PURPOSE
| 1. | A Child Protection Petition is brought when the Department, after sufficient investigation (see Case Study section) has made a determination that the child is "in circumstances of jeopardy to his health or welfare" and only a petition for protection by the court will alleviate the jeopardy. |
| 2. | Protection of the child, not punishment of the parent, is the goal of this law. A child protection proceeding is a civil, not a criminal proceeding. |
LEGAL BASE
| 1. | Under Title 22, §4031, a Child Protection Petition may be brought to the District or Probate Court in the county where the child resides or is present. |
When a child is in voluntary placement with the Department or an agency, the petition may be brought only in the district where he legally resides.
| 2. | The petition is brought when the petitioner believes that the child "is in circumstances of jeopardy to his health or welfare,’ and is in need of protection. |
| 3. | The petition may be brought by: |
| a. | A duly authorized agent of the Department of Human Services. |
| b. | A police officer or sheriff. |
| 4. | The petition requests (prays) that the court: |
| a. | Set a time for hearing. |
| b. | Order notice to the parents, custodians, the guardian ad litem for the child(ren) and other interested parties (see Section IV, Addendum B). |
| c. | Appoint a guardian ad litem for the child. |
| d. | After hearing the evidence, determine whether the preponderance of the evidence presented supports the allegation, and if so make an order for the protection of the child. |
| 5. | The court will determine: |
| a. | Whether the child is living in circumstances of jeopardy to his health or welfare, based on a preponderance of the evidence presented. |
| b. | What action is necessary applying the following principles in this order: |
| (1) | Protect the child from jeopardy |
| (2) | Give custody to a parent if appropriate conditions can be applied |
| (3) | Make disposition in the best interests of the child |
| (4) | Terminate Department custody at the earliest possible time. |
| a. | The petition and related court papers are kept in the court’s files and become official public court records unless impounded by the court. |
| b. | Professional reports are available only to counsel of record and the guardian ad litem, unless released by written order of the court. |
| c. | Proper notice of the proceedings is mandatory (Title 22, §4033; see Service, subsections J and K). |
| d. | Parents have a right to counsel (Title 22 §4005; see Legal Representation, subsection M). |
| e. | The child must have a guardian ad litem appointed for him (Title 22 §4005; see Legal Representation, subsection M). |
| f. | The court will follow rules of evidence for civil proceedings: |
| (1) | And make a finding based on the preponderance of the evidence whether the child is in circumstances of jeopardy to his health or welfare, and if so |
| (2) | Make a disposition to protect the child. |
| g. | The court’s decision may be appealed to the Superior Court (Title 22, §4006; see Appeals, subsection U). |
| h. | Court reviews of the disposition (Title 22, §4038): |
| (1) | Shall be at least once within 18 months, unless the child has been adopted (Title 22, §4051 et seq.; see Section VIII, Family Reunification) or emancipated (Title 15, §3506). |
| (2) | Will take place upon motion of the child’s parent or custodian, the court, or any party to the initial proceedings, except a parent whose rights have been terminated. |
| (3) | Notice must be given in accordance with Maine Rules of Court (see Service, subsection J). |
| i. | The constitutional right to due process provides protection for certain fundamental rights of all citizens, including parents and children in child protection proceedings. |
PRACTICE STANDARDS
| 1. | A "duly authorized agent of the Department of Human Services" is any social service employee authorized by the Department to act in the capacity of a child protective services worker. |
| 2. | The petition will be brought in District Court rather than Probate Court, unless delay to locate a District Court judge would result in serious harm to the child. |
| 3. | A petition will be brought when a determination has been made (with approval by supervisor), that the child is "in jeopardy to his health or welfare" and only a petition for a protection order will alleviate the circumstances of jeopardy (see Petitioning for a Protection Order, PC53, Section IV, subsection F). |
| a. | The decision to petition must be based on evidence admissible in court (usually, events witnessed by the person testifying; only persons accepted by the court as experts can express opinions). |
| b. | Refusal to consent to medical treatment on religious or other grounds does not necessarily warrant the filing of a protection petition (see Medical Treatment Order, Section X, Short Term Emergency Services, Section IV, subsection H, Petitioning for a Child Protection Order, Section IV, subsection F). |
| c. | The Child Protection Petition (BRDCP-001) developed by the Department, is the legal document initiating court action regarding protection of a child appearing to be "in circumstances of jeopardy of his health or welfare" because of serious abuse or neglect. This form combines several activities: |
| (1) | Identifies relevant persons |
| (2) | States the problem (allegation that the child is in circumstances of jeopardy, supported by the summary statement) |
| (a) | That the court fix a time for hearing and that the court order notice of the hearing and notice regarding legal counsel and possibility of termination of parental rights. |
| (b) | That the court appoint a guardian ad litem for the child. |
| (c) | That after hearing, the court issue a specific protection order. |
| (4) | Orders a hearing place, date and time. |
| (5) | Orders service of the petition and notice of hearing. |
| (6) | Notifies parents of their right to counsel, and that these proceedings may lead to termination of parental rights. |
COMPLETING THE PETITION (Form BRDCP-001)
| 1. | These instructions are written as if the form were to be completely filled out by departmental staff and secretaries; individual judges may prefer that their clerks fill in particular portions. |
| 2. | Under STATE OF MAINE, in the blank space before ",SS," fill in name of county in which the child resides, or is present and therefore the county in which the petition will be filed and heard. |
| 3. | After "IN RE", list full legal names of children for whom a protective order is being sought. |
| a. | Last name first, unless the court prefers first name first. |
| b. | Include any other names by which the child is known by using a/k/a’s (also known as). |
| c. | A separate petition must be used for children of each different marriage or union, custodianship or guardianship. |
| (2) | Division, location, title |
| (3) | Docket number assigned by court’s clerk (or ask court clerk to add it). |
| b. | For Probate Court, alter accordingly. |
| 5. | After agent, fill in name of worker who is petitioning. |
| a. | Complete full names and addresses of legal parents, whether married, divorced, widowed, deceased, or single, and custodians. |
| (1) | It is helpful, for service, to include street address, if known. |
| (2) | If a parent is suspected to be incompetent (mentally ill or mentally retarded), petitioner must bring this to the attention of the court. A guardian ad litem will be requested for the parent (see paragraph 13 regarding Order of Notice and hearing, and Service of Petition, subsection J). |
| (3) | If a parent is deceased, name the parent and indicate date and place of death. |
| (4) | Inapplicable relationships between the brackets are crossed out. |
| b. | List full legal names and dates, towns and states of birth for the children. |
| (1) | Verification of birth data should be done whenever possible. (See Verification of Vital Statistics, subsection D). If data which is verified later indicates discrepancies, contact AAG to have petition amended. |
| (2) | Completeness and accuracy of data for children and parents differentiates these children from others of similar name. |
| 7. | Item #2, add interested party(ies), if any: |
| a. | Putative father will be listed here. |
| b. | Other potentially interested parties could include persons previously having had custody, relatives with whom the child has lived or relatives who are seeking custody. (See Interested Party, subsection E; if in doubt, contact Assistant Attorney General.) |
| c. | If more than two interested parties, asterisk Item #2, and add additional parties at the bottom of the page. |
| 8. | In Item #3, indicate both the legal residence (usually the legal residence of the custodian) of the child and where he is now living. |
| a. | The mailing address may differ from the town or residence; the town of residence prevails. |
| b. | The place where the child is receiving room and board, if any, will be considered to be where he is living. |
| (1) | If he is in a facility (e.g., hospital or treatment center) name the facility and the town where it is located. |
| (2) | If he is in a private home or foster home, so state, without naming the caretakers. Also include the town. |
| 9. | Item #4, ("...in circumstances of jeopardy to his health or welfare...") is the basic allegation and is never crossed out; inapplicable nouns and verbs are crossed out. |
| 10. | Item #5 is the summary of facts which the petitioner believes constitutes the alleged circumstances of jeopardy to the child’s health or welfare, i.e., what the jeopardy (serious harm or threat of serious harm) is, and how it is related to the responsibilities of the person (usually parent) responsible for his well-being (see Sworn Summary of Facts and Affidavits, subsection C). |
| 11. | The Preliminary Protection section (items 6, 7 and 8): |
Items 6, 7 and 8 are slashed out unless Preliminary Protection Order is sought at the time the petition is filed. If a Preliminary Protection Order is needed while the petition is pending, a new petition will be filed. See subsection F, Request for Preliminary Protection Order.
| a. | Item #1 regarding setting a time for hearing, ordering notices, is always left in; cross out plurals if only one child. |
| b. | Item #2 regarding guardian ad litem for the child(ren) is always left in. |
| c. | Item #3 requests a specific disposition after adjudication. (See Section IV, subsection F, Petitioning for a Protection Order, PC53 for choices.) |
| d. | Item #4 is for a preliminary protection order: |
| (1) | If not requested, cross out. |
| (2) | If requested, see 11 above, and also subsection F, Request for a Preliminary Protection Order. |
| e. | Complete office address and phone. |
| f. | Complete oath, including worker’s name, date, etc. |
| g. | The oath is made before a notary (including seal) or justice of the peace (including date term expires). When a Preliminary Protection Order is sought, petition should be notarized at same time as affidavit. |
| 13. | Order of Hearing and Notice: |
| a. | First space is for court’s district number. |
| b. | Second and third spaces are for town and county in which the court is located. |
| c. | The rest of the spaces are for date and time set by the court for hearing. |
There must be at least 10 calendar days between the date of service and the date of hearing, not including the date of service (see Service of Petition, subsection J).
| d. | Persons to be served and method(s) of service ordered by the court are typed in the space after "the hearing by"...(see Service of Petition, subsection J). From experience, staff can usually anticipate the method(s) the court will order in various circumstances. |
| e. | The court district number is typed in under the line for the judge’s signature. |
| f. | Copies of the petition are attested by the court clerk (see Attestations and Copies, subsection I). |
| g. | Services is made on all parties (see Service of Petition, subsection J). |
PETITIONS FILED BY OTHER THAN THE DEPARTMENT
| 1. | On occasion a child protection petition is filed by persons outside the Department. This may occur when the Department believes that the evidence available to the Department does not warrant the filing of a petition, or when another person disagrees with the specific protection order the Department is requesting in its petition (e.g., Department is requesting treatment plan, other person is requesting custody to the Department or himself). |
| a. | Title 22 MRSA, §4032 permits filing of petitions by: |
| (1) | The Department through an authorized agent |
| (2) | A police officer or sheriff |
| (3) | Three or more persons. |
| b. | Title 22 MRSA, §4033 requires service of the petition on the state if the Department is not the petitioner. |
| a. | When the Department determines, in accordance with its policies on child protection, that the child is not "in circumstances of jeopardy to his health or welfare", the Department will not file a petition for a protection order. |
| b. | If another person believes that a petition should be filed, he will be advised: |
| (1) | That the statute permits filing by persons other than the Department |
| (3) | That if he files a petition, service on the State is to be directed to the Attorney General |
| (4) | That the Department may seek to become a party. |
| c. | Necessary forms will be supplied to the person. |
| d. | The supervisor and Assistant Attorney General will be informed immediately of the person’s plans. |
| e. | It if appears that custody to or supervision by the Department may be considered by the petitioner, any other party, or the court, the Department will seek standing as a party. |
| f. | The worker will prepare a report for the Assistant Attorney General regarding the facts in the case which will support the Department’s stance. The format for case summary for the Assistant Attorney General may be used (see Legal Representation, subsection M). |
