The Department’s custody of children in the committed programs is terminated either automatically or through court action.
Dismissal of a committed child does not require court action specific to such dismissal, i.e., is automatic, when:
| (1) | He becomes 18 years of age (legal custody terminates at his eighteenth birthday, but care may be extended voluntarily in accordance with the extended care program policy). |
| (3) | He is legally adopted. |
| (4) | He is emancipated pursuant to Title 15, MRSA §3506. |
| b. | Dismissal Through Court Action |
Dismissal of a committed child requires court action, except in the specific circumstances listed under Automatic Dismissal. Dismissal results when the court finds that custody by the Department is no longer necessary to protect the child from jeopardy to his health and welfare and/or the conditions which required the child’s commitment no longer exist.
| (1) | Dismissal of Child Committed Under 22 MRSA, Chapter 1071, §4036 |
In determining this and all dispositions under 22 MRSA Chapter 1971, §4036, the court shall apply four principles in the following order: protect the child from jeopardy to his health and welfare, give custody to a parent if appropriate conditions can be applied, make disposition in the best interests of the child, and terminate Department custody at the earliest time.
| (a) | Dismissal of a child committed to the Department by the court in a Preliminary Protection Order (C1): |
| (i) | The Preliminary Protection Order automatically expires at the time of the issuing of a final protection order. Therefore, a final protection order which does not grant custody of the child to the Department dismisses the Department’s custody of a child committed in a preliminary protection order. |
| (ii) | If after hearing on the preliminary protection order on a motion brought by petitioner requesting dismissal of the preliminary order, or after a review at the end of a time period specified in the preliminary protection order, the court does not continue the order for custody to the Department, custody of that child is dismissed. |
| (iii) | When the court grants a motion to dismiss the child protection petition, custody of that child by the Department is dismissed. |
| (b) | Dismissal of a child committed to the Department by the court in a Final Protection Order (C2, C3, C4): |
| (i) | Upon judicial review of its Final Protection Order (see policy on Judicial Review), the court may make any further orders authorized under 22 MRSA §4036; this includes granting custody to the child’s former custodial parent(s), the child’s non-custodial parent, or other person(s). When custody is awarded to other than the Department, custody by the Department ceases. |
| (ii) | A motion for this judicial review may be brought by the court, the child’s parent or custodian, or any party to the initial proceeding, except a parent whose rights have been terminated under 22 MRSA §4051 et seq. |
| (iii) | The court must at least once within 18 months of the original final protection order review the case of any child who has not been adopted or emancipated. |
| (2) | Dismissal of Child Committed under 15 MRSA, Chapter 405, §3203 and 3314: |
| (a) | Dismissal of a child who was committed to the temporary custody of the Department pending final disposition of a juvenile petition (C9): |
| (i) | If the juvenile petition is dismissed, custody by the Department is also dismissed. |
| (ii) | If after hearing, the child is adjudicated as a juvenile offender, but the court does not continue the order for custody by the Department, custody of that child is dismissed. |
| (b) | Dismissal of a child committed to the custody of the Department by the court after being adjudicated as a juvenile offender (C5). |
| (i) | The parents or the Department may petition for dismissal from custody of the child committed to the Department. |
| (3) | Dismissal of Child Committed under 19 MRSA, Chapter 13, §752: |
| (a) | Dismissal of a child committed to the custody of the Department pending a divorce decree (C6). |
| (i) | The child is dismissed when the final divorce decree grants custody of the child to other than the Department. |
| (ii) | The child is dismissed when the court dismisses the divorce action. |
| (iii) | The child is dismissed when the court grants a motion to amend, requesting dismissal of the Department’s custody pending the final divorce decree. |
| (b) | Dismissal of a child committed to the custody of the Department by a divorce decree or order nullifying a marriage (C7). |
| (i) | The Department, parent, a blood relative, or a party to whom custody was committed may bring a motion to amend requesting dismissal of the Department’s custody. Upon court action on this and the granting of custody to other than the Department, custody by the Department is dismissed. |
| (1) | A dismissal summary must be prepared for the child’s record whatever the means of dismissal is. |
| (a) | This summarizes the child’s experience in care and of the Department’s responsibility to that child. |
| (b) | It is useful should the case be reopened or a request for information be received later. |
| (c) | The summary is separate from, but follows the case narrative. See the Case Recording policy. |
| (2) | Dismissal summaries for C2, C3, C4, C5 and C7 children also provide the Assistant Attorney General with the information needed to prepare the motion for amendment or review requesting dismissal and to present the Department’s case to the court. |
| (3) | Dismissal summaries for committed children will be headed: |
Child’s Name Court of Commitment
Birthdate Worker’s Name
Date of Commitment Date of Summary
| (4) | Dismissal summaries will include: |
| (a) | Circumstances of commitment: |
| (i) | Behaviors/conditions which placed the child in jeopardy and necessitated the child’s commitment to the Department. |
| (ii) | Statute pursuant to which the order for custody was granted. |
| (b) | Child’s experiences while committed to Department’s custody: |
| (ii) | Behavior upon entering and during foster care. |
| (iii) | Any special needs and services provided to meet these. |
| (c) | Child’s present circumstances: |
| (ii) | Functioning at school, home and community while in this placement. |
| (iii) | Frequency, type and quality of contacts with parents. |
| (iv) | If not already noted, any differences between child’s functioning now and at the time of commitment. |
| (d) | Circumstances of parent or other person to whom it is being recommended the child’s custody be granted: |
| (i) | Facts which support the Department’s position that the child will be protected. |
| (ii) | If applicable, rehabilitative services provided the parent(s). |
| (e) | Attitudes toward dismissal: |
| (i) | Child’s attitude toward dismissal. |
| (ii) | The position of each parent, and for those committed under 22 MRSA, Chapter 1071, §4036 of each other party to the initial protection proceeding, regarding dismissal of custody to the person being recommended by the Department. |
| (iii) | The position of any significant others regarding dismissal, including foster parents with whom the child has lived for at least one year prior to dismissal. |
| (f) | Summary and recommendations: |
| (i) | Reasons custody by the Department is no longer needed. |
| (ii) | Recommended disposition for the court: |
| (a) | For children committed under 22 MRSA, Chapter 1071, §4036, whether the Department requests a finding that no jeopardy exists or requests specific protective conditions be applied in order to protect the child. |
| (1) | A dismissal summary is prepared for the case record. |
| (2) | If committed child is being dismissed at age 18, four copies of Termination of Custody statement are signed; one for the record, one for the child, one for sending to Division of Child and Family Services, and one for the child’s foster parents or person with whom the child is currently residing. |
| c. | Dismissals Through Court Action Initiated by the Department |
| (1) | Dismissal plan and summary is approved by regional unit supervisor and filed in the case record. |
| (2) | For C1 cases follow procedures for motions to amend requesting dismissal of the child protection petition or to amend requesting change in the preliminary protection order. |
| (3) | For C2, C3, C4, C5 and C7 cases, following regional approval, the request is sent to the Assistant Attorney General via the Division of Child and Family Services. |
| (a) | The following is included in this request: |
| (i) | A cover memo that is addressed to the Division of Child and Family Services, Attention: Assistant Attorney General and from the approving substitute care manager by the child’s worker, and that contains: |
| (a) | Child’s name, birthdate, birth place, and current address. |
| (b) | The current names and addresses of parents, any previous guardian of the child, other parties to the initial child protection proceeding for these committed under 22 MRSA, Chapter 1071, §4036. If an address is not sufficient for the petition/motion to be served in hand, add directions. |
| (c) | Date of termination of parental rights next to the name of any parent whose rights have been so terminated. |
| (d) | Names and address of attorneys of record, including guardian ad litem. |
| (e) | Name of person to whom custody is to be given. |
| (f) | For those committed under 22 MRSA, Chapter 1071, §4036, whether any other protective conditions need to be applied or a finding of no jeopardy is to be requested. |
| (ii) | A copy of the dismissal summary. |
| (iii) | An attested copy of the Final Protection Order or amended order, the decree of commitment of a juvenile offender, or the divorce decree which gives custody to the Department. |
| (b) | After review of the dismissal summary and plan by the Substitute Care Program Specialist, the request for legal action for dismissal is sent to the Assistant Attorney General. |
| (4) | For C6 cases, after regional approval, the items listed in (4)c(3) (a) i, (a), (b), (d), (e), (3) (a) ii, and (3)(a)iii, will be sent directly to the Assistant Attorney General. |
| (5) | The Assistant Attorney General uses the cover memo and dismissal summary to prepare a motion for review and amendment. The motion will be sent to the responsible worker. |
| (6) | The worker will file the motion with the court. |
| (7) | The worker will arrange for proper service to all parties to the initial proceeding, including parents, legal custodians, the guardian ad litem for the child, and interested parties, except a parent or parents whose rights have been terminated under 22 MRSA §4051 et seq. |
| (8) | The worker will notify the Assistant Attorney General of the time and date of hearing if there is any reason to believe the motion will be contested. |
| (9) | The worker appears at the hearing or review, presents a recommendation to the court, and is prepared to present evidence to support the Department’s position and recommendation. |
| (10) | After the hearing or review, the worker: |
| (a) | Will obtain attested copies of the court’s order for dismissal for: |
| (iii) | The child and/or his parents |
| (b) | Will route attested copy of dismissal order to the Division of Child and Family Services, Attention: Assistant Attorney General for logging and review. When approved, it will be routed back via the Division of Child and Family Services. |
| (c) | Will send a memo to the Support Enforcement and Location Unit informing them of the dismissal, if a support order had been placed on the parents and a referral had been made to the Support Enforcement and Location Unit. |
| (d) | Will send a memo to Division of Child and Family Services asking that the accounts be closed out if the child was recipient of any benefit payments. See policy on Trust Funds and Benefit Payments. |
| d. | Dismissals Through Court Action Initiated by Other Than the Department: |
| (1) | Upon receipt of notice of hearing or review, the worker will send a copy of this notice immediately to the Assistant Attorney General. |
| (2) | If it is not clear what disposition is being requested by the moving party, the worker will contact the moving party and/or his attorney to clarify their position and recommended disposition. |
| (3) | The worker will prepare his assessment, case plan, and recommendation for the approval of the regional unit supervisor. |
| (4) | If the Department is in agreement with the moving party’s position and recommended disposition, procedures under Dismissal Through Court Action Initiated by the Department ((4) c) will apply. |
| (5) | If the Department is not in agreement with the moving party’s position and recommended disposition, the worker will prepare for and send to the Assistant Attorney General as soon as possible, but at least two weeks before the hearing date: |
| (a) | A cover memo which includes the information listed in (4) c (3)(a)i (a) through (d), and disposition recommended by the Department. |
| (b) | A case summary which includes the functioning of both the parents and child since the original decree, what has been observed and by whom, an assessment of these facts, the Department’s position and recommended disposition based on these facts and assessment, and any other information the Assistant Attorney General may need to prepare the Department’s case for presentation at the hearing or review. |
| (6) | The Assistant Attorney General discusses legal representation at the hearing or review with the worker. |
| (7) | The worker appears at the hearing or review, presents the Department’s recommendation to the court and is prepared to present evidence to support the Department’s position and recommendation. |
| (8) | After the hearing or review if the child is dismissed, the worker will follow the procedures under (4) c. 10. and will prepare a dismissal summary, and file it in the child’s record. |
| (9) | After the hearing or review if the child is not dismissed, the worker will: |
| (a) | Obtain attested copies of the court order based on the review or hearing for the record, for legal approval and for the child and/or his parents. |
| (b) | Route attested copy of order to Division of Child and Family Services for logging and for review by the Assistant Attorney General. When approved, it will be routed back via the Division of Child and Family Services. |
| (c) | Revise the case plan, if necessary, to comply with the new order. |
| (d) | Send a memo informing the Division of Child and Family Services if the Department is receiving benefits or trust funds for the child and the new order affects this. |
| (e) | Send a memo to Support Enforcement and Location Unit if the new order affects support payments and referral has already been made to the Support Enforcement and Location Unit. |
