Can I keep my grandson and not return him to his mother since she has neglected him?
Full Question:
My grandson is with us now visiting. We are expected to return him to his home this week. His mother has been reported to CPS on several occations and now our family doctor has gotten involved and also reported her to CPS for not seeking medical care for him due to an illness. His mother has also threatened my son saying that she would take the baby to Mexico and leave him there with her extended family if we ever sought to gain custody. That is what we are trying to do now that we have the support of a medical doctor. Can we keep him with us and not return him? We are concerned that he will not get the medical attention he needs and for the threats she has made about taking him to Mexico.
10/30/2007 |
Category: Guardianship |
State: Texas |
#11260
Answer:
The following is a Texas statute:
§ 875 PROB. CODE. Temporary Guardian — Procedure
(a) If a court is presented with substantial evidence that a person may
be a minor or other incapacitated person, and the court has probable
cause to believe that the person or person's estate, or both, requires
the immediate appointment of a guardian, the court shall appoint a
temporary guardian with limited powers as the circumstances of the case
require.
(b) The person retains all rights and powers that are not specifically
granted to the person's temporary guardian by court order.
(c) A sworn, written application for the appointment of a temporary
guardian shall be filed before the court appoints, a temporary guardian.
The application must state:
(1) the name and address of the person who is the subject of the
guardianship proceeding;
(2) the danger to the person or property alleged to be imminent;
(3) the type of appointment and the particular protection and
assistance being requested;
(4) the facts and reasons supporting the allegations and requests;
(5) the name, address, and qualification of the proposed temporary
guardian;
(6) the name, address, and interest of the applicant; and
(7) if applicable, that the proposed temporary guardian is a private
professional guardian who is certified under Subchapter C, Chapter 111,
Government Code, and has complied with the requirements of Section 697 of
this code.
(d) On the filing of an application for temporary guardianship, the
court shall appoint an attorney to represent the proposed ward in all
guardianship proceedings in which independent counsel has not been
retained by or on behalf of the proposed ward.
(e) On the filing of an application for temporary guardianship, the
clerk shall issue notice that shall be served on the respondent, the
respondent's appointed attorney, and the proposed temporary guardian
named in the application, if that person is not the applicant. The notice
must describe the rights of the parties and the date, time, place,
purpose, and possible consequences of a hearing on the application. A copy
of the application must be attached to the notice.
(f)(1) A hearing shall be held not later than the 10th day after the
date of the filing of the application for temporary guardianship unless
the hearing date is postponed as provided by Subdivision (2) of this
subsection. At a hearing under this section, the respondent has the right
to:
(A) receive prior notice;
(B) have representation by counsel;
(C) be present;
(D) present evidence and confront and cross-examine witnesses; and
(E) a closed hearing if requested by the respondent or the respondent's
attorney.
(2) The respondent or the respondent's attorney may consent to postpone
the hearing on the application for temporary guardianship for a period
not to exceed 30 days after the date of the filing of the application.
(3) Every application for temporary guardianship takes precedence over
all matters except older matters of the same character.
(4) Immediately after an application for temporary guardianship is
filed, the court shall issue an order that sets a certain date for
hearing on the application for temporary guardianship.
(5) On one day's notice to the party who filed the application for
temporary guardianship, the respondent or the respondent's attorney may
appear and move for the dismissal of the application for temporary
guardianship. If a motion is made for dismissal of the application for
temporary guardianship, the court shall hear and determine the motion as
expeditiously as the ends of justice require.
(6) If the applicant is not the proposed temporary guardian, a
temporary guardianship may not be granted before a hearing on the
application required by Subdivision (1) of this subsection unless the
proposed temporary guardian appears in court.
(g) If at the conclusion of the hearing required by Subsection (f)(1)
of this section the court determines that the applicant has established
that there is substantial evidence that the person is a minor or other
incapacitated person, that there is imminent danger that the physical
health or safety of the respondent will be seriously impaired, or that
the respondent's estate will be seriously damaged or dissipated unless
immediate action is taken, the court shall appoint a temporary guardian
by written order. The court shall assign to the temporary guardian only
those powers and duties that are necessary to protect the respondent
against the imminent danger shown. The court shall set bond according to
Subpart B, Part 3, of this chapter. The reasons for the temporary
guardianship and the powers and duties of the temporary guardian must be
described in the order of appointment.
(h) Except as provided by Subsection (k) of this section, a temporary
guardianship may not remain in effect for more than 60 days.
(i) If the court appoints a temporary guardian after the hearing
required by Subsection (f)(1) of this section, all court costs, including
attorney's fees, may be assessed as provided in Section 665A, 665B, or
669 of this code.
(j) The court may not customarily or ordinarily appoint the Department
of Aging and Disability Services as a temporary guardian under this
section. The appointment of the department as a temporary guardian under
this section should be made only as a last resort.
(k) If an application for a temporary guardianship, for the conversion
of a temporary guardianship to a permanent guardianship, or for a
permanent guardianship is challenged or contested, the court, on the
court's own motion or on the motion of any interested party, may appoint
a new temporary guardian or grant a temporary restraining order under
Rule 680, Texas Rules of Civil Procedure, or both, without issuing
additional citation if the court finds that the appointment or the
issuance of the order is necessary to protect the proposed ward or the
proposed ward's estate.
(l) A temporary guardian appointed under Subsection (k) of this section
must qualify in the same form and manner required of a guardian under
this code. The term of the temporary guardian expires at the conclusion
of the hearing challenging or contesting the application or on the date a
permanent guardian the court appoints for the proposed ward qualifies to
serve as the ward's guardian.
§ 676 PROB. CODE. Guardians of Minors
(a) Except as provided by Section 680 of this code, the selection of a
guardian for a minor is governed by this section.
(b) If the parents live together, both parents are the natural
guardians of the person of the minor children by the marriage, and one of
the parents is entitled to be appointed guardian of the children's
estates. If the parents disagree as to which parent should be appointed,
the court shall make the appointment on the basis of which parent is
better qualified to serve in that capacity. If one parent is dead, the
survivor is the natural guardian of the person of the minor children and
is entitled to be appointed guardian of their estates. The rights of
parents who do not live together are equal, and the guardianship of their
minor children shall be assigned to one or the other, considering only
the best interests of the children.
(c) In appointing a guardian for a minor orphan:
(1) if the last surviving parent did not appoint a guardian, the
nearest ascendant in the direct line of the minor is entitled to
guardianship of both the person and the estate of the minor;
(2) if more than one ascendant exists in the same degree in the direct
line, one ascendant shall be appointed, according to circumstances and
considering the best interests of the minor;
(3) if the minor has no ascendant in the direct line, the nearest of
kin shall be appointed, and if there are two or more persons in the same
degree of kinship, one shall be appointed, according to circumstances and
considering the best interests of the minor; and
(4) if no relative of the minor is eligible to be guardian, or if no
eligible person applies to be guardian, the court shall appoint a
qualified person as guardian.
(d) Notwithstanding Subsection (b) of this section and Section 690 of
this code, the surviving parent of a minor may by will or written
declaration appoint any eligible person to be guardian of the person of
the parent's minor children after the death of the parent or in the event
of the parent's incapacity.
(e) After the death of the surviving parent of a minor or if the court
finds the surviving parent is an incapacitated person, as appropriate,
the court shall appoint the person designated in the will or declaration
to serve as guardian of the person of the parent's minor children in
preference to those otherwise entitled to serve as guardian under this
chapter unless the court finds that the designated guardian is
disqualified, is dead, refuses to serve, or would not serve the best
interests of the minor children.
(f) On compliance with this chapter, an eligible person is also
entitled to be appointed guardian of the children's estates after the
death of the parent or in the event of the parent's incapacity.
(g) The powers of a person appointed to serve as the designated
guardian of the person or estate, or both, of a minor child solely
because of the incapacity of the minor's surviving parent and in
accordance with this section and Section 677A of this code terminate when
a probate court enters an order finding that the surviving parent is no
longer an incapacitated person.
§ 681 PROB. CODE. Persons Disqualified to Serve as Guardians
A person may not be appointed guardian if the person is:
(1) a minor;
(2) a person whose conduct is notoriously bad;
(3) an incapacitated person;
(4) a person who is a party or whose parent is a party to a lawsuit
concerning or affecting the welfare of the proposed ward, unless the
court:
(A) determines that the lawsuit claim of the person who has applied to
be appointed guardian is not in conflict with the lawsuit claim of the
proposed ward; or
(B) appoints a guardian ad litem to represent the interests of
the proposed ward throughout the litigation of the ward's lawsuit
claim;
(5) a person indebted to the proposed ward unless the person pays the
debt before appointment;
(6) a person asserting a claim adverse to the proposed ward or
the proposed ward's property, real or personal;
(7) a person who, because of inexperience, lack of education, or other
good reason, is incapable of properly and prudently managing and
controlling the ward or the ward's estate;
(8) a person, institution, or corporation found unsuitable by the
court;
(9) a person disqualified in a declaration made under Section 679 of
this code; or
(10) a nonresident person who has not filed with the court the name of
a resident agent to accept service of process in all actions or
proceedings relating to the guardianship.