J.F. v. Newfoundland and Labrador (Child, Youth and Family Services)

Date: 20130827 Docket: 12/92 Citation: J.F. v. Newfoundland and Labrador (Child, Youth and Family Services), 2013 NLCA 55 THERE IS A PUBLICATION BAN ON THE NAMES AND ANY OTHER IDENTIFYING INFORMATION OF THE CHILD REFERRED TO HEREIN, AS WELL AS THE NAMES OF HER BIOLOGICAL PARENTS, RELATIVES AND FOSTER FAMILIES, PURSUANT TO S. 52 OF THE CHILDREN AND YOUTH CARE AND PROTECTION ACT, SNL 2010, c. C-12.2 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: J.F. APPELLANT AND: MANAGER OF CHILD, YOUTH AND FAMILY SERVICES RESPONDENT Coram: Barry, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (F) 201102F0969 Appeal Heard: June 7, 2013 Judgment Rendered: August 27, 2013 Reasons for Judgment by Hoegg J.A. Concurred in by Barry and White JJ.A. Counsel for the Appellant: Self-Represented Counsel for the Respondent: Annette Duffy Page: 2 Hoegg J.A.: INTRODUCTION [1] J.F. appeals a decision of the Supreme Court Family Division which denied her custody of and access to her grandchild S.F. BACKGROUND [2] S.F. is one and one-half years old. She was removed from the custody of her mother, L.F., at the Health Sciences Centre the day she was born. The following day the Manager of Child, Youth and Family Services (the “Manager”) applied for a six-month temporary custody order respecting S.F. on the basis that she was a child in need of protection. A month later the Manager amended her application to seek continuous custody of S.F. The Manager’s application was made pursuant to the provisions of the Children and Youth Care and Protection Act, SNL 2010, c. C-12.2 (the “CYCP Act”). [3] Six days after S.F. was born, her grandmother, the appellant J.F., filed an application for custody and access. J.F.’s application was made pursuant to the provisions of the Children’s Law Act, RSNL 1990, c. C-13 (the “CL Act”). The Family Division Proceedings [4] The Manager’s and J.F.’s applications were heard together (as permitted by section 59 of CYCP Act) on September 17 and 18, 2012. L.F. did not respond to either application, and did not attend or otherwise participate in any of the court proceedings. A judge of the Family Division found S.F. to be a child in need of protection under subsections 10(1)(a) (at risk of physical harm), (c) (at risk of emotional harm), (m) (living with a parent prone to violence) and (n) (abandonment) of the CYCP Act, and under the same legislation granted continuous custody of S.F. to the Manager. [5] J.F.’s application for custody and access under the CL Act was denied. The reasons the judge gave for denying J.F.’s application were that J.F. did not demonstrate that she could provide S.F. with a stable home environment or that she (J.F.) had the ability to act as a parent to S.F. The judge also concluded that granting J.F. access to S.F. would impede S.F.’s right to be provided with a “loving, nurturing and stable home environment through adoption”. Page: 3 [6] In making her decision, the judge relied on evidence adduced at the hearing as well as previous court decisions respecting J.F.’s parenting of her own six children. The Appeal [7] J.F, who is self-represented, appeals the judge’s decision to deny her custody and access on 12 grounds. At the appeal hearing, she abandoned some of these grounds and added others. In essence, her grounds of appeal fall into four categories: 1) failure to give weight to J.F.’s submissions; 2) erroneous procedural rulings; 3) erroneous reliance on previous court decisions involving J.F. and her own children; and 4) failure to consider evidence of J.F.’s suitability to parent S.F. ANALYSIS Failure To Give Weight To J. F.’s Submissions [8] J.F. submitted that children in care (foster children and children in respect of whom continuous custody orders have been made) often suffer sexual abuse and continue to encounter problems. She submitted that her own daughter L.F., S.F.’s mother, suffered sexual abuse while in care, and alleged that during this time the Department of Child, Youth and Family Services did not adequately protect and supervise her. J.F. argues that the judge ought to have considered these submissions in deciding to deny J.F.’s application and award continuous custody of S.F. to the Manager. J.F. called no evidence in support of her submissions although the court was aware of L.F.’s problems and her allegations of sexual abuse by virtue of the Manager’s evidence relating to the child protection application. [9] In this case there was no contest to the Manager’s position that S.F. was a child in need of protection, and the evidence clearly established that she was. [10] The abuse of children is a serious matter, and J.F.’s concerns based on what she believes her own daughter experienced are understandable. The Manager’s plan, if granted continuous custody of S.F., was to profile her for adoption. Although not detailed, the plan did not raise any concerns that S.F. would be subject to abuse or situations which would cause her problems. Page: 4 [11] The issue before the court was S.F.’s best interests, and L.F.’s past experience does not establish that a significant risk would arise from the Manager’s plan. The judge’s decision indicates she was well aware of L.F.’s past difficulties and allegations of sexual abuse while in foster care, as noted in paragraphs 11 to 15 of her judgment, but she had no obligation to address J.F.’s arguments in these regards as factors in deciding J.F.’s application for custody and access. Procedural Rulings [12] At the hearing, J.F. sought to introduce into evidence a tape recording of a voice mail message dated July 2009 from a social worker who had been involved in the child protection and custody proceedings respecting J.F.’s youngest son. That social worker, Bethany Woodman, is the same social worker who was involved in this case. The voice mail message purportedly related to J.F.’s allegation that not she, but the Department of Child, Youth and Family Services, was responsible for J.F. not exercising access to her youngest son as had been ordered in one of the earlier court decisions. The judge ruled the recording inadmissible. J.F.’s questioning of Ms. Woodman on this matter was also curtailed by the judge. [13] The record shows that when J.F. was seeking to introduce the voice mail recording at the hearing, she was focused on explaining that it was the Department’s actions that resulted in her failure to exercise the limited access to her son which she was awarded (her son is in the custody of his father’s parents). J.F.’s curtailed questioning of Ms. Woodman related to the same issue. [14] J.F.’s failure to exercise access to her son appears to result from different interpretations of the 2009 court decision which decided the matter. In the years following the decision, J.F. had not sought directions from the court to clarify the terms of access so she could see her son. (See J.F. v. T.P.S., 2011 NLCA 70, paras. 48 and 49.) Nevertheless, during the hearing of her application regarding S.F. she was determined to cast blame on the Department for her failure to exercise access to him. The interpretation of the 2009 judgment had little relevance to J.F.’s application for custody of and access to S.F., which the judge tried to explain to J.F. Accordingly, it cannot be said that the judge erred in exercising her discretion to exclude the tape recording or curtail J.F.’s questioning of Ms. Woodman on this issue. Page: 5 [15] J.F. also asserts that the judge erred in limiting J.F.’s cross- examination of Ms. Woodman on another issue as well as J.F.’s examination of witness Curt Hillier. [16] A review of Ms. Woodman’s transcribed evidence shows that J.F. was questioning Ms. Woodman on matters relating to security surrounding J.F.’s visits to L.F. while L.F. was in hospital giving birth. In response to the questioning, Ms. Woodman said that she had either no knowledge, or limited and indirect knowledge of the hospital security matter. Counsel for the Manager objected to J.F.’s persistent questioning. The judge sustained the objection, and attempted to explain to J.F. that Ms. Woodman could not provide any useful or relevant evidence in response to J.F.’s questions. In this circumstance, there is no basis on which to interfere with the judge’s ruling. [17] During J.F.’s cross-examination of Ms. Woodman, an issue arose respecting service on the Manager of J.F’s application for custody and access of S.F. J.F. suggested that she had attempted to have a process server serve her application on the Manager on November 4, 2011, but that service was refused. J.F. questioned Ms. Woodman about this, and Ms. Woodman stated she had no knowledge of attempts at prior service. J.F. then attempted to give evidence respecting the matter herself. Counsel for the Manager objected. Thus ensued a discussion concerning whether J.F. could testify a second time so as to put the evidence respecting the issue of ineffective service on the record. Counsel for the Manager opposed J.F. testifying a second time. The judge agreed, and told J.F. that she could not do so, and that in any event, the evidence she was attempting to adduce was of questionable relevance. [18] In my opinion, the judge did not err in ruling as she did. J.F. had testified, and therefore had already had the opportunity to give evidence regarding the allegedly futile attempt to serve the Manager on November 4, 2011. While it is within a judge’s discretion to permit a witness to be recalled to give additional evidence, it is also within his or her discretion to deny a request to do so. While some latitude must be given to unrepresented litigants like J.F., there is no basis upon which to interfere with the judge’s exercise of discretion to deny J.F.’s request to testify a second time. The evidence J.F. wished to give was not relevant to S.F.’s best interests and was of no consequence to J.F.’s application. Earlier service on the Manager would have made no difference. The Manager was ultimately served on Page: 6 November 18, 2011 and J.F.’s position was not prejudiced in any way by the purported delay of two weeks. [19] J.F.’s questioning of Curt Hillier, a clinical psychologist whom J.F. called to give evidence, was also circumscribed by the judge. The record shows that J.F. was questioning Mr. Hillier with respect to the contents of psychiatric reports authored by Dr. David Craig which had been evidence in one or more of the previous court proceedings involving J.F. and her children. The judge curtailed the questioning. [20] Dr. Craig’s reports were not before the Court, and neither J.F. nor Mr. Hillier had copies of them. Questioning about them was taking place in a vacuum, making it susceptible to misunderstanding and error. Any evidence garnered in this manner could well be unreliable, if not worthless. As well, Mr. Hillier is a psychologist. As such, he was not qualified to comment on Dr. Craig’s psychiatric reports in the manner requested by J.F. In these circumstances, the judge properly exercised her discretion to curtail J.F.’s questioning of Mr. Hillier. Reliance on Previous Court Decisions [21] There are six court decisions respecting J.F. and her own children - three are Family Division decisions and the other three decisions are from this Court respecting appeals of the three Family Division decisions (the “J.F. decisions”). The Manager relied on these cases in support of her position that J.F. not be granted custody of or access to S.F. [22] The judge agreed with the Manager’s position, relying on section 48 of the CYCP Act and the reported decision in Newfoundland and Labrador (Director of Child, Youth and Family Services) v. F.(J.), 2006 NLCA 35, 259 Nfld. & P.E.I.R. 296 (F(.J.)) to support her use of the J.F. decisions as evidence. In denying J.F.’s application, she said at paragraph 92: … the parenting history involving the children of J.F. clearly gives rise to a concern that there would be no stability for S.F. if such a custody or access order [to J.F.] was granted. At paragraph 96 the judge summarized that: … the evidence of J.F.’s past parenting practices, her continued inability to remain child-focused, her refusal to acknowledge any parenting shortcomings on her part and her failure to pursue any counseling or parenting courses since the Page: 7 Third Trial Decision lead to the conclusion that it is not in the best interests of S.F. to make a custody or access order in favour of J.F. [23] J.F. argues that the judge erred in admitting and relying on the J.F. decisions, and that she (J.F.) was not treated fairly in the process. [24] Section 48(2) of the CYCP Act provides that: (2) In a proceeding under this Act, a judge may admit and act upon (a) the evidence, including hearsay, that the judge considers relevant and reliable in the circumstances; (b) an oral statement which has been video-taped; (c) a written statement; (d) a report the judge considers relevant, including a transcript, exhibit or finding in an earlier civil or criminal proceeding; and (e) evidence taken and a declaration made at a prior proceeding under this Act or under a similar statute. (Emphasis added.) [25] The F.(J.) case is the appellate decision respecting the second child protection hearing involving J.F.’s children. One of the issues in that appeal was whether the judge presiding over the second child protection hearing had erred by relying on evidence taken and decisions made in the first child protection hearing and appeal. (The first child protection hearing involved J.F. and her four oldest children; the second one involved J.F. and her fifth child.) In F.(J.), this Court decided that the judge presiding over the second child protection hearing did not err by admitting evidence given and decisions made in a prior child protection hearing, saying it was permissible to accept evidence “not tested by the normal strictures of adversarial proceedings” in order to give paramount consideration to “the best interests of the child” in accordance with the objects of the child protection legislation. [26] Both the first and second child protection hearings at issue in F.(J.) had taken place pursuant to the Child, Youth and Family Services Act, SNL 1998, c. C-12.1 (CYFS Act). The CYFS Act was the precursor statute to the CYCP Act. Section 50 of the CYFS Act is the precursor to section 48 of the Page: 8 CYCP Act, and it is identical to section 48 of the CYCP Act in all respects relevant to this matter. [27] The facts of this case, however, are different from those in F.(J.). In F.(J.), the questionable evidence was tendered in the second child protection hearing which was governed by the CYFS Act and section 50 thereof which specifically permitted such evidence to be “admitted and acted upon”. In this case, the judge was deciding an application under the provisions of the CL Act, which does not provide for the consideration of such evidence. [28] Section 48(2) of the CYCP Act like section 50(2) of the CYFS Act, provides that “in a proceeding under this Act” evidence taken and declarations made at a prior proceeding and relevant reports, exhibits and findings in earlier civil or criminal proceedings can be admitted and acted upon. [29] It was in deciding J.F.’s application under the CL Act that the judge used the J.F. decisions. The fact that the Manager’s and J.F.’s applications were heard together does not alter the law applying to each of them. The plain wording of section 48(2) restricts its applicability to proceedings under the CYCP Act, which is consistent with the general rule that an authorizing section in one enabling statute does not apply to proceedings in another enabling statute unless specifically stated. For this reason, the judge could not rely on section 48(2) of the CYCP Act to support her use of the previous J.F. decisions in deciding J.F.’s application under the CL Act. [30] Subsections 31(1) and (2) of the CL Act, stipulate that the merits of an application for custody of and access to a child pursuant to that Act are to be decided on the basis of the best interests of the child in consideration of all of his or her needs and circumstances. Subsection 31(3) sets out the circumstances in which a person’s past conduct can be considered in a current application: (3) In assessing a person's ability to act as a parent, the court shall consider whether the person has ever acted in a violent manner towards (a) his or her spouse or child; (b) his or her child's parent; or (c) another member of the household, Page: 9 otherwise a person's past conduct shall only be considered if the court thinks it is relevant to the person's ability to act as a parent. (Emphasis added.) This provision is a clear acknowledgment that past conduct may be considered in assessing a person’s ability to parent “if the court thinks it is relevant to the person’s ability to act as a parent.” [31] This Court considered whether evidence of past parenting conduct is relevant in an assessment of a person’s current ability to parent in B.(J.)(Re) (1998), 166 Nfld. & P.E.I.R. 1 (Nfld. C.A.). In B.(J.), a father in a child protection hearing challenged the admissibility of evidence respecting his past parenting conduct, arguing that the evidence respecting his past parenting was inadmissible because it did not satisfy the criteria of the similar fact rule. In finding that evidence of past parenting practices was relevant and admissible for a court’s consideration in a current child protection proceeding involving a different child, this Court said, at paragraph 92: [92] We conclude, therefore, that evidence of past parenting practices in relation to other children and family members is relevant to a determination of the fitness and ability of a person to parent a child who is alleged to be in need of protection and does not offend, and should not be excluded by, the application of the similar fact rule where the issue before the court is the custodian's parenting ability as a ground for the claim that the child is in need of protection. The determination in such circumstances involves a prediction as to whether the child is at risk in the future. The making of that determination necessarily involves an assessment of overall parenting ability which, in turn, can only be demonstrated by past actions and attitudes. Since it is the whole person who is being assessed, it would be artificial to limit the consideration of such past acts and attitudes to those which relate only to the child in question. [32] J.F.’s position in these proceedings is different from that of the father in B.(J.) in some respects. In this case, J.F. was an applicant for custody of and access to her grandchild, whereas in B.(J.) the biological father was a respondent to a child protection application. Both cases, however, squarely raised the issue of whether evidence of past parenting conduct (whether towards the same or a different child) is relevant to a court’s assessment of a person’s current ability to act as a parent. While the child-parent dynamic can differ over time and between different children, B.(J.) makes clear that proffered evidence of past parenting practices will shed light on a person’s ability to parent any child. Page: 10 [33] In this case, the judge was correct to recognize the relevance of the evidence and findings in the J.F. decisions relating to past parenting practices. Given this relevance, the question becomes whether the findings, and evidence on which the findings are based, are admissible by tendering the J.F. decisions, or whether they must be proved afresh. In B.(J.), there was no previous court decision, so the evidence of the father’s past parenting conduct was tendered afresh through witnesses. [34] The Supreme Court of Canada addressed whether prior court judgments are admissible as proof of their findings and conclusions in British Columbia (Attorney General) v. Malik, 2011 SCC 18, [2011] 1 S.C.R. 657. Malik was a civil case based on debt, breach of contract, conspiracy, and fraud. A chambers judge had granted an Anton Piller order to the Crown to search the business and residential properties of the Maliks for evidence that they had concealed their assets in order to obtain state funding for Mr. Malik’s legal defence to criminal charges. In granting the order, the chambers judge relied on findings and conclusions made in a previous decision on a Rowbotham application the Maliks had taken. The British Columbia Court of Appeal set aside the Anton Piller order on the basis that the Rowbotham findings and conclusions were for the most part inadmissible, and without them, the evidence was insufficient to justify the order. [35] In an unanimous decision, Binnie J. wrote that the Rowbotham judgment was admissible as proof of its findings and conclusions in the subsequent civil proceedings, explaining at paragraph 7: … a judgment in a prior civil or criminal case is admissible (if considered relevant by the chambers judge) as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, provided the parties are the same or were themselves participants in the prior proceedings on similar or related issues. It will be for that judge to assess its weight. The prejudiced party or parties will have an opportunity to lead evidence to contradict it or lessen its weight (unless precluded from doing so by the doctrines of res judicata, issue estoppel or abuse of process). Justice Binnie noted that admissibility of previous court findings and conclusions is separate and distinct from whether, once admitted, they are conclusive and binding, stating that it would be up to the sitting judge in the subsequent case to decide “the weight to be given to an earlier decision” which “will rest [on] … the opportunity given to the prejudiced party to contest it”. He noted that in Malik, the contending parties had been heard in Page: 11 the usual adversarial way before the judicial pronouncements in Rowbotham. Justice Binnie also explained that the Supreme Court had previously emphasized that “public interest in the avoidance of duplicative litigation, potential inconsistent results, undue costs and inclusive proceedings” facilitates effective justice, concluding at paragraph 52, that: It would have been wasteful of litigation resources and potentially productive of mischief and inconsistent findings… to have required the chambers judge to put aside [the Rowbotham ] judgment and require the Province to litigate the Rowbotham facts de novo on an interlocutory motion. See also Gosse v. House (1997), 158 Nfld. & P.E.I.R. 31 (Nfld. T.D.) in which Hickman C.J. reached a similar result in a different factual context. [36] Findings and conclusions made in court proceedings are fixed in time. They are made on the basis of facts and circumstances established when the case was being heard and decided. But time marches on, and people and their circumstances change. In matters involving the welfare of children, it could be that a party who was incapable of parenting a child in previous years has changed his or her lifestyle or improved his or her circumstances such that he or she is now able to parent a child, whether that child is the biological child, grandchild or an unrelated child of the party. It is therefore necessary, as stated by Justice Binnie in Malik, that a party prejudiced by the evidence of findings and conclusions reached in prior court decisions be given an opportunity to show that he or she has changed or that his or her circumstances have changed so as to influence the weight to which the judge in a current proceeding ought to give to the prior findings and conclusions. [37] In this case, I note that J.F. was a full participant in the proceedings related to each of the J.F. decisions. She called evidence in the three child protection hearings and she was represented by counsel both in the three first-instance proceedings in the Family Division and on the three appeals. The findings and conclusions from the J.F. decisions relied on by the judge were therefore based on evidence which had been previously tested in the usual adversarial manner. [38] J.F. also had notice that her parenting ability respecting her own children would be a significant issue at the hearing of her application for custody of and access to S.F. The Manager’s March 5, 2012 reply to J.F.’s application clearly states that J.F.’s extensive child protection history would be relied on by the Manager in opposing J.F.’s application, and sometime Page: 12 before the hearing commenced on September 17, 2012, J.F. was served with a copy of the Manager’s Book of Documents containing the six J.F. decisions. J.F. was therefore aware that her past parenting conduct would be an issue on her application for custody of and access to S.F. and she had the opportunity to prepare to challenge the findings and conclusions in the J.F. decisions and/or show that she and her circumstances had changed. [39] At the hearing of her application, J.F. did attempt to challenge the findings and conclusions in the J.F. decisions by questioning the contents of Dr. Craig’s reports which had been found to support the J.F. decisions. It was J.F., in her attempt to diminish the weight of the J.F. decisions, who brought these reports to the court’s attention. In furtherance of her attempted challenge, J.F. called Mr. Curt Hillier to testify on her behalf. Mr. Hillier was able to give some evidence for J.F. respecting reports he had provided for the earlier proceedings as well as a current personality assessment of J.F. [40] However, Mr. Hillier’s evidence was not of much assistance to J.F., for he was not prepared comment on J.F.’s current parenting ability due to the limited nature of his assessment of her. Mr. Hillier also advised the Court that at the time he wrote the first two of his reports for the earlier proceedings, which reports were supportive of J.F., he had not been fully informed of J.F.’s circumstances. Mr. Hillier’s testimony in this regard undermined the reliability of the reports he had provided in the previous court proceedings. [41] J.F. also gave evidence, and therefore had the opportunity to advise the Court of her current health and circumstances, and any changes which may have occurred since the J.F. decisions. However, J.F. did not testify or otherwise demonstrate that she or her circumstances with respect to her parenting ability had changed from when the J.F. decisions were made. [42] Given the circumstances outlined above, it must be concluded that J.F. was treated fairly with respect to the judge’s use of the findings and conclusions in the J.F. decisions, and that she did not suffer any procedural prejudice in the process. She had a fair opportunity to challenge the findings and conclusions of the J.F. decisions, of which she availed, and a fair opportunity to advise the Court of any changes in her health and circumstances, of which she also availed. As well, the record reveals, as stated by counsel for the Manager in her factum, that there were several instances during the hearing when the judge very respectfully assisted J.F., Page: 13 and at times adjourned the hearing so that J.F. could collect herself and determine her next course of action. [43] J.F. also alleges that the judge misapprehended one of the prior decisions, as indicated by her statement at paragraph 70 of the decision that Dr. Jeffery did not testify in one of the previous cases when in fact he did. My review of the J.F. decisions shows that Dr. Jeffery testified at the first and third child protection proceedings involving J.F. and her children. The judge stated in her decision that Dr. Jeffery did not testify at the third hearing. This misstatement of an incidental fact was not material to the judge’s decision and is not a palpable and overriding error which would justify interference by this Court. Failure to Consider J.F.’s Suitability to Parent S.F. [44] As indicated above, an application for custody and access of a child under the CL Act must be determined on the basis of the child’s best interests. Section 31(2) of the Act sets out a non-exhaustive list of factors for consideration in the determination, among which are the applicant’s ability to act as a parent (section 31(2)(e)), the applicant’s ability to provide the child with guidance and education, the necessaries of life and the special needs of the child (section 31(2)(d)), the permanence and stability of the family unit in which it is proposed the child will live (section 31(2)(g)), and plans proposed for the child (section 31(2)(f)). [45] In this case, the judge assessed the evidence in consideration of all of the enumerated factors applicable to J.F.’s application, as shown at paragraphs 47 to 94 of her decision. The judge found that because J.F. had only seen S.F. once as a newborn, J.F. had no emotional bond with the child. The judge noted J.F.’s willingness to try to parent S.F. but that she did not have a plan to do so. The judge found that J.F.’s living circumstances would not provide stability to S.F, and the judge was not satisfied that J.F. had the ability to act as parent. J.F.’s inability to act as a parent was an important factor in the judge’s decision, and the judge’s conclusion on that factor, while in large measure based on the J.F. decisions, was also based on all of the other evidence tendered at the hearing, including J.F.’s own testimony. [46] In considering J.F.’s ability, or suitability as J.F. puts it, to act as a parent, the judge addressed the evidence of Mr. Hillier, called on J.F.’s behalf, to the effect that he was not able to comment on J.F.’s ability to parent without further investigation, including a home assessment, and that Page: 14 he was not prepared to comment on the reports of Dr. Craig which J.F. had brought to the Court’s attention. The judge also addressed J.F.’s own evidence, noting that although J.F.’s desire to parent S.F. was well meaning, there was no evidence that J.F.’s ability to parent had changed since the J.F. decisions and that the evidence did not dispel the concerns of the previous courts with respect to J.F.’s parenting of her own children. In short, the judge found, on all of the evidence, that J.F.’s ability to act as a parent was wanting. In these circumstances, it cannot be said that the judge failed to consider J.F.’s suitability to parent S.F. DISPOSITION [47] In the result, J.F. has not demonstrated that this Court ought to interfere with the Family Division judge’s decision to deny her custody of and access to S.F. Accordingly, I would dismiss J.F.’s appeal. L. R. Hoegg J.A. I concur: L. D. Barry J.A. I concur: C. W. White J.A.