CA177479
NOVA SCOTIA COURT OF APPEAL
[Cite as: J.G.B. v. Nova Scotia (Community Services), 2002 NSCA 86]
Glube, C.J.N.S., Chipman and Saunders, JJ.A.
BETWEEN:
J. G. B.
Appellant
- and -
THE MINISTER OF COMMUNITY SERVICES
Respondent
REASONS FOR JUDGMENT
Counsel: Claire McNeil for the appellant
Thilairani Pillay for the respondent
Appeal Heard: June 4, 2002
Judgment Delivered: June 20, 2002
THE COURT: The appeal is dismissed, per reasons for judgment of Chipman, J.A.; Glube, C.J.N.S., and Saunders, J.A., concurring.
Publishers of this case please take note that s.94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides:
94(1) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child.
Chipman, J.A.:
[1] This is an appeal by J. B. from a decision and order of Williams, J. of the Supreme Court, Family Division, making an order pursuant to s.42(1)(f)of the Children and Family Services Act, 1990 c.5, placing her two children in the permanent care and custody of the respondent Minister of Community Services with no access by the appellant to them.
[2] The appellant was born on September *, 1981, and her two children are A. K. G. C., born July *, 1998 and D. B., born January *, 2000. (*Editorial note- dates removed to protect identity) The children were ultimately taken into care on July 20, 2001, and the matter was heard by Williams, J. on November 26, 27 and 28, 2001. His decision was rendered on December 13, 2001 and the order placing the children into permanent care was made on January 24, 2002.
[3] The appellant first came to the attention of the Halifax Agency of the respondent on a referral in September of 1998 by a public health nurse at the Cowie Hill Medical Centre. A public health nurse had visited the respondent’s home in Halifax and found that it was unacceptable for a child. There were six cats in a room in which was found urine, feces, vomit, used condoms and tampons.
[4] The Dartmouth Agency entered the picture in February, 1999, following complaints from a neighbour. Williams, J. in his decision quoted the following from the affidavit of one of the Agency’s case workers:
7. We went (February 2) to Apartment 13 where Mr. S., Ms. B. and the baby, A., were present. The apartment consisted of one room with an adjoining bathroom. A. was strapped in an infant seat on the floor, naked. There was a blanket under her that was wet with urine. She seemed overall to be healthy. The apartment was dirty. Cigarette butts were scattered all over the floor and there were three cats in the apartment. Ms. B. indicated that one of the cats slept with the baby. There were numerous holes in the walls, put there by Mr. S., who said that he had been defending Ms. B. from an individual named S. C. Ms. B. explained that she had moved in with S. C. approximately one month ago but had left him last week and moved in with A. S., whom she described as just a friend. The apartments were adjacent to each other and the previous Thursday, Mr. C. became very violent, trying to break through the wall to get at Ms. B.. The police were called in and Mr. C. was arrested.
12. February 3, 1999, I spoke with Ms. B. who provided the following information:
When asked why 21 J.R. was referred to as a "crack house", she responded that it probably had something to do with the fact that there were "crackheads" coming to her door "every ten minutes" wanting to consume crack.
15. February 3, 1999. I met with Ms. B. to review the Agency's concerns and indicated that the Agency was prepared to allow Ms. B. to reside with her parents along with her baby, A., if Ms. B. was prepared to abide by certain conditions. The alternative would be that A. would be placed in foster care. I also explained to Ms. B. that we were not comfortable with her being unsupervised during the day while her parents were at work. We explained that we hoped to hire a service provider to be with her during the day while her parents were at work.
16. I agreed to accompany Ms. B. to J.R ., Apartments 13 and 14, so that she could pick up her belongings. Upon arrival at 21 J.R., I observed a large young male with a bulldog pounding on Mr. A. S.' door. This individual was yelling, "I want my fucking money right now. I mean it." He appeared to be angry. I asked Ms. B. permission to take some pictures of the apartment where she and Mr. C. had been residing. Ms. B. gave me permission to do so. I entered Apartment 14 and observed that it consisted of one room and a bathroom. There was a mattress on the floor, a couch with broken legs, a chair and a refrigerator. There was a smell of garbage throughout the apartment and I noted that there were bags filled with garbage in the bathroom and closet. There was debris on the floor including gyproc and insulation. I observed a hole in the wall that was larger than a basketball. Ms. B. identified this hole as where Mr. C. had tried to break through the wall to get at her at Mr. S.' apartment on January 22. There was very little food in the fridge. After Ms. B. collected a few of her belongings, we proceeded to Mr. S.' room, Apartment 13. I observed that Mr. S. resides in a room similar to Apartment 14, although there were more personal belongings in his residence. Ms. B. introduced me to three cats who were being cared for by Mr. S. in her absence...
There were several holes in the walls of the apartment. Mr. S. stated that Ms. B. had made these holes the night of January 22. Mr. S. explained that Ms. B. experienced some kind of anxiety attack and was having difficulty breathing. Ms. B. panicked and started hitting the walls in frustration. He further added that Mr. C. had been at the window and door trying to break into his residence when Ms. B. was doing this. Ms. B. confirmed this.
[5] The appellant was moved to Adsum House as an emergency measure and later in February, 1999, moved into her mother’s home in P. with A.. On February 11, 1999, A. was placed under supervision of the Dartmouth Agency pursuant to s. 22(2) of the Act. The Agency had concerns about the appellant’s parenting when she was with A. at her mother’s home - the child was not being fed properly nor bathed regularly, the mother was swearing and becoming extremely angry in the child’s presence.
[6] In May of 1999 a family support worker met with the appellant two or three times a week respecting parenting skills. A number of support workers have been involved with the appellant since that time. Wayne Hollett, a social worker, provided individual counselling for the appellant to deal with identified interpersonal issues. It became apparent that the appellant was inconsistent in co-operating with Agency workers and service providers and by July, 1999, was showing anger at the Agency, was neglecting A.’s care, using profanity and making angry outbursts in A.’s presence. By this time, the appellant was also expecting her second child.
[7] By early November, 1999, the appellant met R. J. and she and A. moved in with Mr. J.’s mother in January, 2000. D. was born on January (editorial note- date removed to protect identity) and the appellant and J. lived with the two children in the home of the latter’s mother in circumstances which were described as stressful and chaotic. In late February, 2000, the couple found an apartment for themselves and the children on M.S. in Halifax.
[8] J.’s mother provided information to the Agency about the appellant’s parenting while at her home, such as not feeding or bathing the children regularly, being lazy, not playing with them and on one occasion slapping A. in the face. It was also reported that Mr. J. threw A. across the room. J.’s mother has since recanted these allegations.
[9] By March of 2000 the Halifax Agency received disturbing information with respect to the home life at the appellant’s apartment. It was reported that Mr. J. was constantly hitting, shaking and slamming A. and punching the baby. This information was never substantiated by the Agency, but their workers had observed that R. J. had a tendency to anger quickly. By May of 2000 Family Service workers identified serious neglect issues. There were reports of disputes with the landlord, an eviction notice, involvement of the police, damage to property and angry verbal outbursts. The appellant’s therapist at the time was concerned that she was not able to meet her children’s needs in a consistent manner. There were care and hygiene issues, and there was concern about the children being exposed to recurrent confrontations between the adults involving arguments, raised voices, emotional distress and violence.
[10] A case report dated May 12, 2000, described the appellant’s apartment as being in disarray with overflowing ashtrays, broken glass on the floor, a glass tumbler in the baby’s crib, dirty diapers in abundance, the baby in dirty sleepers with milk encrusted on his chest. At another home visit on May 18, 2000, the appellant was given clear direction as to what was expected of her but again the home situation appeared unfavourable:
Both children had dried food and vomit on their clothes. A. had cereal and milk in her hair and old dried food stuck on her chest, there was no bedding for the crib and D. was sleeping in a car seat, the apartment was very dirty.
[11] On May 19, 2000, both children were apprehended by the Agency. They were found to be in filthy condition with soiled diapers leaking feces and both children emitting very strong odours. A. had many bruises on her body, a very bad diaper rash and a dead bug was found on the back of her neck.
[12] In July of 2000, the children were returned to the appellant’s care. On August 16, 2000, an order consented to on the appellant’s behalf was made by Campbell, J. finding that both children were in need of protective services pursuant to s. 22(2)(g)of the Act:
(2) A child is in need of protective services where
(g) there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
[13] Section 22(2)(f) of the Act reads:
(2) A child is in need of protective services where
(f) the child has suffered emotional harm, demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour and the child’s parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
[14] The order provided for supervision of the appellant’s parenting by the Agency.
[15] Temporary care of the children then remained with the appellant, who was then living with R. J.’s mother, pursuant to the terms of a protection order. Agency reports of the appellant’s parenting during this period show cause for concern. In October of 2000 the appellant and J., with whom she had an off-and-on relationship, found an apartment in Dartmouth with the Agency’s approval. Supervision orders continued, and the Agency made a number of recommendations to the appellant which, in the main, were not followed by her.
[16] Williams, J. referred to numerous visits by Agency personnel to the appellant’s home and the deplorable conditions which were found on the majority of occasions. Williams, J. put it this way at p. 22 of his decision:
It is clear to me that these topics and issues (of neglect and risk to the children) have been repeatedly discussed with Ms. B. over the course of the last number of years. She has been present in the courtroom when people have testified about their concerns. The concerns have been highlighted in the Agency “statement of understanding” and various Agency plans. They have been related to her by numerous people involved.
[17] Over the period from the fall of 2000 to May of 2001, countless visits were made by Agency personnel to the appellant’s home and meetings were held. Agency personnel continued to encounter concerns about the appellant’s parenting. She was found to be untruthful with Agency personnel. On occasions she refused to accept guidance from the Agency. In the fall of 2000 the appellant, contrary to the Agency’s advice, acquired a large dog which the Agency considered greatly increased issues of cleanliness and safety. An assessment report by Diane Wheeler, social worker, dated November 20, stated that the children were at a high risk for further neglect and abuse. Recommended day care for A. was not arranged by the appellant as promised. A. was found to have bruises and perianal warts - symptoms, but not proof, of abuse.
[18] The appellant at one time told a case worker that the major stress in her life was the Agency.
[19] The trial judge described the history from November, 2000, to the spring of 2001 in the following terms:
J. B. and R. J. and the children seem to have been doing reasonably well until March or April of 2001. Wayne Hollett has been involved with J. as a support therapist from August of 1999 until April of 2001, almost two years. He testified in July of 2000 and again at the November, 2001, hearing. He had ended his involvement in April, 2001. He felt at that time there was little purpose to ongoing involvement, that he could not be there forever... He acted at times as a buffer between J. B., R. J. and the Agency or other supports. He helped her interpret expectations, not to react as negatively as she might otherwise have done.
Mr. Hollett was present at a June case conference when the Agency expectations and a written “statement of understanding” were reviewed with J. B.. She agreed with the expectations outlined at this meeting. The expectations, I conclude, were reasonable, basic and consistent with the then court order. The suggestion that J. B. did not sign it is not of particular importance from the children’s point of view. These expectations were related to J. B.’s care of the children. The failure to meet the expectations affected or potentially affected her care of the children.
[20] Home visits by Agency personnel were attempted on July 5 and 12, 2001, without success. The appellant cancelled appointments with workers and doctors and did not bring A. to day care as arranged.
[21] Finally, on July 19, 2001, a worker of the Agency visited the home and was not admitted. Upon hearing nasty language within, she arranged entry with the aid of the building superintendent and the police. She noted the following:
A. and D. appeared healthy and happy. They were both dressed. The police officer said that they both had full diapers and when one of the children sat on Ms. B.'s lap she became wet from urine.
I took pictures of the apartment.
In the children's room I noted the following: the closet door is broken; broken blinds on the window with the cords dangling; both the crib and toddler bed had bottom sheet, the bottom sheet in the crib was partially off, both beds had a blanket as well. On the wall behind the crib is an electrical outlet with no plug covers and close to this was a hole the size of a quarter. On the wall behind the bedroom door was a hole that had been caused by the doorknob. The floors were filthy, the carpet stained, many small pieces of food and garbage including a pop bottle top and glass drinking glass in the closet. A bag of garbage sat at the end of the crib and a pile of blankets on the floor.
In the hallway between the two bedrooms is a very cluttered desk with an overflowing ashtray and a bottle of Lysol on top.
In Ms. B.'s room was a pile of four or five garbage bags. I am unsure what was in these bags. There was a half empty food dish on the floor containing French fries and a cigarette butt. A children's show was playing on the television in this bedroom. There was also a lot of dirt on this floor.
The television was also playing children's shows in the living room. In the living room was clothing and newspapers on the floor and on the couches and chairs. A cigarette butt was on the living room floor. A garbage bag sat on one of the couches.
In the bathroom there was a quantity of cigarette ashes in a potty and the tub was half full of water.
The storage closet was full of boxes and at least one bag of garbage, there was a strong smell of cat litter in this closet.
The front closet contained a dirty litter box and also smelled strongly of cat litter. There was a cat dish full of water and a half empty plate containing some French fries on the plate and others on the floor. The plate also had a piece of what looked like cheese.
The kitchen had items scattered over the counter including a paring knife. At one point one of the police officers took the knife from D. as he had taken it off of the counter. The cupboard contained various empty boxes, a partial bag of sugar, icing sugar, tea bags, one can of soup, a bag of noddles and some pancake mix. There was a partially full box of Lucky Charm cereal and a half loaf of bread and an empty milk carton were on the counter.
The refrigerator contained six empty two-litre containers of milk, one empty one-litre container of milk and one litre containing milk which was approximately one quarter full, one half block of cheese, a pot of gravy, a bottle of iced tea and four wieners. In the drawer of the refrigerator were sprouted onions, mouldy lettuce and mouldy carrots.
Debbie Rodgers consulted with the supervisor Vicki Black. Debbie Rodgers advised Ms. B. to have her apartment cleaned by 3:00 this afternoon at which time I will visit to verify. Ms. B. is to get a medical appointment at the Albro Lake Clinic for A. today so that her bottom can be examined.
[22] When the worker returned at 3:00 o’clock to check the apartment, the appellant and her children were not there. The worker waited about twenty minutes but nobody showed up. Two return visits later that afternoon and evening were made but nobody was found at the apartment.
[23] On July 20, 2001, the children were taken into care. They were dirty and a strong odour emanated from them. They were given a sponge bath immediately at the Agency office and placed in foster care. Their clothing was unfit, being deficient, dirty and covered with cat hair and cat urine. It had to be replaced at once by the Agency. The appellant was told to contact the Agency with respect to access but did not do so until July 24, three days later.
[24] It was noted at this time that A. had a bruise on her cheek. At first she said this was caused by her mother, but later she said “R. did it”.
[25] Williams, J. concluded that the appellant had been avoiding the Agency and impeding its ability to implement the supervision order in place and to assess the risk to the children. He said:
J. B.’s testimony lacked credibility. I have the impression she says what she thinks people want to hear. She has great difficulty working with or taking the advice of others. ... There are many spots in her testimony where it appears she was saying what was convenient to her or acknowledging her difficulty in accepting advice.
...
This is not about financial poverty. The cleanliness and hygiene issues that have been documented relate to a poverty of responsibility. What this case is about is an exceptionally immature young mother, a young couple with two very young children who have repeatedly been exposed to neglectful circumstances.
[26] Williams, J. referred to the fact that the children had already been found to be in need of protective services pursuant to s. 22(2)(f) and (g) of the Act. He referred to a series of occasions when the physical care of the children had fallen significantly below acceptable standards. It constituted, in his view, a substantial and recurring risk to both the children.
[27] Williams, J. referred to the preamble to the Act, its purpose and the paramount consideration mandated by the Act - the best interests of the child.
[28] While the children had bonding with their mother, R. J. and J.’s mother, the neglect that had occurred and reoccurred was a substantial risk to their welfare. It was highly probable that it would continue to recur in the future.
[29] Williams, J. considered the plans of the Agency (adoption) and the appellant (termination of proceedings and return of children). He referred to and quoted the following provisions of the Act: s.41(3) - plan for child, 41(5) - duty of court upon making order; 42(1) - disposition order, 42(2) - restriction on removal of child; 42(3) - placement considerations, and 42(4) - limitation on permanent placement.
[30] The homes of neither the appellant’s mother nor R. J.’s mother were long-term options for the placement of the children. Mr. Hollett’s services had been in place for a long time and he conceded that he could not be there indefinitely.
[31] Williams, J. continued:
Other services have been effectively refused by Ms. B.. She has repeatedly refused the Agency access to her home. This means what the Agency says it means - it means the Agency cannot do its job and supervise the care of these children in her home. This is a court proceeding. The supervision order is a court order. ... When the court makes a supervision order it expects to have information concerning that order available to it. Closing the door or not opening the door to the Agency denies the court that information. Access to the home is the most fundamental of services.
...
J. B. has been given an extraordinary level of support from the Agency and “the family” since A. was born. She has had the benefit of experienced counsel ... She has lived with her mother for a period of time with the children and then with Ms. Boutilier for a period of time. I would conclude she has effectively exhausted both of these resources.
...
Ms. B.’s plan is effectively to return these very young children to a couple who allowed the physical conditions of their home to deteriorate to a remotely acceptable level. ... I cannot reasonably conclude that there is any likely change in the situation.
...
A number of reasons (or excuses) for the children’s care and environment becoming problematic and neglected have been put forward. ... The plain fact is that from D. and A.’s point of view it does not matter why there is dirt or cat litter or cigarettes about them or why they are left dirty and in diapers. It does not matter why the neglect occurs from their point of view. They experience it as being neglected. They are put at risk. ...
[32] In conclusion, Williams, J. noted that the recurring periods of neglect put the children at risk as defined in s. 22(2)(g). They were at substantial risk of emotional damage and physical harm. The appellant’s plan would inevitably lead to further neglect. She “does what she wants”.
[33] The appellant raises five issues which may be restated.
1. The trial judge misapplied or misinterpreted s. 22(2)(g) of the Act;
2. The trial judge failed to consider less intrusive alternatives to permanent removal, s. 42(2) of the Act;
3. The trial judge misapplied and misinterpreted s. 3(2) of the Act;
4. The trial judge failed to apply the required standard of proof.
Issue 1 - Section 22(2)(g)of the Act
[2] The appellant says the trial judge erred in law by misapplying or misinterpreting s.22(2)(g) of the Act in that he failed to require the respondent to demonstrate that there was a substantial risk the children would suffer emotional harm as defined, and that the parent refused consent to services or treatment to alleviate that harm. For convenience of reference I again set out ss. 22(2)(f) and 22(2)(g) of the Act:
(2) A child is in need of protective services where
(f) the child has suffered emotional harm, demonstrated by severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour and the child’s parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
(g) there is a substantial risk that the child will suffer emotional harm of the kind described in clause (f), and the parent or guardian does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm;
[3] The term “substantial risk” is defined in s. 22(1) of the Act:
22(1) In this section, “substantial risk” means a real chance of danger that is apparent on the evidence.
[4] There are, the appellant says, three elements to be established:
(1) substantial risk of harm;
(2) harm as defined in s. 22(2)(f) - severe anxiety, depression, withdrawal or self-destructive or aggressive behaviour;
(3) the parent refuses, is unavailable or unable to consent to services or treatment.
[5] The appellant says the episodic neglect found by the trial judge falls short of establishing these three elements, and that the judge erred in equating such neglect to them. There was no actual harm to the children as that term is defined. There were at most communication difficulties between the Agency and the appellant. A finding of need of protection based solely on “neglect” or lack of parental fitness is no longer permissible under the Act. The court must draw the connection between the neglect and the resulting risk of harm. The trial judge failed to address the type of harm required by the act and thus failed to ask the right questions. He merely found that there was a substantial risk to the welfare of the children.
[6] I do not accept these submissions.
[7] The trial judge set out the provisions of s. 22(2)(f) and (g) of the Act. There is nothing in his decision suggesting that he misunderstood them. As of August 16, 2000, the appellant consented to a finding that the children were in need of protective services based on the substantial risk of emotional harm as defined in the Act. The evidence of her parenting to that point clearly supports that conclusion.
[8] The appellant says that the trial judge cites no evidence to support the inference that the incidents of neglect would lead to emotional harm. She suggests that “some evidence concerning the future risks to the children’s mental health was essential to draw the inference from neglect to severe anxiety, depression, withdrawal or self-destructive or aggressive behaviour.” The appellant pointed out that at all times the children were developmentally and physically normal. While they were in the care of the Agency they could have been assessed for evidence of emotional harm if the Agency felt that any had occurred.
[9] There is a suggestion by the appellant that expert evidence in this area was needed, and that the evidence offered by the Agency was deficient in this respect. I do not agree.
[10] The judge’s finding of neglect was supported by a substantial body of evidence. The neglect revealed by the evidence is more than episodic. It is pervasive. The nature of that evidence was sufficient to enable him to draw the inference, as he did, that there was a substantial risk of emotional harm as defined in the Act. I would reject the notion that expert evidence was a prerequisite to make the connection between bad parenting and the risk of emotional harm in this case. There may be cases where expert evidence is helpful, but the words of s. 22(1), 22(2)(f) and (g) of the Act are plain words that are capable of being applied to situations such as this by the judges to whom that task is entrusted.
[11] The parenting disclosed by the evidence here was appalling. The children were exposed to what the trial judge found were unacceptable living conditions. The home was filthy beyond description. There was evidence that at times there were improvements, and that the children were well bonded to their mother, but none of this offsets the obvious risks which arise from the conditions in the home as found by the Agency, notwithstanding the appellant’s effort to conceal them. There was filth - such things as overflowing ashtrays, tacks, and broken glass, filthy diapers, urine and feces and inadequate clothing. There was inadequate nutrition and unkept visits to doctors. There were arguments and shouting in the presence of the children and the arrival of the police. In short, as the trial judge found, the parent’s desires were placed above the children’s needs.
[12] In the face of all the evidence of neglect, an experienced trial judge must be permitted to draw the obvious inference of risk of harm as defined in the Act. To require more would require the occurrence of actual harm. These children were very young . Already A.’s vocabulary indicated an exposure to a home environment that was anything but desirable. The Act does not require that the bad parenting go on until the damage is done. The trial judge recognized this. The substantial risk is apparent from a review of the record. The appellant refused the attempts of the Agency to prevent and alleviate the harm and showed a complete unwillingness and inability to do anything about it. As she saw it, the biggest problem in her life was the helping hand of the Agency.
[13] In Nova Scotia (Minister of Community Services) v. K.A.B.S. (1999), N.S.J. No. 216, the appellants appealed from an order of the Family Court that their two children be placed in the permanent care of the respondent. An appeal to this Court was dismissed. Flinn, J.A., speaking for the Court, said at ¶73:
There is no doubt, that the trial judge was faced with a difficult decision. He clearly recognized that difficulty himself. There was no evidence of actual physical or emotional harm to A. and N.. In fact, as the trial judge noted, in relative terms, they were doing fairly well. He decided, however, that there was a substantial risk to these children; that his decision must “focus on these children”, and that the Court has a responsibility not to wait until children are physically harmed or visibly distressed to make a decision. ...
[14] The connection here between the neglect and the risk of harm was all too clear.
Issue 2 - Less Intrusive Measures
[15] The appellant refers to s. 42(2) of the Act
42(2) The court shall not make an order removing the child from the care of a parent or guardian unless the court is satisfied that less intrusive alternatives, including services to promote the integrity of the family pursuant to Section 13,
(a) have been attempted and have failed;
(b) have been refused by the parent or guardian; or
(c) would be inadequate to protect the child.
[16] The appellant says the trial judge failed to adequately consider less intrusive means of protecting the children from harm, promoting the integrity of the family and assuring the children’s best interests. (S. 2(1) of the Act). The appellant says that under the Act parenting does not have to be perfect.
[17] The appellant refers to an excerpt from Wayne Hollett’s evidence in which he expressed the view that the Agency did not always provide organizational help to the appellant. It is said the court erred in concluding that Hollett’s involvement was at the end of its usefulness because he conceded in cross-examination that had his involvement continued it is possible the events and circumstances leading to the apprehension in July, 2001, could have been avoided.
[18] In response to this, the respondent points out that it was Mr. Hollett, not the Agency, who decided to withdraw his services. The respondent points out that the children had been the subject of child protection proceedings for most of their young lives. During that time, extensive services were provided to the appellant . These services are detailed in the Agency’s plan for the children’s care:
(a) A protection case worker was assigned to provide support and direction.
(b) A foster home program had been provided for an interval;
(c) Family support workers provided in-home parental instruction. Such workers had been working with the appellant from May of 1999 until the apprehension in July, 2001. The appellant’s attendance at appointments was sporadic and improvement not shown.
(d) Assessment services were provided as shown in reports of May, 1999 and November 30, 2000.
(e) Comcare health services and drug screening of urine samples of the appellant was provided.
(f) Counselling was provided by therapist Wayne Hollett.
(g) Medical services of Dr. Ellis and the IWK Grace Health Centre were provided. Appointments were not always kept.
(h) Municipal Income Assistance was provided to the appellant and her boyfriend.
(i) Supervision of the appellant at the home of her parents and R. J.’s mother was provided, as well as at her own home.
(j) Daycare at Victoria Children’s Day Centre was made available for A.. The appellant did not follow through with this and the place reserved for A. was not held.
[19] As the events of the year 2001 unfolded it became clear that all of these services had failed because of the appellant’s refusal to co-operate with service providers.
[20] The trial judge set out s. 42(2) of the Act in his decision, made reference to the fact that services had been effectively refused by the appellant; that Wayne Hollett admitted he could not continue his services indefinitely; and that the two family placements already attempted showed that these homes were not available as long-term options. No plan had been put forward by relatives or neighbours (s.42(3) of the Act).
[21] The trial judge in his decision carefully weighed the respective plans put forth by the appellant and the Agency.
[22] It is clear to me that Williams, J. did specifically consider his obligations under s. 42(2) of the Act and found that less intrusive measures were not an option. The evidence which I have reviewed, as well as the entire record, fully supports his conclusion. Having regard particularly to the different sense of time of children and the young ages of these children, the time had come to make the order made by the trial judge and to address the needs of the children.
Issue 3 - Sec. 3 (2) of the Act
[23] The appellant refers to s. 3(2) of the Act.
3(2) Where a person is directed pursuant to this Act, except in respect of a proposed adoption, to make an order or determination in the best interests of a child, the person shall consider those of the following circumstances that are relevant:
(a) the importance for the child’s development of a positive relationship with a parent or guardian and a secure place as a member of a family;
(b) the child’s relationships with relatives;
(c) the importance of continuity in the child’s care and the possible effect on the child of the disruption of that continuity;
(d) the bonding that exists between the child and the child’s parent or guardian;
(e) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs;
(f) the child’s physical, mental and emotional level of development;
(g) the child’s cultural, racial and linguistic heritage;
(h) the religious faith, if any, in which the child is being raised;
(i) the merits of a plan for the childs care proposed by an agency, including a proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to a parent or guardian;
(j) the childs views and wishes, if they can be reasonably ascertained;
(k) the effect on the child of delay in the disposition of the case;
(l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent or guardian;
(m) the degree of risk, if any, that justified the finding that the child is in need of protective services;
(n) any other relevant circumstances.
[24] The trial judge addressed this subsection setting out the text of s. 3(2)(a),(b), (c), (d), (e), (k), (l) and (m), which he considered in particular. He reviewed the evidence as it related to these statutory considerations. He acknowledged the bond that existed between the children and the appellant and R. J.. I am unable to conclude that he misinterpreted or failed to give proper weight to the statutory considerations. In particular, as I have already pointed out, he specifically addressed the plans of the appellant and the Agency and found, giving reasons for so doing, that the Agency plan was the only option.
[25] In my opinion, the record fully supports the conclusion of the trial judge on this issue.
Issue 4 - Burden of Proof
[26] The appellant refers to the fact that the standard of proof, although on a balance of probabilities, is enhanced to the extent that such proof must be at a high level. See L. and L. v. Children’s Aid Society of Halifax (1985), 66 N.S.R. (2d) 333 (C.A.).
[27] On reviewing the trial judge’s decision, there is no suggestion that he was not aware of the proper burden of proof. He specifically stated that he was satisfied that the Agency had satisfied its burden of proof which it bears in such proceedings as this. It is clear from reading his decision as a whole that he accepted the evidence tendered by the Agency. He found the appellant’s testimony lacked credibility. He found that where the testimony of R. J.’s mother differed from that which Agency workers reported she had said, she was not credible. I cannot conclude that the trial judge misunderstood the evidentiary burden which was required.
[28] In this portion of the appellant’s submission, it is suggested that over the nearly three years that the supervision orders were in effect the appellant “on three occasions” allowed the physical environment to decline to an unacceptable level in the eyes of the Agency. It was submitted that three incidents do not, on a heightened balance of probabilities standard, demonstrate that a risk will reoccur. With respect, the record shows much more than a mere three incidents. The entire pattern is one of bad parenting, punctuated only - as the trial judge was quick to point out - by the positive aspect of good bonding between parent and child and, at times, some improvement.
[29] I would reject this ground of appeal.
Generally
[30] It cannot be too often emphasized that in matters of child custody where credibility findings have been made, the power of this court to intervene on an appellant’s behalf is very limited. Absent an error of law or some indication that the trial judge failed to properly use the tremendous advantage available to the trier of fact in assessing credibility, we cannot intervene. See S. G. v. Children’s Aid Society of Cape Breton (1996) N.S.J. No. 180 (N.S.C.A.) at ¶10-11, and the cases referred to therein.
[31] The credibility findings made against the appellant, coupled with the overwhelming body of evidence pointing to the endangerment of these children, leaves us with no choice but to dismiss this appeal.
[32] Appellant’s counsel refers to the contest here as one between the parents and the state, where the positions are unequal. Reference is made to the fact that the state is seeking to terminate the parent/child relationship. That is true, but I am compelled to comment that it is fortunate for these children that the state has intervened to remove them from the very substantial risk of harm they faced up until the time of their final apprehension.
[33] I would dismiss the appeal - in the circumstances without costs.
Chipman, J.A.
Concurred in:
Glube, C.J.N.S.
Saunders, J.A.