REPORT OF THE HEARING RE: JOSIAH CUSTODY

Acknowledgement: Four individuals supplied me with accounts of Friday's court proceeding. Thank you.

Surrey Provincial Court Building Entrance

Preface: This was a hearing specific to Josiah Bayne, who is now several weeks old and who was removed from his parents' custody on the day of his birth February 10, 2011. His three siblings are the subject of a case that was decided on March 2, 2011 with an outcome that they remain in foster care for six months. The case files for all three Bayne children have been transferred from the Hope Team to the Guildford (Surrey) Team and Matthew Walker is now the primary caseworker with the Bayne family. On this day the court was to hear and make a ruling on MCFD's application for an Interim Custody Order for Josiah. Loren Humeny (Hope Office) has been the primary case worker for the past 3.5 years and he was present to give testimony. Paul Bayne whose failure to testify during the 2010 court case was noted by Judge Crabtree, did testify today, as did Zabeth. Doug Christie was present to represent the Bayne family.
The Hearing took place in the Surrey Provincial Court House in room 313 on Friday, April 1, 2011, 9:30 AM.

MCFD Spoke First: Legal counsel Dean Tate (not Finn Jensen), stated that this was a Presentation Hearing and as such it is a summary hearing and must be dealt with summarily without any cross examination. Any cross examination today was supposed to be of a limited nature because whether Josiah needs protection would be a matter to be heard at a later date. (MCFD wanted to limit Christie's involvement as much as possible). Then Mr. Tate began a history of Josiah's sister, Bethany. Social Worker Loren Humeny's affidavit was submitted. Doug contested the fact that the defense (he and the Baynes) had not seen this to review it ahead of time. Dean Tate said he sent it to Doug on Monday. Doug said he had not seen it and court recessed long enough for Doug to review it.

Seeking an Interim Order at this Presentation Hearing, counsel Dean Tate gave an overview of the court case of 2010 in which MCFD sought a Continuing Care Order (CCO) for Josiah's three siblings. To support MCFD's claim that the infant, Josiah, should not be returned to the Baynes, Tate pointed to Judge Thomas Crabtree's ruling that he deemed there was still some risk and that the three children should remain in care for six months. This showed reasonable risk exists, and he referenced the fact that Josiah is now the age that Bethany was when she was injured. (The relevance of that comment is lost to most of us and hopefully to the Judge as well).

Doug Christie Spoke: He informed the court that he would show that the Bayne's are capable of effectively caring for Josiah. He underscored that this hearing concerning this baby was extremely important because the other three Bayne children were in MCFD care for three years before their case even came to court. He informed the judge that Bethany (age 3) had not grown up with her parents and that the two boys knew their parents and wanted to be back home with them. This same painful separation should not happen to Josiah. Christie said that the baby belongs with his mother who is still breastfeeding him. (Imagine that! The child is transported to feedings).

Loren Humeny took the stand: Legal counsel Dean Tate established that Mr. Humeny became involved with the Bayne case on October 1, 2007. Then Tate with questions dialogued with Mr. Humeny to review the case and to reinforce the MCFD position that risk still exists to have the three children and Josiah returned to their parents.

Doug Christie then cross examined Mr. Humeny. During the course of this, Mr. Humeny admitted that Judge Crabtree did not find any form of intentional injury to Bethany; agreed that it was an unexplained accident; admitted that MCFD removed the baby before knowing the Judge's decision concerning the other three children. Mr. Humeny also said that he removed the infant on the order of Martin Bartel, Berhe Gulbot and Bruce McNeill, and concurred that he removed the child based upon a suspicion. He acknowledged that he had permitted the Baynes to live with the two boys in a supervised situation previously and that they had been removed because of a TV program about the case. Mr. Humeny confirmed that Josiah had been involved in a car accident while being transported by MCFD contracted supervisor and responded to queries about whether the accident was reported to police and whether the child was taken to hospital. Mr. Christie raised the matter of injuries sustained by the second child, Baden before the birth of Bethany, and Mr. Humeny agreed that Baden had been diagnosed by MCFD's own medical experts as being extremely premature, and affected by osteopenia of prematurity and that on that occasion a full investigation was done and the parents were absolved. He answered affirmatively that he had never seen any injuries on Baden or Kent and also that there had never been any problems during the period of the supervised access with the two boys. Mr. Humeny also concurred that he had acted on the presumption of non accidental injury prior to any ruling by a judge and that he relied solely upon Dr. Margaret Colbourne's shaken baby syndrome diagnosis with respect to Bethany's injuries.

Doug submitted that it was now an impossible task for the Baynes to prove that they are competent parents, capable of looking after our children. His question was, how can they demonstrate this if they are provided with the opportunity. When asked, Loren agreed that MCFD opposes the parents having the unsupervised care of their children in their home. He further explained that among their reasons is that social workers have had no meaningful dialogue with the Baynes and no insight into Bethany's injuries. They have no working relationship and meaningful communication.

He said they wanted a reasonable explanation for Bethany's injuries and that the Baynes had been inconsistent with two explanations though the latter one is most consistent now. He referred to the fact that the Baynes referenced the fall of one child on the infant girl as one explanation and the car ride to the hospital as the second explanation. That was viewed as inconsistent. (What appears to be forgotten is the emotion and worry of those hours and days when the parents themselves were seeking to understand what was happening to their girl and scrambling for the plausible cause.) Doug submitted that the Baynes had voluntarily taken Bethany to four different hospitals seeking help for her. Loren agreed it had been voluntary.

Social Worker Matthew Walker took the stand: He gave testimony as to the current social work relationship with the Baynes and the meetings that have already been held with them and the programs in which the Baynes have agreed to participate. He said Josiah is thriving. As to the minor vehicle accident in which Josiah was a passenger, the RCMP didn't feel a report was warranted. The baby received medical review and there were no concerns. He did not feel it safe to return Josiah at this point as there is still some question of risk.

Paul Testified: Paul was asked plainly, “Did you shake Bethany?” Paul answered “No.” He was asked whether Zabeth had shaken Bethany. Again Paul answered, “No.” When he was asked what happened, Paul gave a summary of the events, how they had sought help but to no avail; the trips to the hospital where no help was given and then the last trip to Children's Hospital. Then Paul was asked what they have done to prepare for Josiah as well as the other children to come home. Doug led Paul through the floor plans of their home and provisions that they have made for their children. Paul went through pictures of their home, 60 pictures taken professionally by Realtor Jim Gammer, Floor plans that were written by Roy Ingbre, and this was presented on a DVD as evidence for the Judge to review. Doug discussed Paul's custodial business and the amount of income derived. Doug asked who would be caring for the children if they were to come home. Paul said Zabeth would be a stay at home mom and that they have a network of supportive friends upon whom they can rely. Moreover, he and Zabeth have enrolled in several courses, a First Aid Course, the Project Parent and a couple of others.

Ray Ferris' Parental Capacity Test: Doug tried to file Ray Ferris' PCA but lawyer Dean Tate strongly opposed this, citing guidelines for submitting such evidence had not been followed. Most importantly, Ray Ferris is an advocate for the family and has demonstrated that bias, Tate declared. He would need to go through a voir dire for qualifications and must appear in person. Dean Tate submitted the letter Ray wrote to Bruce McNeill and also an email to this lawyer himself which he argued, showed bias. Doug countered this by demonstrating how MCFD only submits reports that support their opinion and that could similarly appear biased. Doug said he never submits a report that is unsupportive of his client. Is that bias? He also pointed out the strong qualifications and experience that Ray Ferris has to do the report. The Judge ruled that Ray Ferris was most biased and would not accept the filing of his parental capacity test report.

Zabeth's Testimony: Mr. Christie asked Zabeth how her children were doing in care and whether there had been incidents of concern. She responded that Bethany had displayed bruises on her arm at one time that looked like finger marks. She said the boys had been disciplined in the second home by spanking and cold showers. She told about the vehicle accident in which Josiah was involved and the concerns she had and the time taken before notifying her of details. She was asked about Josiah's removal from hospital, and whether she was breastfeeding and how the removal had affected the feedings. She was asked whether the Baynes would be willing to have Josiah back home under the supervision of the Ministry to which she said “Yes.” Would they be willing to have a social worker drop in at any time to see them, to which she said, “Yes.” Would they be willing to have a ministry nanny come to live in the home with them, to which she said, “yes.” She was asked about the Baynes' relationship with MCFD and she said it had not been a good one but she was hopeful that with the new social worker they would be able to have a better working relationship. Doug Christie asked her why they had been categorized as unwilling to cooperate with MCFD in the past and she said it was because the Ministry wanted them to admit that they had shaken Bethany and then the Ministry would work with them. They did not admit to something that they did not do and they found that the Ministry was unwilling to work with them. MCFD also cross examined her briefly reviewing incidents that Zabeth said had happened in the foster homes.

Both Tate and Christie had summation opportunities in late afternoon.

Conclusion: The Judge said that he was not ready to give an order and required time to read the necessary documentation and submitted evidences, and did say that he would give a written decision quickly. It would appear that he considers his options to be granting an Interim Order so MCFD keeps Josiah in care, OR, he grants a Supervision Order which would return Josiah to the Baynes with conditions. A meeting is scheduled for April 21. Court concluded at 3:55 PM