IV. F. Petitioning for a Protection Order

Effective 10/1/80 – updated 11/02

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PURPOSE

When the evidence in the investigation (case study) shows that a child is seriously abused and/or neglected, which is not correctable within a time frame to protect the child from jeopardy (see subsection A, Legal Base, for definitions), the Department carries out its legal responsibility to protect the child by petitioning the court for a child protection order.

 

PRACTICE STANDARDS

1.The condition of jeopardy means serious abuse or neglect by a person responsible for the child (see subsection A, Legal Base, for definitions).
2.The decision to petition must be based on evidence admissible in court which will establish, by a preponderance of the evidence:
a.The serious harm which the child has or is very likely to experience (see subsection A, Legal Base, for definitions; Safety Assessment – Safety Factors and Severity Matrix).
b.How the acts, condition, and/or behavior of the person(s) responsible for the child cause the circumstances of jeopardy.
c.That the efforts made by the Department and/or other persons have not been and/or are unlikely to be successful in protecting the child from the serious harm without a protection order.
3.Preliminary Protection Order
a.As part of the decision to petition, the evidence will be reviewed to determine the risk of serious harm is so immediate that the child is very likely to suffer the serious harm before a hearing on the petition.  If so, a preliminary protection order will be requested.
b.If the child is not in immediate risk of serious harm when the petition is filed, but circumstances change before the hearing on the petition, and the child is then in immediate risk of serious harm, new petition will be filed, with the new sworn summary and affidavit, and a request for a Preliminary Protection Order.
4.Approval by Supervisor
a.Approval by the supervisor is required in making a determination whether to file la petition and whether to request a preliminary protection order.
b.If the immediate risk of serious harm is so imminent that delay to contact the supervisor would very likely result in serious harm to the child the caseworker will:
(1)Utilize short-term emergency services, unless a custodial parent objects (see Short-Term Emergency Services, Subsection H), or
(2)Contact law enforcement (see Law Enforcement, Section XI, Subsection Y) who may:
(a)Take the child into interim care up to 6 hours under Title 15, §3501, or
(b)Assume responsibility under other authorizations.
5.The decision to petition will be shared with the legal parents and caretaker relative (see Reasonable Means to Inform Parties of Intent or Action, Section XI, Subsection B).
a.Unless the child would suffer harm during the time needed to inform the parents or caretaker relative, or
b.Unless informing the parents or custodians would increase the risk of serious harm to the child or petitioner.
c.If the caseworker has no reason to believe that informing the parents or caretaker relative is likely to result in risk of harm to persons other than the child or the petitioner (e.g.., a parent or a potential witness), law enforcement will be contacted (see Law Enforcement, Section XI, Subsection Y).
6.The explanation to parents will include:
a.Unresolved problems causing jeopardy.
b.The significance of petitioning:
(1)The Department is requesting a protection order, and the contents of the request.
(2)Custody may be removed from the parents, temporarily and/or permanently.
c.Contents of safety plan for the family and the child.
d.Parents right to legal counsel, appointed by the court if the family is indigent.
e.The role of the guardian ad litem for the child to be appointed by the court.
f.Time frame of other judicial proceedings (when the petition will be filed, that service will be made, and when it is likely that there will be a hearing).
g.If a preliminary protection order is to be requested, the time and place where the order will be requested.
7.Dispositional principles
a.In making a request for a protection order, the statutory dispositional principles must be considered.  Before the court makes a disposition, the court will have made an adjudication that the child "is in circumstances of jeopardy to his health and welfare."
b.The Statutory Principles (Title 22, MRSA §4036, subsection 2) the court will use in making a protection order, preliminary protection order, or a review are, in the following priority:
(1)Protect the child from jeopardy to his health or welfare.

This means if the court makes a finding (adjudication) that the child is in jeopardy, that the court must make an order that, in the opinion of the judge, based on evidence presented at the adjudicatory phase and the dispositional phase, will protect the child from jeopardy.

(2)Give custody to a parent if appropriate conditions can be applied.

This means that if either parent (custodial or non-custodial) can protect the child from jeopardy, with or without conditions, the court must give custody to a parent.

(3)Make disposition in the best interests of the child.
(a)This standard applies as between two parents, either of which can protect the child from jeopardy; i.e., neither parent has priority over the other.  The standard also applies as between the Department and another possible custodian other than a parent; i.e., relatives do not have priority over the Department or other possible custodians.
(b)Although the law does not give relatives priority over the parents or other possible custodians, the worker will consider relatives as possible custodians or placement resources; if a relative can care for and protect the child and the likelihood of rehabilitation of the parent is poor, serious consideration will be given to recommending that custody be given to a relative who wishes custody.
(c)The Department does not have responsibility for family reunification if custody is not ordered to the Department (see Family Reunification and Termination of Parental Rights, Section VI).
(4)Terminate Department custody at the earliest possible time.
(a)This means that at a review hearing the court must apply the above dispositional standards in order of priority.
(b)If the court determines that the parents can protect the child from jeopardy, custody would be returned to them, with or without conditions.
(c)For other changes in custody, however, including change from the Department to another person, the best interest standard applies.
8.Request for a Protection Order
a.The protection order request on the petition and/or request for a preliminary protection order will be for the intervention(s) needed to protect the child from serious harm or threat of serious harm.
b.The request may be for single or multiple protection orders, as determined by the evidence in the intake study (PC50), or subsequent case study services.
c.Custody to the Department will be requested if the results of the Safety Assessment or lack of sufficient progress in the safety plan suggests that custody to the Department may be necessary at the time of filing or by the hearing date.
d.Necessary emergency medical treatment:
(1)If refusal to consent to necessary medical treatment on religious or other grounds is the only issue (e.g., family is following Christian Science or Jehovah Witness tenets, or child is a severely defective newborn), and the child is not being otherwise neglected or abused, a medical treatment order may be sought under Title 22, MRSA §4071 (see Medical Treatment Order, Section X).
(2)If the child is receiving or meets criteria to receive short term emergency services, and the information/evidence indicates that the child is not otherwise neglected or abused, action may be taken under that authorization, Title 22 MRSA §4023 (see Short Term Emergency Services, subsection H).
(3)If the primary element of the serious neglect is deprivation of necessary emergency medical treatment and the child can be protected from serious harm without a change of custody, then a petition will be brought, with a request for a Preliminary Protection Order for the specific emergency medical treatment necessary, as documented by the evidence.  The request will include a plan for payment for this medical treatment (see Section XI, subsection W, Legal Billing).
(4)If deprivation of necessary emergency medical treatment is part of a pattern of neglect, and the child can be protected from serious harm only by a change in custody, then a medical treatment order will generally not be requested since the Department will be requesting that custody be granted either to the Department or another custodian who will voluntarily provide necessary medical care.
e.Participation in a Safety or Child and Family plan by the child, the custodian(s), the parent(s) and other appropriate family members, to protect the child in his own home.  The request will include:
(1)The purpose of the plan, as related to the factors causing jeopardy.
(2)Services planned, as related to the purpose.
(3)Supervision by the Department.
(4)Actions necessary by the family.
(5)Consent of family members for release of treatment information to the Department.
(6)Time limit, usually not to exceed 6 months.
(7)Other conditions, if any (e.g., payment by the family for services).
f.Request that the court appoint counsel to assist the child in emancipation, if the requirements of Title 15, §3506 are met, viz.,
(1)Juvenile is at least age 16, and
(2)Juvenile refuses to return home, and
(3)The parents, guardian or custodian refuses to permit the juvenile to remain away from home, and
(4)Counsel is appointed for the child who files a petition for emancipation in the District Court, and
(5)Notice of hearing is given to the parent, guardian, or custodian of the hearing date, legal consequences, of an order of emancipation, their rights to counsel and to present evidence, and
(6)The court reviews the plans for room, board, health care, education, vocational training or employment, and
(7)The plan identifies community resources and agencies necessary to assist the juveniles emancipated life and demonstrates that these agencies have agreed to assist the juvenile to accomplish his plans, and
(8)The court finds that the juvenile is sufficiently mature to assume responsibility for his own care and that it is in the juveniles best interests for him to do so.
g.Change of custody:
(1)To a non-custodial parent, if appropriate conditions can be applied (i.e., to care for and to protect the child, which may include participation in a Child & Family plan as in e. above including recommendations regarding visitation and support by parents), or
(2)To a relative or other person who can care for and protect the child, if the non-custodial parent cannot, (including appropriate conditions if necessary to care for an protect the child, which may include participation in a Child and Family plan as in e. above, including recommendations regarding visitation and support by parents), or
(3)To the Department, including financial requests:
(a)Support by parents (see Section XI, subsection on Support)
(b)Payment for services to the child or to parents, commensurate with familys ability to pay.
(c)Specifics of the treatment plan will not be included as not to limit the Department in:
(i)Preparation of the case for the adjudicatory and dispositional hearing(s).
(ii)Carrying out its custodial and family rehabilitation responsibilities.
9.Legal counsel for the parents may wish to be present during discussions with the parents.  The Department of Human Services encourages parents to fully utilize legal counsel, and respects the attorney/client relationship.  Occasionally an attorney may advise parents not to talk with Department of Human Services staff.  Staff will discuss with attorney the importance of involving parents in the case planning and, if necessary, meet with the parents and their attorney at mutually convenient times and places.
10.Indian children:
a.If the information available to the worker at the time of filing a petition requesting a change of custody or thereafter, suggests that child is of Indian heritage, special additional laws and policies apply.  The caseworker is expected to assertively attempt to determine if the child has Indian ancestry.
b.Cross reference policy on Indian Child Welfare.
11.When the decision has been made to request custody to the Department:
a.Conjoint planning with Childrens Services unit, will include:
(1)Summary description of the child and his needs in writing if time permits
(2)Discussion of childs needs
(3)Selection of placement
(4)Plans for mechanics of placements
(5)Plans for mechanics of transfer of child
b.In preparing the child and his family for the placement, caseworker will discuss:
(1)Selection of placement
(2)Arrangement for parental involvement, if possible, in the actual placement
(3)Arrangement for visitation
(4)Explanation of case goals
(5)Introduction of childrens services worker
(6)Reunification/Rehabilitation plan for the family
c.Within two weeks of the decision to petition the court, caseworker will record:
(1)Basis of decision
(2)Explanation of the parents
(3)Conjoint planning with Childrens Services