Motion To Dismiss – CPS – Maine

How to write a Motion To Dismiss for CPS Juvenile Court In Maine

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In order to write a Motion To Dismiss, you must first understand the rules of the court, the laws of the land. Go over the parts below that pertain to your situation and write those law numbers down. You will be needing them later in our course.

 

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Child Witnesses to Domestic Violence

Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Definitions of Child Abuse and Neglect

To better understand this issue and to view it across States, download the PDF (587 KB) of this publication.

Current Through February 2016

Physical Abuse

‘Abuse or neglect’ means a threat to a child’s health or welfare by physical, mental, or emotional injury or impairment, sexual abuse or exploitation, deprivation of essential needs, or lack of protection from these, or failure to ensure compliance with school attendance requirements under Title 20-A, § 3272(2)(B), or § 5051-A(1)(C), by a person responsible for the child.

‘Jeopardy to health or welfare’ or ‘jeopardy’ means serious abuse or neglect, as evidenced by serious harm or threat of serious harm.

‘Serious harm’ means serious injury. ‘Serious injury’ means serious physical injury or impairment.

Neglect

‘Abuse or neglect’ means a threat to a child’s health or welfare by deprivation of essential needs or lack of protection by a person responsible for the child.

‘Jeopardy to health or welfare’ or ‘jeopardy’ means serious abuse or neglect as evidenced by:

  • Deprivation of adequate food, clothing, shelter, supervision, care, or education when the child is at least age 7 and has not completed grade 6
  • Deprivation of necessary health care when the deprivation places the child in danger of serious harm
  • Abandonment of the child or absence of any person responsible for the child that creates a threat of serious harm
  • The end of voluntary placement, when the imminent return of the child to his or her custodian causes a threat of serious harm
Sexual Abuse/Exploitation

‘Abuse or neglect’ means a threat to a child’s health or welfare by sexual abuse or exploitation, including under Title 17-A, §§ 282 [sexual exploitation of minor], 852 [aggravated sex trafficking], 853 [sex trafficking], and 855 [patronizing prostitution of a minor], by a person responsible for the child.

‘Serious harm’ includes sexual abuse or exploitation.

Emotional Abuse

The term ‘abuse or neglect’ includes a threat to a child’s health or welfare by mental or emotional injury or impairment by a person responsible for the child.

‘Serious harm’ includes serious mental or emotional injury or impairment that now or in the future is likely to be evidenced by serious mental, behavioral, or personality disorder, including severe anxiety, depression, withdrawal, untoward aggressive behavior, seriously delayed development, or similar serious dysfunctional behavior.

Abandonment

Citation: Ann. Stat. Tit. 22, § 4002
‘Abandonment’ means any conduct on the part of the parent that shows an intent to forgo parental duties or relinquish parental claims. The intent may be evidenced by:

  • Failure to communicate meaningfully or to maintain regular visitation with the child for a period of at least 6 months
  • Failure to participate in any plan or program designed to reunite the parent with the child
  • Deserting the child without affording means of identifying the child and his or her parent or custodian
  • Failure to respond to notice of child protective proceedings
  • Any other conduct indicating an intent to forgo parental duties or relinquish parental claims

‘Jeopardy to health or welfare’ or ‘jeopardy’ includes abandonment of the child or absence of any person responsible for the child that creates a threat of serious harm.

Standards for Reporting

Citation: Ann. Stat. Tit. 22, § 4011-A
A report is required when a mandatory reporter knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected.

Persons Responsible for the Child

The term ‘parent’ means a natural or adoptive parent, unless parental rights have been terminated.

A ‘person responsible for the child’ means a person with responsibility for a child’s health or welfare, whether in the child’s home or another home or facility that, as part of its function, provides for care of the child. This includes the child’s custodian.

Exceptions

A child shall not be considered to be abused or neglected, in jeopardy of health or welfare, or in danger of serious harm solely because treatment is by spiritual means by an accredited practitioner of a recognized religious organization.

Definitions of Domestic Violence

Current Through August 2013

Defined in Domestic Violence Civil Laws

‘Abuse’ means the occurrence of the following acts between family or household members or dating partners or by a family or household member or dating partner upon a minor child of a family or household member or dating partner:

  • Attempting to cause or causing bodily injury or offensive physical contact, including sexual assaults
  • Attempting to place or placing another in fear of bodily injury through any course of conduct, including, but not limited to, threatening, harassing, or tormenting behavior
  • Compelling a person by force, threat of force, or intimidation to engage in conduct from which the person has a right or privilege to abstain or to abstain from conduct in which the person has a right to engage
  • Knowingly restricting substantially the movements of another person without that person’s consent or other lawful authority by:
    • Removing that person from that person’s residence, place of business, or school
    • Moving that person a substantial distance from the vicinity where that person was found
    • Confining that person for a substantial period either in the place where the restriction commences or in a place to which that person has been moved
    • Communicating to a person a threat to commit, or to cause to be committed, a crime of violence dangerous to human life against the person to whom the communication is made or another, and the natural and probable consequence of the threat, whether or not that consequence in fact occurs, is to place the person to whom the threat is communicated or the person against whom the threat is made in reasonable fear that the crime will be committed
    • Repeatedly and without reasonable cause following the plaintiff or being at or in the vicinity of the plaintiff’s home, school, business, or place of employment
Defined in Child Abuse Reporting and Child Protection Laws

This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

A person is guilty of ‘domestic violence assault’ if the person commits an act of assault, and the victim is a family or household member as defined in title 19-A, § 4002.

A person is guilty of ‘domestic violence criminal threatening‘ if the person commits an act of criminal threatening, and the victim is a family or household member.

A person is guilty of ‘domestic violence terrorizing‘ if the person commits an act of terrorizing, and the victim is a family or household member.

A person is guilty of ‘domestic violence stalking‘ if the person commits an act of stalking, and the victim is a family or household member.

A person is guilty of ‘domestic violence reckless conduct‘ if the person commits an act of reckless conduct, and the victim is a family or household member.

Persons Included in the Definition

‘Family or household members’ means:

  • Spouses or domestic partners and former spouses or former domestic partners
  • Individuals presently or formerly living together as spouses
  • Natural parents of the same child
  • Adult household members related by consanguinity or affinity
  • Minor children of a household member when the defendant is an adult household member

For the purposes of title 15, § 1023(4)(B-1); this chapter; and title 17-A, §§ 15, 207-A, 209-A, 210-B, 210-C, 211-A, 1201, 1202, and 1253 only, the term includes individuals presently or formerly living together and individuals who are or were sexual partners. Holding oneself out to be a spouse is not necessary to constitute ‘living as spouses.’

For purposes of this subsection, ‘domestic partners’ means two unmarried adults who are domiciled together under long-term arrangements that evidence a commitment to remain responsible indefinitely for each other’s welfare.

‘Dating partners’ means individuals currently or formerly involved in dating each other, whether or not the individuals are or were sexual partners.

Immunity for Reporters of Child Abuse and Neglect

Current Through March 2015

A person, including an agent of the department, participating in good faith in reporting under the reporting laws or participating in a related child protection investigation or proceeding, including, but not limited to, a multidisciplinary team, out-of-home abuse investigating team, or other investigating or treatment team, is immune from any criminal or civil liability for the act of reporting or participating in the investigation or proceeding.

Good faith does not include instances when a false report is made and the person knows the report is false. Nothing in this section may be construed to bar criminal or civil action regarding perjury or regarding the abuse or neglect that led to a report, investigation, or proceeding.

A person participating in good faith in taking photographs or x-rays pursuant to the reporting laws is immune from civil liability for invasion of privacy that might otherwise result from these actions.

In a proceeding regarding immunity from liability, there shall be a rebuttable presumption of good faith.

Making and Screening Reports of Child Abuse and Neglect

Current Through February 2013

Individual Responsibility to Report

A mandated reporter shall immediately report or cause a report to be made to the Department of Human Services when he or she knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected.

Any person may make a report if that person knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected.

Reports regarding abuse or neglect must be made immediately by telephone to the department and must be followed by a written report within 48 hours if requested by the department.

Hospitals, medical personnel, and law enforcement personnel may submit emergency reports through password-protected email submissions. A faxed report also may be accepted when preceded by a telephone call informing the department of the incoming fax transmission.

Content of Reports

The reports shall include the following information, if known:

  • The name and address of the child and the persons responsible for the child’s care or custody
  • The child’s age and sex
  • The nature and extent of the abuse or neglect, including a description of any injuries and the explanation given for them
  • A description of sexual abuse or exploitation, if applicable
  • Family composition
  • Any evidence of prior abuse of the child or any siblings
  • The source of report, the person making the report, his or her occupation, and contact information
  • Any action taken by the reporter, including a description of photographs or x-rays taken
  • Any other information that the reporter believes may be helpful
Reporting Suspicious Deaths

A mandated reporter shall immediately report or cause a report to be made to the department when the he or she knows or has reasonable cause to suspect that a suspicious child death has occurred.

When, while acting in a professional capacity, a mandated reporter has reasonable cause to suspect that a suspicious child death has been caused by a person not responsible for the child, he or she immediately shall report or cause a report to be made to the appropriate district attorney’s office.

Any person may make a report if that person knows or has reasonable cause to suspect that there has been a suspicious child death.

‘Suspicious child death’ means the death of a child under circumstances in which there is reasonable cause to suspect that abuse or neglect was a cause of or factor contributing to the child’s death.

Reporting Substance-Exposed Infants

If a health-care provider involved in the delivery or care of an infant knows or has reasonable cause to suspect that the infant has been affected by illegal substance abuse or is suffering from withdrawal symptoms resulting from prenatal drug exposure, whether or not the prenatal exposure was to legal or illegal drugs, the provider shall notify the department. The report must be made in the same manner as reports of abuse or neglect.

The department shall act to protect newborn infants identified as being affected by illegal substance abuse or suffering from withdrawal symptoms resulting from prenatal drug exposure, whether or not the prenatal exposure was to legal or illegal drugs, regardless of whether or not the infant is abused or neglected. The department shall:

  • Receive reports of infants who may be affected by illegal substance abuse or suffering from prenatal drug exposure
  • Promptly investigate all reports to determine whether each infant reported is affected by an illegal substance
  • Determine whether or not each infant reported is affected by illegal substance abuse or suffers from withdrawal symptoms resulting from prenatal drug exposure
  • Determine whether or not the infant is abused or neglected and, if so, determine the degree of harm or threatened harm in each case
  • For each infant whom the department determines to be affected by illegal substance abuse or to be suffering from withdrawal symptoms resulting from prenatal drug exposure, develop, with the assistance of any health-care provider involved in the mother’s or the child’s medical or mental health care, a plan for the safe care of the infant and, in appropriate cases, refer the child or mother or both to a social service agency or voluntary substance abuse prevention service
Agency Receiving the Reports

Mandated reporters must submit reports to the Department of Human Services.

When, while acting in a professional capacity, a mandated reporter knows or has reasonable cause to suspect that a child has been abused or neglected by a person not responsible for the child, he or she immediately shall report or cause a report to be made to the appropriate district attorney’s office.

Initial Screening Decisions

All calls that relate to suspected child abuse and/or neglect will be immediately routed to the Child Protective Intake Unit. The Intake Unit will determine if the report is appropriate. The intake worker will gather facts from the reporter regarding:

  • The identity and location of the parents, children, and relative resources
  • The nature of suspected abuse or neglect and the impact on the child
  • The reporter’s actions taken thus far, if any
  • Other persons who may have direct knowledge and how to contact them

If the information is not sufficient to determine whether the report is appropriate or inappropriate, the worker may, with supervisor approval, contact at least one professional person, if available, whom the worker believes will have direct knowledge of the child’s current condition. The intake worker also will review previous child welfare history regarding the family and the alleged abuser(s).

The worker will analyze the information to determine if the report indicates that there is immediate risk of serious harm. If it appears that the child is in immediate risk of serious harm, the worker will contact the intake supervisor immediately and the intake supervisor will review the report immediately and notify the appropriate district office supervisor.

Agency Conducting the Assessment/Investigation

The department shall act to protect abused and neglected children, and children in circumstances that present a substantial risk of abuse and neglect to prevent further abuse and neglect, to enhance the welfare of these children and their families, and to preserve family life wherever possible. The department shall:

  • Receive reports of abuse and neglect and suspicious child deaths
  • Promptly investigate all abuse and neglect cases and suspicious child deaths coming to its attention

An investigation under this paragraph is subject to and may not interfere with the authority and responsibility of the attorney general to investigate and prosecute homicides.

Assessment/Investigation Procedures

The process of assessment begins with the first contact with or about a family and continues throughout the department’s involvement with the family. The assessment policy focuses on family strengths and needs. It focuses on assessing the signs of safety, risk, and danger and their impact on child safety, as well as assessing for child abuse and neglect types. The policy promotes family engagement and inclusion in a team approach to planning and intervention, with child safety first and foremost.

A child protection assessment is a timely and time-limited process of gathering critical individual, family, and environmental information in order to determine:

  • If a child has been abused or neglected and how severely
  • The impact of the abuse and neglect on the child
  • Signs of safety, risk, and danger
  • How likely it is for a child to experience abuse and neglect within the next 6 months
  • Caregiver strengths and needs related to child safety
  • If this is a family in need of child protective services
  • Whether a plan should be developed to assist the family in keeping the children safe
Timeframes for Completing Investigations

A decision whether to assign for child protective services assessment, refer to contract agency for assessment, or screen out should be made within 24 hours of receiving a report. This decision may be delayed only by the need for collateral contacts in order to better understand the circumstances of the child.

The department commits to seeing alleged child abuse/neglect victims within 72 hours of approving the report or sooner–even immediately–if a more rapid response time is indicated by relevant information in the report.

Classification of Reports

The department shall determine in each case whether or not a child has been harmed and the degree of harm or threatened harm by a person responsible for the care of that child by deciding whether allegations are unsubstantiated, indicated, or substantiated. Each allegation must be considered separately and may result in a combination of findings.

In regulation: Reports may be classified as follows:

  • ‘Substantiated’ means that, by a preponderance of the evidence, a parent or caregiver has caused and/or is likely to cause high severity child abuse and neglect. This person is considered a danger to children.
  • ‘Indicated’ means that, by a preponderance of the evidence, a parent or caregiver has caused and/or is likely to cause low/moderate severity child abuse. Signs of risk also may be present.
  • ‘Unsubstantiated’ means that, by a preponderance of the evidence, a parent or caregiver did not abuse or neglect a child. However, signs of risk may be present.

Parental Drug Use as Child Abuse

Current Through April 2015

A health-care provider involved in the delivery or care of an infant who the provider knows or has reasonable cause to suspect has been born affected by illegal substance abuse or is suffering from withdrawal symptoms resulting from prenatal drug exposure, whether or not the prenatal exposure was to legal or illegal drugs, shall notify the Department of Health and Human Services of that condition in the infant. The report required by this subsection must be made in the same manner as reports of abuse or neglect required by this subchapter.

This section, and any notification made pursuant to this section, may not be construed to establish a definition of ‘abuse’ or ‘neglect.’

This section, and any notification made pursuant to this section, may not be construed to require prosecution for any illegal action, including, but not limited to, the act of exposing a fetus to drugs or other substances.

The department shall act to protect abused and neglected children and children in circumstances that present a substantial risk of abuse and neglect, to prevent further abuse and neglect, to enhance the welfare of these children and their families, and to preserve family life wherever possible. The department shall:

  • If, after investigation, the department does not file a child protection petition under § 4032 but does open a case to provide services to the family to alleviate child abuse and neglect in the home, assign a caseworker, who shall:
    • Provide information about rehabilitation and other services that may be available to assist the family
    • Develop with the family a written child and family plan that identifies the problems in the family and the services needed to address those problems; describes responsibilities for completing the services, including, but not limited to, payment for services, transportation, and child care services and responsibilities for seeking out and participating in services; and states the names, addresses, and telephone numbers of any relatives or family friends known to the department or parent to be available as resources to the family
  • File a child protection petition under § 4032 if, after investigation, the department determines that a child is in immediate risk of serious harm or in jeopardy as defined in this chapter

The department shall act to protect infants born identified as being affected by illegal substance abuse, demonstrating withdrawal symptoms resulting from prenatal drug exposure whether the prenatal exposure was to legal or illegal drugs, or having fetal alcohol spectrum disorders, regardless of whether the infant is abused or neglected. The department shall:

  • Receive notifications of infants who may be affected by illegal substance abuse or demonstrating withdrawal symptoms resulting from prenatal drug exposure or who have fetal alcohol spectrum disorders
  • Investigate promptly notifications received of infants born who may be affected by illegal substance abuse or demonstrating withdrawal symptoms resulting from prenatal drug exposure or who have fetal alcohol spectrum disorders as determined to be necessary by the department to protect the infant
  • Determine whether each infant for whom the department conducts an investigation is affected by illegal substance abuse, demonstrates withdrawal symptoms resulting from prenatal drug exposure, or has fetal alcohol spectrum disorders
  • Determine whether the infant for whom the department conducts an investigation is abused or neglected and, if so, determine the degree of harm or threatened harm in each case
  • For each infant whom the department determines to be affected by illegal substance abuse, to be demonstrating withdrawal symptoms resulting from prenatal drug exposure, or to have fetal alcohol spectrum disorders, develop, with the assistance of any health-care provider involved in the mother’s or the child’s medical or mental health care, a plan for the safe care of the infant and, in appropriate cases, refer the child, mother, or both to a social service agency or voluntary substance abuse prevention service
  • For each infant whom the department determines to be abused or neglected, comply with § 4004(2)(E)-(F).

Representation of Children in Child Abuse and Neglect Proceedings

Current Through August 2014

Making The Appointment

In every child protection proceeding except a request for a preliminary protection order under § 4034 or a petition for a medical treatment order under § 4071, but including hearings on those orders, the court shall appoint a guardian ad litem (GAL) for the child. The appointment must be made as soon as possible after the proceeding is initiated. The term GAL is inclusive of lay court-appointed special advocates (CASA).

The GAL or the child may request the court to appoint legal counsel for the child.

The Use of Court-Appointed Special Advocates (CASAs)

There is established within the Administrative Office of the Courts of the Judicial Department the Court Appointed Special Advocate Program to provide volunteer lay persons to serve as CASAs or GALs in child abuse and neglect cases.

The director of the Court Appointed Special Advocate Program shall recruit the services of qualified persons to serve as volunteer CASAs.

Qualifications/Training

GALs appointed on or after March 1, 2000, must meet the qualifications established by the Supreme Judicial Court.

Specific Duties

The GAL shall act in pursuit of the best interests of the child. He or she must be given access to all reports and records relevant to the case and investigate to ascertain the facts. The investigation must include, when possible and appropriate, the following:

  • Review of relevant mental health records and materials
  • Review of relevant medical records
  • Review of relevant school records and other pertinent materials
  • Interviews with the child with or without other persons present
  • Interviews with parents, foster parents, teachers, caseworkers, and other persons who have been involved in caring for or treating the child

The GAL shall have face-to-face contact with the child in the child’s home or foster home within 7 days of appointment and at least once every 3 months thereafter. The GAL shall report to the court and all parties in writing at 6-month intervals regarding his or her activities on behalf of the child and recommendations concerning the manner in which the court should proceed in the best interests of the child. The court may provide an opportunity for the child to address the court personally if the child requests to do so or if the GAL believes it is in the child’s best interests.

The GAL:

  • May subpoena, examine, and cross-examine witnesses and shall make a recommendation to the court
  • Shall make a written report of the investigation, findings, and recommendations and shall provide a copy of the report to each of the parties reasonably in advance of the hearing and to the court
  • Shall make the wishes of the child known to the court if the child has expressed his or her wishes, regardless of the recommendation of the GAL

The GAL or the child may request the court to appoint legal counsel for the child. The District Court shall pay reasonable costs and expenses of the child’s legal counsel.

How the Representative Is Compensated

The GAL’s reasonable costs and expenses must be paid by the District Court.

The volunteer CASAs are considered employees of the State only for the purposes of the Maine Tort Claims Act and are not entitled to receive compensation, but are reimbursed for their actual, necessary, and reasonable expenses incurred in the performance of their duties, consistent with policies established by the Administrative Office of the Courts.

Case Planning for Families Involved With Child Welfare Agencies

Current Through April 2014

When Case Plans Are Required

When a child is considered to have entered foster care, a plan for reunification and rehabilitation of the family must be developed.

Who May Participate in the Case Planning Process

The Department of Health and Human Services shall develop a rehabilitation and reunification plan as provided in this subparagraph. In developing the rehabilitation and reunification plan, the department shall make good faith efforts to seek the participation of the parent.

Contents of a Case Plan

Information that must be included in developing the plan includes the problems that present a risk of harm to the child, the services needed to address those problems, provisions to ensure the safety of the child while the parent engages in services, a means to measure the extent to which progress has been made, and visitation that protects the child’s physical and emotional well-being.

The rehabilitation and reunification plan must include the following:

  • The reasons for the removal of the child from the home
  • The changes that are necessary to eliminate jeopardy to the child while in the care of a parent
  • Rehabilitation services that will be provided and must be completed satisfactorily prior to the child’s returning home
  • Services that must be provided or made available to assist the parent in rehabilitating and reuniting with the child, as appropriate to the child and family, including, but not limited to, reasonable transportation for the parent for visits and services, child care, housing assistance, assistance with transportation to and from required services, and other services that support reunification
  • A schedule of and conditions for visits between the child and the parent designed to provide the parent and child time together in settings that provide a parent-child interaction as positive as can practicably be achieved while ensuring the emotional and physical well-being of the child when visits are not detrimental to the child’s best interests
  • Any use of kinship support, including, but not limited to, placement, supervision of visitation, in-home support, or respite care
  • A reasonable time schedule for proposed reunification, reasonably calculated to meet the child’s needs
  • A statement of the financial responsibilities of the parent and the department during the reunification process

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Court Hearings for the Permanent Placement of Children

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Current Through January 2016

Schedule of Hearings

Case reviews shall be held at least once every 6 months.

A permanency hearing shall be held:

  • Within 12 months of the time the child has entered foster care and every 12 months thereafter while the child remains under court jurisdiction
  • Within 30 days if reunification efforts are ordered to cease
Persons Entitled to Attend Hearings

Notice of hearing shall be provided to:

  • All parties to the initial proceeding including the child’s parent or custodian and guardian ad litem
  • The foster parents
  • The preadoptive parents
  • Any relatives providing care for the child

The foster parent, preadoptive parent, and relative providing care are entitled to an opportunity to be heard, but they are not parties to the proceeding.

Determinations Made at Hearings

After a hearing, the court shall make written findings that determine:

  • The safety of the child in the child’s placement
  • The continuing necessity for and appropriateness of the child’s placement
  • The effect of a change in custody on the child
  • The extent of the parties’ compliance with the case plan and the extent of progress that has been made toward alleviating or mitigating the causes necessitating placement in foster care
  • A likely date by which the child may be returned home and safely maintained in the home or placed for adoption or legal guardianship
  • If the child is age 16 or older, whether or not the child is receiving instruction to aid the child in independent living
Permanency Options

The permanency plan must determine whether and when, if applicable, the child will be:

  • Returned to a parent
  • Placed for adoption
  • Cared for by a permanency guardian
  • Placed with a fit and willing relative
  • Placed in another planned permanent living arrangement if there is a compelling reason for determining that another permanency option would not be in the best interests of the child

In the case of a child who is age 16 or older, the permanency plan must determine the services needed to assist the child to make the transition from foster care to independent living.

The court shall consider the wishes of a child, in a manner appropriate to the age of the child, in making a determination under this section.

Determining the Best Interests of the Child

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Current Through March 2016

In deciding to terminate parental rights, the court shall consider the best interests of the child; the needs of the child, including the child’s age; the child’s attachments to relevant persons; periods of attachment and separation; the child’s ability to integrate into a substitute placement or back into the parent’s home; and the child’s physical and emotional needs.

The court shall consider, but is not bound by, the wishes of a child age 12 or older in making an order under this section.

Recognizing that the health and safety of children must be of paramount concern and that the right to family integrity is limited by the right of children to be protected from abuse and neglect, and recognizing also that uncertainty and instability are possible in extended foster home or institutional living, it is the intent of the Legislature that this chapter:

  • Authorize the department to protect and assist abused and neglected children, children in circumstances that present a substantial risk of abuse and neglect, and their families
  • Provide that children will be taken from the custody of their parents only where failure to do so would jeopardize their health or welfare
  • Give family rehabilitation and reunification priority as a means for protecting the welfare of children, but prevent needless delay for permanent plans for children when rehabilitation and reunification are not possible
  • Place children who are taken from the custody of their parents with an adult relative, when possible
  • Promote the early establishment of permanent plans for the care and custody of children who cannot be returned to their family

Grounds for Involuntary Termination of Parental Rights

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Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

The court may order termination of parental rights if the court finds, based on clear and convincing evidence, that termination is in the best interests of the child, and:

  • The parent is unwilling or unable to protect the child from jeopardy, and these circumstances are unlikely to change within a reasonable time.
  • The parent has been unwilling or unable to take responsibility for the child within a time that is reasonably calculated to meet the child’s needs.
  • The child has been abandoned.
  • The parent has failed to make a good faith effort to rehabilitate and reunify with the child.

The court may presume that the parent is unwilling or unable to protect the child if:

  • The parent has acted toward a child in a manner that is heinous or abhorrent to society.
  • The parent has been convicted of any of the following, and the victim was a child for whom the parent was responsible:
    • Murder, felony murder, or manslaughter
    • Aiding or soliciting suicide or aggravated assault
    • Rape, gross sexual misconduct or gross sexual assault, sexual abuse of minors, or incest
    • Kidnapping
    • Promotion of prostitution
  • The child has been placed in the legal custody or care of the department, the parent has a chronic substance abuse problem, and the parent’s prognosis indicates that the child will not be able to return to the custody of the parent within a reasonable period of time.
  • The child has been placed in the legal custody or care of the department, the court has previously terminated parental rights to another child who is a member of the same family, and the parent has failed to remedy the conditions that led to the termination.
  • The child has been placed in the legal custody or care of the department for at least 9 months, and the parent has been offered or received services to correct the situation but has refused or made no significant effort to correct the situation.
Circumstances That Are Exceptions to Termination of Parental Rights

In deciding to terminate parental rights, the court shall consider the best interests of the child, the needs of the child, including the child’s age, the child’s attachments to relevant persons, periods of attachments and separation, the child’s ability to integrate into a substitute placement or back into the parent’s home, and the child’s physical and emotional needs.

The court shall consider, but is not bound by, the wishes of a child age 12 or older in making an order under this section.

Circumstances Allowing Reinstatement of Parental Rights

The department may petition the court to reinstate the parental rights of a parent whose parental rights have been terminated. The petition must state:

  • The reasons for the termination
  • A substantial change in circumstances of the parent that demonstrate the parent has the capacity and willingness to parent the child
  • The parent’s consent to the reinstatement
  • The willingness of the child for the reinstatement

The petition must be accompanied by a permanency plan that provides for the health and safety of the child and outlines the transition services to the family and the supervision required by the department for placing the child in the home on a trial basis.

Upon the filing of a petition, the court shall hold a case management conference to review the permanency plan filed by the department. The court may order reinstatement of parental rights if it finds, by clear and convincing evidence, that:

  • The child has been in the custody of the department for at least 12 months after parental rights have been terminated.
  • The child has lived for at least 3 months in the home of the parent after the petition for reinstatement has been filed.
  • The parent consents to the reinstatement of parental rights.
  • If the child is age 12 or older, the child consents to the reinstatement of parental rights.
  • Reinstatement of parental rights is in the best interests of the child.

In determining whether to reinstate parental rights, the court shall consider the age and maturity of the child, the child’s ability to express a preference, the child’s ability to integrate back into the home of the parent whose rights were terminated, the ability of the parent whose rights were terminated to meet the child’s physical and emotional needs, the extent that the parent whose rights were terminated has remedied the circumstances that resulted in the termination of parental rights, and the likelihood of future risk to the child.

Infant Safe Haven Laws

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Current Through February 2013

Infant’s Age

A child who is younger than 31 days old may be relinquished.

Who May Relinquish the Infant

The child may be delivered to a safe haven provider by any person.

Who May Receive the Infant

The child may be delivered to a safe haven provider. The term ‘safe haven provider’ means:

  • A law enforcement officer
  • Staff at a medical emergency room
  • A medical services provider, including, but not limited to a:
    • Physician
    • Nurse
    • Podiatrist
    • Optometrist
    • Chiropractor
    • Physical therapist
    • Dentist
    • Psychologist
    • Physician’s assistant
    • Emergency medical services person
  • A hospital staff member
Responsibilities of the Safe Haven Provider


A person who voluntarily delivers a child less than 31 days of age to a safe haven provider and who does not express an intent to return for the child may be requested to provide information helpful to the welfare of the child. The person who accepts a child may not detain the person delivering the child to obtain information.

A safe haven provider who accepts a child shall promptly notify the Department of Human Services of the delivery of the child, transfer the child to the department at the earliest opportunity, and provide to the department all information provided by the person delivering the child to the safe haven provider. The department shall establish guidelines to assist safe haven providers concerning procedures when a child is delivered to a safe haven provider.

Immunity for the Provider

A person or entity who accepts a child or provides temporary custody of a child is not subject to civil, criminal, or administrative liability for accepting the child or providing temporary custody of the child in the good-faith belief that the action is required or authorized by this section. This subsection does not affect liability for personal injury or wrongful death, including but not limited to injury resulting from medical malpractice.

Protection for Relinquishing Parent

All personally identifiable information provided by the person delivering the child to a safe haven provider is confidential and may not be disclosed by the safe haven provider to anyone except to the extent necessary to provide temporary custody of the child until the child is transferred to the department and except as otherwise provided by court order. All health-care or other information obtained by a safe haven provider in providing temporary custody of the child may also be provided to the department upon request.

It is an affirmative defense to a prosecution for child abandonment if, at the time the offense occurred:

  • The child was younger than 31 days old.
  • The child was delivered to a safe haven provider.
Effect on Parental Rights

This issue is not addressed in the statutes reviewed.

Kinship Guardianship as a Permanency Option

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Current Through December 2014

Definitions

The term ‘guardian’ means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem.

In policy: ‘Relative placement’ refers to the use of relatives as a temporary placement for children in the custody of the Department of Health and Human Services, or comparable departments in another State through the Interstate Compact on the Placement of Children, while the children/parent(s) are engaged in the rehabilitation/reunification process.

‘Kinship care’ is the placement of a child with relatives on a permanent basis once the court or the family has determined that the child will not be returning to the home and care of the parent(s). Temporary relative placements can evolve into kinship care.

Purpose of Guardianship

Permanency guardianship provides a permanency option to children who might otherwise remain in foster care until the age of majority. The State has developed a comprehensive program to provide relatives and other individuals the opportunity to become the permanency guardians of children that are in the custody of the State or of Tribal authorities in the State of Maine. Through the provision of a financial subsidy, the State seeks to promote the utilization of guardianship and improved permanency outcomes for children in out-of-home placement.

A Guardian’s Rights and Responsibilities

A permanency guardian has all of the powers and duties of a guardian of a child pursuant to Title 18-A, § 5-209.

A guardian of a child has the powers and responsibilities of a parent who has not been deprived of custody of the child, except that a guardian is not legally obligated to provide from the guardian’s own funds for the child and is not liable to third persons by reason of the parental relationship for acts of the child. The duties of the guardian include, but are not limited to:

  • Facilitating the child’s education, social, or other activities
  • Giving or withholding consents or approvals related to medical, health, or other professional care, counsel, treatment, or service for the child
  • Consenting to the marriage or adoption of the child
  • Withholding or withdrawing life-sustaining treatment

A guardian is not liable, by reason of the giving or withholding of consent, for injury to the child resulting from the negligence or acts of third persons unless it would have been illegal for a parent to have so given or withheld consent.

A guardian must report the condition of the child and the child’s estate that has been subject to that guardian’s possession or control, as ordered by court on petition of any person interested in the child’s welfare or as required by court rule.

Qualifying the Guardian

The court may appoint a person to be a permanency guardian only if the court finds that the prospective permanency guardian:

  • Has the ability to provide a safe home for the child
  • Has a close emotional bond with the child and that the child has a close emotional bond with the prospective permanency guardian
  • Is willing and able to make an informed, long-term commitment to the child
  • Has the skills to care for the child
  • Has submitted to having fingerprints taken for the purposes of a national criminal history record check
Procedures for Establishing Guardianship

As part of the permanency plan, the court may appoint a person or persons as guardian of a child, to be known as a permanency guardian.

The court may appoint as guardian any person whose appointment is in the best interests of the child. The court shall appoint a person nominated by the child, if the child is age 14 or older, unless the court finds the appointment contrary to the best interests of the child.

Notice of the time and place of hearing of a petition for the appointment of a guardian of a child is to be given to:

  • The child if he or she is age 14 or older
  • The person who has had the principal care and custody of the child during the 60 days preceding the date of the petition
  • Any living parent of the child

Upon hearing, if the court finds that a qualified person seeks appointment and the welfare and best interests of the child will be served by the appointment, it shall make the appointment.

If, at any time in the proceeding, the court determines that the interests of the child are or may be inadequately represented, it may appoint an attorney to represent the child, giving consideration to the preference of the child if the child is age 14 or older.

Contents of a Guardianship Order

The court shall set forth the basis for determining that the appointment is in the best interests of the child in the order of appointment.

A parent, grandparent, or sibling of a child subject to a permanency guardianship, or to a proceeding to establish a permanency guardianship, may petition the court to determine rights of contact. If the court determines that it is in the best interests of the child, it may order that the parent, grandparent, or sibling of the child has a reasonable right of contact with the child and may specify the type, frequency, duration, and conditions of that contact.

The parents shall pay the permanency guardian child support. If there is an existing child support order or obligation regarding the child, and if the court fails to make a child support order at the time of appointing a permanency guardian, the permanency guardian becomes the obligee under the existing support order or obligation. A copy of the order appointing the permanency guardian is sufficient proof of the permanency guardian’s status as obligee.

Modification/Revocation of Guardianship

Any party to the child protective proceeding may petition to terminate a permanency guardianship and any parent, grandparent, or sibling of the child may petition the court to establish rights of contact with the child. However, a person having once petitioned unsuccessfully to terminate a permanency guardianship or to establish rights of contact may not bring a new petition to terminate the permanency guardianship or to establish rights of contact within 12 months after the end of the previous proceeding, and then only if the petitioner alleges and proves that there has been a substantial change of circumstances regarding the child’s welfare.

The permanency guardianship may be terminated only if the petitioner proves by a preponderance of evidence that the termination is in the best interest of the child.

Resignation of a permanency guardian does not terminate the guardianship until it has been approved by the court. If a permanency guardian resigns, dies, or becomes incapacitated, the court shall hold a judicial review and a permanency planning hearing at the earliest practicable time.

Eligibility for Guardianship Subsidy

Subject to rules adopted to implement this section, the department may provide subsidies for a child who is placed in a permanency guardianship or in a similar status by a Native American Tribe, when reasonable but unsuccessful efforts have been made to place the child without guardianship subsidies and if the child would not be placed in a permanency guardianship without the assistance of the program.

In regulation: The child and permanency guardian are eligible for the guardianship subsidy only if all of the following criteria are met:

  • The child must be in the legal custody of the department or Tribe.
  • Reunification for the child must no longer be a viable permanency option.
  • The child must meet the definition of a special needs child.
  • Permanency guardianship must be considered to be in the best interests of the child by the court.
  • The family must have been studied and approved as meeting the department’s or Tribe’s standards for permanency guardianship either by the department, Tribe, or by a licensed child-placing agency prior to placement in Permanency Guardianship status.

Appointment by the court as a permanency guardian does not establish that the permanency guardian meets the standards for permanency guardianship for purposes of the guardianship subsidy.

Links to Agency Policies

Maine Department of Health and Human Services, Office of Child and Family Services, Kinship Care Policy

Placement of Children With Relatives

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Current Through July 2013

Relative Placement for Foster Care and Guardianship

In the residential placement of a child, the Department of Health and Human Services shall consider giving preference to an adult relative over a nonrelated caregiver.

Requirements for Placement with Relatives

The related caregiver must meet all relevant State child protection standards.

There is a rebuttable presumption that the relative would create a situation of jeopardy for the child if any contact were to be permitted and that contact is not in the best interests of the child if the court finds that the relative:

  • Has been convicted of a sex offense in which the victim was a minor at the time of the offense and the relative was at least 5 years older than the minor at the time of the offense
  • Has been adjudicated as having sexually abused a person who was a minor at the time of the abuse
Requirements for Placement of Siblings

If the court determines that it is reasonable, practicable, and in the best interests of the children involved, the court shall order the custodian of the child who is the subject of the child protection proceeding and any party who is the custodian of a sibling of the child to make the children available for visits with each other. The court may order a schedule and conditions pursuant to which the visits are to occur.

The department shall make reasonable efforts to establish agreements with prospective adoptive parents that provide for reasonable contact between an adoptive child and the child’s siblings when the department believes that the contact will be in the children’s best interests.

In a child protection proceeding, a child may request visiting rights with a sibling from whom the child has been separated as a result of the child protection proceeding.

Relatives Who May Adopt

A blood relative may petition to adopt the child.

Requirements for Adoption by Relatives

If the petitioner is a blood relative of the child, the court may waive the requirement of a home study and report. Each petitioner who is not a biological relative must undergo a State and Federal criminal records check that includes a screening for child abuse cases.

Expense payment limitations do not apply when one of the adoptive parents is a relative.

Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children

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Current Through March 2016

What Are Reasonable Efforts

The Department of Health and Human Services shall develop a written rehabilitation plan that includes:

  • Services that must be provided to address the problems in the family that present a risk of harm to the child
  • Provisions to ensure the safety of the child while the parent engages in those services
  • A means to measure the extent to which progress has been made
  • Visitation that protects the child’s physical and emotional well-being
When Reasonable Efforts Are Required

The department shall make reasonable efforts to:

  • Prevent removal of the child from home, unless the court finds the presence of an aggravating factor
  • Rehabilitate and reunify the family, as provided in § 4041(1-A), unless the court has ordered that the department need not commence or may cease reunification
  • Finalize the permanency plan
When Reasonable Efforts Are NOT Required

The court may order that reunification efforts are not required if it finds one of the following:

  • The existence of an aggravating factor
  • That continuation of reunification efforts is inconsistent with the permanency plan for the child

An aggravating factor includes any of the following circumstances with regard to the parent:

  • The parent has subjected a child for whom the parent was responsible to rape, gross sexual misconduct, gross sexual assault, sexual abuse, incest, aggravated assault, kidnapping, promotion of prostitution, abandonment, torture, chronic abuse, or any other treatment that is heinous or abhorrent to society.
  • The parent refused for 6 months to comply with treatment required in a reunification plan with regard to the child.
  • The parent has been convicted of any of the following crimes and the victim of the crime was a child for whom the parent was responsible or was a child who was a member of a household lived in or frequented by the parent:
    • Murder, felony murder, or manslaughter
    • Aiding, conspiring, or soliciting murder or manslaughter
    • Felony assault that results in serious bodily injury
    • Any comparable crime in another jurisdiction
  • The parental rights of the parent to a sibling have been terminated involuntarily.
  • The parent has abandoned the child.

Standby Guardianship

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Current Through February 2015

Who Can Nominate a Standby Guardian

This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

Citation:
This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed.

OUR COURSE TEACHES YOU HOW TO FILE A MOTION  IN CPS JUVENILE COURT

 

 

 

CPS Statutes & Rules

 

http://www.maine.gov/dhhs/ocfs/cw/policy/

CHILD PROTECTION SERVICES

AUTHORIZATION

FAMILY REUNIFICATION

LEGAL AND INVESTIGATIVE

 

 

OUR COURSE TEACHES YOU HOW TO FILE A MOTION  IN CPS JUVENILE COURT