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Citation: 2005 BCPC 0016

Director v. R.R. & E.R. parents of A.R. (CFCSA) File No: Registry:

Date:

20050118 F20725 Surrey


2005 BCPC 16 (CanLII)

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

IN THE MATTER OF
THE CHILD FAMILY AND COMMUNITY SERVICE ACT, R.S.B.C. 1996 c. 46 AND THE CHILD: A.R., born January, 1998

BETWEEN: DIRECTOR OF CHILD, FAMILY AND COMMUNITY SERVICE APPLICANT AND: R.R. & E.R. PARENTS

REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. G. COHEN

Counsel for the Director:

Dean R. Tate

Counsel for the Parent: Counsel for the Parent: Place of Hearing: Dates of Hearing: Date of Judgment:

Patricia Fleming for the father, E.R. Donald Boyd for the mother, R.R. Surrey, B.C. December 6 - 9, 16, 17 & 21, 2004 Oral: December 21, 2004, written: January 18, 2005
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Opening:
[1] It was during the dark, dreary, damp of Vancouver's October in 2003 when A.R. became very ill. His parents took him to Surrey Memorial Hospital where he was noted to be in a state of extreme malnutrition. His abdomen was extended and his limbs emaciated. There was also noted to be a loss of hair and his complexion had turned pale and grey. [2] He was immediately transferred from Surrey Memorial Hospital to B.C. Children's Hospital where he spent a great deal of time in the ICU. [3] A social worker from the Ministry of Children and Family Services was properly of the opinion that the parents had failed to care for the childs diabetes. That social worker, therefore, made the decision to remove A.R. from the care of his parents. The removal occurred on October 17, 2003. [4] This was not the family's first involvement with the Ministry; however, it was the first time any of their children had been removed. [5] From the social worker's investigation, the parents had not purchased any new supplies of insulin since May 24, 2003 and the Ministry file indicated that during the Ministry's prior involvement with the family, the parents had difficulty in accepting the child's diagnosis of diabetes. When those factors were added together, the social worker concluded that the parents must have continued to deny that A.R. suffered from diabetes and that, therefore, they had stopped giving him insulin. [6] Almost immediately after the removal and certainly by the end of January 2004, the social workers in this case had made the decision to seek a continuing custody order which would permanently terminate his mothers and fathers parental rights and which would thereafter allow this child to be placed for adoption. This was done without making any reasonable effort to maintain this large and otherwise well parented family. [7] At the end of trial the court gave oral judgment but the parties requested written reasons. These are the requested written reasons.

Facts:
[8] In December 2000, A.R. went to Surrey Memorial Hospital suffering from Ketoacidosis, a condition that often results from untreated diabetes. This was the first indication that this child was diabetic. Diabetes is, apparently, so easy to diagnose, that it was clearly and obviously

apparent to the consulting physicians that this two-year-old child was their newest case of diabetes. [9] The parents are from Romania. They grew up in that country during a period of time when there was a very oppressive governmental regime in power. They have a distrust of authority figures. [10] They found it difficult to accept the diagnosis of their son as there was no history of diabetes on either side of their families. They made it clear to the doctors that they distrusted this diagnosis. This is unfortunate as diabetes is so easily diagnosed that, as one doctor described it, a medical student using a relatively minor non-evasive test can make the correct diagnosis. There is no need for multiple tests, invasive or otherwise, to correctly diagnose diabetes. This is something that could, perhaps, have been more simply explained to the parents at that time. [11] After the diagnosis in December 2000 the parents took some training in the management of diabetes and the child returned home with them under the supervision of a home care nurse who attended the home on a regular basis. [12] During the period of time between January and March of 2001, the child suffered at least two viral illnesses that complicated his diabetes management. [13] In or about March of 2001, a doctor from B.C. Children's Hospital became concerned that the blood glucose readings that were being taken by the mother were being misrepresented. The mother was, at that time, under an obligation to take her son's blood glucose levels at least four times per day and to phone these readings to the clinic each day. She was also instructed to fax the entire week's readings to the clinic on a weekly basis. [14] In or about March, these readings became so normal that the doctor became concerned that they were being faked. Apparently, it is next to impossible to get consistent blood glucose readings from such a young child. When the doctor saw consistent readings, he was concerned. As a result, the doctor asked the home care nurse to verify these readings. He asked her to take a reading herself and also to obtain the printout of the contents of the blood glucose meter's memory. Once the doctor received all of that information, he was even more concerned that he had been given false readings. [15] I am not in a position to make a finding of fact as to whether or not the mother was falsifying the readings. Insufficient evidence was put before the court to make any such ruling. At trial, the only evidence in support of this allegation was a letter from the doctor saying he was suspicious of the readings. He gave some examples of what he considered suspect, but these examples were not backed up and were not complete. [16] Furthermore, the mother explained that she had done some readings of friends blood sugar levels. She said this left readings in the meters memory that were not attributable to A.R. but she further claimed that she did not attribute them to A.R. [17] I am not satisfied on balance that I can make any finding on this point.
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[18] In any event, A.R. was ordered returned to hospital even though, at that time in March of 2001, he was not suffering any obvious need to go to the hospital. The doctors were making an effort to do a pre-emptive strike or a prophylactic intervention to ensure that A.R. did not decompensate as a result of poor diabetes management and, once again, to teach the parents proper control and care for a diabetic child.

[19] Regrettably, both during the December 2000 hospitalization and once again during the March 2001 admission to hospital, the doctors and social workers threatened these parents with the loss of their child. Not to the disease should they fail to properly manage it, although they were probably warned of that as well but, rather, the threat was that the government would take their child away. This was not what they expected of a free country but more what they expected of their old country. They had a right, under statute, to expect the child protection authority here to work with them and to provide services to support them and their newly diagnosed diabetic son. [20] Instead, and although healthy, A.R. remained in that hospital under threat of removal, on this preventative visit, for some two weeks while the parents were given further instructions on proper management of the diabetes. [21] The parents made it clear that, throughout all of this time and indeed right up to the present day, they were of the opinion that there was something else complicating matters; that A.R. was suffering from something more than just diabetes. They demanded that the boy be tested for many things, including hepatitis, as he appeared to be jaundiced. [22] The father has written a large number of letters complaining about the actions of the director in removing A.R. from their care. There was evidence that both parents have made oral statements and that the father has made written statements in the letters that indicate that the parents do not accept the diagnosis of diabetes. [23] Notwithstanding these statements, the parents deny any such lack of acceptance. They say that they accept this diagnosis but also seek more information. They say there is something more wrong with their son. They claim that they are falsely accused of rejecting the diabetes diagnosis when they seek further information. They allege that their lack of competence in English is the cause of this misunderstanding. [24] It is possible that the parents went through the normal period of denial of their sons diagnosis of a life long condition but have accepted the diagnosis ever since and for many years now. It is also possible that they did not accept the diagnosis until just the last day of trial. It is possible that their requests for further medical investigations were incorrectly believed to be a denial of the diagnosis just as it is possible that those requests were a manifestation of that very denial. [25] However, none of those interpretations of the evidence would now change the complexion of the case. There is no proof that the parents continue now, in the present, to deny that A.R. has diabetes or that they will treat him in the future, should he be returned home, as though he is not diabetic and thereby fail to appropriately treat his condition. [26] Notwithstanding the parents` requests for further medical investigations, the doctors apparently refused to do other tests until October, 2003, and, even as of today, it seems that the child has yet to be tested for hepatitis. [27] After A.R.'s discharge from hospital in March of 2001 the parents continued to follow up with Dr. White, a pediatric specialist in diabetes, on a regular basis but resisted attending the diabetes clinic at the Surrey Memorial Hospital. No good explanation was given for this but it may well have been nothing more than the fact that they have a family of seven other children that makes it difficult to attend so many separate appointments per week or per month. [28] It should be noted that there was no indication that the parents were, in any way whatsoever, unable to care for the other 7 children. Indeed, one report from 2001 reads as follows:
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"1. Communication within the family is quite supportive, open and encouraged by the parents. 2. The parents and children appear to have caring, supportive and affectionate relationships.
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3. The older children all attend school and appear to be functioning and relating quite well in this environment. All the children appear to enjoy school. 4. All the children appear physically healthy, well groomed and generally cared for. I observed, on several occasions, the children playing together, showing affection towards each other (often they were using the computer) and I saw no negative sibling rivalry. Rather, I would suggest, any signs of competition and/or differences were healthy and affectionate in nature. 5. Both parents share much of the responsibilities (sic) relating to raising the children and appear very supportive towards each other. I would describe communication and how they make decisions as shared with equal input, open and supportive. Some of the issues that the parents and I had several discussions about involved how the parents dealt with the problems (discipline) among the children, supervision and safety and so on. The parents do not use corporal punishment in any form, rather they emphasize communication and positive feedback. As well, it was my experience that the children are well supervised and the parents are very aware of issues related to safety. As well, I should note that all the children were well behaved, respectful and very interactive during my many home visits. They also appeared to have friends and activities that they shared and generally appeared quite well adjusted and happy. All the children appeared to respond appropriately when interacting with each other and their parents." [29] In any event, A.R. and his mother continued to see Dr. White until about September of 2001. At that time, Dr. White moved his office. He said that he gave plenty of notice to all of his patients and, therefore, they would not have had any difficulty in finding him. The parents in this case say they expected to receive a call from Dr. White from the new office to set a new appointment but never received any such call. They added that it was usual for the next appointment to be set during the prior one. This was not done during the last visit in September 2001. [30] I find that A.R. did not see any doctors after September of 2001, until October of 2003 when he was admitted to the hospital in the severe state of malnutrition. [31] I also find as a fact that the immediate precursor or cause of A.R.'s admission to hospital in October of 2003 was the fact that A.R.'s mother had changed his insulin regime. [32] As background, she advised the court that once, while still under the care of Dr. White, A.R. developed a rash which was attributed to one of the two types of insulin he used twice daily. He was, at that time, taking a long acting form as well as a short acting form insulin in a complex regime to ensure a constant level of insulin in his blood stream. At one time and as a result of the rash, Dr. White took A.R. off one of those types of insulin leaving him on only the other type of insulin for a period of time. [33] The mother says that in the summer of 2003, A.R. once again developed that same rash. This time, without consulting a doctor, she again took A.R. off that second type of insulin that she

believed had caused the rash. She never put him back on that type of insulin and she did not get medical advice before taking him off of it. [34] I find that this was what caused A.R. to have insufficient amounts of insulin in his body for a period of several months. The net effect of the reduced insulin intake was that, although he ate and received his shots of insulin, his body did not absorb nutrition. Once again, even though he was being fed, eating his food and getting some insulin, he was absorbing so little of the nutrition in the food that he developed kwashiorkor by the time he was admitted to hospital. This is an illness common in poorer parts of the world where adequate supplies of food are not available. It is characterized by very thin, tiny limbs and a distended stomach. These were the very symptoms displayed by A.R. when he presented at the hospital in October of 2003. [35] As mentioned earlier, the social workers involved in this case were of the view that the parents had intentionally deprived A.R. of all of his insulin for several months, in the belief that he was not suffering from diabetes and that the doctors had made an incorrect diagnosis. The social worker in charge of the file therefore instructed counsel to seek a permanent order terminating parental rights rather than to put forward any suggestions that would support the family. The director thereafter put no reasonable effort into reuniting this child with his family. [36] I deem it necessary to emphasize this point as it is important. This child had the right to expect his social worker to help him get back together with his family if that could be done safely. The worker involved in this case failed to make any reasonable effort to live up to this duty and, instead, made every effort to deprive A.R. of his family. [37] As an example of this, the primary social worker in this case deprived A.R. of access to his Romanian heritage, language and traditions, deprived him of contact with his siblings in an inappropriate manner, and falsely accused the parents of actions they had not taken. [38] Once again, this is not to suggest that the parents were blameless, but only that they were innocent of the accusation made against them by the primary social worker. These parents had not taken A.R. off his insulin as alleged. [39] To be clear, the parents were accused of not giving their son insulin and it was alleged that they did so because they did not believe that A.R. was diabetic. This was completely disproved by the evidence in this trial. The parents may have, and indeed did, mismanage their sons diabetes, but it is my finding that they never stopped giving him insulin as he could not have developed kwashiorkor without insulin. He would have died without insulin but not from any form of wasting disease. The death would have come more quickly and without time for kwashiorkor to develop had A.R. been deprived of his insulin as alleged. [40] That does not mean that the parents were innocent. Indeed, they did act inappropriately in changing A.R.'s insulin regime without seeking medical advice. It is as a result of their failure to provide properly for the needs of this diabetic child that I am going to be making the finding that A.R., in October 2003, needed protection. [41] To repeat, after the removal, and for the entirety of the following year, the year 2004, pursuant to the instructions of the primary social worker, the parents were allowed only supervised visits with A.R. and they were not allowed to speak to A.R. in Romanian. They were not allowed to bring Romanian books or movies to him and, after June of 2004, they were not allowed to bring any more than four of his siblings with them to any of the visits. [42] This June date is important as, in June of 2004, A.R. suffered a major hypoglycaemic event during a supervised visit with his parents and all of his siblings. This was an event during which his blood glucose level dropped below 2.

2005 BCPC 16 (CanLII)

[43] The medical evidence in this case made it clear that a blood sugar level below 2 is extremely dangerous and can lead to death. This major hypoglycaemic event was not caused through any actions of the parents but, rather, by the actions of one of A.R.'s ministry provided caregivers. [44] Furthermore, during that major hypoglycaemic event, the access supervisor almost caused the child further harm, possibly even death, through her inexperience and through her efforts to comply with the social workers direction not to let the family treat A.R.s diabetes. [45] The primary social worker on this file was absolutely convinced that the parents denied A.R.s diabetes and that they could not be trusted to properly deal with and/or manage it. The social worker told the access supervisors not to let the parents deal with these problems should they arise during supervised access visits. Due to these instructions from the social worker, every effort was made to stop the parents from assisting during the time when it was clear that the child was suffering a major diabetic event and was in imminent danger of losing his life. [46] The access supervisor was not able to get a blood sugar reading from A.R. and did not know how to react. In hindsight, it turned out that the parents were the proper people to act, as it was the mother who eventually managed to get the blood level reading that indicated the danger level that the child was facing, and it was the mother who managed to get some sugar into A.R., which was necessary to counteract this hypoglycaemic event. [47] This was an example of the monumentally inappropriate lack of trust between the social worker and the parents. As the ministry could not provide A.R. with a new set of biological parents, an effort should have been made to find a social worker that could work with such an otherwise obviously capable family. A family that was having a particularly difficult treatment regime to implement. [48] These are the facts as I find them.

Issues:
[49] The issues before the court are as follows:

[50] The first issue before the court is whether or not A.R. was in need of protection. As stated above, it was clear that A.R. "needed protection". [51] The second issue is triggered by this finding that he needed protection. Once this finding is made, the court must consider which order should be made pursuant to s. 41. There are four possible orders available. The court may return the child to his home under the supervision of the director; or the court may place the child in another home temporarily; or the court may place the child in the temporary care of the director for a period of up to six months; or finally, the court may make an order that the director keep permanent custody of this child and then probably place the child for adoption with a new family. [52] The third issue is the nature of the conditions that should attach to an order if the court is considering a return under supervision. This issue was difficult to address for the following reasons. [53] It became clear early in the case that there had been a misunderstanding of the facts by the social worker in that this was not a case of denial of diagnosis and withdrawal of treatment, rather it was a case of acceptance of the diagnosis but with poor management of its complex treatment regime.

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[54] Once that misunderstanding was clear to the court, a permanent order seemed unlikely. This was due to the fact that the court was convinced that these parents are capable of properly managing the treatment of their sons diabetes, given sufficient education and monitoring. The education, according to the evidence, is a life long commitment while the monitoring is just to ensure against (so far unproven) suspicions and concerns. [55] When this view of the case became the only one clearly supported by the evidence, I indicated to counsel that it did not seem likely that this case was heading towards a continuing custody order. Notwithstanding all of this, the social worker still instructed her counsel to seek a permanent order, right up to and through final submissions. [56] This, however, created the problem that I mentioned earlier about this third issue. As the director's counsel was being instructed to seek a permanent order, he put forward no conditions that would be appropriate should this court decide to return the child under supervision. [57] The statute is clear this court may not impose conditions unless the director suggests or recommends them. This requirement appears in two separate sections of the Act; s. 41(3) and s. 41.1. Therefore, even if the parents put forward some very good suggestions for conditions that would be appropriate to impose, the court cannot impose them unless the director supports them being included. [58] This complication was brought to the attention of counsel for the director but the court was still not provided with any conditions which would be appropriate to impose should a return be the appropriate order. Therefore, while the nature and type of conditions to impose would normally be an issue to be dealt with, it is not one that I may deal with in this case.

Statutes Considered:
[59] Firstly, I have considered s. 2 of the Child, Family and Community Service Act, which discusses the guiding principles of this Act which are both to protect the child from abuse, harm, neglect or threats thereof, as well as to ensure that families are maintained whenever possible. This section also directs the court to consider a number of other factors, including a child's heritage, kinship ties, cultural identity, etcetera. [60] S. 3 was also reviewed as it discusses the service delivery principles of the statute.

[61] I also reviewed s. 4 which discusses a definition of "best interests of the child" wherever those terms are used in the statement. In particular, the best interests of the child are widely defined but include the child's safety, his physical and emotional needs and his or her level of development, as well as the importance of continuity in the child's care. Also mentioned are a number of other factors, including the child's cultural, racial, linguistic and religious heritage. [62] As mentioned above, s. 40 addresses the protection hearing. This section requires the court to make a finding as to whether or not the child was in need of protection. [63] S. 41 and all of its subsections, but especially s. 41(2)(c), have been considered, as it is those subsections which deal with the orders that this court may make at the protection hearing if the court finds that the child needs protection. [64] S. 41.1 allows the court to attach to a supervision order, the terms and conditions recommended by the director. A similar term appears in s. 41(3).

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[65] S. 44 allows the director to apply to extend a supervision order; and s. 45 sets out the total period of time that a child may remain in care.

Reasoning:
[66] I have decided that a return under supervision is appropriate in this case. I have done so for a number of reasons and as a result of the fact that there has been a significant change in circumstances since this child first went into care. [67] At the time A.R. went into care in October 2003, he was supposed to have started primary school but had not yet done so. He is now a full-time student under the watchful eye of a teacher each and everyday of the school week. Previously, he was seen by no one but the family and his deterioration was not visible to the outside world. Now he will be seeing his teacher daily during school weeks and will therefore be visible to the outside world. [68] At the time of his removal from the family, that family had no regular family doctor. They were recent arrivals to British Columbia and due to the shortage of doctors prepared to take new patients, they were unable to find a doctor willing to accept a family of ten, being the two parents and eight children. They now have found a family doctor. [69] The parents testified that there was no gradual deterioration in the child's condition in about October 2003 but, rather, a sudden deterioration just before his hospitalization at that time. This I do not accept. However, I can understand that a gradual deterioration is harder to note or observe and that sometimes gradual changes are missed by people who are present all of the time. However, now they know to look for gradual changes as well as more rapid ones. [70] The child had never had a major hospitalization event while in his parents' care due to their mismanagement of his condition. They have now had such an event. [71] The social workers were of the impression that the parents had not provided A.R. with his necessary insulin. This was disproved. It was proven that he was never deprived of insulin. What was proven was that the parents made a mistake in the management of their sons insulin regime. These parents made a major mistake. That mistake was in the proper dosing and types of insulin but they, at no time, withdrew A.R. from insulin altogether. This is not so much a change in the circumstances as it is a change in the way the parents should be viewed by the director. [72] I understand, as well, that Dr. White is willing to take on A.R. as a patient and that his family are again willing to see Dr. White on a regular basis. Dr. White is now aware that should they stop seeing him, he should contact authorities. That is a significant change. [73] I have also considered the concept that one can not look just at the results of an error to judge the seriousness of the error. A major car accident causing death can be caused by a minor inadvertence. Similarly, while this child was seriously ill when taken to hospital in October of 2003, the seriousness of the illness should not be the only factor that one considers in determining the nature of the error that lead to him being ill. Pursuant to s. 41(2)(c) I have considered the nature and extent of harm the child suffered but find that this is not a case in which a section 41(1)(d) continuing care order would be appropriate. [74] The following factors have also influenced me in making this decision.

[75] If a change of custodial status is to occur, and this order basically amounts to such a change, it has often been held appropriate for such changes to take place during school breaks. Such a school break is currently occurring. Furthermore, it is the Christmas season and these

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parents and this family celebrate Christmas. It is a factor that I consider that this order will allow this family to celebrate this major holiday together, something they missed in 2003. [76] The statute suggests that it is inappropriate for a child to remain in care longer than a certain period of time, depending on the age of the child. While this period of time has not been exceeded on a plain reading of the section, it is clear that the spirit and intention of that section is that younger children should not remain in care for long periods of time, only older children may remain in care for longer periods of time. This is a very young child who has already been out of his home more than one full year. That is a great deal of time in this young man's life and it is a factor that I consider, even though section 45 itself has not been breached. [77] In closing, on all of the evidence I find it to be in this childs best interests, as those words are defined in the statute, to be returned home under supervision. I find that the parents can provide a safe and nurturing environment for the child. I also find that any other order would contravene the service delivery principles of the act and would be contrary to the guiding principles of the act.

Order:
[78] It is my decision, therefore, that the appropriate order to make will be, firstly, under s. 40, a finding that the child needs protection. [79] Secondly, under s. 41, there will be an order that this child be returned to the custody of his parents under the director's supervision for the next six months. [80] Finally, it is not appropriate for this court to fix conditions without the recommendation of the director. I do not have the recommendations of the director as to any conditions that they would wish to see imposed. As a result, there will be no conditions attaching at this time. [81] However, so long as I am not functus as a result of having given this final decision, then I grant liberty to the parties to come back before me so that an appropriate set of conditions may be imposed as part of the order for return under supervision.

__________________ J. G. Cohen, P.C.J.

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