In this case Attorney Madsen was retained by Maria, a grandmother whose daughter had fallen on hard times and her children, Maria’s grandchildren, were taken by Northampton County Children & Youth Services.
Children & Youth Services has an obligation to place children whom they have taken with relatives whenever possible. However, at the time that Maria came into our Family Law Office, CYS rarely fulfilled their obligations to place children with family.
In this particular case, Maria previously had Children & Youth Services involved in her life. When she was younger there was an allegation of child abuse against her. These allegations of abuse against her, from over two decades ago, would prove to be the primary basis for CYS denying custody.
Just because something because the law is not clear, it does not mean the law cannot help.
In this case there were multiple challenges. These challenges included: 1) Maria’s ability to assert “standing” in Juvenile Court; 2) Maria’s ability to file for Child Custody in Family Court while there was an open Dependency Case in Juvenile Court; 3) The decades old allegations against Maria and the past Children & Youth Services involvement.
While the past allegations against Maria would certainly be a problem as the case moved forwards, we immediately recognized that we would have to have “standing” to sue for custody before we could even reach the merits of her case.
Despite the fact that there were rules and regulations requiring CYS to place the children with Maria, Juvenile Court Rules did not permit Maria the ability to attend court hearings. She therefore was unable to assert the rules and regulations that were being broken by CYS. Conversely, Family Court would not allow Maria to sue for custody due to general principles that prohibit one court from hearing the same case currently being heard by another court.
From the outset, we knew that both Juvenile Court and Family Court would punt to the other Court. Each court would determine that the other court was the more appropriate venue. But we also knew that Maria had real rights as a grandparent who’s grandchildren were in state custody. Most importantly, we knew that what was happening was just not right.
What we needed to do was to sue Children and Youth Services in Custody Court but we had to make sure we would not be summarily dismissed before doing so.
Despite the lack of clarity in the law, it became clear quite early on that litigating our case in Family Court would be preferable to Juvenile Court. Family Court would allow us to apply the Pennsylvania Rules of Evidence in full force while Juvenile Court relies on an abridged set of rules.
Nonetheless we first filed suit in Juvenile Court and were summarily dismissed as expected. We then took our dismissal order and attached it the first ever custody petition in the Lehigh Valley to name a Children & Youth Services Agency as a defendant.
As could be expected in any court filling the is the first of its kind, the Court of Common Pleas was initially taken aback that we had the audacity to sue Children & Youth Services. After all, CYS had never been hauled into court as a defendant in a custody case before.
All of this created some confusion but as the facts were laid out, it became clear to the Judge that the legislature had left some gaping holes when it set out to afford grandparents custodial rights. While the legislature had afforded grandparents rights, it had never given them a path to assert those rights.
Eventually the case went to trial. Through a combination of legal research, preparedness and the inability CYS to follow its own regulations eventually, the court sided with Maria and refused to even entertain CYS’s allegations against her of past abuse.
Maria went on to obtain custody of her grandchildren over a transitional period. Northampton County Children & Youth went on put increased emphasis on placing children with family as the door was opened to allow more and more grandparents to assert their custodial rights.