BRITISH COLUMBIA (DIRECTOR OF CHILD, FAMILY v. COMMUNITY SERVICE), 2012 BCPC 333

Citation: B.C. (Dir. of C., F. & C. S.) v. J.M. & A.L. Date: 20120919 2012 BCPC 0333 File No: F8208 Registry: Port Coquitlam 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.R.S.L. , born [dob], 2010 BETWEEN: BRITISH COLUMBIA (DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE) APPLICANT AND: J.M. and A.L. RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Director: L. Nishimura Counsel for J.M. : J. Upton Counsel for A.L. : W. Adams Place of Hearing: Port Coquitlam , B.C.

Dates of Hearing: November 8-11, 2011; January 13, 2012; June 11-12, 2012 Date of Applicant's Written Submission: July 6, 2012 Date of Respondents' Written Submissions: August 7, 2012 Date of Applicant's Written Reply Submission: August 24, 2012 Date of Judgment: September 19, 2012 INTRODUCTION AND LEGISLATIVE FRAMEWORK [ 1 ] At the centre of these proceedings sits a female child born in November 2010. She is, to all accounts, a healthy, happy and rapidly developing young girl. I shall refer to her as “Child S”. [ 2 ] Child S’s biological mother is the respondent, JM, a Caucasian woman in her late 30s.

I am bound to acknowledge early on in these reasons that JM has a troubled history of mental illness and substance abuse. [ 3 ] Child S’s biological father is the respondent, AL, a man from the Salteaux First Nation. I am bound to acknowledge straightaway that he too has been diagnosed with a mental illness (schizophrenia). AL is currently incarcerated and in the coming months his trial on a charge of second degree murder will resume in the Supreme Court of British Columbia at New Westminster.

Notwithstanding that complication, as a result of the use of spring orders and other displays of ingenuity by counsel and the court, AL has been able to participate fully in these proceedings. [ 4 ] Child S has been in the interim custody of the Director of Child, Family and Community Service (the “Director”) since her birth. She was removed from JM’s care immediately after she was born out of concerns that JM’s chronic mental health and substance abuse problems rendered her incapable of providing the child with adequate care.

The Director contends that events that have followed since removal confirm that JM was and remains incapable of providing safely and adequately for Child S. It is for that reason that the Director applies for an order placing Child S in the Director’s continuing custody (a “CCO”). [ 5 ] Child S’s actual day-to-day needs are being met at present by a highly trained foster parent (“Foster Mother DM”)—a resource that the Director reserves for cases where an infant who has been removed from a biological parent is, or may be, addicted to illicit substances. However, this is an interim arrangement only.

Foster Mother DM is not able and does not intend to serve as Child S’s long- term care provider. Accordingly, if the Director is successful in obtaining a CCO, steps will be taken to locate a long-term care provider for Child S (other than Foster Mother DM)—ideally from within the girl’s extended family through adoption. [ 6 ] In these and all child protection proceedings brought under the Child, Family and Community Service Act , R.S.B.C. 1996, c. 46 (the “ CFCSA ”), the court’s powers must be exercised in accordance with the guiding principles expressed in s. 2 of that statute.

Section 2 makes children’s safety and well-being “paramount considerations”. The enumerated principles that govern the

interpretation and administration of the CFCSA in furtherance of those paramount considerations are these: • children are entitled to be protected from abuse, neglect and harm or threat of harm; • a family is the preferred environment for the care and upbringing of children and the responsibility for the protection of children rests primarily with the parents; • if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; • the child's views should be taken into account when decisions relating to a child are made; • kinship ties and a child's attachment to the extended family should be preserved if possible; • the cultural identity of aboriginal children should be preserved; • decisions relating to children should be made and implemented in a timely manner. [ 7 ] The phrase, “the best interests of the child” comes up repeatedly in the CFCSA and in all proceedings and decisions that confront questions of child protection.

Those are heavily freighted words and they sometimes mean different things to different people.

The Legislature has, in s. 4, provided the following non-exhaustive listing of factors that must be considered by a court whenever it seeks to determine what will serve a particular child’s best interests: • the child's safety; • the child's physical and emotional needs and level of development; • the importance of continuity in the child's care; • the quality of the relationship the child has with a parent or other person and the effect of maintaining that relationship; • the child's cultural, racial, linguistic and religious heritage; • the child's views;

• the effect on the child if there is delay in making a decision . [ 8 ] The Director’s CCO application in the case at bar requires, following the hearing of evidence in this matter, that the court as a first step determine, pursuant to s. 40(1) of the CFCSA , whether Child S is in need of protection. [ 9 ] Section 13(1) of the CFCSA gives

definitions to the circumstances in which a child will be statutorily in need of protection. Some, but not all, of those circumstances are engaged by the facts of this case. Perhaps obviously, Child S will be found in need of protection if the court determines that she is likely to be deprived of adequate care by reason of JM’s inability to make adequate provision for her care ( s. 13(1) (h)).

More specifically (and perhaps just as obviously), Child S will be found to be in need of protection if the court concludes that, should she be placed in JM’s care, Child S would likely be: • physically harmed through neglect by JM (s. 13(1)(d)); • emotionally harmed by JM’s conduct (s. 13(1)(e)); and/or • deprived of necessary health care by JM (s. 13(1)(f)). [ 10 ] If, having regard to such factors, this court does make a finding that Child S is in need of protection, then the court must, in a second step in the prescribed process, go on to determine whether, pursuant to s. 41(1) (

d) of the CFCSA , placement of Child S in the continuing custody of the Director would be in her best interests. [ 11 ] A CCO will serve Child S’s best interests if, inter alia : • JM is unable to resume custody of her (ss. 41(2)(

b) and 49(4)(b)); and/or • There is no significant likelihood that the circumstances leading to removal will improve within a reasonable time and, therefore, there is little prospect that it would be in Child S’s best interests for her to be returned to JM (ss. 41(2)(

c) and 49(5)(a)). [ 12 ] In assessing whether a CCO is appropriate in any given case, the court is required by ss. 40(3) , 49(5) and 49(6) of the CFCSA to give consideration to the Director’s Plan of Care for the subject child, and to any evidence heard in connection with it touching upon the past conduct of the parent toward any child in his or her care and upon the child’s best interests overall. [ 13 ] JM resolutely opposes the Director’s application for a CCO.

Her counsel candidly and rightly acknowledges that a finding that Child S was in need of protection at birth when she was removed from her mother is a likely finding in this case. However, her counsel also argues that the Director has rushed too swiftly to judgment regarding JM’s challenges and deficiencies, saying that JM has not been given an adequate opportunity to demonstrate the skills and capabilities she possesses (or to add to them). JM’s counsel therefore argues in favour of less drastic measures than a CCO.

Those measures include alternatives such as the return of Child S to her under supervision and the making of a three-month temporary custody order. [ 14 ] JM’s counsel urges these alternatives upon the court in order to persuade it to make some kind of order that would provide JM with further opportunities to reveal her strengths and perhaps enhance them.

It may be, counsel’s argument goes, that if she were given those opportunities, and if the Director approached JM’s candidacy as a long-term caregiver for Child S with a more open mind, then the Director may ultimately come around to the view that with the necessary supports JM can make adequate provision for Child S and that the heavy-handed remedy of the CCO is not warranted in this case. [ 15 ] Although AL and JM are not together as a couple, and seem not to have any intentions of moving forward as a couple, AL nevertheless supports JM’s efforts in these proceedings to have Child S placed, eventually, in her care, but under a supervision order.

AL also complains that his interests as Child S’s biological father have received too little attention by the Director to this point and so he seeks orders granting him rights of access to Child S, whatever the outcome may ultimately be of the Director’s CCO application. AL also offers suggestions for the consideration of the Director about where Child S should end up if a CCO is to be made. [ 16 ] The hearing of the Director’s application proceeded through a series of continuations over the space of several months.

This was due to a number of factors—including some initial skirmishing over AL’s participation and his access to counsel—that were not planned for in the initial time allocation. As well, the gaps between sittings was to some degree the result of a willingness on the part of the Director to tolerate some delay, given the efforts that were being made by counsel for JM to build a record of improved performance on his client’s part generally and in relation to her parenting skills particularly.

IS CHILD S IN NEED OF PROTECTION? [ 17 ] No one doubts that JM has motherly affection for Child S, or that she wishes Child S to have a safe and well-nurtured upbringing. The real question is whether, given her many and significant challenges, JM has the capacity to provide adequate care for her daughter. The Director contends that the evidence shows conclusively that JM’s chronic mental health and substance abuse problems are such that she is incapable of providing adequately for Child S, effectively making Child S a “child in need of protection”.

JM, through her counsel, argues that with the appropriate supports she may in time be shown to have that capacity. The Director counters that with each passing week Child S becomes more bonded to her temporary caregivers and loses time that could be devoted to bonding with long term caregivers, making time “of the essence” in this CCO application. Mental Health and Drug Concerns [ 18 ] It is beyond argument that JM has a history of serious mental illness and illicit drug use and that her mental illness and a proneness to substance abuse remain important features of her overall makeup to the present day.

These same factors figured in the permanent removal of another child from her care some years ago. [ 19 ] Between 1997 and 2004, JM’s first daughter was the subject of numerous interventions by the Director—including a number of

voluntary care agreements and two removals—based upon JM’s diagnosis of schizophrenia, her use of illicit drugs and her overall pattern of non-cooperation with child welfare and mental health officials. JM has in past been certified on a number of occasions under the provisions of the Mental Health Act , R.S.B.C. 1996, c. 288. Her history of compliance with regimes of medication prescribed to manage her mental health problems is poor. Records dating back to the second removal of her first daughter in 2004 refer to JM having been placed on an extended leave from hospital “to ensure she took her medication”.

JM was then receiving bi-weekly injections in her home “because she continued to express a desire to kill people and things”.

The records also refer to cocaine and crack cocaine use by JM and non-compliance with the Director’s stipulations regarding illicit drug use, noting: “Since [the first daughter] was brought into care, [JM] has not gone to drug and alcohol counselling, continues to use crack cocaine and refuses to comply with the requests and expectations of the Ministry of Children and Family Development necessary to have [the first daughter] returned to her care. ” (emphasis added) Exhibit 1, tab “A”, p. 7 [ 20 ] The second removal of JM’s first daughter was permanent.

JM was found to be both unwilling and unable to follow through with the mental health and drug use-related requirements imposed by the Director to ensure the first daughter’s safety and well-being. Thus, JM’s first daughter now resides with JM’s mother. JM has, at best, irregular contact with her. [ 21 ] Unfortunately, JM seems to have little insight into what it was about her own condition that precipitated, eventually, the CCO that was made with respect to her first daughter, putting it all down to a “curse” that has since passed: “Q Okay.

Now, was she -- she's on her own now, but was she in -- was she in your care when she was younger? A Till she was eight. Q Pardon me? A Until she was eight. Q Until she was eight? A Yeah. Q And then what happened after that? A And then I -- I got very sick or something. Q Mm-hmm. A A curse of some sort, and it's passed now .” (emphasis added) Transcript , June 12, 2012, pp. 27-28 [ 22 ] JM has been in and out of hospitals, including Riverview Hospital, periodically between the time her first daughter was removed permanently from her care in 2004 up to the time Child S was removed from her care in November 2010.

Some of those hospitalisations occurred quite near in time to Child S’s birth in November, 2010 (both before and afterward). During some of them, JM left the hospital facilities where she had been involuntarily admitted, without permission. At trial she denied such unauthorised departures from hospital during involuntary admissions, but also provided telling evidence regarding her beliefs about what awaited her in hospital. For example: “MS. NISHIMURA: Okay. Q I think the suggestion was that there was some unauthorized leave during that time? A There was not. Q Okay. A They're lying. Q Okay.

So you're saying that this is not -- A They locked me hard in there, and they were -- they were abusing me and hitting me and -- and assaulting me very badly, with the baby. They were trying to kill the baby inside of me. When the baby was inside, they were fighting with me and raping me in the hospital.” Transcript , June 12, 2012, pp. 55-56 [ 23 ] In late 2010, at the time of Child S’s removal at birth, JM’s family doctor and psychiatrist confirmed the presence in JM of continuing signs of psychosis amounting to an inability to provide adequate parental care for a newborn infant.

There is also evidence that JM had used illicit drugs during her pregnancy with Child S (opioids in June 2010 and crack cocaine in July). JM admitted to some but not all of that drug use during cross-examination at trial.

“Q And then halfway down that paragraph it says: Upon admission... Do you see that sentence? It starts with, "Upon admission..." A Yes. Q ... [JM] was clean, however, [JM] was at the hospital in the beginning of March and she tested positive for crack at that time. So that would have been when you were pregnant with [Child S]? A There might have been a day, one time when I -- when I went to the bank. My bank was in the downtown East Side. I got -- I was - - they locked me up in the hospital without letting me go outside for any fresh air at all.

I was already having problems with my breathing, and they knew that, and they wouldn't let me out for air at all. They just locked me even harder. And then they let me out on a pass finally, but they let me go with my mom. And I was supposed to go to the bank with my mom, but me and my mom got into an argument and she dropped me off at Safeway. And I had to take the SkyTrain by myself to the downtown East Side where I had to go to the bank and return. But I did pick up -- I had a small hoot, whatever you want to call it, and then that was it. Q Okay.

There was other mention in -- A There wouldn't be any other mention. I would disregard it altogether, because I knew it was wrong, and I wouldn't do it again. Q Okay. If I can have you turn to Tab E. A Tab E. Q Page 6. So that reference back in March was when you were Royal Columbian Hospital; is that right? And then this is from Riverview Hospital. A Oh, Riverview -- Riverview, I never used at all. Q Okay. A And that's guaranteed. Q Okay, because -- A That was a lie. Q Okay. Perhaps if I could have you turn to page 8, then, of that same tab, Tab E.

And there's -- it's a discharge note, entry dated November 23rd, 2010, and then -- are you at page 8? A I'm -- yes. Q Okay. A "Permanent medical record"? Q No. Sorry, Tab E -- A Tab E. Q -- in the bottom right corner, there's -- it's a little confusing because there's numbers at the top, as well. But the numbers at the bottom right corner. A Okay, yes. Q Under the heading, "History of presenting illness." A Okay, yes. Q Just at the very bottom, towards the very bottom it says [as read]: The last time... Sorry, just above that it says: She went on unauthorized leave and continued to use crack cocaine.

The last time she tested positive was on July 24th, 2010. A I don't recall, and I don't believe I used any after that . UNIDENTIFIED SPEAKER: She was on (indiscernible - away from microphone). A Yes.

MS. NISHIMURA: Okay. Q I think the suggestion was that there was some unauthorized leave during that time? A There was not. Q Okay. A They're lying. Q Okay. So you're saying that this is not -- A They locked me hard in there, and they were -- they were abusing me and hitting me and -- and assaulting me very badly, with the baby. They were trying to kill the baby inside of me. When the baby was inside, they were fighting with me and raping me in the hospital. Q Okay. So your evidence is that the last time that you may have used was in March of 2010?

A I don't know the correct date, but it would have been after my first trimester .” (emphasis added) Transcript , June 12, 2012, pp. 54-56 and Exhibit 1, tab “E”, pp. 1 and 8. While, providentially, Child S did not display any indications of drug dependency or withdrawal at birth (nor has she shown any such signs thereafter), those facts do not in any way render the evidence of drug use irrelevant for the purposes of assessing whether the child is in need of protection: British Columbia (Director of Child, Family and Community Service) v. S.H. [2006] B.C.J. No. 2940 (Prov.

Ct.) . [ 24 ] I consider it significant that when social workers sought to obtain information about Child S’s father from her shortly before the baby’s birth, JM refused to give it. She would not even provide the father’s name, thereby preventing healthcare and social services professionals involved with Child S from acquiring basic information that could well have been important for the purpose of assessing the infant, obtaining the medical histories of both parents and providing generally for her proper care.

JM’s preoccupation with privacy and with keeping at bay and in the dark most members of the social services and healthcare network who have attempted to intervene in her life (for her children’s benefit as well as her own) is a recurring concern. I am persuaded on the evidence that JM’s tendency toward insularity has hindered the Director’s attempts, and those of others, to take the steps necessary to make proper provision for Child S. [ 25 ] Since Child S’s birth in November, 2010, efforts have been made by the Director and JM’s community health team members to stabilise her overall situation.

Some small successes have been seen but the long-standing pattern of intransigent non-cooperation with Directors’ representatives has generally persisted. JM has repeatedly expressed a desire to have contact with Child S and care for her; however, overall the evidence shows that the quality of her interactions with the baby has been doubtful. [ 26 ] Of very great concern is her determined resistance to take advice, guidance and supervision from child welfare and mental health officials.

With rare exceptions JM has not allowed such people into her apartment—an apartment that I readily acknowledge has not been found to be wanting on objective grounds by Director’s representatives or the mental health officials who have seen it fleetingly but which she herself says is an unsuitable, indeed “unhealthy”, environment for raising an infant for many reasons: Transcript , June 12, 2012, pp. 37 and 43.

Despite this, JM has often complained that the visits she has with Child S should occur in that apartment, and without supervision, and she has made little real effort to follow up on a stated intention to find accommodation more suitable for child- rearing, even though assistance in that regard has been offered repeatedly. [ 27 ] JM has been hospitalised for reasons having to do with her mental health problems at least four times since Child S’s birth and removal: see Exhibit 19.

When she was admitted to Royal Columbian Hospital in February of 2012—at which point this proceeding was already underway—she was immediately certified under the Mental Health Act : “… because [JM] was noncompliant with her therapy and had failed to go to followup with the mental health team. At that time she also described escalating hallucinations and paranoid delusions.

She was also at high risk for further schizophrenic and social crises …” (Exhibit 19 at p. 7) [ 28 ] While there has been some improvement in her compliance with her medications regime, JM’s pattern as revealed on the face of the evidence has been one of vacillation between greater and lesser cooperation with health care team requirements. Thus it is plain to the professionals who follow her that JM’s mental health situation requires continuing professional management and oversight.

JM disagrees with her own diagnosis and with the contention of professionals that she requires certain medications and other therapies. Indeed, she testified at trial that she does not wish to continue much longer with her mental health team: Transcript , June 12, 2012, p. 25. [ 29 ] JM did not, at the time of trial, have a telephone. She had no real network of family or friends within the community. Without the professionals who revolve around her and provide their input—much of which she receives grudgingly at best—she would be wholly adrift in the world.

Parenting Capacity [ 30 ] JM has made a point, from time to time since the child’s birth and immediate removal, of communicating to the Director’s representatives her desire to have parenting contact with Child S. The quality of those sessions and the interactions that she has had with Child S during them have been largely, although not uniformly, disappointing. [ 31 ] The fact that Child S resides with Foster Mother DM in Maple Ridge and JM lives in New Westminster has created logistical

difficulties that have frustrated everyone. Foster Mother DM is troubled by the fact that transporting Child S to some of the sessions held in New Westminster and Burnaby has disturbed the infant’s sleep/wake cycle and generally made her irritable. For that reason the Director’s representatives soon began to insist upon a compromise arrangement that has required Foster Mother DM and JM each to travel separately to a point roughly midway between Maple Ridge and New Westminster for such visits—that is, to the Ministry of Child and Family Development office in Port Coquitlam.

I consider that compromise to have been a reasonable one in the circumstances. [ 32 ] JM does not drive and she has not found the compromise to her taste. She has made it to some of the sessions on time, sometimes using public transportation, but missed others for reasons not explained. On some occasions a social worker or other Director’s representative agreed to provide the transportation for JM from New Westminster to the Port Coquitlam office.

Even then, JM has sometimes cancelled her visits or simply not answered the door to her apartment when her ride has arrived. [ 33 ] To the extent that many actors have had to put themselves out and coordinate their efforts so that JM could spend supervised access time with Child S, frustration has abounded on all sides when, not uncommonly, the visits have not proceeded as planned for whatever reason. [ 34 ] Beyond that, there are the related issues of: (

a) the questionable quality of the visits in terms of mother/daughter interaction and the parenting performance of JM; and (

b) JM’s unwillingness to accept input from the Director’s representatives or others regarding her overall condition generally and regarding parenting techniques and practices particularly. [ 35 ] Here again, JM’s paranoid and suspicious nature—along with other manifestations of her unbalanced mind—have gotten in the way both of providing quality care for Child S and of learning from others about how to improve her situation generally and her parenting skills particularly. Her pattern of interaction with Child S has frequently tended toward aloofness and a general lack of engagement.

Indeed, she has more than once expressed doubt that the child is even her own offspring: see Exhibit 9 and Transcript , June 12, 2012, pp. 34. [ 36 ] Director’s witnesses testified at length about the strange and often detached approach JM has taken during her visits with Child S. To observers, her mind often appears to be elsewhere—sometimes occupied with far-fetched speculation (such as her unsubstantiated belief that Child S’s vaginal opening is enlarged, bespeaking some kind of inappropriate sexual touching: Transcript , November 8, 2011, pp. 10-11).

JM’s social worker described one visit between JM and Child S in the following terms: “Q Okay. And in general terms, how did that visit go from your point of view? A Given the time of the visit, there was no initiation or self-motivation from [JM] to have -- to talk or to touch the [Child S]. She was encouraged -- I encourage [JM] to engage in play. There was blocks on the floor for the mother and the child to begin play time. The child was pretty scared. There were moment that the child cry -- start crying. I had to comfort the child on different occasions.

I tried to engage the mother in different occasions to play with the child, to interact, to initiate interaction. The visit did not go well. She asked me to stop looking at her. She refused, even with the [Infant Development Program] worker asking her to initiate play, to initiate -- talk to her, she asked me to stop looking at her.” Transcript , June 11, 2012, pp. 6-7 The notes of the aboriginal infant development worker who supervised that visit corroborated those observations: see Exhibit 12. [ 37 ] JM’s own evidence about another visit with engagement difficulties was similar.

She showed little insight into the reasons why her own parenting performance on that occasion was found wanting. Moreover, when asked whether she had concerns about Child S on the visit in question, JM made a bizarre reference to what she perceived was a problem that she and her daughter were having with their temples that was making them both “crazy”: “Q Okay. Good. Some further comments I'm going to read to you with respect, again, to the same visit.

It says: The writer told [JM] that we had to go now. [JM] carried [Child S] out of the visit room. [JM] sat on one of the visitor chairs and put [Child S] on her lap, not facing one another. They were waiting for the foster parent to arrive. Eventually [Child S] wiggled out of [JM]'s lap and walked onto the floor. [Child S] began to cry. [JM] watched her, but did nothing. [Child S] began putting her head on the ground, facing the ground, and cried louder. Still, [JM] watched [Child S] but did nothing.

The writer ended up picking up [Child S] and held her, cuddling her, caressing her back, and softly telling her that it's okay. [Child S] stopped crying. Q. So do you remember anything about that? A Pardon? Q Did you hear what I -- everything that I read? A Oh, she started crying. She was tired. That's when she conked out right away and laid herself on the floor and just shut her eyes, and went into dreamland. Q The commentary by the people who wrote the notes here mentions twice that [JM] did nothing, so it seems to suggest -- if one

reads that, it seems to suggest that they wanted you to do something? A No, nothing. Q Mm-hmm. A Yeah. Q So you agree that you did nothing? A That's right. Q Okay. Did you think it was appropriate to do nothing or did you -- A Yes. Yes. It's not my home. I can't -- later in my own bed, with her own covers. Anyways, she just laid on the dirty filthy carpet and -- her hair and -- Q Did you think she was okay, though, otherwise? A Oh, yeah, she looked fine. Q You didn't have any concerns for -- A I don't have any concerns. Q At that time, did you have any concerns for her safety? A No. Q Okay.

A Well, a little bit, with her temples. I was wondering, because I was having that problem, too. It was making me crazy also. And she seemed to be getting the same -- same thing. ” (emphasis added) Transcript , June 12, 2012, p. 18 [ 38 ] Deeply troubling is JM’s persistent tendency to resist parenting instruction or input, in much the same way as she has resisted the evaluative and instructional contributions available from her mental health workers: see, for example, Transcript , November 9, 2011, pp. 33-36 and November 10, pp. 47-48.

She has refused to give important information to the Director and she has refused to give her consent so third parties could give important information about her to the Director. JM’s actions have thus frustrated her own declared objectives insofar as her pattern of habitual refusal to disclose or consent to the disclosure by third parties of information about her have deprived the Director of part of what is needed to evaluate JM’s fitness and ability to parent Child S.

Two extracts from her social worker’s testimony regarding this pattern are set out below: “Q In terms of your concerns that you expressed about [JM]'s mental health, are you basing your concern solely on your observations - - your own observations of...? A Well, any -- we also had the information from the removal when she'd been in the hospital prior to [Child S]'s birth, and then, you know, being aware that we did get the records from the hospital and, you know, that talked about admissions and, you know, the time that she'd been in the hospital.

We've been aware that the community mental health team was involved to some level.

We didn't know until recently what that level was, because we didn't have [JM’s] consent to speak to -- directly with the community mental health team .” (emphasis added) Transcript , November 10, 2011, p. 21 “A We mentioned having -- having a worker -- it's called a family strengthening worker, and eventually having meetings with -- if it was possible at the time with a community mental health worker to have meetings so that we can be informed how [JM] was doing, was she compliant with the discharge review from -- or the care plan from Riverview Hospital? Was she attending to appointments with psychiatrist?

Was, for example, any medication prescribed that she had to follow, appointments that she had to follow through with psychiatry out of the community, any appointments that had to do -- in relation to her own mental health and follow-up. We did not receive -- no cooperation. Any attempts, she said that, "I don't like people to come to my house. I don't like social workers. I don't -- I don't like to talk to people very much." And there were just coming very guarded or very suspicious, if I use the word suspicious (sic). I can remember that she -- she brought a book, a notebook. She said that she will take notes.

And actually we encourage for her to take notes, but she was, at the time, she was not willing to do anything in cooperation with us, the Ministry .” (emphasis added) Transcript , November 10, 2011, pp. 50-51 Conclusions Regarding Need for Protection [ 39 ] The law is clear that in determining whether a child is in need of protection the court is entitled to consider evidence regarding

the circumstances prevailing at the time of removal and over the period extending from then to the time of the hearing: see Superintendent of Family and Child Service v. Gilmour (May 14, 1986), Vancouver No. CC851987 (B.C. Prov. Ct.), Director of Family and Child Service v. Williamson and Williamson (April 10, 2001), Port Coquitlam No. F3980 (B.C. Prov. Ct.) and Re: D.M.J. and R.J. (March 30, 1992), Prince George No. 21831 (B.C.S.C.).

Evidence over that entire period will speak to, among other things, the possibility that the child will be at risk of future neglect or abuse based on the pattern revealed by evidence of the recent and not-so- recent past. [ 40 ] I have no hesitation in concluding, based on the evidence canvassed above, that in the case at bar Child S is in need of protection. [ 41 ] JM’s chronic mental health problems and illicit substance abuse are deeply rooted and, after many years, they are still not satisfactorily controlled.

While there is an ebb and flow aspect to the way JM’s difficulties manifest themselves, and while I do give JM credit for the positives revealed in that ebb and flow pattern, I must also acknowledge that her mental health and her illicit drug use have not been under stable control for any extended period.

The fact that these problems are still not sufficiently managed cannot be attributed to a lack of effort on the part of the many service providers who are ranged around JM, who provide the safety net that is intended to assist her and people like her to make their way in the community, and who have doggedly attempted to give their assistance to JM despite her reluctance to receive it. [ 42 ] JM’s problems with mental health and drugs have a direct impact upon her parenting capacity. That is well documented in the observations that others have made of her attempts to interact with Child S.

Worse still, there is no discernable positive trend in her ability to provide for Child S. Such progress as she does make is often eroded by setbacks. This is due, in no small measure, to JM’s failure to recognise and accept that she has significant problems and needs, coupled with her resistance to yield to the interventions that her mental health team, her social workers and the many others continue to try to make, with little success, in order to bring stability to her life and better quality to her parenting.

One cannot rationally conclude other than that JM’s challenging, if not intractable, problems impair her ability to make adequate provision for Child S’s care.

Were Child S to be left in JM’s care, even with a network of support services gathered around them, I am quite satisfied that the child would be at an intolerable risk of suffering physical and emotional harm. [ 43 ] It merits repeating that the fact that JM so resolutely keeps at bay, as much as possible, her mental health team, social workers and the other service providers who have a contribution to make to her life and her ability to parent Child S, augurs poorly for the future.

Unfortunately, JM is a troubled woman with many challenges; by having habitually refused or resisted receiving the help she so badly needs, she leaves the court with little optimism that the significant gaps in her capacity to parent will be made good through professional input given under less intrusive measures (like a supervision order or a shorter term custody order).

WOULD A CCO SERVE THE BEST INTERESTS OF CHILD S? [ 44 ] It will be recalled that under ss. 41(2), 49(4) and 49(5) of the CFCSA a CCO will serve a child’s best interests if: • the respondent parent is unable to resume custody of the child; and/or • there is no significant likelihood that the circumstances leading to removal will improve within a reasonable time and, therefore, there is little prospect that it would be in the child’s best interests for her to be returned to the respondent parent. [ 45 ] Further, the making of a CCO will be justified if the evidence concerning the Director’s Plan of Care for the subject child reveals planning for future arrangements that are geared to maximising that child’s best interests: s. 40(3) . [ 46 ] I am satisfied on the evidence that a CCO would be in Child S’s best interests having regard to all of these factors. [ 47 ] The evidence placed before me at the hearing of this matter is persuasive that JM’s mental health problems are problems of long standing that interfere with her ability to provide a safe and nurturing environment and proper care for Child S.

JM’s mental health problems bring with them limitations in her ability to provide for her second daughter, just as in the past they limited her ability to provide proper care for her first daughter. Her interactions with Child S are stunted and strange. Moreover, JM’s tendency toward intransigent insularity has consistently kept at a distance those whose contributions she most needs—both to assist her in achieving a better adjustment to life’s demands herself and to assist her in learning what she needs to know to be a better parent. JM shows little insight into her own special needs or the needs of Child S.

In particular she seems to be largely oblivious to the effect her self-imposed isolation from professional supports and the social safety net generally has had in preventing her from making progress in the areas where she so badly needs to make it. [ 48 ] JM has a history of illicit drug use that reaches back over a period of years. While it is true that her pattern of using such substances not been an uninterrupted one, it does include (as noted earlier) the verified use of opioids and crack cocaine when she was pregnant with Child S —something that she testified she knew was “wrong”.

Lapses of judgment and self-control of this nature severely constrain JM’s ability to argue persuasively against the making of a CCO, particularly in the context of her pattern of continuing resistance to the efforts of the Director’s representatives’ input even while this case was underway and when one would have expected her to have been maximally motivated to demonstrate an ability to work cooperatively and effectively with her support network. [ 49 ] I have no doubt that the efforts of the Directors’ representatives and those of JM’s mental health team throughout have been motivated by a sincere desire to help JM manage her difficulties with mental illness and drugs (and, thereby, improve her ability to parent).

But the Director’s first priority has been, and must always remain, making the best possible provision for Child S. JM, by contrast, does not seem to recognise the need for the services being offered to her or the benefits that can flow from them to herself and her daughter. Rather, she has displayed a pattern of regular and frequent setbacks requiring repeated certifications and hospitalisations from which she has, on occasion, absented [ 50 ] herself without medical permission to do so.

JM does not see the value of continuing with the antipsychotic medication that her mental health team continues to administer by injection and, indeed, she envisions a time in the relatively near future when, in her

judgment, she would wish her ongoing contact with her mental health team to come to an end. “Q [JM], you said that as part of the conditions of your release from the hospital, there are certain things you need to do. One of themis that you need to take this shot and the needle? A Yes. Q Is that correct? A Yes. Q So you said that would be for six months? A Yes. Q And then after that, you would be okay with continuing with the Ativan and the Tylenol, but not the shots; is that correct? A Correct. Q Okay.

And after the six months is up, your plan is to discontinue your involvement with New West Mental Health; is that correct? A Maybe. Q Okay. A I want to leave the system sometimes. Q Leave the system, meaning? A Like the -- Q The mental health system? A Yes.” Transcript, June 12, 2012, p. 47 [51] I have no doubt that the shortfalls that have been noted in JM’s performance are attributable, in whole or in part, to her mentalillness.

I wish therefore to be clear that in enumerating those shortfalls I do not intend to affix blame so much as identify factors personalto JM that militate against Child S’s best interests. Those interests, of course, must always remain foremost in my mind. Thus, by reasonof her pervasive mental health problems, her periodic returns to illicit drug use and her seemingly unconquerable resistance to receivingthe professional input that is needed in order to manage her myriad problems, I consider JM for the purposes of s. 41(2)(

b) and 49(4)(b)of the CFCSA to be “unable”—in the sense of lacking the necessary skills and mental balance and clarity—to have custody of Child S. [52] No plan has been placed before the court on JM’s behalf that gives me any reason for confidence that that situation willchange. Thus, again—given the history—the evidence persuades me for the purposes of s. 49(5)(

a) of the CFCSA that there is nosignificant likelihood that the circumstances leading to removal will improve within a reasonable time. By the same token, on the basisof the evidence I have heard and seen, I consider, for the purposes of s. 41(2)(

c) of the CFCSA, that the likelihood that Child S willsuffer harm is such that there is little prospect that it would be in her best interests for her to be returned to JM. [53] I have not reached these far-reaching conclusions lightly or without reflection. I am mindful of the references in s. 2 of theCFCSA to the importance of kinship ties and to the family being the preferred environment in which children should cared for andbrought up if possible. The making of a CCO will interrupt those kinship ties between Child S and her mother, JM, and make herremoval from her immediate biological family permanent.

But while the preservation of a parent/child relationship between a biologicalmother and her offspring is properly a statutory and common law priority in cases of this kind, that priority must and does yield when itcan be shown that the child’s health and safety interests, seen in the round, require that the child be taken into the Director’s continuingcustody so that a permanent placement elsewhere, under safe, secure and nurturing conditions, can be effected: see King v. Low, (SCC), [1985] 1 S.C.R. 87 and the discussion of that decision in W.M.W. v. J.W., [2011] B.C.J. No. 2432 (Prov.

Ct.) at paras.18-31. [54] As the evidence unfolded at trial, it became evident that the Director’s Plan of Care for Child S has evolved somewhat since theformal Plan of Care document was originally filed: see Exhibit 1, tab “A” p. 17 and Exhibit 16. Two families—one from the extendedfamilies of each of JM and AL—have come forward to indicate a serious interest in becoming the child’s long-term caregivers by way ofadoption.

A Family Group Conference has been held and as much of the machinery as is able to be activated to explore the possiblesuitability of the two families as placements for Child S at this stage has been activated. [55] The fact that relatives of AL are contenders as a possible adoptive family for Child S (and, that they came forward with thesupport of the Saulteaux First Nation) confirms that the Director has been mindful of the importance, underscored in s. 2 of the CFCSA,of exploring options which can have the effect of preserving Child S’s cultural identity as a partially aboriginal child.

THE ARGUMENTS ADVANCED BY COUNSEL ON BEHALF OF JM [56] I wish to be clear that in reaching the conclusions I have reached I have not disregarded or failed to give consideration to the

arguments that have been advanced, skilfully, on JM’s behalf by her counsel. In his submissions Mr. Upton has made the best anyone could of the difficult assignment of advancing a case on JM’s behalf. [ 57 ] Mr.

Upton summarised the arguments he presented in JM’s favour as follows: “In brief, areas of concern from the perspective of the mother are (1) that the decision to proceed with a CCO came too hastily; (2) that the child’s placement in Maple Ridge proved to be an obstacle to the development of a bond between [JM] and [Child S]; (3) not enough was done in the way of providing access to [Child S]; and (4) that not enough was done in the way of providing services or programs for [JM] and, related to same, that not enough was done to set out what was expected of [JM].” [ 58 ] I would not disagree with JM’s counsel in his submission that the Director came quite quickly to the conclusion that JM was unlikely to be a suitable, long-term caregiver for Child S.

However, the facts established by the evidence placed before me are such that I consider the Director to have been justified in reaching that conclusion when the Director reached it. [ 59 ] JM was well known to the Director by reason of her history with her first child—a child who, after substantial effort was expended by all under voluntary care agreements and other lesser measures, ultimately had to be removed permanently from JM’s care by way of a CCO made in order to assure the child’s safety and well-being.

The presenting concerns when JM next came to the Director’s attention with Child S’s imminent birth in late 2010—that is, a rather debilitating psychiatric illness in combination with periodic illicit drug use and a general tendency to reject professional guidance and involvement—were markedly similar to those that surrounded the ultimate removal of her first daughter in 2004.

JM tested positive for opiates and cocaine during her pregnancy with Child S and she has had no fewer than four psychiatric admissions since Child S was born. [ 60 ] JM has been minimally cooperative with those who would assist her in managing her own challenges more effectively and in performing better as a parent.

I see very little prospect that she will ever be sufficiently in control of her mental health and drug use problems to be entrusted with the care of a child and, to put it metaphorically, that writing was on the wall from early days during the Director’s second round of involvement with JM in late 2010 (when Child S’s birth was imminent). It has remained there ever since. [ 61 ] I cannot fault the Director for taking a view that, looking at the evidence that was before the Director and is now before me, I share myself, namely, that a CCO is the only way to prepare the way for a proper future for Child S.

I cannot fault the Director for a slackening enthusiasm to devote scarce time and resources to a situation that was showing so little improvement, owing largely to JM’s persistent unwillingness to engage as evidenced by missed meetings, refusals to answer the door when support teams visit, refusals to take proffered rides to visits with Child S, and so forth.

I am of the opinion that the Director rightly assessed this case at an early stage as being one in which the prospects of JM having a long term role as Child S’s primary caregiver were small; that initial impression was confirmed by not all, but most, of what unfolded in the Director’s dealings with JM after the baby’s birth. [ 62 ] I commend the Director’s representatives, and most especially Mr. Suazo and Ms. McKee, for the effort they expended in trying to work with JM over the period following Child S’s birth, up to and including the period covered by the trial of the CCO application.

They did not perform faultlessly but they performed very well in the face of very little cooperation or willing participation on the part of JM. To the extent that Mr. Upton may be taken to have called into question the good faith or sincerity of those representatives regarding their dealings with JM, I think it important to record here that the evidence simply does not bear out such a characterisation. [ 63 ] With regard to the specific suggestions made on JM’s behalf—regarding supervision orders and temporary custody orders—I agree with Ms.

Nishimura, counsel for the Director, when she states in her Reply submission the following: “… in [JM]’s counsel’s submission, there is no discussion of [Child S]’s best interests or how either the proposed supervision order or temporary custody order is in [Child S]’s best interests. Counsel for [JM] proposes that a supervision order with terms be considered, and that the included terms address [JM]’s ongoing mental health issues.

However, it is respectfully submitted, that a return cannot be in [Child S]’s best interests. [JM]’s counsel concedes that the ‘circumstances surrounding [JM]’s mental health at the time of [Child S]’s birth’ support a protection finding (p. 14 of [JM]’s submissions). There is no evidence to suggest that her mental health status has improved since the time of the removal. If [Child S] was in need of protection at the time of the removal, because of her mental health issues, surely, she continues to be in need of protection today.

Since [Child S]’s removal, [JM] has not been able to secure a residence that is appropriate for herself or for a young child. There is no reason to believe that [JM] would now allow the Director or its agents to visit her at the home. [JM] is not in regular contact with the social worker; she does not have a phone and she is often unwilling to open the door when the social worker attends her home. [JM] has shown that she is unable or unwilling to accept the assistance of support services (see Exhibits “12”, “14” and “15”).

In terms of her mental health, counsel for [JM] suggests including a term that [JM] continue to work with and follow the directions of the Community Mental Health Worker. While [JM] has demonstrated that she is able to comply for periods of time, since [Child S]’s removal she has been hospitalized four times, and she has indicated a desire to end her involvement with the mental health team. The Director submits it is not in [Child S]’s best interest to be returned to her mother’s care currently, as serious protection concerns remain.

Further, even if [Child S] was returned to her mother’s care, even under the strictest conditions, it is not reasonable, given the evidence before the court related to [JM]’s situation and mental health status, to believe that [JM] would be able to comply with the order and it is inevitable that [Child S] will once again be removed.

Such a scenario also cannot be in [Child S]’s best interest.” THE ARGUMENTS ADVANCED BY COUNSEL ON BEHALF OF AL [ 64 ] As I have noted, AL supports JM’s opposition to the Director’s application for a CCO, arguing that a less intrusive measure than a CCO—such as a supervision order or temporary custody order with supervision terms—be adopted.

It can be seen from the foregoing that I have been persuaded by the evidence and arguments placed before me that nothing less than a CCO will suffice to afford the Director the ability to give Child S the necessary protection and create the long-term conditions that will best serve her interests. This renders moot AL’s applications for access in association with supervision orders or temporary custody orders that I am not disposed to make in any event.

[ 65 ] That brings me next to the question of access by AL under s. 56 of the CFCSA in circumstances where the court grants a CCO regarding Child S.

It seems to me that, given the uncertainty at the time of writing regarding the ultimate disposition of the second degree murder charge that AL is facing in a trial that is soon set to continue, it would be premature for me to deal now with the question of his access to Child S. [ 66 ] Unquestionably, it is the exception (and not the rule) that biological parents are granted rights of access concerning children who are subject to CCOs and for whom adoption placements are being sought: S.W. v. British Columbia (Director of Child, Family and Community Service) , [2001] B.C.J. No. 480 at para. 51 (Prov. Ct.) .

This is because continued access rights can interfere with the securing of adoptive placements and, insofar as the securing of such placements is manifestly in the subject children’s best interests, those interests will generally prevail. AL’s uphill struggle, given that line of authority, would be made even more challenging should he be convicted of the offence with which he has been charged or, possibly, found not criminally responsible on account of mental disorder (“NCRMD”).

That struggle would, correspondingly, be made less difficult if he should be acquitted of the murder charge. [ 67 ] However matters ultimately work out before the criminal courts, it would obviously be a great deal easier for everyone to assess AL’s requests for access to Child S with knowledge regarding his long term future. That is: (

a) does he seek to exercise access rights as a person who has been acquitted of the murder charge and been restored fully to his liberty rights?; or (

b) does he seek an order granting him access to Child S to be exercised while he is incarcerated and serving a prison sentence?; or (

c) does he seek an order, following an NCRMD determination, granting him access to Child S having been: i. discharged either absolutely or conditionally by the Review Board? or ii. detained in custody in a hospital for the purpose of protecting the public? [ 68 ] Due to the prevailing uncertainty in these areas I decline to make an order at this time granting AL access to Child S. I do however I grant him liberty to bring an application for access pursuant to s. 56(1) of the CFCSA on proper notice to all parties once the criminal charges he is now facing have been fully and finally disposed of.

I approach the matter that way knowing that, despite the considerable challenges owing to AL’s custodial status, some informal steps have been taken by the Director already to secure access for AL to Child S while he (AL) has been in custody awaiting his trial. This was done without a formal order.

I know that should AL, through his counsel, seek further informal access of that kind, the Director will evaluate and ultimately respond to such requests with a view to ensuring that any step that is taken in that regard is taken with proper consideration given to what, in these unique circumstances, will best serve Child S’s best interests. [ 69 ] Lastly, I note that AL has made suggestions through his counsel, Mr. Adams, in written submissions regarding: (

a) orders, directions or policy recommendations concerning aboriginal children and their access to incarcerated parents generally; and (

b) the ultimate placement of Child S by the Director in the event that a CCO is granted and the access AL might have to Child S depending upon that placement. The suggestions are carefully tied, in Mr. Adams’ written argument, to various provisions in the CFCSA that, inter alia , stress the importance of preserving and promoting an appreciation of aboriginal heritage on the part of the aboriginal children who come into the Director’s care. [ 70 ] While the suggestions found in Mr.

Adams’ submissions are available for the Director’s consideration, no statutory provision, regulatory provision, or common law or equitable doctrine has been cited to me that would confer jurisdiction upon this court to make orders, directions or recommendations of the kind sought on AL’s behalf in this case. Once Child S in the continuing custody of the Director, it falls to the Director as the child’s S’s sole guardian (see s. 50(1) (

a) of the CFCSA ) to take such steps in dealing with her as are necessary to ensure that her best interests, including but not limited to those interests that are grounded in her aboriginal heritage, are properly promoted and secured. Here again I would say that to whatever extent the matters addressed by Mr. Adams in his written submissions on AL’s behalf are seen by the Director to resonate with Child S’s best interests, I would expect that in exercising powers under the CFCSA the Director will give those matters full and proper consideration. ORDERS [ 71 ] Based upon all of the foregoing I make the following orders: (

a) The Director’s application, brought pursuant to s. 41(1) (

d) of the CFCSA , for an order that Child S be placed in the continuing custody of the Director is allowed; (

b) JM’s application, brought pursuant to s. 41(1) (

a) of the CFCSA , for an order that Child S be returned to her under the Director’s supervision is dismissed; (

c) JM’s alternative application, brought pursuant to s. 41(1) (

c) and 43 of the CFCSA , for an order that Child S be placed in the temporary custody of the Director for a period of three months is dismissed; (

d) JM’s applications for access to Child S, advanced on the unfulfilled premises that Child S might be returned to JM under the Director’s supervision or be placed in the custody of the Director for a period of three months, are dismissed; and (

e) AL is at liberty to apply, pursuant to s. 56(2) of the CFCSA , for an order granting him access to Child S once the criminal charges that he currently faces have been fully and finally disposed of.

______________________ Thomas S. Woods, P.C.J.