Can You File for Guardianship of a Child Who is in Protective Proceedings

[AngryGranny]

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

I have posted on my situation before so this is an additional informational update--I searched for my previous post, but couldn't find it.

My 9 year old granddaughter has been placed with a family friend/daycare lady through CPS of SD because of allegations of abuse on another child in the home. I would like to file for custody/guardianship of her because I currently have temporary custody of her half sister (age 4) due to their mother's (my daughter) long term drug abuse.

I have been in contact with the CPS worker and currently have my granddaughter for a 3 week long visit--I passed the required background/criminal checks. CPS is reluctant to separate the sibling group but one is a step-sister (allegations of abuse/neglect on this child who's 3) and 10 month old twins that are half-siblings. The worker couldn't give me details but the father and step-mother are facing criminal charges of abuse and DV--if they take a plea bargain, they both will go to jail for 1 year. If the case goes to trial, it could be more jail time.

The person who is caring for the children agreed to take the kids on a temporary basis but it is stretching out longer than anticipated and she has 2 kids of her own. She says she is not receiving any financial help for the kids and seems to be overwhelmed. How do I file for custody/guardianship against CPS? What happens if the current caregiver relinquishes the children--would I be 'next' in line? They were initially placed with her because Dad named her as a guardian. I have made the CPS worker aware that I would take custody of my grandchild but he said I would need to take all 4 or none of them. I cannot financially take all 4, even if I were to become licensed as a foster parent. Is there case law that says children should be placed with relatives before foster care?

[Mr. Knowitall]

You have to work through the court that has jurisdiction over the protective proceeding. You cannot circumvent that court's jurisdiction by starting a separate legal action for guardianship.

When possible children are placed with relatives instead of in foster care, but the right of children to be with family members includes their right to be with their siblings.

You can attempt to convince protective services to place the child with you, or you can attempt to convince the court to do so against CPS's wishes. If you cannot convince CPS to place the child with you I suggest retaining a lawyer to assist you.

In terms of who is next in line, we have no way of telling you that. You can ask the children's case worker what they plan to do if the present caregiver can no longer care for the child.

[Ohiogal]

Why aren't you willing to take your grandchild and her siblings?

[T53147]

OP stated should could not afford the financial responsibilities of all four children.

In addition, the grandmother is not likely to be physically able to care for 10 month old twins, 3 and 4 year old preschoolers and a 9 year old. Just having a car adequate to safely transport 5 children in carseats is a major expense and having at least a large three bedroom or four bedroom home may also be problems. It is unfair to judge her for being unwilling to assume the responsibility than she feels she can handle physically or financially.

[Ohiogal]

OP stated should could not afford the financial responsibilities of all four children.

In addition, the grandmother is not likely to be physically able to care for 10 month old twins, 3 and 4 year old preschoolers and a 9 year old. Just having a car adequate to safely transport 5 children in carseats is a major expense and having at least a large three bedroom or four bedroom home may also be problems. It is unfair to judge her for being unwilling to assume the responsibility than she feels she can handle physically or financially.

I asked a question. It was NOT a judgment. But hey if every question is a judgment then the forum judges everyone when it asks for the name of their state.

OP stated should could not afford the financial responsibilities of all four children.

In addition, the grandmother is not likely to be physically able to care for 10 month old twins, 3 and 4 year old preschoolers and a 9 year old. Just having a car adequate to safely transport 5 children in carseats is a major expense and having at least a large three bedroom or four bedroom home may also be problems. It is unfair to judge her for being unwilling to assume the responsibility than she feels she can handle physically or financially.

I asked a question. It was NOT a judgment. But hey if every question is a judgment then the forum judges everyone when it asks for the name of their state.

[AngryGranny]

Why aren't you willing to take your grandchild and her siblings?

I cannot afford to take on the responsibilities. I would have to quit my job to care for the children--I have a decent job but daycare would be very expensive and the step child has some special needs--not exactly sure what they are--but she has frequent doctor/therapy appointments. I am currently working full time and I picked up a part-time bar tending job to pay summer daycare and attorney fees. I just cannot take on any more right now.

I should add that I am in MN about 8 hours away from the kids. The attorney I have for my other custody case is not licensed in SD so I would have to retain counsel in SD. So far, the CPS worker has been communicating with me and seems willing to work with me if Dad goes to jail. Would it be wise to formally file a petition for guardianship or would that make the worker not want to work with me?

[Ohiogal]

I cannot afford to take on the responsibilities. I would have to quit my job to care for the children--I have a decent job but daycare would be very expensive and the step child has some special needs--not exactly sure what they are--but she has frequent doctor/therapy appointments. I am currently working full time and I picked up a part-time bar tending job to pay summer daycare and attorney fees. I just cannot take on any more right now.

I should add that I am in MN about 8 hours away from the kids. The attorney I have for my other custody case is not licensed in SD so I would have to retain counsel in SD. So far, the CPS worker has been communicating with me and seems willing to work with me if Dad goes to jail. Would it be wise to formally file a petition for guardianship or would that make the worker not want to work with me?

1) Title XX would help with daycare.
2) You may qualify for child only benefits.
3) An ICPC could and most likely should be performed to determine if your home is appropriate.
4) The special needs child may qualify for SSD or SSI.
There may be ways to work this out.

If you file a petition for guardianship that is how the court would know of your interest.