Can I Petition for Guardianship Before the CPS Assesment is Complete

[powerof3]

My question involves child abuse or neglect in the State of: Virginia

My cousin is being "assessed" by CPS because her son was born exposed to illegal drugs. The caseworker advised me that once the assesment is complete and if it is determined that the baby cannot stay with his mom CPS will ask the mom who she wants to sign guardianship over to, which would be me and my husband per my conversation with her a few weeks ago. If mom doesn't coperate with the caseworker than CPS will go to a judge to have the baby removed from her care and baby will go to a licensed foster home.

In my opinion, no assesment is needed; mom did illegal drugs while pregnant causing withdrawals and other side effects to her son = child abuse. Here is what the statue says:

Physical Abuse
Citation: Ann. Code § 63.2-100

'Abused or neglected child' means any child younger than age 18:
Whose parents or other person responsible for his or her care creates or inflicts, threatens to create or inflict, or allows to be created or inflicted, upon the child a physical or mental injury by other than accidental means, or creates a substantial risk of death, disfigurement, or impairment of bodily or mental functions

Can I petition for guardianship before the assesment is complete and use the above information?

[aardvarc]

You can, but the court is STILL going to wait for CPS to complete THEIR assessment. Keep in mind that even in worst case drug scenarios, the end goal of both the courts and CPS is to ultimately return the child to the parent, even if a temporary guardianship is put in place. How likely that is to happen depends on (a) the results of the assessment - ie if mom has been clean or is getting help for her drug problem, and (b) how successful mom is at completing any ordered drug treatment program.

[powerof3]

So if I am able to obtain guardianship through my own petition and then CPS concludes it's investigation and it is determined that the baby can be returned is that all the court/judge will need to revoke the guardianship?

[Mr. Knowitall]

Based upon what you've told us so far, unless mom is going to request that you become guardian, you will not get custody based upon your own petition. You've given no evidence that mom is unfit, that you have standing to try to take away her child, or that you can show by clear and convincing evidence that the child should be placed with you. You've also told us nothing about dad, who would be first in line to get custody if mom is deemed unfit.

The drug use is being investigated, and may or may not be grounds for the child's removal, but you haven't yet shared any facts that would compel a finding of parental unfitness. What else do you have that would show unfitness?

[powerof3]

Based upon what you've told us so far, unless mom is going to request that you become guardian, you will not get custody based upon your own petition. You've given no evidence that mom is unfit, that you have standing to try to take away her child, or that you can show by clear and convincing evidence that the child should be placed with you. You've also told us nothing about dad, who would be first in line to get custody if mom is deemed unfit.

The drug use is being investigated, and may or may not be grounds for the child's removal, but you haven't yet shared any facts that would compel a finding of parental unfitness. What else do you have that would show unfitness?

Seriously? Using illegal drugs while pregnant and causing your baby to suffer withdrawals after birth is not considered "unfit"? She didn't even give him a chance to be normal. More than likely he will suffer some sort of issue due to the drug exposure.

Regarding the father: Mom did not list him on the birth certificate and told her caseworker that she doesn't know who dad is. But when mom talks to me she talks like she knows him. If mom does know the father wouldn't CPS have already gotten that information instead of contacting me as a possible guardian for the baby?

Caseworker said if mom doesn't agree to sign over guardianship then CPS will get a court order to remove the child and he will go to a licensed foster care home.

I am just trying to see if it would be worth it to attempt to petition for guardianship or just wait out the CPS investigation.

[Mr. Knowitall]

Seriously? Using illegal drugs while pregnant and causing your baby to suffer withdrawals after birth is not considered "unfit"? She didn't even give him a chance to be normal. More than likely he will suffer some sort of issue due to the drug exposure.

Was that your way of saying that you have plenty of nothing?

If mom does know the father wouldn't CPS have already gotten that information instead of contacting me as a possible guardian for the baby?

If mom is lying to CPS to keep them from learning the identity of the father, that would explain why they haven't contacted the father. Beyond that, you would have to ask them.

Caseworker said if mom doesn't agree to sign over guardianship then CPS will get a court order to remove the child and he will go to a licensed foster care home.

No, that's not what you said earlier. Previously you said "once the assesment is complete and if it is determined that the baby cannot stay with his mom CPS will ask the mom who she wants to sign guardianship over to...". That hasn't happened yet.

I am just trying to see if it would be worth it to attempt to petition for guardianship or just wait out the CPS investigation.

Given that you have given us no indication that mom wants to give you custody of her baby, and you have no evidence of parental unfitness, it would seem premature to try to get guardianship.

[LawResearcherMissy]

Seriously? Using illegal drugs while pregnant and causing your baby to suffer withdrawals after birth is not considered "unfit"?

In and of itself? Nope, as awful as that may seem.

Drug addiction is a disease, and a hard one to overcome. As has already been pointed out, this outcome of this will turn entirely on what efforts Mom has been making to get clean and stay clean.

Finding a parent legally unfit requires more than the parent being held captive by drug addiction. If she's living in a meth lab with no running water and no heat, and is constantly so stoned that she cannot reasonably function, yes, she'd be unfit. Merely using while pregnant does not rise to that level of disaster.