PURPOSE
The allegation for petitioning the court for a protection order, "in circumstances of jeopardy to his health or welfare" is not sufficiently specific to clarify the child’s condition. In order to clarify the jeopardy, a sworn summary of facts describing the specific serious harm or threat of serious harm, and the causes of the harm is filed as a part of every petition.
When a Preliminary Protection Order is requested an affidavit will be filed to supplement the sworn summary of facts supporting the allegation of "immediate risk of serious harm." The affidavit is the judge’s primary source of information in what is generally and ex parte proceeding (only one party present).
LEGAL BASE
Title 22, MRSA §4032(2), regarding petitioning for a protection order requires "a summary statement of the facts which the petitioner believes constitute the basis for the petition...an allegation which is sufficient for court action...[and] a request for specific court action."
Section 4033, regarding requests for preliminary protection orders, requires "a sworn summary of facts to support the request."
PRACTICE STANDARDS
| 1. | Summary Statements of Facts: |
| a. | The summary is completed on every petition: |
| (1) | Whether or not custodians consent to waiver of hearing |
| (2) | With or without a request for a Preliminary Protection Order. |
| (1) | What the serious harm or threat of serious harm is (see Section IV, Subsection A for definitions), and |
| (2) | What is causing the harm, i.e., how specific acts, behaviors, or conditions of the persons responsible for the child are causing harm. |
| 2. | Affidavits by the Petitioning Worker: |
| a. | An affidavit is completed for a request for a Preliminary Protection Order; it is the evidence base the worker has which explains: |
| (1) | How the worker knows the child is in jeopardy |
| (2) | Why the risk of serious harm is immediate. |
| b. | The affidavit will include factual evidence, with dates: |
| (1) | Observation of and statements made to the petitioning worker by the custodians or other persons responsible for the child. |
| (2) | Information from the direct observation/experience of other persons (e.g., other departmental workers, doctors, teachers, etc.) which is described and identified as to source. |
| c. | Information to be excluded: |
| (1) | Information not based on direct observation/experience of such persons, or on statements made in the presence of those persons by the parents or custodians, is generally hearsay. It should be used as a guide to further investigation, but is not itself evidence and should not be included in the affidavit supporting the allegations on the petition. |
| (2) | Information from a source which is totally anonymous (i.e., cannot be located and brought forth to testify at a hearing if necessary) will not be included, although it may be used as a guide to further investigation. |
| 3. | Affidavits by Other Persons: |
| a. | Affidavits by other persons having direct knowledge may be helpful to support a request for a Preliminary Protection Order or for case preparation. |
| b. | If such an affidavit is needed to support the request for a Preliminary Protection Order, it will be attached to the petition and request. |
| c. | Other affidavits will be retained as possible resources for case preparation. |
| d. | Affidavits may be requested from potential witnesses at any appropriate point (e.g., case study, request for preliminary court action, preparation for full hearing, family rehabilitation, termination of parental rights). |
| 4. | See Reasonable Steps to Inform Parties of Intent or Action, subsection B. |
| 5. | See Relationship to Law Enforcement, subsection Y. |
| 6. | See Child Protection Petition, subsection A. |
| 7. | See Request for a Preliminary Protection Order, subsection F. |
PROCEDURES
| 1. | The summary of facts upon which the petition is based is included in the petition. |
| b. | Facts known or believed by affiant to be true. Whether facts are based on affiant’s personal observation or on statements made to affiant by other person. Source of other person’s knowledge. Dates of observations and statements. |
| d. | Signature of person before whom the affidavit was made, with standard phrase from the petition form: Personally appeared before me, the above _______ on ___, ___, 19___, and made oath that the above statement signed by h__ is true to the best of h__ knowledge and belief. |
| 3. | Preference order for persons administering oath and witnessing signature of affidavit: |
| d. | Justice of the Peace (with date term expires) |
