XI. J. Service of Legal Documents

Effective 10/1/87

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XI. J. Service of Legal Documents

Effective 10/1/87

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PURPOSE

1.Service is an integral part of due process in any judicial proceeding.  By receiving copies of legal documents, parties are given:
a.Notice of pending court action which may adversely affect them.
b.Information about the basis for the action.
c.Information regarding their rights.
d.Opportunity to prepare for the hearing.

 

2.The proof of service provides the court and other parties with proof that service has been made.

 

3.Failure to provide proper service could result in a continuance, dismissal of the case, or the court's order being of no effect on the unserved party.  It could also adversely affect permanency planning for the child (e.g., adoption).

 

LEGAL BASE

1.The Maine Rules of Court for Civil Procedures details the specifics of service.
a.It is the responsibility of the petitioner to make the court aware of all persons who may need service.
b.The petitioner in Child and Family Services cases is responsible for seeing that service is completed and that proofs of service are filed with the court.
c.The court orders the method of service at the time the petition is presented, based on the court's determination about petitioner's information regarding whereabouts of the parties.
d. Personal service in-hand is the method of service used, unless the court orders another method, based on the specific details of a case which requires another type of service.
e.Service methods are:
(1)Personal service in-hand or by leaving copies at dwelling, house, or usual place of abode with some person of suitable age and discretion then residing therein.
(2)Publication, when ordered by the court, after showing that service in hand is not likely to be successful (see Diligent Search in Practice Standards below and Subsection D).
(3)Certified mail, when ordered by the court.  This method alone does not meet the statutory requirements for service, but can be ordered when full service by publication has occurred, and an address has been found for the person(s) to be served.
f.Persons making service must be authorized under the Maine Rules of Civil Procedures to make service.
(1)The court may authorize itself or another agent to make service.
(2)For service in hand, jurisdiction is limited by the appointing authority; e.g., a deputy sheriff may serve only in the county covered by his sheriff.
(3)For service by publication, the petitioner is usually authorized by the court to arrange for publication.
g.Service must be made to all parties:
(1)Each parent [including non-custodial parent] whose rights have not been terminated.
(2)Other person having legal custody of the child [guardians, custodians].
(3)Interested parties, including putative father, [see Interested Party, Subsection F], unless the court orders otherwise.
(4)Guardian ad litem for child, [by ordinary mail with C&FS form for waiver of service in-hand included (form BSSCF-005)].
h.If any of these parties are legally incompetent, then service will be made to:
(1)The guardian of this person or a competent adult member of his family with whom he resides, or
(2)If he is living in [and/or has been committed to] an institution, then to the director or chief executive of the institution, and
(3)Also to the incompetent person, unless the court otherwise orders.
i.If any party is in prison, [or a county jail] service will be made to the warden of the prison [or county sheriff].  [By policy, the Department will also serve the prisoner.]
j.Service or some other form of notice may be appropriate for a person with whom child is living, a previous custodian, or an interested relative.  Contact Assistant Attorney General for consultation.

 

2.The Child and Family Services and Child Protection Act sets time frames and other specifics for service.
a.Service must be made at least ten (10) calendar days before the scheduled hearing date, excluding the day of service, i.e., the hearing can be no sooner than the 10th day after the date of service.

This includes initial petitions per 22 MRSA §4033(1-A) and petitions for termination of parental rights per 22 MRSA §4053.  [By department policy, this also includes motions for judicial reviews, since no time frame is specified for service of these motions in 22 MRSA §4038(3).]

b.Preliminary Protection Order
(1)Title 22 MRSA §4033(3) requires that an attested or true copy of the preliminary protection order be served on the parents and custodians:
 By in-hand delivery by the judge or court clerk to any parent, custodian or their counsel who is present when the order is made.
 In accordance with the District Court Civil Rules (see above).  Notwithstanding the Civil Rules, service by publication of a preliminary protection order shall be completed 5 days after a single publication, or
(2)Another manner ordered by the court.
(3)By department policy, when a child is removed from a parent's care pursuant to a Preliminary Protection Order, a copy of the petition, the caseworker's affidavit regarding immediate risk of serious harm, and the order will be given to the parent by the caseworker at the time the child is removed.

By department policy based on advice of the Assistant Attorney General, the department believes that the parent should also be formally served in-hand by a deputy sheriff to meet the notice requirement.]

 

PRACTICE STANDARDS

1.Informing parties of intent or action
a.Initial petition for a Child Protection Order.
(1)See Reasonable Steps to Inform Parties of Intent or Action in Subsection C, Child Protection Petition.
(2)See Petitioning for a Child Protection Order, Section IV.F.
b.Subsequent actions:
(1)See Judicial Review, Section VI.B.
(2)See Termination of Parental Rights, Section VIII.B.

 

2.Responsibility for service

The petitioner (caseworker) is responsible for ensuring that service is made to all parties which includes:

a.Securing sufficient copies from the court for service to each party, plus 2 for the Department.
Copies may be either:
(1)attested by the court clerk, or
(2)photocopies of document containing signature(s) or attestation, i.e., true copies.
b.Assuring that attorneys representing parents or other parties receive courtesy photocopies of documents which are being served.  In some instances the court may mail copies to appointed attorneys.
c.Service by persons specifically authorized by statute to do service.
d.Payment for costs of service.
e.Filing proof(s) of service with the court prior to the hearing.
f.Routing copies of proofs of service to Assistant Attorney General prior to the hearing.

 

3.Diligent search must be made to locate persons to be served.
a.Sources will be contacted which appear likely to have information on the party's whereabouts.
b.Confidentiality will be maintained.
c.See policy on Diligent Search, Subsection D.
d.When a person cannot be located for personal service in-hand, the Assistant Attorney General will be contacted to plan for presenting the court with a Motion for Service by Publication (form BSSCF-031) accompanied by the Affidavit of Diligent Search (form BSSCF-052) describing the search efforts.

 

4.Time frames
a.Service must be complete at least l0 calendar days prior to a hearing, except that service by publication on a preliminary protection order shall be complete 5 days after a single one time publication.
b.A date sufficiently in advance of the hearing should be requested so that there will be time to complete service, especially when service by publication is ordered.
c.Prompt processing of documents to be served in-hand, published, or mailed is essential.

 

5.Service for guardian ad litem
a.Although the guardian ad litem is entitled to personal service in-hand, he will usually be willing to waive service in hand and to accept service by mail.  Enclosing a self-addressed envelope may facilitate return of the signed waiver to the department.
b.The completed Waiver of In-Hand Service (form BSSCF-005) signed by the guardian ad litem or other signed statement by the guardian ad litem is sufficient proof of service for the court.

 

6.Personal service in hand
a.This is the standard method, and must be performed by certain persons, usually deputy sheriffs or other persons authorized by the court.
b.Contact the Assistant Attorney General for advice prior to accepting any waiver of in-hand service, except by the guardian ad litem for the child (see 5 above).
c.Information will be made available to the person making service (i.e., the sheriff's department) or arranging for service (e.g., if the court makes arrangements with sheriff's department), including the exact address and directions to locate the person to be served.
d.When custodial parent(s) consent to a Preliminary Protection Order, the Court will probably give them a copy of that order; if not, that order will need to be served, along with the petition, which includes the summary of facts which constituted the basis for the request for the preliminary order, the petitioner's (caseworker's) affidavit, and the request.

This applies also to a non-custodial parent who consents to a Preliminary Child Protection Order.  (However, consent of a non- custodial parent does not constitute sufficient consent; if the custodial parent does not consent, a hearing must be held.  See Consents and Waivers, Subsection H.)

e.In-state by deputy sheriff
(1)Deputies are authorized to serve only within their appointing sheriff's county.
(2)The deputy sheriff will be sent or given:
(a)In-state cover form explanatory memo (form BSSCF-001).
(b)Sufficient document(s) for each person to be served.
(c)Specific addresses and any other helpful information to locate the person(s) to be served.
(d)Proof of service form, in-state (form BSSCF-002).
f.Out-of-state, by process server
(1)Most states use deputy sheriffs; some may have other authorized civil process servers.
(2)Rates are set by the out-of-state authority.
(3)Payment in advance may be required; contact Assistant Attorney General for check.
(4)The process server will be sent:
(a)Out-of-state cover explanatory memo (form BSSCF-003).
(b)Legal documents to be served.
(c)Specific addresses and any other helpful information to locate the person(s) to be served.
(d)Affidavit form for out-of-state proof of service (form BSSCF-004).
(e)Payment check, if necessary.
g.Proof of service is filed with the court.
(1)Completed affidavit of proof of service returned to the department by the person making service needs to contain:
(a)Date of service
(b)Titles or list of legal document(s) served
(c)Name of person(s) served
(d)Address where person was served (to indicate that the person making service was authorized to make service at that place)
(e)Signature of server
(f)Notarization.
(2)The original is forwarded to the court by the caseworker or designee, a copy retained for the case record, and a copy sent to the Assistant Attorney General.

 

7.Service by publication
a.an affidavit will be filed with the court regarding diligent efforts (form BSSCF-052) to locate the person(s) to be served.
b.A Motion for Service by Publication (form BSSCF-031) will be needed, if the court has previously ordered service in-hand.
c.Publication is always ordered in a newspaper of general circulation in the county where the legal action is pending.
d.The court may also order publication in the geographic area where the person to be notified is believed to be.
e.Out-of-state newspaper publication is usually not necessary unless there is reasonable cause to believe that such publication will be likely to provide effective notice.
f.The court will indicate the newspaper to be used.  The newspaper must qualify under Title 1 MRSA  601 (basically, must be a regular newspaper of sufficient circulation, rather than an advertising circular).
g.Two forms are presented to the judge for signatures (unless the judge prefers another format or orders publication of the entire petition or preliminary protection order):
(1)Order for Service by Publication (form BSSCF-031), and
(2)The specific notice which is to be published (see specific form for the type of proceeding).
h.the Notice to be Published will be sent to the newspaper, by mail or in person, along with an explanation about when publication needs to occur, and billing procedures.  Form letter to Legal Classified can be used (BSSCF-051).
A purchase requisition form (G-5) from the Division of Financial Services purchasing clerk in Augusta will need to accompany the Notice or be sent for confirmation.  (See regional account clerk.)
i.Publication must occur:
(1)Initial Child Protective Petitions, Motions for Judicial Review, and Petitions for Termination of Parental Rights:  once a week for 3 consecutive weeks, the first publication being at least 31 days before the hearing date.  Therefore it is prudent to allow 6 weeks between filing and hearing.
(2)Preliminary Child Protection Orders:  once, at least 5 days prior to the hearing date.
j.Proof of service is filed with the court:
(1)The full page of each newspaper with each publication (called "tear sheet").  It is helpful to outline the notice in red pencil.
(2)The Affidavit of Service by Publication (form BSSCF-054), one copy for court, and one for case record, if other proof is not provided by the newspaper.
k.A copy of each tear sheet is filed in the case record.
l.See Billing Procedures, item 11 below; 2 additional copies of each tear sheet are needed for billing.

 

8.Service by mail
a.Service by mail, by itself, does not satisfy the Maine Rules of Court for Civil Procedures.
(1)A court may order service by mail in addition to some other type of service, e.g., publication, if it deems that such attempt will enhance the possibility of actual notice.
(2)A person entitled to service in hand may waive that form of service in the interest of expediency (.e.g., see Service for Guardian ad litem, #4 above).
b.When service by mail is specifically ordered:
(1)Each Department of Human Services office has a clerk designated to send certified mail which will generate a return receipt.  The instructions need to include delivery to addressee only.
(2)It is good practice to include an explanatory letter.
c.Proof of service is filed with the court
(1)If certified letter accepted:
(a)The return receipt
(b)Notarized affidavit on service by mail (form BSSCF-053)
(2)If certified letter refused:
(a)Postal service notification of refusal
(b)Notarized affidavit that upon receipt of notice of refusal, an attested copy of the petition and notice of hearing has been sent by ordinary mail.

 

9.Service of Orders
a.The Preliminary Protection Order is served along with the Petition for a Protection Order, unless otherwise ordered by the court:
(1)A parent who is present in court when the court grants a preliminary protection order may be served by the court at that time.
(2)A parent or other party not present in court will need to be served, usually by a deputy sheriff.
b.All other child protection orders, including final Child Protection Order (C2), judicial reviews, and termination of parental rights orders are given to parties and/or their legal counsel, and the guardian ad litem by the court.
If the order does not clearly document that all parties have been given or sent a copy of an order, contact Assistant Attorney General for advice.

 

10.Notice and service of subsequent review hearing can be contained within a child protection order:
a.The caseworker and Assistant Attorney General will request that the review date and time be set unless this is contrary to the legal or case management plan.
b.When a specific date and time is set for a review, and a party has received a copy of the order from the court with this information, further formal notice (e.g., by the deputy sheriff) is usually not necessary for that party.
c.When no specific time is set for review:
(1)A motion for review is usually necessary.
(2)The motion will usually require the same formal service as a petition.
d.Contact Assistant Attorney General for advice regarding service requirements and courtesy follow-up.

 

11.        Billing Procedures

a.Service in hand bill needs to include:
(1)original and l copy on the server's letterhead or other suitable form
(2)Server's name, address and social security number
(3)Case name, who served, cost of service, mileage costs (actual mileage traveled at basic state rate), postage
(4)Proof(s) of service, which worker will detach, reproduce and distribute to court, file, and Assistant Attorney General
b.Publication bills need to include:
(1)Original and l copy on the vendor's billhead
(2)A copy of the purchase requisition form (G-5) or the authorization number.
(3)Four sets of tear sheets for each date of publication:
 1 for court
 1 for file
 2 for bill
c.Approved bills for service are stamped and encoded by Budget Officer, and forwarded to the Financial Services purchasing clerk, unless the newspaper sends the bill direct to Financial Services.
d.No Gl6A or approval by Assistant Attorney General is necessary.

 

12.Check with court prior to hearing to be sure proper service has been completed and filed.

 

13.If, for any reasons, proper service has not been completed (e.g. someone not served in hand or by mail at least l0 days before hearing, or first publication was not 3l days before the hearing), contact the Assistant Attorney General.  Decision will have to be made, in conjunction with the court and other counsel regarding whether a continuance will be necessary.
This could include:
a.An amended petition specifying the new hearing date.
b.Service of amended petition, for any party not properly or timely served with the original petition.
c.Possible waiver of the 10 day notice.
d.Informing all other parties by letter of the new hearing date.

 

14.When the court does service of an order (e.g., the Preliminary Protection Order when a parent is present, or other Orders after hearings),
a.Arrange with the court for inclusion of this information on the order or another document.
b.It is helpful to inform the court clerk of most recent known addresses of parents.