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CHILD PROTECTION - Permanent appointment or Crown wardship

Monday, July 29, 2019 @ 9:46 AM  

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Appeal by the paternal grandmother from an order of Crown guardianship without access. The subject child was born in 2016. The parents lived intermittently with the appellant and her husband. The mother was prescribed methadone during the pregnancy. The child required hospitalization following birth due to issues arising from methadone withdrawal. The Crown took protective care of the child shortly after his birth. The parents were offered extensive services but concerns regarding their parenting capabilities persisted. The concerns related to domestic violence, mental health, parenting practices, substance abuse, the parents’ ongoing conflict with the appellant and failure to attend meetings and appointments. The Minister applied for guardianship and the appellant applied for permanent custody. The application judge refused to hear the custody application prior to the guardianship application, as the grandparents were not parents and the child was already in the Minister’s care. The application judge concluded that the child needed protection and declined a supervision or access order in favour of the parents. Having granted Crown guardianship, the application judge dismissed the appellant’s custody application as moot. Alternatively, the application judge found that the child’s best interests were not consistent with the grandparents’ custody. The grandmother appealed.

HELD: Appeal dismissed. The application judge incorrectly interpreted the TAP precedent as requiring a hearing and determining a Crown guardianship application prior to consideration of a competing custody application. To proceed in such fashion foreclosed a reasoned consideration of alternative placements with interested third parties. The application judge was alive to the possibility she misinterpreted TAP and conducted an alternative analysis of the appellant’s application. The judge’s analysis concerning the best interests of the child was consistent with the statutory criteria and was not deficient. Although the judge’s best interests analysis could have been more detailed, it was sufficient. The evidence supported the conclusion that the need for continuity of care and the ongoing conflict between the appellant and the parents favoured the Crown’s position. No basis for appellate interference was established.

New Brunswick (Minister of Families and Children) v. C.H., [2019] N.B.J. No. 149, New Brunswick Court of Appeal, B.V. Green, B.L. Baird and R.T. French JJ.A., June 13, 2019. Digest No. TLD-July292019002