

b) on each parent; (

c) if the child is registered or entitled to be registered as a member of an Indian band, on a designated representative of the band; (c.1) if the child is a Nis g a'a child, on a designated representative of the Nis g a'a Lisims Government; (c.2) if the child is a treaty first nation child, on a designated representative of the treaty first nation; (

d) if the child is neither a Nis g a'a child nor a treaty first nation child and is neither registered nor entitled to be registered as a member of an Indian band but is an aboriginal child, on a designated representative of an aboriginal community that has been identified by (

i) the child, if 12 years of age or over, or

(ii) the parent, if the child is under 12 years of age; (d.1) any person who has been made a party under section 39 (4); (d.2) any person who has custody of the child under section 41 (1) (b), 42.2 (4) (c), 54.01 (9) (

b) or subsection (7) (

b) of this section; (

e) on the Public Guardian and Trustee, if appointed as the child's property guardian under

section 58.

(3) If the persons referred to in subsection (2) (

b) to (d.2) appear at the continuing custody hearing, they are entitled (

a) to be parties at the hearing, and (

b) to notice of a hearing under

section 42.2, 54, 56 or 57 and, if they appear at the hearing, to be a party at that hearing.

(4) 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.

(5) 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.

(6) Before making a continuing custody order under subsection (5), 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.

(7) If the court does not make a continuing custody order, it must make one of the following orders: (

a) that the child be returned to the custody of the parent apparently entitled to custody; (

b) that the child remain in the temporary custody of a person other than the parent for a specified period of up to 6 months; (

c) that the child remain or be placed in the temporary custody of the director for a specified period of up to 6 months.

(8) If the court orders that the child be returned to the parent's custody or remain in the custody of a person other than the parent, it may order that the director supervise the child's care for a specified period of up to 6 months.

(9) Not sooner than 60 days before a temporary custody order under subsection (7) (

b) or (

c) expires, the director may apply to the court for a continuing custody order.

(10) If the director applies under subsection (9), the court after considering the factors in subsection (6) must make one of the following orders: (

a) that the child be placed in the continuing custody of the director; (

b) that the child be returned to the parent apparently entitled to custody. [ 41 ] The Court was not referred to any case law by any party. There does not appear to be any decision directly on point. In reaching my decision in this matter I have considered the following cases: B.B. v. Director 2005 BCCA 46 Director v. J.M. 2003 BCSC 187 Director v. M.S. 2001 BCPC 308 Director v. R.E.M. 1983 BCJ 2255 Director v. S. S. 2014 BCPC 398 Director v. M. K. 2000 BCPC 63 C.S.S. (Re) 1998 BCJ 2969 DISCUSSION

[ 42 ] It is clear that N.P. was in need of protection as defined by the Act at the time of his removal on June 27, 2013. [ 43 ] It is a more difficult question as to whether a continuing custody order should be made or a “last-chance” order given. [ 44 ] C.D. certainly presents as willing to care for N.P., the concern before the Court is as to her ability to care for him. With respect to C.P., he has not demonstrated either a present willingness or an ability to care for N.P.

The extent of his substance abuse issues are essentially unknown as he has been an unreliable historian, has avoided hair sample analysis and has absconded from the jurisdiction. It is known that his criminal record has reached the level where he routinely is given substantial jail sentences for new offences and also tends to be denied bail.

He presents as travelling between provincial jurisdictions to avoid outstanding warrants and prosecution. [ 45 ] C.P. has little history in British Columbia of working collaboratively with child welfare resources on an out-of-custody basis. [ 46 ] C.D. presents as being in a committed relationship with C.P. The exact dynamics of that relationship are unknown in the sense of whether one enables the other in substance abuse matters or pressures the other into criminal activity or whether they are jointly dysfunctional.

At the present time this cannot be determined as the parties have either not cooperated in any assessment process or have not stayed in place long enough to permit that to happen. [ 47 ] It is known that C.D. has been using illicit substances since the age of 15 and that this appears to coincide with what is known of her youth criminal record.

It presents that her substance abuse extends to the degree that she has to commit crimes to support her habit and chooses to use hard drugs such as cocaine and crystal meth even when pregnant. [ 48 ] C.D.’s criminal record has also reached the level where she is receiving custodial sentences and has difficulty obtaining bail with respect to new alleged offences. Her child, J.P., was removed from her in Alberta in July of 2015 due to her arrest on charges there.

It is difficult to assess C.D.’s prospects for better life management as there is no in-depth assessment of her background or report from any counsellor or mental health professional who has worked with her for any meaningful period of time. [ 49 ] It can be speculated that C.D. might do better if she obeyed the various court orders that require her to stay away from C.P.

It could also just be that she would form a relationship with someone no better for her than he or possibly worse. [ 50 ] C.D. has relapsed at least twice after treatment programs and apparently has not been clean from drugs for any significant period for some time. DECISION [ 51 ] I find that at the time of removal of N.P. he was in need of protection pursuant to s. 13 (1) (

d) and (

c) of the Act . This arises from the lifestyle issues of the parents at the time including concerns as to substance abuse, criminal activity, lack of a stable home for the child and leaving the child in the care of the others resulting in physical harm to the child. [ 52 ] I find that while the family is the preferred environment for a child in this case C.P. and C.D. have not been successful in maintaining any sort of “family” environment that provides N.P. with protection from neglect and harm and the threat of harm.

They present as an adult-oriented couple indulging their own interests with insufficient priority for the needs of N.P. [ 53 ] I also find that with respect to N.P. and the history of the parents in British Columbia there is no prospect that support services will be accessed to change this situation within any time frame that might be meaningful to the best interests of N.P. [ 54 ] It does not appear that N.P. has any “kinship ties” to any extended family except as to his present foster placement.

There are no cultural identity issues as to N.P. that would weigh against the proposed plan of care. [ 55 ] The requirements of s.2 (

g) and s. 4 (1) of the Act and in particular, s. 4 (1) (a),(

b) and (

c) all support a finding that it is in the best interest of N.P. that a continuing custody order be granted. [ 56 ] The Court finds that as a couple C.P. and C.D. are not able or willing to change their life style vis-à-vis substance abuse and criminal activity in a reasonable enough period of time to prevent a continuing custody order from being the only order which I can make which protects N.P. and is in his best interests. [ 57 ] C.D. presents as the parent more likely to achieve success in this regard and possibly more motivated to do so but so long as she remains in a relationship with C.P. this is just theoretical. [ 58 ] Substance abuse experts in other cases have testified as to how it is very difficult to predict who will be successful in staying clean and for how long.

It is normal for more than one effort to be needed to achieve long term abstinence and/or management of a long- standing addiction.

Many people involved in helping those with addictions speak of a year of being clean as a significant milestone and I consider this to be a valid observation. [ 59 ] Particularly in the context of moving a child of N.P.’s age from a stable home where he is said to have bonded to a home where he may likely as not come back into care and not necessarily to his former placement, I do not feel I am able to order that risk on his behalf. [ 60 ] I am conscious that this separates N.P. from his natural parents and his brother but I am nevertheless satisfied that on the existing evidence this is the decision that is ultimately in the best interest of N.P. [ 61 ] To a certain extent this decision almost became inevitable once C.P. and C.D. chose in May of 2015 to stop working with the Ministry in B.C. as to planning for N.P. and for the expected J.P. and left for Alberta. [ 62 ] Coupled with their subsequent arrest in that province a time-line has resulted that combined with other factors makes this decision, while difficult from an emotional perspective, less so from a legal one.

[ 63 ] Similar considerations as set out above lead me to decline the making of an order pursuant to s. 49 (7) of the Child Family Community Service Act. [ 64 ] In closing, I wish to stress that while I have found a continuing custody order to be the appropriate remedy with respect to the parties herein and the child N.P., the Court nevertheless hopes that C.P. and C.D., or at least C.D., may yet achieve success in their efforts to get their lives back on track in Alberta and by doing so, ultimately convince the authorities there to return J.P. to at least one of them. [ 65 ] These reasons are specific as to the situation which has transpired with respect to N.P. and it is acknowledged that C.P. and C.D. may be able to make a better presentation of their situation to the relevant authorities in Alberta and with a better history of care and contact with J.P. [ 66 ] There will be an order that the Director is to be the guardian of the person of N.P. and that the Public Trustee be the guardian of his estate.

BY THE COURT ____________________________ The Honourable Judge J. D. Cowling