NOVA SCOTIA COURT OF APPEAL
Citation: K.B. v. Nova Scotia (Community Services), 2013 NSCA 32
Date: 20130306
Docket: CA 408482
Registry: Halifax
Between:
K.B. and B.C.
Appellants
v.
Minister of Community Services
Respondent
|
Editorial Notice
Identifying information has been removed from this electronic version of the judgment. |
Restriction on Publication: Pursuant to s. 94(1) of the Children and Family Services Act
Judges: Saunders, Fichaud and Bryson, JJ.A.
Appeal Heard: February 15, 2013, in Halifax, Nova Scotia
Held: The appeal is dismissed per reasons for judgment of Bryson, J.A.; Saunders and Fichaud, JJ.A. concurring.
Counsel: David Grant, for the appellant, K.B.
B.C., self-represented
Peter C. McVey, for the respondent
Restriction on publication:
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:
“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 relative of the child.”
Reasons for Judgment:
[1] Life has been challenging for K.B. and B.C. They have both contended with substance and alcohol abuse and encounters with the law. But something good happened for them on May […], 2011. K.B. gave birth to twins. However, owing to K.B.’s ongoing struggles, the Minister of Community Services (the “Minister”) obtained an Order that the twins were in need of protection owing to a substantial risk of physical or emotional harm (s. 22(2)(b) and (g) of the Children and Family Services Act, S.N.S. 1990, c. 5) (the “Act”). Under the terms of that Order, the twins were to remain in the care and custody of K.B. subject to the supervision of the Minister. The Order required K.B. to abstain from alcohol. By this time, K.B. and B.C. were no longer together.
[2] Unfortunately, K. B. relapsed into alcohol abuse on the night of August 25, 2011, and the children were taken into the Minister’s care. On October 25, 2011, the court granted an Order for Temporary Care and Custody of the children. This began the 12-month period before a final disposition hearing pursuant to s. 45(1)(a) of the Act. Eight subsequent Orders of Temporary Care and Custody were granted by the court upon review, culminating in the Order of September 18, 2012, which placed the twins in the Minister’s permanent custody and care.
[3] The Order for Permanent Care followed a four-day trial in which 16 witnesses testified (including six expert witnesses). Associate Chief Judge James C. Wilson had conduct of proceedings from the initial Order for Temporary Care. He was very familiar with the case. He acknowledged and praised K.B. and B.C. for their efforts at self-improvement. Unfortunately for them, he concluded that in the end it was not enough to dispel the risks to the twins. He found it was in their best interests that they be placed in the permanent care of the Minister.
Background
K.B.
[4] K.B. has two other children. One was born in 1993 and the second in 1998. K.B. did not parent either child successfully although the second child now spends considerable amounts of time with her mother.
[5] K.B. has had extensive child protection involvement starting in British Columbia when her first two children were young. K.B. struggled with alcohol abuse, suicidal ideation and suicide attempts, lack of child supervision and habitual neglect of her children. In 2006 K.B. was hospitalized as a psychiatric patient in British Columbia as a result of a suicide attempt. Her discharge was followed with outpatient alcohol addiction treatment which allowed her to achieve sobriety for almost a year and a half. She relapsed into alcohol abuse in 2008. She was again admitted to hospital in that year seeking treatment for alcohol abuse as a result of driving under the influence.
[6] In 2009, K.B. continued to experience trouble with the abuse of alcohol, committed acts of self-harm and left her daughter unattended. In December 2009, an Interim Order was granted providing for supervision by the Minister of K.B.’s custody of her second child. A term of that Order was that K.B. abstain from the use of alcohol and non-prescription drugs. About a month later K.B. was admitted to hospital arising from a self-inflicted injury and the abuse of alcohol. These sad events were repeated shortly thereafter when K.B. was treated for suicidal ideation.
[7] In 2010, K.B. participated in a detoxification program and was followed by a psychiatrist. She received mental health counselling. In January 2011, a court-ordered assessment recommended that K.B.’s second child not be returned to her mother’s custody. K.B.’s second child was placed in the care and custody of her maternal grandfather.
[8] As a result of apparent progress by K.B., a 2011 Parental Capacity Assessment recommended that K.B. be permitted to parent her twins born May […], 2011, under ministerial supervision, provided that K.B. did not “relapse into substance abuse”. That relapse occurred on August 26, 2011, and the twins were then taken into care. K.B. acknowledged that she had placed her children at “significant risk of harm.”
B.C.
[9] B.C. has a lengthy history of alcohol abuse and domestic violence. In the 1990s he was convicted of assaulting his stepson and of multiple breaches of a probation order and recognizance, for consuming alcohol. He was later involved in domestic violence in a subsequent relationship in 2007.
[10] K.B. and B.C. met through Alcoholics Anonymous and began a tumultuous relationship. They did not abstain from alcohol. In August 2010, the police were called to K.B.’s residence when she had an altercation with B.C. who was then intoxicated. A Protection of Property Act notice required B.C. to stay away from K.B.’s residence.
[11] On September 1, 2010, B.C. assaulted K.B. and was charged and later convicted of assault. B.C. continued to abuse alcohol in the fall of 2010 but resumed addiction treatment in January 2011. He claims sobriety ever since.
Grounds of Appeal
[12] K.B. and B.C. now appeal. They were not represented when they drafted their Notice of Appeal. K.B. then obtained counsel whose factum and oral argument did not pursue all the grounds set out in the Notice of Appeal. In her oral argument, the issues came down to this:
1. The trial judge erred by failing to make a finding that the children continued to be in need of protective services;
2. Related to issue (1), the trial judge erred by failing to take into account K.B.’s progress arising from her participation in support services and her personal efforts;
3. The trial judge erred by permitting K.B.’s brother, C.B. to participate in the trial which adversely affected K.B.’s opportunity to obtain a dismissal of the Minister’s application for permanent care.
[13] Although unrepresented, B.C. supported K.B.’s submissions. In particular, he favoured return of the twins to K.B.’s custody. Alternatively, he expressed a desire for custody of the twins himself.
[14] In K.B.’s factum, her “grounds of appeal” also allege that there was “no evidence” that the Minister worked with B.C. or that he had refused services or that less intrusive measures would be inadequate to protect the children in his care. While these grounds were not argued, they will be addressed as part of B.C.’s alternate submission (issue #4 below).
Fresh Evidence
[15] K.B. applied to adduce fresh evidence. In support of her motion she filed four affidavits.
1. An affidavit from social worker Gary Neufeld, attaching a letter of January 28, 2013, providing a recent report of her ongoing therapy with him;
2. An affidavit from B.C. providing current information concerning his employment, participation in counselling and deposing to his abstention from alcohol and drugs since January 2010;
3. An affidavit from K.B.’s lawyer, David Grant, attaching letters from K.B.’s general physician and from Mr. Neufeld respectively questioning K.B.’s diagnosis of Borderline Personality Disorder and suggesting that some of the indicia of that disorder are “largely diminished”;
4. An affidavit from K.B. providing contemporary information respecting counselling and services she is presently receiving and attaching correspondence from her physician and a letter written to Community Services.
[16] In response to these affidavits, the Minister filed an affidavit from Tiffany Hallett, child protection worker involved with K.B. and B.C., opposing any adjournment of the appeal.
[17] As part of the fresh evidence motion, K.B. sought an adjournment for the purposes of obtaining a professional opinion questioning her diagnosis of borderline personality disorder. That motion was heard in Chambers by the Honourable Chief Justice J. Michael MacDonald, who dismissed the motion (2013 NSCA 23).
[18] Section 49(5) of the Act permits the Court of Appeal to receive “… further evidence relating to events after the appealed order.” Nova Scotia Civil Procedure Rule 90.47 allows the court to receive evidence on “special grounds” on “any question as it directs.” In considering a fresh evidence motion in a child protection appeal, this Court will apply the R. v. Palmer, [1980] 1 S.C.R. 759 criteria but modified to ensure that the Court of Appeal has current evidence that would bear on a child’s best interests: Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), [1994] 2 S.C.R. 165; Children’s Aid Society of Cape Breton v. S.G. (1995), 142 N.S.R. (2d) 57 (C.A.) ¶15; Children’s Aid Society of Cape Breton v. L.M. (1998), 169 N.S.R. (2d) 1 (C.A.) ¶43; A.L.F. v. Children’s Aid Society of Cape Breton-Victoria, 2004 NSCA 2 at ¶6.
[19] The Minister submits that the “fresh evidence” is not helpful. It really presents nothing new. There was ample time to secure a professional opinion questioning the diagnosis of borderline personality disorder. All the evidence at trial supported this diagnosis. It was not questioned at that time by any of the expert witnesses, or even K.B.
[20] The wide latitude accorded this Court by s. 49 and the case law suggest that the “fresh evidence” should be admitted and considered by us to the extent that it gives us more recent information that might affect the Court’s assessment of the best interests of the twins. The weight to be given this evidence will be discussed under the discrete headings of appeal.
Issue #1 Need for Protective Services
[21] The appellants say that the trial judge failed to make a finding that the twins were in need of protective services at the time of final disposition.
[22] They correctly remind us that earlier findings of the need for protective services were on consent, quoting from Bateman, J.A. in Nova Scotia (Community Services) v. B.L.C., 2007 NSCA 45 at ¶29:
[29] With respect, the difficulties with the above analysis are obvious. Firstly, the Agency’s protection application asserts that the child is in need of protective services within a number of the subsections of s. 22 (see para. 6 above). The mother’s admission is limited to s. 22(k). Agency caseworker Beth Archibald’s affidavit submitted in support of the protection application comprises some eighty-three paragraphs, to which is attached one hundred and seventy pages of caseworker notes. There was no agreed statement of facts supporting the need of protection finding. It is impossible to know which, if any, of the affidavit’s factual assertions are admitted by the mother. At the disposition hearing B.L.C. cannot dispute that the child was in need of protective services but she may well take issue with the factual basis for that finding and may maintain that she has adequately addressed the issues leading to the child’s need for protection.
[Emphasis added]
[23] But in this case, we have the admission of K.B. herself that her actions in August of 2011 placed the twins at “significant risk of harm”.
[24] The appellants augment their submissions here by arguing that “… evidence should have been led and the Minister should have shown on a balance of probabilities that at the time of the disposition hearing the children were in need of protective services”. Because these submissions require a consideration of the evidence, they are more properly addressed under the second issue (K.B.’s progress).
[25] When a permanent care order is made at a final disposition hearing, the judge must be satisfied that the children continue to be in need of protective services (Catholic Children’s Aid Society, supra; T.B. v. Children’s Aid Society of Halifax, 2001 NSCA 99 at ¶26; Nova Scotia (Minister of Community Services) v. D.W.S., 1996 N.S.J. No. 349 at ¶320-324; Nova Scotia (Minister of Community Services) v. F.A., [1996] N.S.J. No. 447, ¶21-22; Nova Scotia (Community Services) v. A.S., 2007 NSCA 82, ¶11).
[26] The trial judge acknowledged the burden on the Minister:
[5] …Again, as counsel mentioned, the burden of proof is on the Agency with respect to proving that the children are in need of protective services. It is a civil burden.
The judge went on to say:
[22] Leaving children in the care of family who are struggling to overcome adversity also presents real risk. The Court really can’t find with certainty that any plan will fail or succeed. What The Court has to do though is to consider all the evidence, and decide what is best for the children. If the presenting risks that brought the children into care have been adequately addressed so that the children can be placed back with the parents then the children should be returned to the parents. If these risks have not been addressed adequately by either parent, then the alternative for permanent care has to be considered.
[23] Both parents have made progress and I want to be clear in my comments on that. I think you are in better places than you were. The evidence would suggest that progress has been made in many areas. Both of you appear to have been substance-free for some time. Both are engaged with community services and supports. Relationships with family members are perhaps improving. As I indicated a few moments ago, [B.C.] has his own apartment and transportation and is making progress in a way that perhaps he hasn’t made for a number of years. Both of you seem to be involved in new social circles largely influenced by your involvement in AA. The problems, however, have not gone away. Sobriety will continue to be a challenge. A battle won one day at a time. Relapse is a possibility that only reduces with time.
…
[26] In The Court’s opinion, both parents, despite their progress have not been able to adequately address the protection concerns. For those reasons, The Court finds that it’s in the best interests of the children to be placed in the permanent care of the minister.
[Emphasis added]
[27] The trial judge turned his mind to the need for finding that the twins continued to be in need of protective services. He made that finding. Whether the evidence supported this finding is considered under the next issue.
Issue #2 K.B.’s Progress – No Need for Protective Services
[28] K.B. challenges both the evidentiary findings about her progress and the diagnosis of borderline personality disorder. In essence, she submits that these concerns have “gone away” and the trial judge did not adequately consider her improvement since the seizure of her children in August of 2011. As a result, the children were no longer in need of protective services.
[29] There is no doubt that the trial judge was impressed and encouraged by K.B.’s improvements during the currency of legal proceedings. He said as much; (Decision, ¶23, quoted in ¶26 above).
[30] But clearly the trial judge was not satisfied that the risks to the children had diminished sufficiently to eliminate the need for protective services.
[31] K.B. submits:
(a) The diagnosis of borderline personality disorder was not reliable;
(b) Too much emphasis was placed on that diagnosis;
(c) The judge failed to acknowledge positive changes in K.B. noted by some of the witnesses;
(d) Much of the unflattering evidence about K.B. was historical and not current;
(e) Seizure of the twins followed only the one lapse by K.B. in August of 2011.
[32] Two prefatory responses are warranted. First, the judge had no obligation to recite all the evidence, including bits and pieces favourable to the appellants:
[13] There is no obligation on a trial judge to review each and every piece of evidence and compare it with other pieces of evidence. There is no obligation to review all the evidence. There is no obligation to state in detail why some evidence is preferred to others, provided it is clear the trial judge was aware of the evidence and his conclusions can be understood from the reasons that he provides (Van de Perre v. Edwards, 2001 SCC 60, at ¶ 15; Housen v. Nikolaisen, 2002 SCC 33, at ¶ 72).
Awalt v. Blanchard, 2013 NSCA 11
[33] Second, the weighing of evidence is the special province of the trial judge. Absent palpable and overriding error, this court will not intervene. (See S.R. v. Nova Scotia (Community Services), 2012 NSCA 46 at ¶14.)
[34] Until the fresh evidence application, there was no challenge to the diagnosis of borderline personality disorder. As the Minister points out, this was not the first time that K.B. had heard this diagnosis. Forensic Psychologist, Heather Power assessed K.B. and testified at trial. Her September 18, 2010 notes reveal:
After reviewing her diagnoses, [K.B.] indicated that a diagnosis of Borderline Personality Disorder (BPD) had been suggested to her in the past by a psychiatrist when she was an inpatient and thus she was somewhat familiar with the term and was not surprised by the diagnosis. When the features of BPD were reviewed with her, she agreed that they were consistent with her own history/personality.
[35] The diagnosis of borderline personality disorder was addressed in the evidence of Ms. Power, as well as that of psychologist Meredith Burns. Both Ms. Burns and Dr. Steeves were called as witnesses on behalf of K.B. Ms. Burns did not disagree with the diagnosis and Dr. Steeves did not address or question the diagnosis at trial. Dr. Steeves has recently written a letter expressing reservations about the diagnosis and suggesting a referral to a specialist. But he did not express this opinion – or the need for a referral – at any time prior to the trial decision.
[36] Likewise, K.B.’s therapist, Gary Neufeld, did not question the diagnosis at trial, despite having reviewed Ms. Power’s reports, giving viva voce testimony and filing 17 reports. Mr. Neufeld has written a post-trial letter acknowledging that K.B. has met 7 of the 9 diagnostic criteria for borderline personality disorder but that these, “… are currently largely diminished and in some cases gone from your life.” The Minister rightly challenges Mr. Neufeld’s qualifications to express such an opinion. He was qualified at trial as a therapist, not a diagnostician.
[37] K.B. says that there is a caveat to her “borderline personality disorder” diagnosis mentioned in Heather Power’s first report. Ms. Power cautions that, “…tests alone are not sufficient to determine diagnosis…” But Ms. Power did not assess K.B. once, but multiple times. She described K.B. as “the most assessed person she’d ever dealt with in terms of both the number and depth of assessments.” In her extensive 65-page initial report, Ms. Power observes:
The results of the current assessment suggest that (K.B.] suffers from Borderline Personality Disorder in addition to Alcohol Dependence. These are distinct mental health diagnoses which require independent management ….
[38] Borderline personality disorder is characterized by a chaotic lifestyle, difficulty with relationships, tendencies to manipulative behaviour and self-injurious conduct or suicidal gestures. It tends to be chronic and stable.
[39] There was ample evidence for the trial judge’s conclusion that K.B. suffers from borderline personality disorder. Its importance relates to the behaviour with which it is associated and its resistance to treatment.
[40] It is quite true that K.B. had demonstrated progress and was generally co-operative with the Minister and her service providers. But the events of August 25 when she abandoned her infant twins in search of a bar and more alcohol were illustrative of the concern about K.B.’s capacity for relapse which animated the trial judge’s decision.
[41] There was additional evidence to sustain the trial judge’s concerns. K.B.’s brother testified that K.B. sought to enlist his aid in assuming temporary care of the twins to facilitate their ultimate return to K.B. Although K.B. denied her brother’s account, she admitted concealing her plan from the Minister. Her own therapist, Meredith Burns, conceded that this was manipulative and controlling, if not dishonest behaviour. Ms. Power also expressed concern that K.B. was not always honest with her, consistent with manipulative behaviour.
[42] Ms. Power’s March 6, 2012 Parental Capacity Assessment concluded:
Therefore, in consideration of [K.B.]’s nearly life long battle with alcohol problems and the risk at which she has placed her children when drinking, and with all due compassion to [K.B.] and acknowledgement of the progress she has made, it is this assessor’s belief that the risk [K.B.] poses to her children based on her history of substance abuse and how that substance abuse affected her children, is too great to place [the children] back in her care.
[43] Ms. Power recommended that the twins be placed in the Minister’s permanent care.
[44] Ms. Power’s recommendations were not shaken during her trial evidence. She testified that K.B. had “… a strong history of relapse”. Ms. Power observed that K.B. had managed to sustain significant periods of abstinence in the past. On one occasion she was abstinent up to 15 or 16 months during which she obtained some education and got a stable job, but she relapsed after that. Ms. Power commented that K.B.’s latest relapse occurred while under court order and agency supervision, but “… she did it anyway”. Ms. Power opined that K.B.’s ongoing manipulative behaviour was supported by her own therapists’ reports. Every positive step that K.B. had recently taken had historical precedent – as did her relapses. Ms. Power noted that “past behaviour is the best predictor of future behaviour.” She pointed out that the August 2011 relapse occurred when K.B. had many supports in place and was in active therapy. Yet she did not seek help from any of those supports. She offered that K.B.’s present sobriety was influenced by the external motivation of recovering her children.
[45] K.B.’s own witnesses conceded that relapse was possible. Therapist Gary Neufeld admitted that he did not see K.B.’s August 2011 relapse coming, and he would not be able to do so in future. He agreed that K.B. could place the children at risk the “…hour she leaves you…” He admitted K.B.’s plan to involve her brother temporarily in the twins’ care was manipulative. K.B.’s own psychologist, Meredith Burns, reviewed but did not disagree with Ms. Power’s reports. She admitted that past conduct was the best indication of future behaviour.
[46] The trial judge considered all this evidence:
[12] The first assessment of June 2010 which was done in the context of [W]’s protection proceeding certainly identified the two underlying problems. Certainly the substance abuse is most obvious, but the other one is the Borderline Personality Disorder. A serious condition to have to live with, and one that is very resistant to change. The result of these two issues, the Borderline Personality Disorder and the substance abuse, explains the rather chaotic life that [K.B.] has experienced, and the difficulty that results in her personal relationships. The second assessment, done in January 2011, was really a parental capacity assessment on [W] and her needs.
[13] The third assessment was requested by the agency prior to the twins being born to determine whether or not it would be appropriate to allow the children to be in her care. Ms. Power was consulted for an opinion. At that point, based on the progress that [K.B.] appeared to be making, and she continued to be involved in services, Ms. Power was of the opinion that this situation could be adequately managed by a Supervision Order, and she was cautiously supportive of that at the time.
[14] The last assessment was just in March of this year. That was a Parental Capacity Assessment with focussing specifically on the needs of the twins. The result of that assessment it confirmed the strong history of relapse, despite engagement in services over a sustained period of time. That report also evidenced incidents of manipulative behaviour that’s rather consistent with the Borderline Personality Disorder. What Ms. Power did emphasize with respect to the children particularly, is the need to have them in a permanent secure placement quickly because of their developmental stage.
[15] The evidence of the workers who’ve been involved, there have been two or three workers involved in this file over the time, certainly indicate that [K.B.] did engage with the service providers. There was concern that [K.B.] was not always forthright, open, or honest about some matters that were of some concern to the agency. The agency was late in learning about the pregnancy, there was some unauthorized contact with [B.C.], and up until the last few months there was perhaps confusion … at least with respect to [K.B.]’s discussions with [C.B.] about what role she thought he might take with respect to the children.
[16] Dr. Steeves testified on [K.B.]’s behalf. He’s certainly treated her for addiction and depression issues. Dr. Steeves feels he’s noticed a substantial change over the last nine months or so, and that she has a much more positive attitude. He sees evidence of major change.
[17] Gary Neufeld has been involved with [K.B.] since October of 2012. He confirms her good record of attendance. It’s his opinion that [K.B.] is currently successful in managing her personality disorder. He does point out that relapse is always a risk. But, he believes it is perhaps less than it was in August of 2011. He acknowledges that truthfulness, that may be another word for manipulative behaviour, can escape a Borderline Personality Disorder person. And manipulation, again is a hallmark of the disorder. Of concern is Mr. Neufeld’s admission that relapse could happen tomorrow, and he as the therapist might not see it coming.
[18] Meridith Burns reviewed the reports of Ms. Power and took no issue with it in a technical or professional sense. She did indicate, that her interview with [K.B.] was more positive than she would have expected having read the reports. Meridith Burns was impressed by the amount of progress that [K.B.] had made. Again, I think the significant part of her evidence is that there is still significant risks at this early stage of recovering.
[47] The trial judge had to consider K.B.’s past alcohol and drug abuse, her history of inadequate parenting, as well as violence and criminality. K.B.’s personality and history of relapse satisfied the trial judge that the risks to the children remained substantial. With respect, the trial judge had extensive evidence before him regarding the substantial risks to K.B.’s children if they were returned to her care. He made no palpable and overriding error in concluding that the children were in need of protective services.
Issue #3 Third Party Involvement
[48] K.B. urges that her brother C.B. should not have been given standing and should not have been involved in the proceedings. As a result of his involvement, she was prejudiced and was unable to obtain a dismissal at the final disposition hearing.
[49] K.B. submits that there were only two realistic options before the court – either permanent care of the Minister or dismissal of the proceeding. K.B. relies on The Honourable Justice Elizabeth Jollimore in Nova Scotia (Community Services) v. R.F., 2012 NSSC 125:
[166] This proceeding is nearing its conclusion: the deadline for a final disposition is April 7, 2012. As a result, the only two options available for my consideration are dismissing the Minister’s application or placing C in the Agency’s permanent care and custody.
[50] K.B. says, there was no room for a temporary placement with a third party pursuant to s. 42(1)(c) of the Act:
The child shall remain in or be placed in the care and custody of a person other than a parent or guardian, with the consent of that other person, subject to the supervision of the agency, for a specified period, in accordance with Section 43;
[51] Therefore, K.B.’s brother should not have had any standing at the hearing and should not have been permitted to give evidence with detrimental effects on the prospect of K.B.’s success (i.e., ¶42 above).
[52] It is true that the options were narrowing by September 2012. But it was K.B. who initially invited her brother, C.B., to become involved. That involvement began early in 2012. The Act required the trial judge to consider less intrusive measures, including promoting family integrity, before granting a permanent care and custody order, (s. 42(2); Family and Children’s Services of King’s County v. B.D. (1999),177 N.S.R. (2d) 169 (C.A.) at ¶14). By June of 2012, K.B. would not consent to her brother being added as a party. The trial judge said:
THE COURT: …From a practical point of view, what I’m ordering is a combination, I think, of the leave application for standing will fold into the hearing on the merits. I’m ordering disclosure as if they were a party … I think that is the most appropriate way to deal with it. It is a family placement or potential family placement. I think it’s in the best interests of the children that that opportunity for that plan to come before the court, and if, at the end of the day, I don’t think that these folks have met the test for granting of leave, then it will be dismissed and I’ll deal with the other plans that are before me. …
[53] As a practical matter, it was always possible that the Minister would withdraw his request for an Order for Permanent Care in favour of custody by K.B.’s brother. The trial judge did not want to preclude that option. He explained:
THE COURT: No. And as Mr. MacDowell is saying, I think, that if [C.B.] is successful with his plan of providing the most viable alternative to permanent care, then that will dismiss the Child Protection and we’ll get to an MCA [Maintenance and Custody Act application].
[54] The judge was focused on three options:
1. The children should be returned to K.B.
2. A family placement – in this case, K.B.’s brother.
3. Permanent care and custody in accordance with the Minister’s plan.
He did not err by keeping the options open.
Issue #4 Custody to B.C.
[55] In the event that this court does not allow K.B.’s appeal, B.C. submits that the children be placed in his care. The trial judge was not encouraging. He said:
[24] Mr. [C.] is, I believe, about 45 years of age with little positive parenting experience. He’s engaged regularly and appropriately in access, but he has never parented as a single parent. The challenges this will present for two infants is likely to create substantial stress. Stress puts pressure on your early recovery. These are risks.
[56] The evidence supports the trial judge’s reservations. A parental assessment of B.C. was done by psychologist Michael Bryson. Despite commending B.C. on his considerable progress in battling alcoholism and other challenges, he remained of the view that B.C. would not be able to meet the needs of his children. His testimony confirmed his Parental Capacity Assessment:
Q. Yeah and you go on to say “He doesn’t present with the psychological resources to adequately provide for the permanent care of his daughters.” And that’s really your concern.
A. Yes, it is.
Q. He has no history at all of being able to take care of children, does he?
A. That’s correct.
Q. Or any other persons for that matter.
A. Correct.
[57] B.C.’s positive progress was put to Mr. Bryson and the question was posed:
Q. How in any way does it change your view that it’s going to be a long road for [B.C.] and he’s not going to be in that position certainly by October of this year?
A. When I completed the assessment, I thought there was very little likelihood, Your Honour, of [B.C.] being able to have the psychological ability to meet the needs of his children long-term on a permanent basis.
[58] There was an evidentiary basis for the trial judge’s conclusion that B.C. was not able to meet the needs of his children. There is no basis for appellate intervention.
[59] The Notice of Appeal and factum allege that the Minister did not “work with” B.C. and that B.C. did not refuse services. There is complaint that there is no evidence that “less intrusive measures would be inadequate to protect the children in B.C.’s care”.
[60] In fact, the Minister commissioned a parental capacity assessment of B.C. after the twins were born. The results of that assessment are set out above. B.C. participated in weekly Alcoholic Anonymous meetings. The Minister recommended anger management counselling; participation in addiction therapy, and participation in the New Leaf Programme. To his credit, B.C. implemented this advice and the Minister placed that evidence before the Court, (Psychotherapist Michael Bryson; Therapist Darcy Sarson; Violence Counsellor Ron Kelly; Addiction Services Advisor Mike Doyle). The trial judge acknowledged all this evidence:
[7] One of the major witnesses we heard from at the beginning was Mr. Bryson who did the Parental Capacity Assessment on [B.C.]. That assessment outlined [B.C.]’s past history, his exposure to domestic violence in his home of origin, and the experience that he himself was involved in in his entire domestic relationships. The report indicated certainly that he struggled with substance abuse for a number of years. He has a substantial Criminal Record. A lot of it related to … or at least in part related to use of substances. The Court would conclude that the difficulties he’s had indicate that he struggled with impulse control and emotional regulation in the past. The Court also acknowledges that he has experienced recent sobriety. At this point about 20 months and that’s certainly a positive change. As well The Court understands he’s had a positive access relationship with his daughters. Mr. Bryson’s conclusions, based on his assessment and the overall history was that there was … I think the term he used was, an exceedingly low chance for [B.C.] to successfully parent these two infants to adult hood.
[8] As far as [B.C.]’s engagement with service providers, certainly his therapist Darcy Sarson testified that she’s seen what she would refer to as some extraordinary or remarkable positive changes. She would indicate that he has learned to be assertive without being aggressive. We’ve heard that referred to by counsel in their submissions. He is developing insight and generally getting better stability in his own day-to-day life.
[9] Ron Kelly from New Leaf had somewhat similar comments. He indicated his attendance was good. He’s shown growth in the program. He appears to have a better outlook. He’s stopped blaming others for his problems, is taking responsibility for his circumstances and he’s learning how to work through his issues in a more healthy way. A positive report from Mr. Kelly with respect to his involvement at New Leaf. Mr. Doyle from Addiction Services reported in a similar positive way.
[10] [B.C.], himself, in his own evidence is able to testify to some of the benefits of the sobriety that he’s experienced over the last year and a half or better. He’s learned how to reach out for help. I believe he is re-building relationships with his older children. He certainly has his own apartment, got a license, a car. Generally, I think he’s in a better place than he was when this process began. To his credit, his own counsel made reference to this, parenting these two youngsters, under the best circumstances would be a challenge. But, he’s prepared to try to take that on with the help and supports that he’s developed in the community. Most telling, again as counsel indicated, what [B.C.] wants is stability for his children. They appear to be happy kids who deserve a stable supportive life.
[61] B.C. did not seek custody at trial. Given the time constraints, supervised custody (“less intrusive measures”) was then no longer an option. Nor did the evidence support placing the children in B.C.’s custody, even if he had requested that.
Conclusion
[62] The trial judge did not err in law by failing to turn his attention to the children’s ongoing need for protective services. He made that finding. He made no palpable and overriding error in his assessment of the facts. In particular, despite their commendable progress, the judge did not make a palpable and overriding error in deciding that the risks to the twins had not been mitigated sufficiently so as to accommodate custody by K.B. or B.C. I would dismiss the appeal.
Bryson, J.A.
Concurred in:
Saunders, J.A.
Fichaud, J.A.