Friday, March 25, 2011

STAGES 1&2 OF CRABTREE'S DECISION PROCESS / 485

Chief Justice Thomas Crabtree
(On Monday: Judge Crabtree's verbatim Conclusion)

Near the end of the 39 page 'reasons' document released March 2, 2011, Judge Crabtree renders his conclusion in two stages.

Today, I am restating for you the conclusion to which Judge Thomas Crabtree arrived. I have taken liberty here to write the Judge's remarks in the third person. Where most appropriate, I have quoted Judge Crabtree's own words.

Stage One is as follows. Judge Crabtree found the child's injuries, sustained while in the care of her parents, to be unexplained. He noted that the Director associates the unexplained injuries with a future risk of physical harm based upon Section 13(1) of the Child, Family and Community Services Act which states that children require attention if they are likely to be physically harmed by the parent or physically harmed due to neglect. And the Judge is satisfied that given the circumstances surrounding the unexplained injuries, a real possibility exists that the child(ren) may suffer physical harm.

Stage Two is more complex.  Judge Crabtree indicated that he did find the children were in need of protection. He noted that the Director wanted a Continuing Care Order pursuant to section 41(1)(d) of the CFCSA. The judge's task was to determine whether to grant this, which according to section 41 (2)(c) required him to be satisfied that the predictability of harm is strong enough that he does not believe it is in the child's best interest to be returned to the parent. Judge Crabtree then recited several alternatives to the CCO in the event he is not so satisfied. (1) He could return the children to parents under a Director's supervision for 6 months; or, (2) he could place the children in the custody of another person, again under the director's supervision for a specified time; or, (3) the children could remain in the Director's custody for a specific time. In making his choice, Judge Crabtree would be guided by the children's best interests.

Judge Crabtree noted that the Director, in support of his CCO position had numerous points. (1) the nature and extent of injuries; (2) the 3.5 years that the matter has been outstanding due to the unchanging position of the parents relating to cause; (3) the cost in time and money for both parties; (4) no evidence that family and friends will support the family of a temporary order were granted; (5) no effort by parents to engage with social workers in parental assessment and risk assessment as planning tools in preparation for a return. In addition to these reasons the Director asserted that the arrival of a new child would exacerbate the financial pressures that he believed influenced the events of 2007.

Then Judge Crabtree remarked that even though the parents did not speak to the matter of the new child and the economics, he himself could consider evidence presented in court. He noted that in 2007 the family experienced stress with the father's post work accident health issues and limited finances and a new baby added to the two other children. The mother did mention their current preparations with accommodation suitable for a return of their children and located close to family support. It was noteworthy to Judge Crabtree that although short-lived, the Ministry made arrangements in 2008 to return the two older children to the parents under supervision, and he noted that this demonstrated that the Director had deemed the parents able to address his concerns regarding safety. The judge discerned the devotion and dedication of these parents from the beginning until the present and they have insistently requested more time with their children in spite of the Ministry's reluctance. He remarked that all visits have been supervised and this limited both access and quality yet these parents persevered and in fact put their lives and careers on hold to ensure connection with the children.

Judge Crabtree observed that evidence exists that the mother's parents will be supportive. He cited many letters sent by supporters which spoke to the parents' ability to parent and while these can be considered, it was viewed as a shortcoming that the authors were not sworn and called to testify and therefore are limited in weight. Nonetheless, the judge mentioned that these authors indicated willingness to support. Interestingly he noted that in one of the letters that the writer indicated that she had been to the family residence for dinner on September 23, 2007 (the supposed injury night). This person was not called.

Then Judge Crabtree moves down what is to me an intriguing decision path. He noted that with a CCO that is sought pursuant to the s. 41 (1) of the Act, both protection and permanent custody issues are dealt with simultaneously. The handicap that this presents to the parents is that they have no opportunity to consider the findings pertaining to protection and whether or not they are prepared to address the Director's concerns. Judge Crabtree acknowledged that he understood a parent's reluctance to participate in a parental capacity assessment lest it be perceived as an admission. Further he noted that relationship between the parents and the social workers deteriorated until communication and trust were gone. He even acknowledged that there was some basis for the parents' reticence to work with the social workers because the Ministry had failed to live up to the spirit of the mediation agreement. The Parents genuinely believed that the Ministry was uninterested in reuniting parents and children.

Judge Crabtree then asserted clearly that as section 2 of the Acts states, the family is the preferred environment for the care and upbringing of the children, but children are entitled to be protected from abuse and neglect and this must be the overriding concern of the Court.

Then he made these directional statements. (1) The opportunity is now in the hands of the parents. (2) The children are in need of protection. (3) Now is the time to move beyond this question and to take the appropriate steps to address and remedy the situation to satisfy the Court that the children should be returned to their care and custody. (Clearly this was as loud a hint as he cared to give to the Baynes that he would be inclined to give their children back to them if in a specified time they will do all that they can to convince the court that it is in the best interests of the children to be returned to their parents because all concerns about risk have been minimized or removed.)

Then, verbatim, his Stage Two Conclusion was this:
“[257] In the circumstances of this case I conclude that an order pursuant to s. 41 (1 )(c) for a period of 6 months is warranted.
[258] In the event that further directions are required the matter should be set down before me through the Judicial Case Manager at the Chilliwack Courthouse.”
and he signed his document, "T.J. Crabtree, PCJ"

14 comments:

  1. Sarah A'CourtMarch 25, 2011 at 7:12 AM

    this sounds very hopeful! The best I have heard so far.... I pray that the family are reunited.

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  2. It doesn't sound hopeful to me. It sounds like the judge is adding yet another delay. Eventually the Ministry will say the children should be adopted. The only hope is to appeal, because the Ministry will never return these children unless forced to. Why anyone would trust the Ministry, or the judge, after what they have done, is beyond me. It is dangerous to be so naive, and continually see nice motives where none exist.

    People should be placing their trust in the Baynes, and their lawyer, NOT in the Ministry or the provincial court. MAYBE there will be some justice in BC Supreme court (and this depends almost entirely on what judge you get - if you get the wrong judge, you may as well forget winning the second you step into the courtroom). If there isn't justice in the BC Supreme court, perhaps in the Court of Appeal.

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  3. When is the appeal to be heard, by the way?

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  4. Sarah and Anons 7:37, the only hopeful sound is that the Judge didn't grant the CCO, and that the Baynes get to spend additional months with their children in visitation. Some of us have earlier thought that the Judge would not certainly be so cruel by making this provision if the intent was later to grant the CCO anyway. For my part, I still believe this judgement is what it says it is, a window, perhaps an opportunity. Further, I am convinced that the Judge was objective and could not ignore the unexplained nature of serious injury regardless of his denial of the shaken baby allegation. Where this goes at the end of six months is anyone's guess and in that lies the lack of hope in my estimation.

    The MCFD's CCO application was quashed by Judge Crabtree, but there is no insurance that after six months, the MCFD may not again apply for a CCO. Interestingly, Judge Crabtree granted a Temporary Care Order but he may have misread the ACT by making it for six months when the ACT says a TCO is for three months. Did he simply err, or was that intentional? We don't know.

    An appeal at first glance may seem like a poor course of action yet as I understand it, filing that appeal now, it will still not be heard for six months. If after six months, the children are returned to the Baynes, then obviously, the appeal would be pulled. An appeal appears reasonable in the sense that the underlying justification for the CCO applications was the Shaken Baby allegation which the Judge dismissed and therefore without other evidence, an argument can be made that the children should have been returned. The appeal is not the Baynes' priority however. They are working on fulfilling MCFD expectations now.

    MCFD and the Baynes have met together and are working on a plan for these next six months, a plan which consists primarily of things that the Baynes must do to satisfy MCFD. Baynes are more than eager to do this because they have taken seriously Judge Crabtree's suggestion that these six months are an opportunity for them to prove their fitness and non risk capacity. They are positively committed to working their plan with the Ministry. Anticipating a return, the Baynes are also actively constructing their plan and schedule so that it will be seamless and thorough. Initial indicators are that the MCFD (present case workers) are sincere in working with the Baynes toward a return. I emphasize that there are no guarantees.

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  5. Yesterday, Ray Ferris put it something like this: The appeal is being filed as insurance, in case the director restarts a quest for a CCO. Negotiate in good faith, but trust no-one is the rule.

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  6. Regarding the risk of foster care, this book sounds like an authoritative account:


    "WOUNDED INNOCENTS illustrates how well-meaning efforts to help children have gone terribly wrong and how the current child-protection system desperately needs to be replaced with one that offers real help and real hope to abused and neglected children.

    "In his most excellent book, Wexler reports that sexual abuse of foster children by other foster children is epidemic and grossly underreported. A study found that 28 percent of children in Baltimore foster homes had been abused. A former New York Child Protective Services worker is quoted by Wexler as saying, 'Foster care is like Russian roulette.' . . . a well-documented, eye-opening expose of America's child protection system, which, Wexler contends, despite good intentions, creates more problems than it solves." John Rosemond, syndicated columnist."

    http://www.lfb.org/product_info.php?cPath=66&products_id=370

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  7. I'm not sure it is fair to publish Crabtree's decision - without at the same time letting the Baynes or Doug Christie respond to each assertion in the decision, whatever those assertions are. The Roadkill show addresses some of the judge's errors, but people should also see - on this blog - what those errors were. For example, Zabeth - on the Roadkill radio show - discusses how Crabtree deems her testimony unreliable merely because her accounts vary slightly over the course of time. But anyone with any common sense would know that of course an account is going to vary slightly. If it didn't vary, that might be reason to be suspicious!

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  8. For Anon 8:34 AM
    May I point out that the objective of this blog has consistently been to present the Baynes' and Doug Christie's explanations either in the blog posts themselves or in the comments that have followed. This post today is intended as the objective statement of the Crabtree reasons without anyone's subjective interpretation, including my own so readers can understand how the final conclusion resulted. People, including the Baynes and Christie are still at liberty to write comments.

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  9. When Judge Crabtree's ruling first came out, I stated that it was expedient and somewhat biased in favour of the ministry. I then started to rethink it and I found that he omitted reference to so many things, I said that he was cherry-picking both the evidence and the law. He totally ignored most of the guidelines under section 4 of the act. Out of the three options open to him when no CCO was made he easily picked the worst. Why? Obviously to save the ministry from extreme embarrassment. The only guideline he followed was the "best interest" of the children. Of course strictly as defined by the director. Best interests are whatever is convenient.
    I have now changed my view. I no longer think that the judgement was expedient. I now think that it was inane. For instance as Ron reminds us that one of the risk factors was that the parents did not change their position about the cause of the injuries in three and a half years!! Really? So if the parents never did anything, should they say that they did just to please the director? Did it occur to the judge for one minute that the accident happened exactly as the mother said it had? She was guilty of a moment of thoughtlessness, when she left her baby on the floor. Oh yes, I am sure that occurred to the judge many times over, but he could not bear to think about it. If that was the absolute truth, how could he live with keeping three children in limbo for over three years. How could he reconcile his role as judge in assisting such a prolonged and ruinious court battle? Could he not have done everything to facilitate a speedier conclusion, or is he merely a slave to process? Why did he take an eternity after the last day of evidence to give his judgement. Which is most likely that he was swamped with reading medical research into shaken baby? He did not address that issue very much. Was it perhaps that he simply could not make up his mind, torn between compassion for the plight of the parents and the children and the desire not to rock the establishment boat? One would need a heart of stone not to see how much these parents have suffered.

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  10. Ron,

    Regarding publishing Crabtree's decision (or anyone else's comments etc. that are defamatory to the Baynes). The problem is, that unless you actually publish rebuttals at the same time as slanderous comments are allowed, the allegations are out there for people to believe. Too many people still believe judges and social workers and doctors would never lie or doing anything wrong, so they (wrongly) will accept what these figures of authority assert.

    The Baynes already have enough of the world against them; I think it would only be fair to have a response to Crabtree's allegations and assertions. Crabtree was obviously wrong in his judgment, and he will be making defamatory assertions in his judgment. I think it is re-victimizing the Baynes by not having a simultaneous rebuttal of Crabtree's allegations and assertions.

    Too many people are just too ignorant of how MCFD and the system works. It just isn't fair (and definately not balanced) to have Crabtree's decision standing alone. I don't say you should censor it - I do think it should be published. Absolutely. But please have someone who is close to the case and who can provide meaningful and informed commentary defend the Baynes.

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  11. I guess the judge has never heard of Charles Smith.


    "Once considered an unassailable expert on child forensic pathology, an inquiry found that errors in Mr. Smith’s work were responsible, in part, for several people being wrongfully convicted and sent to prison for killing children.

    In addition, other reports and reviews have noted his errors; his findings have been lambasted numerous times in court in recent years.

    With his medical licence revoked, Mr. Smith is not expected to face further sanctions so the college may have the last word.

    Mr. Smith failed to gather relevant information and conduct appropriate investigations, he referenced social situations of parents that were irrelevant to the pathology and gave unscientific, speculative and unsubstantiated opinions, the college said.

    In Ms. Marquardt’s case, she said she found her two-year-old son tangled in his bed sheets, but Mr. Smith testified he was strangled or suffocated. Her conviction was overturned by the appeal court last month and a new trial ordered.

    Ms. Marquardt said Mr. Smith’s apology, medical licence revocation and reprimand aren’t enough to make up for the 14 years she spent in prison.

    “Personally I'd like to see him to go jail, at least feel a little bit of what we felt: fear for your life on a daily basis,” Ms. Marquardt said. “Live your life on a constant fight or flight and tell me how your body’s going to hold up to that.”"

    http://www.theglobeandmail.com/news/national/toronto/disgraced-pathologist-passes-on-his-own-disciplinary-hearing/article1956759/

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  12. Check out this BC Civil Liberties page:

    http://www.bccla.org/positions/admin/92familychild.html

    This position paper was written nearly twenty years ago, but the subjects of concern with respect to child removals are still very relevant today.

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  13. For anon 7:43 pm
    Please understand my position may not be your position. Judge Crabtree is not making allegations or slanderous comments about the Baynes. He is stating the evidence as it was presented to him by both sides in court or at least the way he has perceived the evidence. It is not considered defamation when a judge is rendering a result.

    As to answering the statements that he does make with which we might disagree or with which we contend, we have been doing that all along. Few are any closer to this case than Ray Ferris who has written comments almost every day for months, and myself and I have repeatedly stated my position.

    The objective today was to provide readers with a clear recitation of the Crabtree ruling and I respect readers enough to believe they can see what this is. Believe me there will be more criticism of this verdict to come in the days ahead.

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  14. Ron, I am very glad you are publishing the decision, and I do trust that readers, yourself and Ray will defend the Baynes admirably.

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