Citation: Director v. L.D.S. and C.C.C. 2018 BCPC 61 Date: 20180313 File No: F9857 Registry: Courtenay 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: V.D.C. , born OMITTED FOR PUBLICATION BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: L.D.S. and C.C.C. PARENTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Director: P. Armstrong Counsel for the Mother : M. Giltrow, as Agent for A. De. Ciantis Counsel for the Father : J. Nemeth Counsel for Huu-ay-aht First Nation : M.

Giltrow and M. Skeels Place of Hearing: Courtenay , B.C. Date of Hearing: March 6, 2018 Date of Judgment: March 13, 2018

A Corrigendum was released by the court on March 15, 2018 and March 20, 2018. The corrections have been made to the text and the Corrigenda are appended to this document. Introduction: [ 1 ] V.D.C. was born at the [omitted for publication] Hospital on [omitted for publication]. V.D.C.’s mother is L.D.S. and she is a citizen of the Huu-ay-aht First Nations (HFN). L.D.S. is [omitted for publication] years old and she is from Port Alberni, B.C. V.D.C.’s father is C.C.C. and paternal grandmother is N.C. both of whom are members of the [omitted for publication] Band. They reside in Courtenay, B.C.

L.D.S. and C.C.C. do not live together. [ 2 ] V.D.C. was removed from her mother and father on January 16, 2018 at [omitted for publication] Hospital. In accordance with the directives by the social workers and on behalf of the Director of the Ministry of Children and Family Development (MCFD), V.D.C. was discharged from the hospital to the care of her paternal grandmother - N.C.

L.D.S. was initially advised that she would only have supervised access to her new born daughter although I understand that since her discharge from hospital, she has had unsupervised access for extended periods of time. [ 3 ] L.D.S. is ordinarily a resident of Port Alberni and has been staying in a motel in Courtenay so that she can see and nurse her baby. [ 4 ] The presentation hearing commenced before me on March 6, 2018.

L.D.S. opposes the removal and seeks an order that V.D.C. be returned to her care or, alternatively, that V.D.C. be returned to her under the supervision of the Director on terms and conditions that they reside with S.C. and with the supervision and oversight of qualified professional designated by the Huu-Ay-Aht First Nations (HFN) and/or Usma Naa-chah-nulth Family and Child Services (Usma).

Usma is a delegated Aboriginal agency and has authority to provide and oversee child protection services for their people. [ 5 ] The Director seeks an order that V.D.C. remain in the interim custody of N.C., in Courtenay, pending a protection hearing. [ 6 ] C.C.C. takes no position with respect to the Directors application but in the event that I find there are less intrusive means, he opposes L.D.S. and V.D.C. returning to Port Alberni.

He is concerned about a reduction in the amount of time he has with his daughter. [ 7 ] N.C., although not a party, was also present in court with her counsel and clearly supports the Director’s position. She is an elder with the [omitted for publication] Centre in Courtenay. [ 8 ] The evidence presented to me was by way of affidavits and exhibited documents. No oral evidence was given.

Reasons for Removal: [ 9 ] As set out in the Report to the Provincial Court of British Columbia dated January 16, 2018, the reasons given for the removal of this baby can be summarized as follows: A. concerns regarding L.D.S.’s ability to make and follow through with safe, consistent plans in order to meet the child's immediate needs; B. significant concerns for L.D.S.'s ability to provide a safe and stable environment for a new born child; C. significant concerns for L.D.S.'s lack of capacity to parent and ability to respond to the baby's cues or meet her immediate needs. [ 10 ] The same concerns are expressed in relation to C.C.C.

The Evidence: [ 11 ] In August, 2017, L.D.S. learned that she was pregnant. She and her boyfriend and the father of their child told N.C. shortly thereafter. L.D.S.'s evidence is that not long after this, C.C.C. informed L.D.S. that his mother said that she would fight to have the baby raised in her home. N.C. did not speak directly with L.D.S. about this. [ 12 ] Also shortly after telling N.C. about the pregnancy, L.D.S. was contacted by Ms.

Rachel Davidson, a social worker employed by the MCFD in Courtenay. [ 13 ] L.D.S. had grown up in foster care herself and although she had no idea who had contacted MCFD or why they wanted to offer her support, she was not entirely surprised given her background with them. Her evidence is that while she didn't object to support being offered, she didn't feel that some of those supports were appropriate for her. Her evidence is also that she did not understand that she was under any obligation to do exactly what Ms.

Davidson told her to do. [ 14 ] In approximately September, 2017, she began living with C.C.C. and his mother at N.C.’s home in Courtenay. Over time L.D.S. became increasingly uncomfortable and it is apparent that her relationship with N.C. was, at the very least, strained. I also accept that throughout this time, L.D.S. returned to Port Alberni for extended visits with her own mother and where she also has supports through the HFN. [ 15 ] In October 2017 L.D.S. began to have regular contact with the HFN family liaison worker - C.B. - as well as another individual at the Friendship Centre also in Port Alberni.

She also attended cultural nights regularly throughout her pregnancy when she was in Port Alberni. [ 16 ] Knowing that her due date of [omitted for publication] was approaching, L.D.S. made the decision that she preferred to live

with her own mother in Port Alberni so that she would have support there during the last trimester of her pregnancy and after her baby was born. She had earlier told C.C.C. and his mother that she wanted to live with her mother in Port Alberni but, according to her evidence, they physically blocked the door and refused to allow her to leave. Nonetheless, she was able to leave Courtenay upon arranging with a family friend to pick her up and take her to Port Alberni. [ 17 ] The Report to Court filed by the Ministry on January 19, 2018 indicates that L.D.S. left Courtenay on December 26, 2017. However, Ms.

Davidson's affidavit indicated that on December 20, 2017 she received a message from L.D.S. advising that she was now in Port Alberni. [ 18 ] L.D.S. was under the care of an obstetrician in Port Alberni and had been seeing him before and after her final return on December 20, 2017. I mention this because the Report to Court stated that L.D.S. left for Port Alberni one day before a scheduled appointment with her obstetrician in Courtenay suggesting this as an example of her poor decision making that impacted her unborn child. [ 19 ] L.D.S. recalled speaking with Ms.

Davidson on January 11, 2018, and told her that she no longer wished to live in Courtenay and wanted to remain in Port Alberni. L.D.S. deposes that Ms. Davidson told her she would work on getting her file transferred to Usma in Port Alberni. According to L.D.S., at no time did Ms. Davidson tell L.D.S. that she had done something wrong or that her baby may be removed from her. She also deposed that during the conversation Ms. Davidson did not make any inquiries of her about whether any supports were in place for her in Port Alberni. [ 20 ] Ms.

Davidson’s evidence is on January 9, 2018, she “talked to” L.D.S. about "the original plan, which was to live with N.C. and C.C.C. following the child’s birth” and that L.D.S. said “she didn't care and wasn't coming back." [ 21 ] C.B. is a Family Support Liaison Worker with the HFN and has been working with L.D.S. during her pregnancy and planning for supports for her and the baby to help her transition into motherhood. In early January, 2018 and prior to January 12, 2018, she had been, in her words, in constant communication with MCFD.

She had understood that a cooperative plan was in place between HFN, Usma and MCFD for L.D.S.’s file to be transferred to Usma, the delegated Aboriginal Agency in Port Alberni. According to C.B., during the week of January 8, 2018 Ms. Davidson advised her that the file would be transferred by the end of that week. [ 22 ] Ms. Davidson's affidavit evidence is that she had initial contact from C.B. between January 5 and January 10, 2018 although she mentions no specifics about that conversation. She deposes that on January 12, 2018, when speaking with C.B., she told her that she would consult with Ms.

Talbot - her team leader - about having an Usma worker attend the hospital for the birth. [ 23 ] In C.B.’s words, during their discussions with MCFD, there was never any indication that a removal order may be necessary at any time, or that the mother would have to live under the supervision of another adult upon the birth of her child, or that a safety plan was being considered. [ 24 ] C.B. was advised by MCFD that they were concerned about L.D.S.’s capacity to parent the baby because she had been previously diagnosed with FASD.

Their discussions were geared to putting supports in place for her in both Courtenay and Port Alberni. In fact, she says that MCFD provided her with a list of the Courtenay supports and the HFN was able to match those in Port Alberni along with additional supports. [ 25 ] Not long after this conversation, C.B. called Ms. Davidson and MCFD to advise her that L.D.S. was in labour at the maternity ward in Port Alberni. [ 26 ] L.D.S. was transported by ambulance to [omitted for publication] Hospital where she gave birth to her baby girl - V.D.C. - on [omitted for Publication] shortly after 8:30 am.

Following the birth, she was able to hold V.D.C. and nursed her right away. [ 27 ] V.D.C. was placed in an incubator for twenty-four hours and then moved to the separate neonatal unit. After that, L.D.S. deposes that the hospital staff did not bring the baby to her for feeding although the hospital social worker told her that they would bring the baby to her room. L.D.S.’s evidence is that that did not happen.

She was never told why but did walk to the neonatal unit so she could hold her baby and followed nursing staff instructions to begin pumping breast milk. [ 28 ] It is apparent from the filed evidence that during this time MCFD had advised the hospital that L.D.S. was not to be alone with her baby unless supervised by N.C. or, presumably, hospital staff. The hospital was also told that MCFD did not want the baby going to the parents’ room on the ward.

I note that these restrictions would make it difficult for L.D.S. to nurse and spend time with her baby. [ 29 ] While in hospital, L.D.S. did not receive a personal visit from an MCFD social worker until January 16, 2018. During this visit, the social worker handed L.D.S. a telephone. It was Ms. Davidson on the phone who then told L.D.S., over the phone, that MCFD was removing her baby. L.D.S.'s evidence is that she was told the reason was because of her own mother's history with MCFD. L.D.S. was shocked and extremely distressed. [ 30 ] V.D.C. was discharged from the hospital into the care of N.C.

In order to be close to her daughter and to facilitate at least some ability to bond and nurse her baby, L.D.S. began living in a motel in Courtenay and remains there currently. [ 31 ] The

schedule initially put in place for L.D.S. to have access to her daughter was limited because MCFD insisted that access be supervised and there was a shortage of available supervisors. At times there appear to have been last-minute changes to the

schedule and unilateral reductions in the amount of time L.D.S. had with her baby. It has been difficult for her to re-establish breast-feeding and, on one day in particular, when Ms. Davidson was supervising. [ 32 ] After V.D.C.’s birth, Christine Pearson, a Protection Support Worker with HFN, worked with the team to provide support to L.D.S. and V.D.C. in Courtenay. She spoke with Ms. Davidson about the access arrangements. Ms. Davidson initially indicated L.D.S. could have access each week day for 3 to 4 hours. According to Ms. Pearson, Ms. Davidson agreed to the possibility of mother having morning visits for breastfeeding visits.

[ 33 ] This

schedule was unilaterally decreased without discussion to three two hour visits per week and one two hour visit at the Healthy Baby Program to be attended by both L.D.S. and C.C.C. [ 34 ] Many of these visits have been cut short and locations and times changed by MCFD or the supervisor at the last minute - on one occasion because the supervisor had another visit she had to attend. [ 35 ] MCFD’s difficulties in obtaining supervisors caused HFN to find an individual who was willing and, in their view, qualified to provide supervision. HFN agreed to pay for this. This proposal was given to MCFD in early February.

Ms. Pearson was told that MCFD would have to obtain a criminal record check. After several follow up calls, she was then advised by MCFD that after receiving the criminal record check, this individual would then have to be approved by the Team Lead - Ms. Talbot. This individual was ultimately not approved but no reasons were given to HFN. [ 36 ] Following an application to the Supreme Court of British Columbia, Madam Justice Murray, on February 20, 2018, ordered that the director was to increase L.D.S.’s access to V.D.C. to ensure that breastfeeding was not interrupted and the maternal bond unharmed.

She increased the time to at least six hours per day including weekends and were to be spread over morning, mid-day and evening. [ 37 ] I understand that a portion of the access visits are now unsupervised and that L.D.S. has had the assistance of a Public Health Nurse who is helping her with breast-feeding protocols. [ 38 ] Evidence was provided to the court from Mr. Christopher Siu, a registered clinical counsellor who had previously met with L.D.S. in April, 2017. He advised that the removal of a child from its mother disrupts the attachment bond, a “critical component of healthy development”.

As he stated: “This can have attachment implications for healthy physical and emotional development beyond childhood into adolescence and adulthood.” [ 39 ] Dr. Bingham was the paediatrician who was present in the Neonatal Intensive Care Unit and looked after V.D.C. Dr. Bingham wrote the discharge order for V.D.C. to be discharged into N.C.’s care because she felt compelled to do so by MCFD. Dr. Bingham provided two letters which were in evidence. In the letter dated January 18, 2018, she advised that she had observed L.D.S. with her new-born on a daily basis and on several occasions.

She advised that L.D.S. was attentive, engaged and interested in her baby’s progress. She observed that L.D.S. was “identifying and responding appropriately to baby’s cues” and described seeing “a natural and healthy maternal-baby bond”. [ 40 ] I note that this appears to be contrary to the letter written by one individual who is the sister of N.C. and included in the evidence filed by MCFD at the presentation hearing. I note that this evidence appears to be based, at least in part, on what others told her, including N.C. [ 41 ] Dr. Bingham’s observations are also contrary to what Ms. Talbot was told by Mr.

Thompson, the Aboriginal Support Worker from the [omitted for publication] Centre - the same Friendship Centre in which N.C. is an elder. Mr. Thompson called Ms. Talbot on January 15, 2018 and told her that a hospital social worker - Ms. Lewis - told him that L.D.S. was not engaging with the child. Ms. Talbot spoke with Ms. Lewis who confirmed over the telephone. However, Ms. Lewis told Ms.

Talbot that N.C. and C.C.C. were engaging well with V.D.C. [ 42 ] It is interesting that notwithstanding this, the Report to Court filed January 19, 2018 expresses concern about C.C.C.’ parenting capacity and his ability to “provide safe consistent responses for his baby…”. [ 43 ] In reviewing the hospital records which were in evidence, no mention is made of observations of L.D.S. and V.D.C. by Ms. Lewis in her hospital consultation record. Nor are there any such observations by Ms. Briggs, another social worker involved with L.D.S. while in hospital.

I observe in the records that on [omitted for publication] , the same day V.D.C. was born, N.C. requested that Ms. Briggs call Mr. Thompson. Ms. Briggs notes, she sets out the information provided to her by Mr. Thompson - that L.D.S. had not been engaging with supports after she became pregnant. [ 44 ] I mention my observation of this evidence as part of the overall context surrounding V.D.C.’s removal. [ 45 ] Dr.

Bingham described L.D.S.’s distress upon being told her baby had been “removed” by MCFD and that she was “tearful as she held and rocked her baby for several hours.” [ 46 ] She observed L.D.S.’s breastfeeding was progressing well and that she wished to continue doing so. Dr. Bingham was clear in her letter that this is recommended by the paediatric team as the “optimal source of nutrition for neonates and infants.” [ 47 ] The Public Health Nurse who has been providing support services and postpartum/infant feeding assessments for L.D.S. in Courtenay provided a letter dated March 1, 2018.

Her observations are consistent with Dr. Bingham’s observations. She states that she has been with L.D.S. and V.D.C.’s maternal grandmother - R.J. - on a number of occasions. She was impressed by L.D.S.’s natural mothering and attentiveness to V.D.C.’s cues. She reported that L.D.S. was confident in handling V.D.C. and reported that L.D.S. “… seems to be a natural mother and clearly has a bond with her daughter.” [ 48 ] Dr. Bingham advised that she never observed any behaviour by L.D.S. towards her baby that was concerning. [ 49 ] Dr.

Bingham reiterated those observations in a second letter dated March 5, 2018. [ 50 ] Dr. Bingham was clearly of the opinion that V.D.C. and her mother should remain together and upon asking the social work team at the hospital how that could be facilitated, she was simply advised, in response, that L.D.S. has FASD. She was aware that this diagnosis had been made previously but also advised that a particular individual’s strengths, challenges and capacities will vary markedly from one person to another.

She was not provided with any documentation relating to L.D.S.’s intellectual functioning or capacity. [ 51 ] Ms. Davidson’s evidence is that after the removal, on February 15, 2018, she received a Multidisciplinary Assessment

Summary

relating to L.D.S. indicating severe impairment in communication skills and intellectual development. The report also noted that psycho-educational assessments confirmed that L.D.S. was a student with a mild intellectual impairment. This report was prepared in January,2011 - L.D.S. was thirteen years old at the time - and it is therefore extremely dated. [52] On the same date, Ms. Davidson also received a copy of a portion of a package provided to the Provincial Government entitled“Persons with Disabilities Designation Approval Decision

Summary”. It was dated March 2, 2016 and sets out that a physician reportedthat L.D.S. needed constant supervision and cognitive deficits and therefore she met the criteria so as to enable her to receive benefits. No other documents were attached to that

summary and it is unknown to me when the physician’s assessment was actually conducted. [53] In any event, Dr. Bingham was so concerned about separating L.D.S. and her baby, she personally asked N.C. if L.D.S. and thebaby could live with her until further details could be sorted out. In her letter, Dr. Bingham states that N.C. told her that she would notbe comfortable having L.D.S. living with her full-time or having to “host for so long.” [54] Ms. Trudy Warner is the Executive Director of the HFN and travelled to Victoria to assist L.D.S. and V.D.C.

She and S.C. metwith MCFD and proposed a number of options for a safe home for mother and child to avoid their separation. Her evidence is thatneither Ms. Talbot or Mr. Curtis were willing to entertain any of these options. [55] Ms. Warner also advised MCFD that there were serious concerns about L.D.S. being forced to live in N.C.’s home because ofthe nature of the relationship noting that it would not only be damaging to L.D.S., it would be setting her up for failure. [56] On March 1, 2018, N.C. filed an application in the Provincial Court of B.C. seeking sole guardianship of V.D.C.

The Law: [57] Counsel provided a number of case authorities which were very helpful in setting out the law as it relates to what a court mustconsider during a presentation hearing. [58] A number of principles can be gleaned from the legislation as well as those authorities. [59] A presentation hearing is a

summary hearing. In other words, it is an expedited hearing designed to allow the director andparents or other parties to present some evidence to the court in support of their respective positions. A presentation hearing must becommenced within seven days following the removal of a child and there is very little time for any party to prepare and present a detailedcase. In contrast, it is at the protection hearing stage that the parties will present a more detailed and thorough case which may includeexamination and cross-examination of lay and expert witnesses.

It is at the protection hearing stage that a court will make findings offact, assess credibility and weigh evidence to determine whether or not the child is in need of protection and, if so, what steps arerequired to ensure that the child is safe. [60] A presentation hearing is also a means of providing some safeguards to families and children to ensure that a child is notarbitrarily taken into care. At the presentation hearing the director must establish the requirements of

section 30 of the Act; namely thatthe director: Has reasonable grounds to believe that the child needs protection; and a. The child’s health or safety is in immediate danger, or b. No other less disruptive measure that is available is adequate to protect the child. [61] To establish the first prong of the test (reasonable grounds to believe the child needs protection), the director need only provideadmissible evidence which, if accepted, could lead to a finding that the child is in need of protection.

Any conflict in the evidence isusually resolved in favour of the director unless the facts the director seeks to establish are manifestly wrong or untrue or unlikely tohave occurred. In other words, the facts set out by the director must be so plainly and obviously wrong or untrue that the court is notrequired to embark on a credibility assessment or weigh conflicting evidence. [62] Even if parents disagree with the circumstances or facts set out in the report to court, the presentation hearing is not the forum topresent detailed evidence or lengthy cross-examinations of MCFD and its evidence.

Decisions regarding the safety of children are oftenmade very quickly and the reason that presentation hearings proceed in this manner is to ensure that, as long as a director has establishedthe s. 30 requirements, a child will be safe until a full protection hearing is held. [63] If the circumstances suggest there is a risk of harm to a child the test is “much lower” than a balance of probabilities.

As hasalso been said, where any appreciable risk of harm is established the court must make an order under sections 35 (2) and (3) thateffectively addresses that risk: Director of Child, Family and Community Service) v A. (S.), (BCSC) at para. 12. [64] In this case, I accept that the director has reasonable grounds to believe that the child needs protection. In my view this isentirely appropriate based on the circumstances as set out in the Report to Court filed January 19, 2018 along with the Director’sadditional evidence.

Clearly, there is a conflict in the evidence and a number of facts asserted by MCFD are disputed, but at this stage ofthe matter, I am unable to assess and resolve the conflicting evidence as it relates to L.D.S. and her ability to care for her baby. [65] In my view the main issue to be determined at this presentation hearing is whether the director has established the second prongof the test: that there are no other less disruptive measures available that are adequate to protect V.D.C. [66] The case law I have reviewed relates to the obligations of the Director and the court when assessing the first prong of the s. 30requirements.

I was not referred to a particular case that dealt squarely with this issue. In my view, at this stage of the inquiry, the courtmust be mindful that the focus must be on providing appropriate care for the child until the protection hearing takes place.

[ 67 ] Also relevant to this stage of the inquiry are the guiding principles and service delivery principles as set out in s. 2 of the Act .

They are: • the safety and well-being of children are of paramount importance in interpreting and applying the provisions of the Act ; • children are entitled to be protected from abuse and neglect and harm; • a family is the preferred environment for the care and upbringing of children; • if, with available support services, a family can provide a safe and nurturing environment for a child, support services should be provided; and • decisions relating to children should be made and implemented in a timely manner. [ 68 ] In addition, and of particular relevance in this case are the principles set out in s. 3 the Act : • aboriginal people should be involved in the planning and delivery of services to aboriginal families and their children; • services should be planned and provided in ways sensitive to the needs and cultural and racial heritage of those receiving the services; • services should be integrated wherever possible and appropriate and the community should be involved when possible and appropriate in the planning and delivery of services, including preventive and support services to families and children.

Analysis: [ 69 ] It is worth repeating, that at this stage of proceedings, the only focus is on what measures are necessary to ensure V.D.C.’s safety and well-being, pending the protection hearing. I note parenthetically that the usual practice is to commence, but not complete a protection hearing. This is due to a number of factors including the time required for parents to obtain the evidence necessary to present their case and the availability of court time. [ 70 ] L.D.S. is undergoing a parenting capacity assessment which is not expected to be completed until April, 2018. It is being fund by the HFN.

Often, it can take several months to obtain this kind of expert evidence if requested by MCFD which causes significant delay before a protection hearing can be held. In the meantime, children who have been removed remain in the care of the MCFD. [ 71 ] The child in this case is a new-born infant.

There is no question that V.D.C. is vulnerable and entirely dependent on the adults around her for her survival, safety and well-being. [ 72 ] I also accept that the bond and attachment between a new-born and the adult or adults who are responsible for the primary care of a child is extremely important, if not critical, for healthy development. [ 73 ] Although L.D.S. returned home to Port Alberni on or about December 20, 2017, it was not until early January, 2018 that the HFN were able to speak with the MCFD office in Courtenay. [ 74 ] It appears, on the evidence before me, that there was no clear communication from the MCFD to L.D.S. that the Director was seriously contemplating the removal of her baby at birth.

There was no clear communication to L.D.S. that failure to take the Pathways to Healing Program as recommended by Ms.

Davidson on September 20, 2017 or failure to take the Healthy Babies Program as recommended on November 30, 2017, would form even part of the basis for removing her baby following her birth. [ 75 ] There was no evidence that during the group meeting with MCFD on November 30, 2017, and in which N.C. and both parents were present, that firstly, there was only one plan being contemplated by the Director - that L.D.S. must live with N.C. with the baby after the birth - or secondly, that failure to live with N.C. would result in removal of her baby. [ 76 ] There was no evidence that during the meeting between L.D.S. and Ms.

Davidson at the library in Courtenay on September 20, 2017 or during the group meeting on November 30, 2017 that the Director was so concerned about L.D.S.’s prior diagnosis of FASD as that related to her ability and capacity to look after a baby that they were contemplating a removal. [ 77 ] On January 9, 2018, during the phone call with L.D.S., Ms. Davidson did make it clear to L.D.S. that they would not support her returning, with her new-born, to live with her mother in Port Alberni. [ 78 ] However, prior to her phone call with L.D.S., Ms.

Davidson had discussions with the HFN about services and support in Port Alberni. On January 12, 2018, Ms. Davidson advised C.B. that she would consult her Team Leader about having a worker from Usma attend the hospital for the birth. Ms. Warner, the Executive Director of HFN was under the impression that MCFD had agreed that L.D.S.’s file would be transferred to Usma.

This was another misunderstanding. [ 79 ] I conclude, based on the evidence before me, that lack of clear communication and not engaging earlier with L.D.S.’s extended community including the HFN and/or Usma, contributed to the MCFD’s actions in removing V.D.C. from her mother so quickly and in a manner that came as a complete shock to L.D.S. and the HFN. [ 80 ] The HFN has maintained that they can and will provide appropriate services and support until a parenting capacity assessment is completed.

Following that assessment, L.D.S.’s and V.D.C.’s needs will be re-evaluated based on the recommendations contained in the report. [ 81 ] On January 21, 2018 Ms. Warner provided a letter to the Director of Child Welfare in Victoria outlining the following supports and programs that will be in place upon L.D.S.’s return with V.D.C. to Port Alberni::

• Healthy Baby Program; • full support from two HFN child and family liaisons; • support from HFN protection social worker; • support from HFN clinical counsellor; • HFN paawats program where mom and baby could attend together to facilitate learning as baby grows. [82] Additional resources were also identified as being in place: • traditional Nuu-chah-nulth parenting groups - commencing March 2018; • Usma - HFN and Usma have a strong working relationship and facilitate safety and family plans together with understanding and respect; • FASD - key support worker P.

Thrasher. [83] Most importantly, five HFN homes, other than Ms. Johnson’s home, are open and available to L.D.S. and V.D.C. Two of those homes are described as MCFD approved safe homes. [84] On March 1, 2018 the HFN wrote another letter specifically in reference to one individual’s home (S.C.) advising that additional supervision and support would be provided, if necessary, by C.B. [85] On March 2, 2018, MCFD advised that they were not yet satisfied that S.C. could provide adequate support and supervision due to her travel commitments.

No response was given about C.B.’s willingness to provide additional support and supervision. In fact, there were concerns raised with every other individual that was suggested as an alternate home and although the details were not disclosed, reference was made to “prior involvement with child protection services, other verified risk factors”, and that none of the others were members of V.D.C.’s family.

The letter concludes that for those reasons, “the Director has determined that none of these individuals offer less disruptive means of protecting V.D.C.” [86] The letter stated and reiterated the position that “Both parents have daily access to V.D.C., and the Director considers this to be the least disruptive means of protecting V.D.C.” [87] It is my view, based on a review of all the evidence and after considering the law and the legislation, the Director has not viewed “least disruptive means” from V.D.C.’s perspective.

It may be convenient for the MCFD in Courtenay that V.D.C. is with a grandparent in Courtenay, and technically, both parents have access to the child given that the father resides in Courtenay. [88] However, due to the poor relationship between N.C. and L.D.S., it is clearly an inappropriate alternative for L.D.S. to live there. The reality is that L.D.S. has been forced to live in a motel room just to be able to see and nurse her baby. [89] In Courtenay, L.D.S. does not have the supports that she needs from her own community and family and which are available to her in Port Alberni.

That support and assistance are essential for her to properly care for her baby. [90] With respect, the response by MCFD in the letter of March 2, 2018, is not enough. While providing some response, it does not fully explain why none of the other homes that were offered as places for L.D.S. to live are, in each specific circumstance, not suitable. This effectively prevents L.D.S. and the HFN from taking steps to ameliorate specific concerns.

If privacy is an issue, they may have been able to secure a release of information from the individuals involved and who had put their names forward and opened their homes. [91] This response is also surprising given the uncontradicted evidence that one of the two homes that had been suggested were MCFD approved safe homes and had subsequently received an infant into their care from Usma, the delegated child protection authority for the HFN. [92] While saying that they are prepared to consider the proposal that L.D.S. and V.D.C. live with S.C., there is no timeline in place. [93] I am mindful that, at least in terms of the first prong of the s. 30 requirement, and perhaps the requirement to show a child is in immediate danger, the Director’s evidence must only establish that, if believed, these requirements are met. [94] However, in relation to the last prong of the s. 30 requirements, the director must establish that she has been active and diligent in attempting to find other alternatives to removing a child before a final determination that there are no other less disruptive means of protecting the child. [95] Requiring the Director to establish this is not only consistent with the underlying purpose of the Act to ensure the well-being of children, it is also a safeguard to ensure that when children are removed, they are spared as little disruption and emotional distress as possible. [96] In this case, that would include taking active steps and making inquiries on an urgent basis with a view to finding a suitable home for L.D.S. and V.D.C. in their home community of Port Alberni.

V.D.C.’s mother is her primary parent and while her paternal grandmother is family, surely it is more important that V.D.C. be with her mother, even if it is in a home with someone who is not a direct relative. [97] In the circumstances here, it was not sufficient to remove V.D.C. from her primary parent and simply offer only one safe alternative, particularly where that alternative is clearly disruptive to the child and in fact may be harmful to her in the long term.

[98] Dr. Bingham’s opinion regarding the importance of fostering a new-born’s initial attachment is germane: We know that attachment is incredibly important, especially in the early years, and L.D.S. was clearly wanting to parent her daughter and continue breastfeeding. Discharging V.D.C. into an environment where she was with L.D.S. would help foster a solid maternal infant bond. The alternative is not ideal: V.D.C. will form an attachment with N.(C.), and then this attachment will be disrupted when she is reunited with L.D.S. Disrupted attachment leads to insecure attachment.

Insecure and disorganized attachment can lead to increased risk of externalizing behavioural problems, as well as implications for later socioemotional development and mental health .

Whenever possible, protecting a mother-infant dyad and avoiding disrupted attachment should be recognized as paramount in limiting the possibility of psychological trauma and disorganized future development. [Emphasis added] [99] It is clear that MCFD is content to leave V.D.C. where she is currently even though the “local Usma office has assured the Director that if the decision is made to transition L.D.S. and V.D.C. to Port Alberni as part of V.D.C.’s long-term care plan, that it will gladly ensure the proper supports for L.D.S. and V.D.C. are in place.” This could well be the status quo for several months until a protection hearing is actually held.

That is simply not acceptable in the circumstances of this case. [100] It is not realistic to expect L.D.S. to live in N.C.’s home on a full time basis for a number of reasons. Her relationship with N.C. was strained prior to these proceedings and the removal of V.D.C. I expect that the relationship between them has now deteriorated to the point that it is simply not a feasible option. Furthermore, according to Dr.

Bingham, N.C. was not supportive of having L.D.S. live with her full-time. [101] In my view, based on all the evidence and after hearing submissions from counsel, the Director has not established that there are no other less disruptive measures available to adequately protect V.D.C. On the contrary, the evidence before me indicates that there are other such measures available in Port Alberni and which will be provided by her community including the HFN, Usma.

Those supports and services include oversight and supervision at least until the parenting capacity assessment is received or a protection hearing held. [102] I am satisfied that V.D.C.’s well-being is best served by being with her mother on a full-time basis as long as she is adequately protected. Furthermore, I am mindful that I must apply and give effect to the guiding principles of the CFCSA - not just pay them lip service.

In particular, I recognize and give effect to the principle that being with her mother and extended family and community in these circumstances is the preferred environment and that with the available support services, including supervision, L.D.S. can provide a safe and nurturing environment for her daughter. Lastly, I also recognize that decisions relating to V.D.C. need to be made and implemented in a timely manner and that her community must be involved in providing for her care. [103] Pursuant to s. 35 (2) (

b) I make the following orders: [104] V.D.C. is to be returned to, and be in the custody of her mother L.D.S., under the supervision of the Director on the following terms and conditions: a. L.D.S. and V.D.C. are to reside with and be under the supervision of S.C.; b. C.B., or other individuals agreed upon by L.D.S., the Director and the HFN, will supplement S.C.’s supervision if S.C. is not available; c. L.D.S. is required to participate in all programs and services as recommended by the Director, the HFN or Usma; d. L.D.S. will ensure that V.D.C. is taken for all recommended medical appointments; e.

L.D.S., S.C. and C.B. (if she is providing supervision) must allow the Director or the Director’s Agents to visit and inspect the home, at any time, whether scheduled in advance or not, and as often as the Director deems necessary to ensure the safety and wellbeing of the child; f.

L.D.S. will allow reasonable supervised access to the father. [105] I direct the MCFD to meet with L.D.S., Usma and the HFN representatives to plan for L.D.S.’s return to Port Alberni; [106] L.D.S.’s and V.D.C.’s return to Port Alberni is to occur no later than Saturday, March 17, 2018; [107] Additional terms of the supervision order may be discussed and agreed upon by the HFN, the Director and L.D.S., but if further direction is needed the parties are at liberty to appear before me, and by telephone if necessary. [108] This matter is adjourned to the Judicial Case Manager to

schedule the commencement of the protection hearing within the time required by the Act . BY THE COURT: _____________________________ The Honourable Judge Flewelling CORRIGENDUM - Released on March 15, 2018. In the Reasons for Judgment of the Honourable Judge Flewelling dated March 13, 2018, changes have been made to the Cover Page to accurately reflect counsel appearing at the hearing as follows:

[1] Counsel for the Director: P. Armstrong Counsel for the Mother: M. Giltrow as Agent for A. De Ciantis Counsel for the Father: J. Nemeth Counsel for the Huu-ay-aht First Nation: M. Giltrow and M. Skeels Place of Hearing: Courtenay, B.C. Date of Hearing: March 6, 2018 Date of Judgment: March 13, 2018 CORRIGENDUM - Released on March 20, 2018. In the Reasons for Judgment of the Honourable Judge Flewelling dated March 13, 2018, changes have been made to the followingparagraphs and will now read as follows: [54] Ms.

Trudy Warner is the Executive Director of the HFN and travelled to Victoria to assist L.D.S. and V.D.C. She and S.C. metwith MCFD and proposed a number of options for a safe home for mother and child to avoid their separation. Her evidence is thatneither Ms. Talbot or Mr. Curtis were willing to entertain any of these options. [60] A presentation hearing is also a means of providing some safeguards to families and children to ensure that a child is notarbitrarily taken into care. At the presentation hearing the director must establish the requirements of

section 30 of the Act; namely thatthe director: Has reasonable grounds to believe that the child needs protection; and a. The child’s health or safety is in immediate danger, or b. No other less disruptive measure that is available is adequate to protect the child. [63] If the circumstances suggest there is a risk of harm to a child the test is “much lower” than a balance of probabilities.

As hasalso been said, where any appreciable risk of harm is established the “court must make an order under sections 35 (2) and (3) thateffectively addresses that risk”: Director of Child, Family and Community Service) v A. (S.), (BCSC) at para. 12. [69] It is worth repeating, that at this stage of proceedings, the only focus is on what measures are necessary to ensure V.D.C.’s safetyand well-being, pending the protection hearing. I note parenthetically that the usual practice is to commence, but not complete aprotection hearing.

This is due to a number of factors including the time required for parents to obtain the evidence necessary to presenttheir case and the availability of court time. [90] With respect, the response by MCFD in the letter of March 2, 2018, is not enough. While providing some response, it does notfully explain why none of the other homes that were offered as places for L.D.S. to live are, in each specific circumstance, not suitable. This effectively prevents L.D.S. and the HFN from taking steps to ameliorate specific concerns.

If privacy is an issue, they may havebeen able to secure a release of information from the individuals involved and who had put their names forward and opened their homes. [101] In my view, based on all the evidence and after hearing submissions from counsel, the Director has not established that there areno other less disruptive measures available to adequately protect V.D.C. On the contrary, the evidence before me indicates that there areother such measures available in Port Alberni and which will be provided by her community including the HFN, Usma.

Those supportsand services include oversight and supervision at least until the parenting capacity assessment is received or a protection hearing held.