IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is an application by JD to cancel a continuing custody order made on October 11, 2012, with respect to her daughter E, born [omitted for publication].

[2]           While JD seeks to have the continuing custody order set aside, she does not seek the return of E.  Rather, she argues that E’s former foster parents, Mr. and Mrs. H, should be granted guardianship and allocation of all parenting responsibilities, pursuant to the application they have brought under the Family Law Act in File 12121.  DS, E’s father, has taken no part in these proceedings.

[3]           The Director of Child, Family and Community Services (the Director) opposes JD’s application.   Although the Director placed E with the H’s a few days after E’s birth in a “foster to adopt’ situation, the Director argues that the H’s failed to provide adequate care for E while she was with them.  In particular, the Director says Mr. and Mrs. H did not provide adequate medical or dental care for E.  The Director argues that in her adoption application, Mrs. H failed to disclose the seriousness of neither her medical condition, nor the multiple medications that she is prescribed.  The Director argues that Mrs. H cannot manage her own medical condition and that inability is repeated in her failure to meet E’s medical and dental needs.

[4]           In earlier Reasons, (February 4, 2015) I determined that JD’s application under the Child, Family and Community Service Act (the CFCSA) and the H’s application under the Family Law Act (the FLA) were to be heard concurrently.

[5]           It is useful to set out the history of the various proceedings regarding E during her short life.

[6]           I must first decide whether the continuing custody order should be cancelled before I deal with the application under the FLA: (N.P. (Re) 1997 B.C.J. No. 1648).

[7]           Section 54 of the Child, Family and Community Service Act  (CFCSA) states:

[8]           Section 2  of the CFCSA sets out the guiding principles of the Act:

[9]           The onus is on JD to prove on the balance of probabilities that there has been a significant change of circumstances since the continuing custody order was made, and that cancelling the continuing custody order is in E’s best interests.

[10]        JD and the H’s allege that most, if not all, of the Director’s witnesses have provided inconsistent and implausible evidence.  They suggest that the Director’s witnesses have altered their evidence to conform to each other.   In a similar vein, the Director argues that JD’s and Mr. and Mrs. H’s evidence is inconsistent, vague and contradictory.  Hence, the credibility of all witnesses is a central issue in this case.

[11]         I have considered the viva voce evidence of all of the witnesses, all affidavits sworn by various witnesses in past Provincial and Supreme Court proceedings regarding E, and all other evidence in assessing the credibility of each witness and the weight I can attach to their evidence. Pursuant to section 68 of the CFCSA, I have also considered the running records of various social workers and medical professionals, which, given the circumstances under which they were prepared, are reliable and relevant. 

[12]        It is important to note that the continuing custody order made by Judge Mrozinski was consented to by both DS and JD pursuant to section 60 of the CFCSA. Section 60 states:

[13]        Because E’s parents consented to the making of the continuing custody order, Judge Mrozinski did not make any finding that E was in need of protection, nor did she make any findings of fact of what the circumstances were at the time she granted the continuing custody order.

[14]        Similar circumstances were present in A.S. v. British Columbia (Director of Child, Family and Community Services) [2002] B.C.J. No. 996, where Burnyeat J. stated at paragraphs 15 and 16:

[15]        The transcript of the proceedings on October 11, 2012, discloses that the Director, represented by Mr. Humphries, provided a book of documents which was entered as an exhibit.  That book of documents was entered into these proceedings as Exhibit 5.  Those documents are: the Presentation Form and Report to Court; the Plan of Care; four Strengths and Needs Assessments completed a various times between October 17, 2011 and July 7, 2012; four Family Plans completed between November 2011 and July 2012; two Reunification Assessments completed in February and July 2012; two Vulnerability Assessments completed in October 2011 and January 2012; progress reports from the family support worker program; reports from the FAIR,( the Trail Family and Individual Resource Centre), describing the supervised visits JD and DS had with E; and a letter from the Lower Columbia First Nations describing JD’s contact with their mental health and addictions support group. 

[16]        I will first address the importance of continuity of care for E, and thereafter the effect upon her of maintaining relationships she has with any person.

[17]        E was placed in the care of Mr. and Mrs. H from 12 days old until she was approximately two and a half in a foster to adopt situation.  For all intents and purposes, she regarded the H’s as her parents and the H’s acted in that capacity.  Although there were other caregivers (Mrs.H’s stepmother and father) from time to time, E’s primary caregiver was Mrs. H who remained in the home to care for her.  Mr. H worked outside the home, and for the first part of the placement, worked shift work. Consequently, his relationship with E was that of a traditional father who sees their child on their days off and after work.

[18]        When E was moved into a new foster home on May 12, 2014, the H’s initially had two visits a week in the new foster home.  The H’s then filed an application in Provincial Court for access to E, and their Petition in the Supreme Court. The Director retained Evelyn Wotherspoon, an expert in clinical social work and early childhood mental health and development, to provide suggestions as to what access would be in E’s best interest.  On June 12, 2014, the parties consented to an Order that the H’s were to have two hour visits with E, 7 days a week until their Petition was heard.  Four of the visits per week took place in Ms. G’s (the new foster parent) home, and the remaining two hours visits on Mondays, Wednesdays and Fridays occurred in a public place in the community.  When the H’s withdrew their Petition in December 2014, their visits were moved to FAIR every second day from 2:45 p.m. to 4:45 p.m.  The H’s occasionally did not show up for these visits. Some visits Mrs. H attended with her parents.  Mr. H missed a number of visits because of his work schedule.  Mrs. H missed a number of visits in January as she was in the hospital.  During the visits which did occur, the H’s provided care for E.

[19]        FAIR brought some concerns about the H’s visits to the Director’s attention in January; thereafter the H’s visits were supervised. While they continued to see E, there was another caregiver in the room at all times.  

[20]        In early 2015 Ms. Wotherspoon reassessed E and the access schedule. She suggested that the H’s supervised visits be reduced to two days a week, due to E’s ongoing stress and anxiety. That has been the current access schedule for the H’s since February 2015.

[21]        DS had two visits with E in 2012 and has not provided any care for her.  He has no relationship with her.

[22]        JD had weekly visits with E from November 2011 until April 2012.  After that she moved from the Trail area and has had sporadic visits with her since.  Since inception, all of JD’s visits have been supervised. She has never been responsible for E’s care.

[23]        KR, JD’s mother, and E’s grandmother, has met E once.  She has never cared for her, and does not have a relationship with her.

[24]        E was placed in a new foster home with Bev G on May 12, 2014.  Ms. G has been E’s primary caregiver since then, a period of approximately 14 months at this point. 

[25]        E started attending preschool and day-care once she was in Ms. G’s care. She attends preschool Monday to Friday, from 8:30 to 11:30; and day-care following that, Monday to Thursday until 2:30.

[26]        In summary, E has had two main caregivers, Mrs. H and Ms. G.  The continuity of her care by Mrs. H was terminated approximately 14 months ago.

[27]        The Director’s plan for E is that she will be adopted by a First Nations family who presently live in the Vancouver area.  They will become her primary caregivers.  The continuity of E’s care will be disrupted again. Ms. G testified that if this happens, she will work with the adoptive family to transition E to their care, gradually over a period of time

[28]        E has a relationship with her former caregivers Mr. and Mrs. H; Mrs. H’s parents, and her present caregiver Ms. G.  To a lesser extent she has relationships with the adults at her preschool and day-care, the other children who live in Ms. G’s home, or who visit frequently.

[29]        Evelyn Wotherspoon provided extensive opinion evidence regarding E.  Counsel for JD and Mr. and Mrs. H take issue with Ms. Wotherspoon’s opinions, although they did not contest her expertise.  Counsel submitted that Ms. Wotherspoon’s “mandate” and opinions about E’s best interests were improperly restricted by the Director when Ms. Lien, Community Service Manager for the Kootenays, instructed her not to consider whether a return to the H’s would be in E’s best interest.  Counsel argued that the “tone” in Ms. Wotherspoon’s reports changed and as such, she can no longer be considered an impartial expert and her reports and evidence should be given little weight.  They rely on the decision of British Columbia (Director of Child, Family and Community Service v. L.S.N. [2008] B.C.J. No. 2627 (BCPC) as authority for the proposition that when an expert report is founded on faulty premises or prepared in an unbalanced way, it is to be given little weight.  In that case, the expert gave opinion evidence on whether it would be in child’s best interest to be returned to her biological mother.  The expert formed the opinion without seeing the biological mother with the child, or observing the child with her siblings in the presence of her mother.  The expert had already formed her opinion before she met the mother, the siblings or seeing the family home.

[30]        That is far from the case here.  Ms. Wotherspoon is well qualified to give the opinions that she did.  She has extensive professional experience as a clinician, and has published frequently on the areas in which she expressed opinions.  Not only did she observe E with the H’s, but she also reviewed file notes of social workers, she interviewed E’s caregivers (including the H’s), she had the caregivers complete questionnaires and she reviewed sections of her report with each party to ensure that she had accurately reflected their perspective. She observed E at her current foster home, and her preschool programme.  She interviewed social workers and individuals who supervised E’s visits.

[31]        Ms. Wotherspoon testified and was cross examined at length.  She was a careful witness whose evidence was considered and consistent.  I find no indication of bias, as alleged by counsel for JD and the H’s.  I accept Ms. Wotherspoon’s evidence.

[32]        E’s visits with JD have been infrequent and sporadic. Evelyn Wotherspoon made this observation in her February 9, 2015 report. ( Exhibit 21)

[33]        This is consistent with the observations Christine Forbes at FAIR made during her supervision of visits between JD and E.  She described JD’s interactions with E as more of a “playmate” than parent.  I conclude that at this point E does not have a meaningful relationship with JD. 

[34]        The H’s argue that E is attached to them as primary caregivers, and as such, this relationship is vital to E’s well-being.

[35]        Ms. Wotherspoon spent a considerable time with E during her assessment of her mental health, and in an effort to devise a plan which would cause E the least stress and anxiety when she was moved from the H’s care.

[36]        She observed E and Ms. G together on three occasions over three days and E with the H’s before, during and after a visit.

[37]        In June 2014 Ms. Wotherspoon observed that E was very distressed and confused as to why she was separated from the H’s. She observed that:

[38]        Mrs. G confirmed that the first two and a half weeks that E was in her care, she was very distressed and distraught.  That distress continued whenever she knew her visits with the H’s were coming to a close.

[39]        E was forming a relationship with Mrs. G at this time, and Ms. Wotherspoon observed that she sought Mrs. G out for reassurance and comfort.  When Mr. and Mrs. H were present, E turned her attention entirely towards maintaining proximity with them. 

[40]        When Ms. Wotherspoon reassessed the situation in February, 2015, she was specifically asked by the Director to determine to whom E was primarily attached.  She concluded that E’s primary attachment was with Ms. G at that point:

[41]        Mrs. Wotherspoon also noted that:

[42]        Ms. Wotherspoon noted that she observed that E was cheerful when the visit ended with Mrs. H and Ms. G reported E was fine when she returned to her home.

[43]        I find that although E still has a relationship with the H’s, they are no longer her primary attachment.  Ms. G is.  I conclude that the effect of terminating the H’s relationship with E would no doubt cause some distress, but not as significant as E’s distress regarding a change in her relationship with Ms. G.  Ms. G testified that she has experience transitioning approximately twelve children from her home to a permanent adoptive placement.  She explained the process she would use to assist E to make the change to a new home, and into a new relationship with adoptive parents.

[44]        I conclude that while E has a primary attachment to Ms. G at this point, she can be assisted to form another primary attachment to a new adoptive family if she is given sufficient support and professional assistance.

[45]        I turn now to an assessment of whether there has been a significant change of circumstances since the continuing custody order was made. 

[46]        I make the following findings of fact.

[47]         E was removed a day after she was born, while still at the hospital.  Meg Meredith was the social worker at this point.  E’s parents, JD and DS, had an extensive history with the Ministry of Child and Family Development (MCFD).  Their first child A was removed when she was one, in 2007 as she was not meeting developmental milestones.  Their second child J was removed at birth in 2008.

[48]         A parental capacity assessment of JD was completed in 2008 by psychologist Sara Collison. Ms. Collison noted that JD suffered from both anxiety and depression; she had lost contact with her Band, the Heiltsuk Nation, and most of her family except her mother.  JD’s overall cognitive abilities were noted to be in the low average range, and her verbal comprehension and reasoning abilities in the borderline range.

[49]        JD began using marijuana at age 9, but also misused alcohol, cocaine and other street drugs throughout her adult life.

[50]        Ms. Collision provided a list of recommendations for JD and DS to improve their parenting, but she ultimately recommended that the care of their children should be with “more responsible caregivers for the foreseeable future”. 

[51]        The recommendations specific to JD were that she required further assessment and treatment of possible post-partum depression and chronic low mood, including taking anti-depressants; she was to reconnect with her Band and native heritage in ways that were acceptable to her; she was to pursue counselling, and improve her self-care and her stress management so that she was less reliant on marijuana.  She needed to acquire basic job training and job skills and/or complete school and improve her confidence so that she could be able to learn new parenting information.  As a couple, JD and DS were to continue to take parenting courses, with an emphasis on visual learning for JD, focussing on learning developmental stages of children, needs of children, and other parenting requirements such as limit setting. It was recommended that they establish financial stability, with some budget and financial counselling and that they take couples counselling.  They were encouraged to maintain their own residence, with minimally acceptable levels of cleanliness

[52]        After a lengthy court process, JD and DS consented to a Family Relations Act order, granting custody of both girls to their paternal aunt and uncle on March 2, 2011.

[53]        At the time of E’s birth in October 2011, JD and DS had been separated for some time, but got back together at least once after E’s birth.  They had a violent and dysfunctional relationship.

[54]        Most of the recommendations made by Ms. Collision had not been addressed by JD at the time of E’s birth.

[55]        On July 26, 2011, JD met with a social worker, and wanted to know what “it would take to keep her baby”.  JD was referred to FAIR while still pregnant with E with the goal of increasing her parenting capacity, and to assist her to maintain a safe and clean home. 

[56]        JD attended two sessions of Building Beautiful Babies, but was reported to not engage effectively with the programme.  She showed little insight into why her first two children were removed.

[57]        Immediately after E’s birth, JD’s home was noted to be very dirty, with a strong odour of urine, faeces, and cat litter.  The home had a sewage leak in it, which was not repaired.  

[58]        JD’s capacity to parent E, her ongoing substance abuse, her own history of sexual, physical and emotional abuse as a child, and a lack of insight into her own mental health were considered to be risk factors by the Director and a decision was made to remove E as soon as she was born.

[59]        I make the following findings of fact.

[60]        A family support worker with FAIR continued to work with JD after the removal of E.   An additional role was to supervise JD’s access visits with E.  Initially JD had two visits each week with E from November 2011 until April 17, 2012.  She missed three visits during this time without explanation.  The family service worker reported that JD was very engaged with E during the visits and needed little prompting.  The visits were to be followed by a half hour session in parenting education.  JD frequently cancelled the parenting sessions, and only attended four.  She completed a four week parenting course from January 16 to February 20, 2012.  

[61]        On December 16, 2011, JD and DS attended a case conference in Rossland with the Honourable Judge Fabbro.  JD was represented by her counsel, Janet Connelly.  Both JD and DS continued to contest the Director’s application for a continuing custody order, and the matter was set for a four day hearing.

[62]        In April 2012 JD and DS reunited briefly.  Soon after, JD was evicted and moved into a transition home because DS assaulted her.  She was no longer seeing her older daughters because their caregiver had moved to Alberta.  She was not working and relied on social assistance.  She continued to use drugs and alcohol. She decided to move to Vancouver to live with her mother.

[63]        JD returned to Trail on July 11, 2012, and had a visit with E.  During that visit she told the family support worker that she thought she might move to Chilliwack to be with a new boyfriend.  She then left to work in Penticton for a week, however had not returned to Trail by September 10, 2012.  She had secured a job with West Coast Amusements.

[64]        In the family support worker’s letter of September 10, 2012 (exhibit I to the affidavit of Ria Anderson, Exhibit 4), she stated:

[65]        JD had sporadic contact with her Family Service Worker, social worker Sheri Pawlyshyn. Ms. Pawlyshyn had conduct of E’s file from April 2012 to December 2012.

[66]        One of the issues in dispute in this hearing was the nature of the relationship between JD and the H’s at the time the continuing custody order was made.

[67]        In her examination in chief, JD testified that she attended regular supervised access visits with E after removal.  She didn’t meet Mrs. H, who dropped off E for the visits, as she stayed inside while the supervisor went out and retrieved E.  She testified that slowly over time, she would run into Mrs. H in the grocery store or downtown during walks and Mrs. H would tell her how E was doing.  JD testified that at first she was quite awkward around Mrs. H as she felt Mrs. H was taking E away from her, but then she saw how attached E was to Mr. and Mrs H and was happy that E was safe and content.   JD testified that she told Mrs. H that she wasn’t able to care for E at that moment because she had a drug problem, and asked Mrs. H if she was willing to adopt E.

[68]        In cross examination JD was asked about the arrangement in which Mrs. H would drop off E at FAIR about 15 minutes before any visit to avoid any contact. JD was “not too sure” about that suggestion, but also responded that “at the time, that is how it was”.  She added that she only stayed inside FAIR at the beginning, and did go to the car to say hello to Mrs. H when she dropped E off.

[69]        In her affidavit (Exhibit 2) JD stated, “shortly after E was born, I was introduced to DH.  DH was interested in adopting a child.  DH and I got along very well and met a number of times subsequent to the initial introduction”.

[70]        Exhibit 1 is an affidavit filed by Mrs. H on November 14, 2014.  At paragraphs 12 and 34 she stated:

[71]        In examination in chief, Mrs. H testified that she met JD two weeks after E was placed with her. This would have been in early November 2011.  She testified that for the first couple of months she would simply say hello when she dropped off E at FAIR. Mrs. H agreed that she had sworn an affidavit for the Supreme Court proceedings in which she stated that she met JD at the hospital shortly after E was born.  She described this statement in her affidavit as a “mistake”.

[72]        Mrs. H testified that it was the Director that wanted to ensure there was no contact between Mr. and Mrs. H and E’s birth parents because of safety concerns regarding DS and his violent behaviour.  She denied she had any concerns regarding contact with JD.  Mrs. H testified that one of the first times she brought E for a visit with JD, the supervisor did not show up and she sat with JD and chatted so that JD could have a visit with E.  Mrs. H testified that while she expressed a minor concern regarding JD, it had completely dissipated once she met her.   She added that after JD moved to Vancouver, she returned to Trail at least a few times a year.  She testified that social worker Lisa Machek passed on a request from JD that Mr. and Mrs. H supervise her visits with E, and they agreed.  After that, the H’s spent a lot more time with JD, according to Mrs. H, and frequently communicated when JD was not in town.

[73]        The Director’s evidence somewhat contradicted JD and Mrs. H’s evidence on this point.

[74]         It is clear that Mr. and Mrs. H met with social workers Meg Meredith and Janice Issac on October 12, 2011, before E was placed with them.  In an email written after the meeting (Exhibit D to the affidavit of Shannon Thask, Exhibit 7) Ms. Issac describes speaking to the H’s about safety issues regarding E’s birth family on October 12, 2011.

[75]        Ms. Pawlyshyn testified that she took over JD’s file in April 2012, as the previous worker was transferred to another office.  She met with the previous social worker to be briefed on the file. She learned that Mr. and Mrs. H asked that the drop off and pick up of E for access by her birth parents be arranged in a manner that the H’s would have no contact with them.  Consequently, the Director arranged that E was dropped off at FAIR fifteen minutes early and picked up by Mrs. H fifteen minutes after the visits.  Ms. Pawlyshyn was told that Mrs. H was upset on one occasion when JD approached her car at a drop off.  Ms. Pawlyshyn noted in her affidavit filed in the Supreme Court that before the continuing custody order was granted, Mr. and Mrs. H wanted very little to do with JD.  

[76]        Ms. Pawlyshyn had many conversations with Mr. and Mrs. H while she had conduct of the file with respect to E’s contact with her birth mother.  They routinely expressed fears of running into JD in Trail and were worried that she would try and approach them.  Ms. Pawlyshyn testified that during the time she had conduct of JD's file, she and other social workers tried to meet monthly with the H’s.  During the meetings, Mr. and Mrs. H made it clear they did not want to have contact with JD.  The social workers tried to encourage the H’s to consider an openness agreement with JD and the H’s would not. Ms. Pawlyshyn also noted that JD left Trail in May 2012 and did not return for months.  During the spring of 2012, JD was homeless and very difficult to contact.  As the continuing custody hearing approached, Ms. Pawlyshyn tried to encourage the H’s to start email contact with JD and perhaps send her some photos of E.  It was her evidence that the H’s were resistant to those suggestions.  She was aware of two times in which Mrs. H ran into JD - once in the Ministry office, and the second time in a grocery store.

[77]        The notes from the FAIR supervisors (Exhibit 5, tab 8) document JD’s supervised visits from November 1, 2011 to December 1, 2011; seven visits in April 2012, two visits in May and one visit in July 2012. The notes for the visits in November and December 2011 indicate that JD often arrived late for the visits and E was already present.  Those notes also indicate that a supervisor was present for all visits during November and December 2011 and make no mention of JD interacting with Mrs. H. 

[78]        I also note that JD and DS attended a case conference in December 2011 and made it clear that they were seeking E’s return to their care. I find it unlikely that JD would have sought out Mrs. H during this time and discussed adoption with her.

[79]        There are no notes of the January to April visits.  However, Ms. Forbes testified about the time she supervised JD’s visits with E, which lead up to the date the continuing custody order was granted.   Ms. Forbes testified that she had been told that Mr. and Mrs. H did not want to have contact with JD or DS and consequently FAIR made special plans that E would be dropped off fifteen minutes ahead of time and Mrs. H would be called on her cell phone after JD had left, so there would be no contact with JD.  The FAIR supervisors went to the car to collect E.

[80]        The supervision notes indicate that in April JD did arrive early two times and accompanied the supervisor to the car to collect E.  Ms. Forbes testified that there was some interaction between JD and Mrs. H in the fall of 2012, when JD accompanied E to the car and said hello. 

[81]        Ms. Forbes also indicated that leading up to the continuing custody order, JD discussed her wishes that E be placed with a relative in Prince George.

[82]        The social workers’ running records document a meeting the H’s attended with various social workers on September 21, 2012.  During the meeting, it was noted that JD’s whereabouts were unknown and her lawyer had lost contact with her.  There was some information that JD may return to Trail the following week for E’s first birthday.  A suggestion was made at the meeting that the social workers wanted to introduce JD to the H’s if JD did return to town.

[83]        The running records contained at Exhibit 7 (exhibit S) indicate that as late as March 26, 2013, Mrs. H was concerned about JD learning her complete first name.  JD still did not know the H’s surname.  It appears that more contact between Mrs. H and JD began in March 2013, and I am satisfied that Mrs. H began supervising visits between JD and E at that point, five months after the continuing custody order was granted. 

[84]        I find that Mrs. H and JD’s evidence on when they established any sort of relationship to be contradictory and inconsistent.  I find that there was some brief contact between them, in the presence of a supervisor, during drop off and pickups at access visits between November 2011 and April 2012.  There was one brief interaction between Mrs. H and JD when a supervisor did not show up.  After that, JD was absent from Trail for months at a time and only visited sporadically.  JD’s evidence on this issue is not consistent and I give it little weight. I do not accept Mrs. H’s evidence that as E approached her first birthday, she got to know JD quite well and developed a good relationship with her.  While JD and Mrs. H had met and conversed prior to the continuing custody order, I find as a fact that the H’s and JD did not really commence any sort of meaningful  relationship until March or April 2013, well after the continuing custody order was made.

[85]        JD asserts that an important circumstance at the time the continuing custody order was made was her consent to the Order, and that consent was predicated on the H’s adopting E.

[86]        JD’s testified  that after she got to know Mrs. H, she saw how attached E was to her, and she told Mrs. H that she was pleased that the H’s were going to adopt E.  It was her recollection that she told her lawyer that she would consent to the continuing custody order if E was to stay with the H’s. She could not recall any discussion with any social workers about this issue.  In her affidavit (Exhibit 2) JD stated:

[87]        JD had four social workers, working in the role of a Family Services Worker during the relevant times.  Family Service Workers are responsible for monitoring and documenting possible reunification of parents and their children and ongoing court work with respect to any applications for continuing custody orders.  If the same social worker is also doing child protection work, they assess child protection risks, develop a plan of care, make referrals for services, monitor access to children in care, attend meetings with other social workers involved in the file and attend court.  Lisa Machek was JD’s Family Service worker from February to March 2011.  During that time JD became pregnant with E.

[88]        Meg Meredith was the Family Service worker after Lisa Machek, and removed E from JD at birth and appeared to work on the file until January 2012 when Jeremy Marczak became the next Family Service worker for about three months.  Ms. Pawlyshyn had conduct of the file from approximately March 2012 until shortly after the continuing custody order was made in November 2012.  Lisa Machek resumed conduct of the file in January 2013 for a period of time. Spencer Patterson was the next social worker assigned, and Jennifer Ellis has had conduct of the file since July, 2014.

[89]        Given this, I find it extremely unlikely that Meg Meredith assured JD that E would stay with the H’s, given that E had only been in their care for two and a half months at the time Ms. Meredith transferred the file to Jeremy Marczak.  As well, given my findings above, JD had almost no relationship with the H’s in November, December 2011 and in January 2012, such that she would have wanted the H’s to care for E.  She was still planning on contesting the application for a continuing custody order in January 2012 and had counsel, Janet Connelly representing her.  JD’s assertion that she discussed the matter with Lisa Machek is equally implausible.  Ms. Machek transferred the file well before the birth of E, and did not regain it until January 2013, two months after the continuing custody order was granted.

[90]        Mrs. H’s testimony during cross examination was that she had no information from JD that she was agreeable with the H’s adopting E before the continuing custody order.  In fact, it was not until a few months after the continuing custody order was made, did she and JD discuss the adoption of E.  

[91]        It was Mrs. H’s testimony that Ms. Pawlyshyn phoned her and told her that JD appeared at the continuing custody hearing and stated that she consented to it, so long as the H’s adopted E.

[92]        Ms. Pawlyshyn strongly disagreed with both JD’s and Mrs. H’s evidence on this point. I accept that she was the social worker who would have had discussions with JD and the H’s during the relevant times regarding the application for a continuing custody order.

[93]         I accept that JD contacted Ms. Pawlyshyn in July 2012 regarding JD’s extended family’s interest in fostering and adopting E, and specifically mentioned her cousin in Prince George.  This person began the interview and home study process, but was not approved to proceed.  According to Ms. Pawlyshyn, once JD learned of this in August, she then proposed that her aunt take over care of E.  I accept this evidence.  Meanwhile Ms. Pawlyshyn learned that a second aunt was also interested. 

[94]        In September 2012 Ms. Pawlyshyn attended a meeting with the adoption social worker Shannon Thask, the resource social worker Greg Kormay and the H’s.  At that meeting a discussion took place regarding exploring the extended birth family as a permanency option for E, and arranging a meeting for JD to see E for her birthday.   According to Ms. Pawlyshyn, JD did not know that the H’s were fostering to adopt at that point.  On October 9, 2012, JD met with Ms. Pawlyshyn to discuss her current living situation and E’s file and progress.  According to Ms. Pawlyshyn, JD recognized that she was unable to care for E in her current situation.  She was still hopeful that her family would be approved as a permanent placement for E.  In that meeting JD signed her consent to the continuing custody order.

[95]        Two days later, the continuing custody order was made by consent on October 11, 2012, by the Honourable Judge Mrozinski.  JD was represented by Ms. Connelly.

[96]        The transcript of the hearing on October 11, 2012, reveals the following regarding permanency plans for E.  Counsel for the Director indicated that that E could stay in the placement she was in, as it was a foster to adopt situation.  He also noted that the social worker (Ms. Pawlyshyn) advised there were possibilities of adoption with relatives, and the subject had not been canvassed fully. Ms. Connelly indicated that JD hoped that E would be in a home with aboriginal heritage.  In response to a query from Judge Mrozinski about whether there was a plan for contact between JD and E between October 11 and the adoption, Director’s counsel responded yes there was.  Ms. Connelly stated that she discussed that issue with the social worker as well as JD.  Ms. Connelly stated that the “foster mother happens to be herself adopted and is very much open to an openness arrangement with JD and that there was an expectation that that was a possibility.”

[97]        Counsel for JD argues that this comment supports JD’s assertion that she and the H’s had a relationship, and had discussed an open adoption prior the hearing, and JD’s consent to the continuing custody order was based on the H’s adopting.  Given my findings above, and in particular Mrs. H’s evidence that there was no discussion with JD until a month or two after the continuing custody hearing about adoption, I cannot agree.  In my view it is just as likely that Ms. Connelly was referring to a discussion she had with Ms. Pawlyshyn concerning her discussion with the H’s about their willingness to enter into an openness agreement.  Further, Ms. Connelly went on to state that there was no commitment or guarantee at that point with respect to an openness agreement. Ms. Connelly went on to tell Judge Mrozinski three relatives were also being looked at as possible homes for E, and in total, there were four possible homes for E.  I note that JD was in court while Ms. Connelly made these submissions. 

[98]        Consequently I do not accept JD’s evidence that the reason she consented to the continuing custody order was because she was assured that E would be adopted by the H’s.  Further I do not accept Mrs. H’s evidence that Ms. Pawlyshyn phoned her on the day of the continuing custody hearing and told her that JD had told social workers and her lawyer that she was content with the care E was receiving and she would agree with the continuing custody order provided the H’s were the ones to adopt E.  This is inconsistent with the contents of the transcript and at odds with the fact that JD had actually signed the consent two days earlier, in Ms. Pawlyshyn’ s office.

[99]        I do accept that at the time of the continuing custody order, E had been in the care of the H’s for a year. 

[100]     I accept Ms. Pawlyshyn’ s evidence that at the time the continuing custody order was made, she continued to have a number of concerns regarding JD and her capacity to parent E.  JD had suffered significant trauma as a child and young adult - neglect and sexual, physical and emotional abuse.  Her lifestyle and continued use of drugs and alcohol, and her involvement in violent relationships were all coping strategies JD developed to deal with that past trauma.  She had made no discernible progress through counselling to deal with her childhood abuse.  JD’s limited cognitive capacity greatly hindered her ability to understand the choices she made regarding intimate partners, particularly DS.  Ms. Pawlyshyn testified that JD has a very dependent personality, and feared that she would enter another abusive relationship with a new partner. 

[101]     JD’s limited intellectual capacity affected her ability to learn parenting skills and put them into practice.  At the time the continuing custody order was made, JD had not attended counselling, nor attended sufficient parenting classes and learned parenting skills so that her capacity to parent E had improved. JD told Ms. Pawlyshyn that her drug and alcohol use was “up and down”.  She was homeless.  She told Ms .Pawlyshyn that she had two different boyfriends, and at one point she advised that she was engaged. A number of JD’s circle of friends in Trail also were involved with child protection services, including a woman JD stayed with when she came to Trail.

[102]     Ms. Pawlyshyn completed a Strengths and Needs Assessment (Exhibit 5, tab A) and a Family Plan (tab B) three months before the continuing custody hearing.  These documents were before Judge Mrozinski. 

[103]     The Strengths and Needs Assessment document corroborates Ms. Pawlyshyn viva voce testimony.  JD was noted to have the following challenges:

[104]     In summary, I find that the circumstances at the time the continuing custody order was made were that JD and DS consented to the Order; that JD’s circumstances were as described by Ms. Pawlyshyn and the documents in Exhibit 5; that E had been in the care of the H’s for one year; that an openness agreement with the H’s was a possibility if that placement was permanent; and in total, four different Aboriginal families were being explored as permanent placements for E.  E is a member of the Heiltsuk First Nation.

[105]     A significant change is one that has a reasonable prospect of altering the Court’s finding about whether the continuing custody order is in E’s best interests, after considering the factors in sections 49(5), 49(6) and section 4 of the CFCSA, including the importance of continuity in the care of E and the effect of maintaining a relationship E has with any person: Re: N.P. [1997] B.C.J. No. 1648.

[106]     One factor a judge can consider in determining whether there has been a significant change, is a “significant” change in the circumstances which induced a parent to consent to the continuing custody order initially: A.S. v. British Columbia (Director of Child, Family and Community Services), supra. However the simple fact that a parent no longer consents to a continuing custody order is not in itself a “significant change”: British Columbia (Director of Families and Child Services) v. L.A. [2002] B.C.J. N. 1973.

[107]     A significant change can include a change in the caregiver arrangements for the child. In J.M. v. British Columbia (Director of Child, Family and Community Service) [2004] B.C.J. 2925 , paternal grandparents acted as restricted foster parents for the child and resigned during the section 54 hearing because they could no longer control their granddaughter due to the Applicant mother’s negative influence. Walker, P.C.J. found this was a significant change, but refused to set aside the continuing custody order as it was not in the child’s best interests.

[108]     Other cases have determined that a significant change can include (along with many other factors in each case): an improvement in substance abuse issues coupled with an increase in stability; sobriety for three or four years;  and cessation of contact with a third party who was a negative influence: M.R.L. v. British Columbia (Director of Child, Family and Community Service [2011] B.C.J. No. 43; C.M.B. v. British Columbia (Director of Child, Family and Community Service) [2000] B.C.J. No. 1025; British Columbia (Director of Child, Family and Community Service) v. L.S.N. [2009] B.C.J. 2627.

[109]     I have already determined that JD’s consent to the continuing custody order was not based on the H’s plan to adopt E.  JD’s desire to have continued contact with E after the continuing custody order could have also been achieved through placement with one of her relatives who was mentioned at the continuing custody hearing. 

[110]     I find that the termination of the H’s as foster parents is not a “significant” change in the circumstances which had induced JD to consent to the continuing custody order initially.

[111]     JD testified in chief that she lives with her mother in Vancouver. She has a close relationship with her mother, and has one friend she relies on for support.   She hasn’t had any alcohol for three or four months. She continues to consume marijuana regularly to help with her anxiety and as a sleep aid.

[112]     This evidence is inconsistent with her affidavit (Exhibit 2) in which she stated at paragraph 34, “I almost completely stopped using marijuana”.

[113]     JD accesses medical assistance through a walk in clinic in Vancouver but does not see a doctor on a regular basis.  JD testified that she deals with the stress associated with her past abuse by using marijuana, going for walks, doing housework and meditating.

[114]     She is no longer in a relationship with DS.  I cannot find that the termination of her relationship with DS is a significant change.  The evidence is clear that at the time the continuing custody order was made, JD and DS had not been a relationship for some months.

[115]     JD plans to complete high school and then pursue a career in massage therapy or as a beautician.  JD expressed a wish that E could come home with her, but later stated in cross examination that the H‘s could give E, “what she could not”.  

[116]     In cross examination, JD agreed that she tried counselling in Trail to deal with her anxiety and depression, but didn’t feel comfortable with any of the counsellors she saw, and hasn’t tried seeing a counsellor since she left Trail.  She agreed that she continues to use marijuana, and has sought no professional help for her drug use. Although she “mostly stays with her mother”, JD does stay with friends from time to time.  She agreed she still finds it difficult to return to Kitimat and has not reconnected with her Aboriginal community.  She does not get along with her sister, and whenever her sister stays with their mother, JD stays elsewhere.  In December she worked for a week or two with her aunt in Kitimat in a janitorial business.  

[117]     JD acknowledged that she has been told of a new family who have been approved to adopt E.  This family is located in Vancouver and is Aboriginal. She believed she had a conversation with Jennifer Ellis about the family and their willingness for an openness agreement, but could not recall any details of that conversation.

[118]     JD had a great deal of difficult testifying.  She struggled frequently to remember past events, some of them quite recent.  She appeared not to understand certain questions.  She agreed that she signed a letter dated, May 22, 2014, (Exhibit 12) in which she expresses “outrage” at the Director’s decision to move E from the H’s.  In cross examination she agreed that Mrs. H brought the prepared letter to a meeting and asked her to sign it.  JD was unable to answer many questions concerning the contents of the letter.  She testified that Mrs. H said if she wanted E back, the letter was “the way to go”.

[119]     I place little weight on Exhibit 12 given JD’s testimony.  I conclude it was written by Mrs. H and JD simply signed it without fully understanding its contents.

[120]     I have weighed JD’s testimony carefully, given her difficulties testifying, her poor recollection, and the inconsistencies in her evidence.  I find as a fact that she is now living a more stable and healthy lifestyle, and has reconnected with her mother.  This is confirmed by the evidence provided by her mother, K.R.

[121]     JD no longer abuses alcohol but she does use marijuana daily if she can afford to buy it, according to her mother.  She has had no assessments or ongoing counselling to deal with her use of drugs or her mental health, and is using marijuana to deal with stress and anxiety. She has taken no parenting classes since the continuing custody order was granted.  Although JD has travelled to Kitimat, she has not really reconnected with her Band and native heritage.  Apart from a recent two week job, it appears JD has not worked or acquired any additional job training and or skills.  In her affidavit (Exhibit 12) which was sworn on November 13, 2014, she stated, “I am currently looking for work”.  There was no evidence concerning any efforts JD has made to find a permanent job.  She has plans to complete school, but has not to date done so.  She has not continued to take parenting courses, or increased her knowledge of parenting skills. There is no evidence regarding her financial stability.

[122]     JD herself acknowledged that she believes the H’s can give E what she cannot. Mrs. H testified that if JD were to have access today with E, she would supervise that access.

[123]     JD is to be commended for the hard work she has done to improve her situation, in particular her efforts to stop abusing alcohol, the absence of an abusive intimate relationship, and her positive relationship with her mother, who has provided JD with stable housing. However, there are significant risk factors which JD has not addressed: counselling for her mental health difficulties; meaningful substance abuse counselling and the establishment of some sort of financial stability.  Most importantly she has not improved her parenting skills.  It may be that she will never be able to do that, given her cognitive difficulties.

[124]     I find that JD has not proven on the balance of probabilities that the changes which have occurred since the continuing custody order are so significant as to alter Judge Mrozinski’ s finding that the continuing custody order was in E’s best interests.

[125]     Section 4 of the CFCSA discusses the best interests of the child:

[126]     If the continuing custody order is cancelled, E would be returned to JD’s care, and as E’s guardian, JD would have all parenting responsibilities.

[127]     As I have noted above, JD has not changed her circumstances so significantly that E would be safe from abuse, neglect and harm if in her care.  JD has not acquired even minimal parenting skills at this point, and still has untreated mental health and drug issues. She has no meaningful relationship with E.  It would not be in E’s best interests to be returned to JD’s care.

[128]     JD has testified that if the continuing custody order is cancelled she will immediately consent to the H’s application for guardianship of E under the F.L.A.

[129]     The Director says that it is not in E’s best interests to have Mr. and Mrs. H as guardians or caregivers.  The Director says that Mr. and Mrs. H did not ensure E received necessary professional services while in their care.  Specifically, it is alleged that the H’s did not ensure that E was assessed and treated by an audiologist; that she was not seen on a regular basis through the Infant Development Programme; that E did not receive necessary physiotherapy treatments; her dental health was neglected to the point some of E’s teeth became decayed and her immunizations were not kept up to date.

[130]     E will turn four in October.  She is a member of the Heiltsuk First Nation, Raven Clan.  She was born at full term, and was exposed in utero to marijuana, poor nutrition and maternal stress.  Because of this, she was deemed to a “high risk” baby, and received a routine hearing assessment at birth.  The first assessment indicated some hearing impairment.  She was also assessed as having some anomalies with her foot and is still being treated by a physiotherapist.  E has significant dental decay in her front teeth, which requires ongoing monitoring and dental check-ups.  She is to be assessed by an Ear Nose and Throat specialist because of enlarged adenoids and in all likelihood will need to have tubes put in her ears.

[131]     When Ms. Wotherspoon spent time with E in January and February this year, she noted that E appears to be meeting most of her developmental milestones.  Her fine motor skills are good.  There is an area of concern regarding her gross motor skills because she has a 2 centimetre discrepancy in the length of her legs and has an inward turning foot.  There are no concerns regarding E’s weight and height.  She is extremely clingy with adults such that it prevents her from exploration and playing with her peers. She is a very light sleeper and needs adult comforting at night.  Ms. Wotherspoon watched E interact with other children at the preschool.  She noted that E tended to drift from one activity to another, but did not really seem to be interested in anything except a painting activity.  She didn’t laugh or smile. She was cooperative and polite.  She appears to be adult oriented and reserved with other children.  Ms. Wotherspoon also observed E during a visit with Mrs. H and while she was in Ms. G’s care.  She accessed supervision notes and spoke to Ms. Forbes, the supervisor.

[132]     Ms. Wotherspoon made the following comments regarding early child development at page 1 of Exhibit 21:

[133]     Ms. Wotherspoon made the following observations:

[134]     Ms. Wotherspoon made the following comments about the H’s interactions with E: 

[135]     Ms. Wotherspoon suggested that the H’s needed assistance with developing an agenda with the visits.  She had already made this suggestion in June, 2014, but it appears that the H’s have not followed these earlier recommendations.  Ms. Wotherspoon recommended that a therapist work with the H’s so that they could learn developmentally appropriate activities for E.  Ms. Wotherspoon suggested that the H’s avoid peppering E with questions, and stop asking open ended questions of E in terms of what she wanted to do.  She noted that the H’s needed coaching on setting limits for E.

[136]     Ms. Wotherspoon concluded that E’s anxiety is going to interfere with her ability to transition to a new adoptive home and stressed it is imperative a decision is made about her future promptly. She observed that E is at a very high risk of school and peer difficulties and there is a small window of opportunity to help her develop the play and social skills that will be critical to school success.  She commented that E’s symptoms of anxiety and stress should be taken seriously:

[137]     Much of this hearing focussed on the H’s failure to have E seen regularly by health professionals.  The H’s say that E is a healthy child and any missed professional appointments were inconsequential. Mrs. H testified that E was regularly seen by her doctor, Dr. Cynthia Neil, and there was no need to see an audiologist, or infant physiotherapist if Dr. Neil did not think it was necessary.

[138]     I find that the H’s fundamentally misunderstood their role as foster parents.  I accept Greg Kormay’s evidence that he met with the H’s in October 2011 and discussed what it meant to be a foster parent, and how they had to work jointly with social workers and E’s birth mother. I accept that he stressed that all decisions about E’s care had to be approved by the guardianship social workers.  I accept that Mr. Kormay gave the H’s copies of “Safe Standards for Foster Homes”, “Foster Family Handbook” and “Safe Sleeping for Infants’, which clearly set out the obligations of foster parents.  The H’s signed a Family Home Agreement (Exhibit 8, page 149) with the Director, in which they agreed to provide caregiver services.

[139]     These documents are clear statements of the obligations the H’s had as foster parents.  Some of the obligations were to keep in regular touch with the social workers assigned to the file; report any proposed new activity or change in E’s life; follow the Plan of Care; provide monthly reports; attend monthly meetings and ensure E had appropriate medical treatment if necessary.  Any medical care, routine or not, had to be authorized by a social worker.

[140]     The H’s had difficulty fulfilling some of the expectations placed on them as foster parents.  At times they did not provide monthly reports. I find as a fact that E often slept in the same bed as Mrs. H, contrary to Ministry policy. The H’s changed E’s name.  This was done, according to Mrs. H, at the instruction of Meg Meredith so that E would not be recognized in the community and be vulnerable to potential threats from her birth father.  I do not accept this evidence.  First, I accept that it is against Ministry policy to change the name of any child in foster care.  This can only be done after a continuing custody order has been made, and the child adopted. Second, Meg Meredith, as discussed above, was the removing social worker.  While she was on the file, JD and DS were still intent on regaining custody of E.  The suggestion that she would instruct the H’s to change E’s name when her future placement was uncertain, and knowing that both birth parents would have access to E is unbelievable.  I find that the H’s action in changing E’s name was indicative of their misapprehension of their role. Although they were in a foster to adopt situation, it is clear the H’s viewed the situation as if the adoption had already occurred. They did not appreciate that there was a possibility that E may not be in their care permanently.  From the beginning of E’s placement with them, they viewed themselves as E’s “parents” and not “foster parents”.  As parents, they appeared to hold the view that they had the final say on what sort of medical services, assessments and contact with professionals that E required, not the social workers.

[141]     I have concluded that the H’s did not view regular, consistent contact with health care professionals to be necessary for E.  I will provide some examples of their conduct which has lead me to this conclusion.

[142]     Like all infants, E required regular immunizations.  Those immunizations are administered by a Public Health nurse.  In December 2011, the Public Health nurse informed Meg Meredith that E was not up to date on her immunizations, and they had been unsuccessful in contacting the H’s to have them bring E in.  Ms. Meredith called Mrs. H to advise her of this, and Mrs. H took E in to have her immunization.  The H’s later failed to ensure that E have her one year immunizations in October 2012. On November 13, 2012, the Public Health team leader called Rhea Anderson, the social worker team leader, and indicated that she had tried unsuccessfully several times to contact the H’s to bring E in for her overdue one year immunization. Mrs. H had returned one message but no appointment was set.  Ms. Anderson spoke to Mr. H, who was trying to get written permission to take E to the United States for the weekend.  Ms. Anderson told him that the permission would not be forthcoming unless E’s inoculations were up to date.  Mr. H was not aware that E had not been seen as required by the Public Health nurse.

[143]     Mr. and Mrs. H noticed that E was bow legged and had an inward turning foot.  A paediatric physiotherapist was engaged to work with E and assessed her on November 21, 2012.  She provided a report (Exhibit 7, page 93) in which she recommended monitoring E’s feet and legs and wanted to see E again in two months. She left messages with the H’s to set up that follow up appointment on January 7, 2013, March 13, 2013, and July 24, 2013.  Susan Meyer, the aboriginal infant development worker recommended again in September 2013 that E is seen by the physiotherapist. It is unclear if the H’s followed up with that suggestion.

[144]     It was made clear to the H’s that E had to be seen regularly by the infant development worker and the audiologist. I accept that as a child at risk, E is vulnerable to developmental delays and it is vital that she is seen regularly by an expert in infant development.  Julie Stockheusen was the assigned infant development worker. She saw E on October 28, 2011, shortly after she was born.  She was scheduled to see E two weeks later but that appointment was cancelled as the H’s had a family illness. Ms. Stockheusen left several messages with the H’s after that to reschedule. Mrs. H responded on November 28, a month after the first visit, but no new appointment with Ms. Stockheusen was set up.  On December 22, Ms. Stockheusen sent the H’s an email, suggesting that they attend an infant massage program with E.  Ms. H responded on January 11 that she was interested in coming but was not able to come that day. A week later she left a message saying she wasn’t attending because she was ill. On January 18 the H’s attended an integrated case management meeting at the Ministry offices and Ms. Stockhausen was present. Consequently, at that time she able to set up an appointment to see E five days later. At that meeting, Ms Stockhausen recommended a program the H’s attend with E which would benefit her development. Although the H’s indicated interest, they never attended.  Ms. Stockhausen next saw E on March 30, 2012, and then again on November 5, 2012. 

[145]     Ms. Stockhausen prepared a report (Exhibit 7, page 22) on November 23, 2012, shortly after E turned one.  She indicated that the Infant Development Programme had only seen E five times in the year.  This was far less than the 20 - 26 times Ms. Stockhausen thought necessary. During the year, Ms. Stockhausen attempted many times to make appointments with the H’s. Her view ultimately was that if the family was not responding, she wasn’t going to hound them, as she had a large number of families on her case list.

[146]     At the November 2012 meeting with the H’s Ms. Stockhausen noted that E was meeting her developmental milestones.  Ms Stockhausen did provide the H’s with a note, outlining the visit. (Exhibit 7, page 26) and made some recommendations, such as limiting E’s sugar and caffeine intake.  She pointed out that juice could affect E’s appetite and was bad for her teeth.

[147]     Ms. Stockhausen took a leave of absence from February 2013 to November 2013. She sent an email to the H’s advising of the new infant development worker’s name, Ms. Tolman.  Ms. Stockhausen examined E’s file and testified that the notes revealed that Ms. Tolman left a number of messages with the H’s, and was finally able to schedule a visit on May 27.  When she showed up, the H’s could not meet her due to a scheduling conflict.

[148]     The H’s eventually contacted Susan Meyer, an Aboriginal infant development worker who saw E on August 9 and September 12, 2013.  These were the first appointments in 2013 E had with any infant development worker.   Another appointment was set for March 5, 2014, but that was not kept by the H’s.

[149]     Ms. Meyer assessed E’s development in September 2013 and noted that E had discoloured and crooked teeth. She suggested that the H’s make an appointment with a dentist. She also suggested that E’s eyes be checked by an optometrist.  Ms. Stockhausen saw E on December 19, 2013.  Ms. Stockhausen confirmed in her report (Exhibit 7, page 118) that the H’s had told her they booked an appointment with a dentist in January 2014.

[150]     When E’s hearing was initially assessed at birth, there were indications she may have some problems.  Consequently she was referred to an audiologist for follow up. In November 2011, she was diagnosed with conductive hearing loss in her left ear by audiologist Darlene Jamin.  Ms. Jamin saw E again on December 20, 2011, and recommended that E’s physician follow up regarding the hearing loss, and that E have a further audiological review at 9 months, or in July 2012. 

[151]     Ms. Jamin testified that during E’s first appointment, she felt that she had to convince Mrs. H that the appointments with audiology were important.  She emphasized that it is important that hearing difficulties are assessed quickly because early interventions are much more successful for children. At the December appointment, Ms. Jamin discussed with the H’s what conductive hearing loss was, and why she needed to see E again at nine months.  She recommended that the H’s discuss the issue with their physician.  In her experience, some physicians are reluctant to refer a young child to an ENT specialist, and that is why she needs to see the child again at 9 months - to ensure that all available therapies are available to the child.

[152]     Ms. Jamin testified that she had a great deal of difficulty making appointments with the H’s to bring E in for her audiology assessments.  The first appointment was originally set for November 15.  That appointment was not kept by the H’s.  Mrs. H cancelled it.  Two days later the audiology clinic called the H’s to rebook that appointment, and E was brought in on November 29.  The H’s brought E in for a follow up test on December 20.  The audiology clinic called the H’s on July 30, 2012, and left a message to remind them of the July 31 nine month review the next day. The H’s did not show up for the July 31 appointment.  Audiology called to rebook and left a message with the H’s on August 17.  On August 29 Mrs. H called and said she was sick for the last appointment. It was rescheduled for September 13.  The audiology clinic left a message on September 12 reminding the H’s of the appointment.  The H’s did not show up for the September 13 appointment.  The clinic left a message that same day to rebook the missed appointment.  The clinic left further messages on October 18, November 14, and November 19, 2012.  A letter was sent to the H’s on December 17, 2012 (Exhibit 7, page 75) indicating that it had been almost a year since E had been assessed.  The letter indicates that the clinic had been unable to reach the H’s by telephone, and invited them to make an appointment as soon as possible.  A copy of the letter was sent to Dr. Neil, E’s GP.  By August 19, 2013, the audiology clinic had yet to receive any contact from the H’s or Dr. Neil to rebook the missed appointment.  A letter was sent to the Ministry, advising that E was removed from the wait list as the Audiology Department had been unable to reach Mrs. H .

[153]     Mr. and Mrs. H had a number of explanations for the missed appointments and lack of follow up as suggested by the various professionals. Mr. H testified that any missed appointments were made up. Mrs. H’s evidence in this area was not consistent. She was argumentative and somewhat evasive during cross examination.  She did not agree that various professional service providers left messages on her phone and she did not respond to them.  In her affidavit (Exhibit 1) Ms. H stated that all missed appointments were rescheduled. Clearly that was not the case.

[154]      Mrs. H said it was “up to the Public Health nurse to call us”, and there had been a change in nurses as one had retired which resulted in the delay for E’s one year immunizations.  She also testified that the Public Health “phones were down” during this period of time.  In September 2012 the H’s provided a monthly progress report for E (Exhibit 29) in which they stated that E’s heath care passport was up to date.  This was not the case.  In November 2012 when Ms. Anderson spoke to her about the late immunizations, Mrs. H told Ms. Anderson that when Public Health called their home, their phone number was displayed as “private caller” and she assumed they were telemarketers and did not answer the phone.  This explanation fails to take into account that Public Health left voice messages, one of which Mrs. H actually responded to.  Mrs. H’s evidence on this issue is inconsistent and unreliable.  I do not accept it.

[155]     Mrs. H’s explanation for taking E to any of the programs that Ms. Stockhausen recommended was that social workers told her that she should be cautious about taking E into the community.  She testified that E did not like massage so she did not enrol in that. She testified that she did not register E in the Strong Start programme because the Ministry had concerns, even a year after E’s birth, that her birth father might cause problems.  Mrs. H’s evidence conflicts with all of the social workers’ evidence on this point, and with the running records in the Ministry files.  I prefer the evidence of the Director’s witnesses on this point.

[156]     Mrs. H’s recalled receiving an email and voice mail letter from Ms. Stockhausen regarding her replacement during her leave of absence.  It was her view that this information did not require a response from her.  She did not recall receiving phone messages from Sherry Tolman, on March 15 and March 25, seeking to set up an appointment.  She did agree that an appointment was set for May 27^th, but it had to be cancelled by the infant physiotherapist.

[157]     Mrs. H disagreed that E was to be seen by the infant physiotherapist three months after the first visit.  It was her evidence that the physiotherapist would call them when E was 15 months old.  She testified that the physiotherapist called and left a message occasionally to find out if they had any concerns.  Mrs. H thought that she only had to call back if E’s foot was not “self-correcting”.  She agreed that she never called the physiotherapist back to arrange a reassessment.  Mrs. H’s evidence contradicts the notes of the physiotherapist found in Exhibit 7, where she notes three messages were left with the H’s “for recheck”.  I give Mrs. H’s evidence on this point little weight.

[158]     Mrs. H’s evidence regarding the audiology appointments in chief was that she never missed an appointment and failed to reschedule it.  In cross examination she claimed that the Audiology Department’s “phone lines were down” at various times.  She finally agreed that she did miss two appointments and failed to reschedule them.

[159]     Ms. Jamin testified that the Audiology phone lines were never “down”.

[160]     I do not accept Mrs. H’s testimony regarding the audiology appointments.  It is not credible or trustworthy.

[161]     I find as a fact that as early as December 2011 social workers discussed with Mr. and Mrs. H the complaints from the Public Health nurse and the Audiologist about missed appointments and the difficulty in reaching them.  I do not accept Mr. or Mrs. H’s evidence that the May 2014 meeting was the first time they learned about concerns regarding missed appointments.  When Sheri Pawlyshyn acquired E’s file in September 2012, she sent an email to Greg Kormay, discussing her concerns about the H’s not meeting the expectations of foster parents.  They were not attending all monthly meetings with social workers, they had taken E out of town without permission, and they had not been updating social workers after E’s medical appointments.  Mr. Kormay also noticed it was more and more difficult for him to reach Mrs. H at home.  He found the only reliable way to contact the H’s was to text Mr. H and suggested that other social workers, who were also frustrated with trying to reach Mrs. H do the same.  Mr. Kormay also sent an email to the H’s on September 24, 2012 instructing them of the requirement to file monthly reports, and to provide back dated reports that were missing.  He also advised in the same email (Exhibit 8, page 185) of the need to communicate with social workers about all medical appointments E had, and the need of the H’s to make an appointment with Ms. Stockhausen.  He also informed them that JD’s extended family had expressed an interest in assuming care of E.

[162]     As noted above, the H’s continued to have difficulty returning calls to E’s health care professionals.  In November 2012 another meeting took place with the H’s in which they were advised the Ministry was still concerned about their lack of response to E’s health care professionals, and this needed to improve if their adoption application was to proceed.  The social workers became more concerned when they received the letter from Audiology in August 2013 that E was removed from the wait list because Mrs. H could not be reached.

[163]     A further meeting was held on October 10, 2013, with the H’s and various social workers.  I accept Mr. Kormay’s evidence on what happened in this meeting:

[164]     In November 2013 the Ministry received a complaint from a community member that they were concerned Mrs. H could not care for E because of her health and use of drugs. This person also expressed concerns that E was spending a considerable amount of time with an alternate caregiver.

[165]     Mr. and Mrs. H filed the required monthly report for November on December 11, 2013. They reported that E had appointments that month with both Audiology and physiotherapy and both professionals indicated E should continue to be monitored by Dr. Neil but there was no need for E to see either again at that point. They felt they were following all of the Ministry’s instructions at this point.

[166]     Because of Ministry’s ongoing concerns about the H’s suitability as foster and adoptive parents, a decision was made to obtain Mrs. H’s medical records from her physician Dr. Neil.  Those records were reviewed and a variety of social workers and supervisors concluded that Mrs. H did not accurately disclose the seriousness of her illness or the drugs she was taking. Meetings were held with the H’s in December 2013, March 2014.  After consultation with a number of social workers and supervisors, Ms. Lien concluded that E had to be moved to a new foster home. That occurred on May 12, 2014.

[167]     The H’s argue that if any appointments were missed, they were inconsequential because Dr. Neil was monitoring E’s health, and that was all that was required.  Dr. Neil testified, and while I accept much of her evidence, it was clear that she sees herself as an advocate for Mrs. H.  Some of her evidence was clearly at odds with her clinical notes.  She could not recall why she made some clinical observations about Mrs. H and her health, including her mental health, which were clearly not favourable to Mrs. H.

[168]     Dr. Neil was also E’s general practitioner. E’s medical chart identifies her by the new name the H’s gave her, and the H’s last name.  E is described in Dr. Neil’s notes as “adopted”.  Dr. Neil testified that Mrs. H had frequent medical appointments with her (sometimes as often as once a week) and she saw E during those appointments.   Dr. Neil acknowledged, as E’s doctor, she received reports from Audiology and the infant physiotherapist. She couldn’t recall if she received reports from the Infant Development Programme, despite the fact that many of their reports had “c.c. Dr. Neil” endorsed on them.

[169]      Dr. Neil acknowledged she received the letter from Audiology that E was to be removed from the list because Mrs. H had been so difficult to contact. Dr. Neil agreed that such a letter would have caused her concern, and usually she has a patient in to see her when she receives such a letter. She had no note on her file regarding any follow-up to the Audiology Department letter.  She did not speak to the audiologist.  She did continue to check E’s ears while she was in the care of the H’s but could not recall why.  With respect the E’s physiotherapy needs, Dr. Neill recalled that E had a problem with her foot and she was “following” the issue, and was of the opinion that often issues like that resolve themselves.

[170]     The document “Ages and Stages Questionnaire Report” (Exhibit 7, page 114) was provided to Dr. Neil because she was E’s doctor. She did not recall getting it. That report suggested E see a dentist, follow up with the paediatric physiotherapist, and have an eye exam.  Dr. Neill could not recall if she discussed the need for Mrs. H to take E to a dentist, or to get E’s eyes checked. The clinical record has no mention of these issues.

[171]     Dr. Neil could not recall if she observed any tooth decay in E’s mouth when she saw her.  However on January 29, 2013 she completed a report for the Ministry after examining E (Exhibit 25).  Dr. Neil noted that E’s eyes, ears, mouth teeth and neck were “all normal”.

[172]     I accept Ms. Jamin’s evidence that GPs cannot detect hearing loss because they do not have the specialized equipment that audiologists do. Ms. Jamin is able to test pressure, ability to hear and hearing loss, unlike a GP.

[173]     I cannot find that Dr. Neil’s medical care was an adequate substitute for the work the infant development specialists did with E.  As well, Dr. Neil’s opinion that E’s hearing issues and her foot issues “would resolve themselves” clearly has not borne out.  Ms. Jamin testified that E’s new GP has referred her to an ENT specialist, Dr. Cook.  If E still has fluid on her ears, Dr. Cook will place tubes in E’s ears and remove her adenoids.  Ms. Jamin works closely with Dr. Cook, and will see and assess E ahead of Dr. Cook re-examining her, and then monitor E’s condition after the tubes are inserted.  

[174]     When E was moved to Ms. G’s home she noticed immediately that E has misshapen and discoloured teeth.  She asked Mr. and Mrs. H about them and was told that they had scheduled a future dentist appointment for E, but did not tell Ms. G when it was or with whom.  Ms. G arranged for E to see Dr. Annie Bissonette.  Dr. Bissonette examined E on June 23, 2014, and found that E’s front teeth had broken off due to decay.  Dr. Bissonette provided a letter outlining her observations (Exhibit Q to the affidavit of Lois Lien, exhibit 6):

[175]     Dr. Bissonette testified that “baby bottle syndrome” is caused by giving a child a bottle of juice, milk or pop at night.  It is no longer common.  Dr. Bissonette testified that part of the decay could have been caused by poor enamel, but she stated that there had to be a source of sugar combined with that to result in the extent of the decay in E’s teeth.  She described E as having one of the worse cases of “baby bottle syndrome” she has seen, and in her opinion, the situation would have taken years to develop.  Dr. Bissonette plans to do check-ups with E every six months, and recommended that the decayed teeth be allowed to simply fall out, to save E the trauma of extractions.

[176]     I accept that JD and her family all have poor teeth enamel.  JD and her mother both have dentures.  JD advised Mr. and Mrs. H of this and both were well aware of the need to be particularly diligent with E’s teeth. Mr. and Mrs. H discussed E’s teeth with Ms. Stockhausen, and E’s predisposition to soft dental enamel.   As mentioned above, Ms. Stockhausen recommended limiting E’s sugar intake, and in particular eliminating juice.  Ms. Stockhausen suspected that the H’s did not follow this advice, as she later saw E with coloured liquid in a sippy cup, which she concluded was juice.  

[177]     Ms. Stockhausen discussed with the H’s a fluoride varnish that could be applied to E’s teeth to protect them. 

[178]     Ms. Stockhausen testified that Mr. and Mrs. H told her that they had a booked a dentist appointment for E in January 2014.  Mrs. H. disagreed with this suggestion.  It was her evidence that she told Ms. Stockhausen that she would phone a dentist in January.  Mrs. H testified that when she called a dentist, she was told that dentists don’t see children before they are two or three.  Mr. H testified that Ms. Stockhausen said that she would set up an appointment with a dental hygienist.  Ms. Stockhausen acknowledged discussing fluoride with the H’s but never offered to set up a dental appointment for them.  I accept Ms. Stockhausen’s evidence on this point.  As an infant development worker, her job did not include making dentist appointments for children.  Further, Mr. H’s evidence suggesting that she offered to set up a dentist appointment was never put to Ms. Stockhausen so that she could comment on it.

[179]     Despite being advised by both Infant Development workers that they recommended a dental check-up in light of E’s discoloured teeth, it is disturbing that Mrs. or Mr. H did not take any further steps other than one phone call to ensure that E’s dental needs were met.  I also accept that the H’s continued to provide juice to E, even after they were warned not to.

[180]     Children in care have the right to receive medical and dental care when required. I find that the H’s did not ensure that E had necessary dental care while she was in their care.  I do not accept counsel’s suggestion that E was “nurtured to community standards”. The fact that E did not contract polio, tetanus, whooping cough or other contagious diseases is not the point. The H’s had an obligation to ensure that E’s medical needs were met in a timely manner. They failed in that regard.

[181]     The Director submits that Mrs. H’s history of missed appointments for E is rooted in her own chronic illness, medication, and inconsistent diligence about her own care.

[182]     Ms. H has hypogammaglobulinemia, a chronic disease.  She cannot produce her own immunoglobulin, and as a result is at risk for infections.  She must receive immunoglobulin every two weeks or so. If she does not, she places herself at a significant medical risk.   Mrs. H has had numerous surgeries and chronic lung infections. She suffers from chronic pain as well. Shortly before E came into the H’s care, Mrs. H was hospitalized, and again after E was moved to Ms. G.  

[183]     In a letter dated March 4, 2014, (Exhibit 6, page 118) Dr. Neil listed the medications, apart from immunoglobulin,  Mrs. H is prescribed:

[184]     In examination in chief, Dr. Neil was of the view that Mrs. H has managed her chronic illness well because she was still alive.  Mrs. H. also has a malabsorption problem which affects her ability to absorb immunoglobulin and medication for her pain.  Consequently, she is on high dosages of dilaudid, a narcotic pain medication.  Dr. Neil testified that Mrs. H has managed to reduce her dose of dilaudid significantly over the last couple of years.

[185]     In cross examination, Dr. Neil acknowledged that she had to repeatedly speak to Mrs. H about not attending for her appointments to receive immunoglobulin. She has in the past become worried about Mrs. H’s health.   She acknowledged that she referred Mrs. H at one time to Dr. Cameron, a surgeon. Dr. Cameron ultimately wrote Dr. Neil that Mrs. H did not show up for her appointment with him, and he had been unsuccessful in trying to contact her, despite leaving messages on her phone.

[186]     Mrs. H received her immunoglobulin through the Oncology Department at the Trail Hospital. She was discharged from that programme because she routinely missed appointments.  Mrs. H missed appointments with Dr. Apelt, her immunologist.  Dr. Neil agreed that she repeatedly had received concerns from other health care professionals about Mrs. H not following through with appointments or consultations with specialists. 

[187]     Dr. Neil agreed that she made a note in her clinical record that she diagnosed Mrs. H. on November 12, 2013, with “Chronic Pain/Anxiety/Personality Disorder”.  On that same day, Dr. Neil noted: “Still chaotic stories and missing appointment for her treatment which is necessary.” Dr. Neil noted Mrs. H’s need for chronic pain counselling, links with other health care professionals and “Mental health recommended”. (Exhibit 6, page 64).  Dr. Neil explained in cross examination that it was not really a diagnosis of a personality disorder; rather it was a “working diagnosis”.  She added that while Mrs. H exhibited several traits of someone with a personality disorder, Dr. Neil doesn’t really think she has the disorder.  Dr. Neil mentioned that she made the note, in part, because of Mrs. H’s inability to get along with other physicians in her clinic.  Dr. Neil agreed that although she referred Mrs. H to a pain specialist, she did not go.

[188]     I find that Mrs. H has significant difficulties in managing her own health needs, to the point that her health has seriously deteriorated at times because she has not maintained contact with health care providers.  She has not followed up on Dr. Neil’s suggestions with respect to obtaining counselling for her mental health and chronic pain.  I find that many of the same behaviours Mrs. H exhibits in caring for herself have reoccurred with E - in particular a failure to keep appointments and to follow advice of medical professionals.

[189]     There is insufficient evidence to conclude that Mrs. H’s behaviour is as a result of her chronic illness. That in, my view is irrelevant.  For whatever reason, Mrs. H has displayed a refusal or reluctance to engage appropriately with E’s health care providers.  I find as a fact that E’s health, in particular her dental health, was compromised because of it.  

[190]     There is little merit to the argument that at some level Mrs. H’s health and behaviour are irrelevant because Mr. H is a stable and responsible individual.  I note there continued to be missed appointments after two meetings with social workers where Mr. H was in attendance and the topic was discussed.  Mr. H was unable to answer many questions in cross examination concerning the missed appointments. He reiterated the same explanation about “phone lines” being down with the Audiology Department.  As well, Mr. H works full time.  It is clear that Mrs. H was the primary care-giver for E and would be if E is returned to their care.  Mr. H testified that he was proud of Mrs. H and how conscientious she was about her own health, and he had no concerns about her looking after herself.  This opinion flies in the face of Dr. Neil’s comments in her clinical notes and her evidence in cross examination about her ongoing concern about Mrs. H.

[191]     The H’s met with Dr. Wotherspoon and received recommendations from her regarding their visits with E.  In a letter dated July 7, 2014 (Exhibit 6, page 124) Lois Lien set out guidelines for each visit.  Included was the following instruction:

[192]     I accept that the H’s continued to bring juice to visits when they occurred at Ms. G’s.  When their visits were moved to FAIR, they were instructed not to bring any food at all.  They continued to do so.  Ms. Forbes testified at one visit they brought chocolate, candy and Tim Horton’s food and she watched E eat them.

[193]     In my view, the missed appointments, the H’s lack of response to recommendations made by professionals and the H’s inability to follow guidelines for visits with E are corroborative of the Ministry evidence regarding their difficulty in working with the H’s.

[194]     I find the H’s are still reluctant to accept responsibility for their inadequate responses to standard Ministry expectations of foster parents.  That reluctance has caused a rift in their working relationship with all of the Ministry social workers.  That rift deepened when the Ministry learned of the seriousness of Mrs. H’s medical condition, and the numerous medications she is on.  It was reasonable that social workers felt that Mrs. H had not been candid on her adoption application.  Exhibit 31 is a questionnaire Mrs. H completed during the home study and was used by the Ministry in determining the H’s suitability as potential adoptive parents.  At page 11, the following question was asked: “Are you currently taking medication?”  Mrs. H. answered “yes” and wrote “daily infusions of immunoglobulin.” 

[195]     She made no mention of the Viokase, Gravol or Zofran, Dilaudid, Advair and Ventoline puffers or the nebules of Pulmicort and Salbutamol.  Of particular concern was her failure to disclose she was taking significant quantities (100 2 mg. pills every 5 to six days) of Dilaudid, a powerful narcotic.  I do not accept counsel’s suggestion that Mrs. H answered the question correctly, because she was not asked to list medications. The question was clear, and Mrs. H chose not to disclose the quantity of medications she was taking, and that one of them was a powerful narcotic.

[196]     I conclude that Mr. and Mrs. H are not the “extraordinarily skilled parents” which E needs.  As well, I find that they are not able to work closely with professionals, nor are they will willing to accept input and suggestions from them.

[197]     E’s safety and well-being are the paramount considerations in determining her future.  Ms. Wotherspoon testified that E is a very vulnerable child. She cannot tolerate another failed placement, and in her opinion, E’s move from the H’s home was in E’s best interest.  Ms. Wotherspoon testified that E has now resolved her grief over leaving the H’s home and she could not recommend that E return to them, given the Ministry’s concerns.  

[198]     It is crucial that a decision be made immediately.  I am satisfied that any further delay would be harmful to E and not in her best interest.  I find that the potential placement with an Aboriginal family in the Vancouver area will preserve E’s aboriginal identity and maintain her connection with her birth family. 

[199]      JD has failed to establish that cancelling the continuing custody order is in E’s best interest.  Her application to set aside the continuing custody order is dismissed.

[200]     As JD does not have guardianship of E, the FLA application brought by Mr. and Mrs. H is also dismissed.