Vancouver Sun

Saturday 29 April 2000

Province ordered to pay $6.3 million to Baby Molly's family

Petti Fong and Jim Beatty Vancouver Sun The Vancouver Sun

KIM KIERKEGAARD: Foster mother blamed government.

A B.C. Supreme Court judge ordered the provincial government Friday to pay damages of $6.3 million to the family of Baby Molly, who was shaken into a permanent vegetative state while in foster care.

In a 65-page decision, Justice Frederick Melvin awarded the money -- one of the highest such awards in Canadian history -- for the negligence of the ministry of children and families.

The government was also found vicariously liable for the actions of foster mother Kim Kierkegaard, who admitted shaking baby Molly Delarone after the infant was put in her care.

Kierkegaard, a registered nurse, received a conditional sentence of two years less a day for aggravated assault, plus 100 hours of community service.

Molly, born to a drug-addicted mother, was taken into custody by the ministry almost immediately after her birth in February 1997. Today, Molly is three years old and has multiple ailments as a result of the severe shaking she received.

Her brain is badly damaged, she is blind, has spastic cerebral palsy, has 20 small seizures a day and must be fed by a tube into her stomach.

She will never be able to speak or walk and will always wear diapers. Her environment has to be closely controlled or she will suffer from larger seizures.

Ministry officials said Friday staff have not had time to fully assess the ruling.

"We respect the tragic loss by Molly and her family and the tremendous burden this case places on her caregivers," said Les Foster, the assistant deputy minister of management services for the ministry.

Melvin found that Molly will have a life expectancy of about 30 years, but regardless of how long she lives, the government must pay for her upkeep until she dies.

The $6.3 million, calculated as if Molly will live until the age of 30, will be paid out in yearly installments. It could rise if she lives longer.

On April 15 of every year, Molly will receive a cheque for approximately $300,000, said James Legh, the lawyer representing the child and her guardians, Cindy and Hans Engbrecht, Molly's aunt and uncle.

Legh said Friday the award is one of the highest in B.C. and Canada.

"The government was clearly negligent in what they did just because they placed her with Ms. Kierkegaard," said Legh. "In this context, the court has said you [the government] are responsible and they have to pay for what happened to Molly."

At her sentencing in 1998, the court heard that Kierkegaard had barely slept and had no training in dealing with such a troubled infant.

In court documents, Kierkegaard maintained the government was at fault as it placed Molly with her because there was no adequate placement available.

The ministry should not have allowed Molly to be released from hospital until an adequate placement was available, she said.

The government ought to have known Kierkegaard would not be able to adequately care for Baby Molly because Kierkegaard was already the sole caregiver for her seven-year-old son and a 13-month-old special-needs foster child, she said. A provincial official admitted the financial award is one of the largest of its kind in Canadian history because the damages will cover Molly's medical care until she dies.

The government had argued that it was not responsible for everything a foster parent does to a child, but the court disagrees, said Legh.

By failing to carry out their duty to make proper inquiries, the government did not act in "good faith," said Legh, and is not entitled to protection from liability.

In 1997, the ministry removed itself entirely from Molly's life, said Legh, and the Engbrechts now have complete custody. Care costs for Molly is currently about $240,000 a year.

Cindy Engbrecht, Molly's aunt who now cares for the badly injured girl, said the judgment will provide decent in-home medical care for the child's remaining years.

"Molly is now allowed to have a life," Engbrecht said Friday upon hearing news of the judgment. "This should have been offered right when this happened."

Engbrecht was highly critical of the provincial government, which she said has opposed the best interests of Molly.

Calling the government's actions insensitive and disgusting, Engbrecht said the family could have reached a long-term care agreement had the province not forced the issue into the courts.

While Molly's medical condition is grim, Engbrecht tries to be positive.

"She's beautiful. She is a wonderful little kid," said Engbrecht. "She gets so much enjoyment out of kindness, love and affection."

In the last few months, Engbrecht said, Molly has learned how to smile and recognize the smell of roses.