My question involves guardianship in the State of: California
I'm confused and I am really at a loss at this point so I'm looking for some outside help. This is a confusing mess and I can't figure out what I need to do next. So, here goes...please bear with me, I'll try to be as organized as possible with this.
My brother and his ex wife are having some difficulties (obviously that's why I'm here), and there are two children involved. The mother has had custody, primarily because my brother is homeless at the moment. That in itself is a very long story but suffice to say, my brother now has the means and has two very good places that he is looking at. When he has his visits he has been having them at my house, which we love having the kids over. We have a lot of fun. The mother has her residence in another county which is about two hours away, and she lives with a new boyfriend.
CPS has been involved with an investigation since November of last year and in Janurary I attended 2 meetings (one I attended via telephone) with CPS, my parents, my brother, my brother's ex-wife and her new boyfriend. It became very clear that there were some serious concerns regarding the children's health and safety if they were to stay with their mother. Since the children have been having their visits at my wife and my house, we have pretty much taken them and my brother visits frequently (between working), being a positive part in their lives. CPS did say they were uncomfortable with the mother having custody.
Earlier this month, my brother and his wife appeared at a scheduled court for a modification/visitation schedule. My brother brought up the CPS involvement and made reference to a report/meeting notes from CPS document that he had. The Judge said that he wasn't aware of anything from CPS and referred them to an on the spot mediation. During that mediation session they discussed the concerns of CPS, the mediator took copies of the CPS meeting notes. My brother and his ex wife then went back to court, the Judge said that since the kids were with my brother, he wanted an investigation and that they were to figure out a visitation schedule between themselves and continued everything for a month. He wouldn't really look at it because it was something new is the impression I got when I was in the court room that day.
Last weekend, the mother had an overnight visit and the youngest (3 years old) took off and wandered down the busy city street to the near by mall, going through traffic parking lot, doors, everything. Staying with the mother was the maternal grandmother as well as the boyfriend and I do not know the details involving why the 3 yo was lost in the confusion and found at the mall. Law enforcement ended up being involved in getting him returned to the mother. My brother and I did not find out about this until yesterday.
During this whole process, my brother and I have been working on a plan (plan b) for me to file for guardianship of the two children so he can get his life in order, just in case. I have the paperwork ready to file, it's a matter of getting there, it's a two hour drive. I haven't filed them yet because of the decision made by the Judge seemed to indicate that this might not be necessary. I've been in contact with a CPS social worker since I became involved in January, but getting a hold of the Social Worker involved with the case is difficult at best.
Today, my brother received a phone call from CPS, they had all the information about the incident. I don't know exactly what was said but after discussing this with my brother I'm left with the impression that my brother was in trouble with allowing the mother to have a visit. He feels that he was being accused of withholding information on something the CPS worker was filling him in on the details on something he was hearing for the first time. I'm also left with the impression that the CPS worker was upset that I had not filed paperwork for guardianship, but after hearing the decision from the Judge I was under the impression that there may not be a need for me to file the paperwork. My phone calls to the CPS worker have gone unanswered so far.
A history of drugs is involved with this dilemma. Meth and alcohol in the mother's home and my brother has a history of using alcohol (although he hasn't had any for about a week and a half). My brother also smokes marijuana on occasion. I know my brother has already made a commitment to being sober, his whole attitude has changed and it shows in his actions. He is making obvious progress in getting things taken care of on his side, except going to AA. He and I both have a weird issue with AA and going to the meetings talking about wanting a drink only makes the cravings worse. The mother, I'm not so sure about and after hearing about what happened from the last visit, I'm convinced she isn't aware of how serious all this is.
To top things off, my wife had lost her children in an previous marriage to an abusive husband that had abused the kids and she didn't know about it. This happened over 15 years ago, and she has been divorced from him for 11 of years married to me for 10 of those years too and we've raised her three children with out having any further issues to that regard. She says that she is listed in a national registry of some kind identifying neglecting parents (South Dakota). She has some kind of order where she is not able to be in a position of being a guardian. I am worried there is a potential of her being charged with something if I do file for guardianship of my niece and nephew.
So that is it in a nutshell. Here are my questions
First and foremost, is the problem with my wife and her previous problems with CPS of 15 years agoin South Dakota be of concern? If so how much of a concern will it be?
Second, with my brother getting back on his feet (hoping to have an apartment by the end of next week, he is waiting for payday to finish what he has saved) and putting himself into a position to be able to take care of his kids, is it necessary for me to file for guardianship of his children. I've spoken to both my brother and his ex wife about it and they both are in agreement that it would be better for me to take them while they take care of things if it becomes necessary. Again, I'm not so sure about the mother but my brother I've been able to see the changes he has made in his life.
Any advice, things I should be aware of or just a point in the right direction would be greatly appreciated.
Thanks in advance.

