After 11 days of trial and testimony from more than half the ministry’s witnesses, a B.C. provincial court judge interrupted a child-protection hearing to question the foundation of the ministry’s case against the mother.
Since March 2018, The Discourse has been covering the child-protection trial of an Indigenous woman fighting to get her four daughters out of foster care. (In order to protect her children’s identities, we’ve been referring to the mother as “Justine” and to her daughters as “May,” “Sarah,” “Rosa” and “Vanessa.”)
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The following excerpt, from child-welfare reporter Brielle Morgan’s transcription of court proceedings from June 21, 2018, highlights a particularly tense exchange between the judge and the ministry. In it, Judge Lyndsay Smith asks Susie Gray, the lawyer representing the director of the Ministry of Children and Family Development in this case, to explain exactly why the ministry’s pushing to permanently remove these children from their mother’s care.
The following exchange has been slightly tightened, using ellipses in place of stumbles, repetition or short breaks in the recording:
Judge Lyndsay Smith: Just so I’m clear, is it going to be the director’s position that mom’s — I’ll use the phrase “inappropriate speech” — and I’m not making that finding, I’m just going to use that phrase to encapsulate comments about [witness Cindy Halcrow’s] feelings, we talked about VACFSS-bashing — is it going to be the director’s position that mom’s discourse in front of the children amount to a protection basis for a final order?
… Because I need to know, and I’m trying to sort of figure out what the protection issues are.
Lawyer Susie Gray: What the director’s position is: first of all, we have evidence of the children’s special needs. And we have evidence about recommendations by professionals about how to assist — work with those special needs. And with respect to Justine’s parenting, we have evidence of her history of parenting, her past style and approach.
JUDGE: When you say that, tell me what you mean by that.
GRAY: Well, we have the history in the sense that we have the evidence of this is the third time the children have been in care due to these issues, okay.
JUDGE: Okay, but please, not just because there’s a bunch of issues, so these issues. So when you say third time in care due to — just specify, real quick.
GRAY: Okay, history of violence in the home. Leaving children with inappropriate caregivers. With respect to [May], which of course, we don’t separate that out, but a history of violence towards [May]. A history of not engaging, in any sense engaging, learning from any of the interventions in the past. The removal circumstances of the violence in the home, and the subsequent disclosures of the children of violence in the home.
So then as this case is proceeding, your Honour is receiving evidence of the behavioural problems the children suffer. The evidence is that it’s rooted in childhood trauma. The evidence is that one of the things … the parenting skills that these children need to be okay.
“So I’m to infer that part of an assessment of protection needs is a parent’s either inability or disinclination to work with the ministry or the social workers or VACFSS or whatever.”
And what I’m leading evidence of is disclosures of this mother — basically actions of the mother that … are detrimental to the children; that’s the broadest way of saying that. There’s more evidence coming out of other things, but one of the things we’re pointing to is these utterances — because in the director’s submission I’m going to be asking the court to conclude that making these types of suggestions to children in this type of situation is very harmful to these children.
[Transcript is briefly interrupted while reporter Brielle Morgan changes recorder batteries.]
GRAY: Now you’re going to hear difficulties of this person in her initial engagement — this is the first time she’s meeting [Justine,] and this is what she’s facing.
JUDGE: So I’m to infer that part of an assessment of protection needs is a parent’s either inability or disinclination to work with the ministry or the social workers or VACFSS or whatever.
GRAY: It’s not part of the determination of protection concerns, specifically. It’s in the second part, which your Honour is going to be asked to determine, which is capacity of this parent to actually parent the children.
JUDGE: So if she can’t or won’t work with your client, I should find that she’s incapable of parenting the kids?
GRAY: Well, I would loathe the thought that it would be phrased that way. The importance here is that this mother cannot avail herself of any services if she is not able to learn ways to address what is contributing to her inability to parent, then the court needs to consider that the children should not be returned to the parent.
And I think it’s important, very specifically, I don’t want the court to consider language — “If she doesn’t work with VACFSS, she’s not getting her kids back” — because that is now what this is about. That is going to be her case. So what we’re talking about —
JUDGE: Just so I’m clear, it’s about…?
GRAY: It’s about this parent’s ability to work with supports, access resources and address her own trauma and issues that are impacting on her ability to parent, also to work with the professionals in dealing with special-needs kids, and to work with those recommendations.
GRAY: So what I’m giving you now is a small piece to indicate [Justine’s] approach at her first meeting when it’s suggested that because of all the difficulties going on, why don’t we try changing her visits.
JUDGE: At which change incorporates a reduction of her time with her children.
GRAY: That’s right. So what this witness is now describing is her first meeting with [Justine] and her supporters, and she’s describing a level of hostility, the types of accusations being suggested by [Justine’s] mother, and she’s going to go on to tell you a little bit more about what [Justine] said during that meeting, which is significant.
“And this case is about a woman who refuses to engage and a woman who’s too focused on other things to make any changes in how she approaches parenting.”
Because what your Honour is going to hear is evidence of [Justine] continuing to disengage and not responding to any suggestions or approaches by — you could say VACFSS, but this is by what we have available to intervene in child protection. These are all of the people we turn to to assist families. And this case is about a woman who refuses to engage and a woman who’s too focused on other things to make any changes in how she approaches parenting.
JUDGE: Who is described by an experienced child-protection social worker as a really good mom at times.
GRAY: That’s right. That’s the director’s case —
JUDGE: And so one of my questions is if you take — and I’m going to review all of the evidence and I’m going to be looking at the history and I’m going to be looking at the violence and I’m going to be looking at the whole piece, but we’ve spent so much time with regard to — and you know the body organ thing, I’m going to be looking at that, I mean that, that’s troubling, and I’m going to be looking at all of it — but we are spending a lot of time on, you know, what mom said to the kids about VACFSS. It’s —
GRAY: Actually, I did make a distinction yesterday. It’s not what mom says to the kids about VACFSS; it’s about what mom says to the kids about the abuse and threats they’re facing in care. I made that distinction with the witness, and that’s where she intervened. Whether she hates VACFSS is not what this case is about. It’s about her parenting.
JUDGE: Perhaps you can assist me at the end of the case, but it seems that, well, one question that I have is, if the kids weren’t in care, there wouldn’t be the — and this witness has talked about it — the huge emotional distress that most mothers in particular, perhaps, would feel at the removal of their children. If that factor wasn’t there, what would mom be talking about in front of the kids that wouldn’t be appropriate?
I mean, you know, she had one baby she was still breastfeeding when the child was removed. So is it a big deal to mom? Yes, it is. Is it understandable? Sure, it is. Should she be able, like best parenting, not to discuss anything with regard to foster care, anything with regard — yes, that would probably be ideal.
But so if things were to change, if the kids were back with her … then what happens? … Does she come back to being a really good mom who doesn’t discuss any of this? And I’m not not thinking about the reason for removal, [May], like, I’ve got all that piece, but I’m trying to figure out…
GRAY: The evidence is consistent, as it is in many cases like this, that this mother has very good skills with her children. There are times … you will say, ‘wow, that’s a nice connection’ … The comments are there that [Justine] has the ability often to make really great decisions, and she’s loving toward her kids, there’s so much of that. And the kids love her because these are little people and this is their mother.
JUDGE: But you say that like it doesn’t mean anything because there’s a lot of cases where that doesn’t exist. There’s lots of cases.
GRAY: I agree but there’s also many cases where no matter how badly they’ve been abused, they love their mother.
JUDGE: Oh, for sure.
GRAY: That’s the problem with attachment.
JUDGE: For sure, yep.
GRAY: That’s where we are. So these little ones love their mother, they want to be with her, and VACFSS is obligated and wanting to support that. That’s been their position since the very beginning. There’s never been a desire to sever ties … this witness, she can give you that evidence. To stop access is a last resort. So she’ll give you that information.
What we have is the knowledge of these children’s … early childhood trauma-based problems and FASD [fetal alcohol spectrum disorder]. We have a good idea of how these kids are going to struggle in the world. They’re young, but what we know so far, is that these people have struggles. These people act out, these people have a behaviour that is difficult for parents to manage.
JUDGE: When you say these people…
GRAY: [Sarah] and [Rosa] … these kids in particular. So we know what they’ve been dealt. And we know what they’re going to be growing up with. Now we turn to the evidence of [May] and what she grew up with. [May] became … as her behaviour became more challenging to this mother, this mother did not respond well. This mother was violent with [May], repeatedly, and as they got older, [Justine] is blaming it on the child for instigating violence. And your Honour has that evidence, and we will look at that; the reality is the aggression between this mother and little [May] started as soon as [May] started these behaviours.
You have evidence of violent assaults at the hands of the mother. [May] is not to blame. She’s been removed four times, and this is [Sarah and Rosa’s] third move. These issues have not gone away, and so as we move on, the more we learn about these children. And quite frankly, while we’ve been before the courts, we’ve got more evidence about these children because in March … you weren’t hearing that the children were getting better at deescalating, but you are hearing that now, so this is a case that’s developing as we go forward.
The evidence about [Justine’s] behaviour is that she’s unwilling to respond to anything suggested by social workers or professionals. The evidence about [Justine’s] behavior is that she’s hostile, and the evidence about [Justine] is that she says repeatedly, “I’m going to do whatever I want to do with my kids and you can’t tell me what to do.”
So that’s where you’re also going to listen to [psychologist] Dr. Heiner, who does a capacity assessment, who talks about what that kind of attitude means to parenting. And she’s going to talk about her assessment of [Justine], and the difficulty [Justine] has and will always have in making changes that will allow her to parent.
The capacity report goes into great detail about the limitations [Justine] faces, as well as recommendations of what she needs to do to address her issues, and the capacity assessment also offers an … analysis of the likelihood of [Justine,] given her personality type, and the assessment is likely not going to engage enough to make the changes in her personal life that will allow her to parent.
So that’s, your Honour, why you need to know about her relationships and how she responds.
JUDGE: The director says that mom is incapable of parenting the girls as a result of her inability or unwillingness to engage in the services available to her … have I got that right?
GRAY: That’s acceptable at this stage, I mean obviously this is a case in progress, but sure.
JUDGE: Okay. So this not a case where, for example, there’s active addiction or there’s some kind of personality disorder that engages in violence all the time, or those kinds of sort of “easier” — I’m going to say, for lack of a better phrase — or parents who, you know, just don’t show up or whatever. That’s not what we’re talking about. Ongoing we are talking about the inability or refusal to secure the services that these little people need to address their challenges.
GRAY: Well, the evidence is in the capacity assessment, as well as evidence —
JUDGE: — which I haven’t seen —
GRAY: There is ongoing substance abuse issues, alcoholism has been an ongoing issues. [Justine] has been clean at times, but alcohol has contributed repeatedly to her parenting. Whether it’s contributing to the current removal, there’s not an allegation that she was intoxicated at the time.
Now, with respect to personality, yes, you’re going to read diagnosis of a borderline personality disorder and how that does contribute to her behaviour, basically is her behaviour.
Lawyer Carrie Humchitt [Justine’s lawyer]: I think relevant hearsay has been stretched to the max all throughout this case … I think a lot of stuff which is not relevant to the current proceedings is being brought up … like historical information going back to 1988, which the director sought to bring in. But most specifically on this case, you know, there was no violence involved, to my knowledge, there was no alcohol [or] substance abuse in the current removal, to my knowledge, but all of that is being brought up in a big ball as relevant to this matter.
JUDGE: It is. Yep, it is all being said to be relevant. So that helps me because I’ve been trying to figure out how the evidence fits into the theory of the case. So thank you for that.