PURPOSE
The "Child Protection Order" is the official court document used to award custody or to make another disposition at the conclusion of a child protection proceeding.
PRACTICE STANDARDS
| 1. | The requested disposition will be prepared by the designated caseworker after review by the supervisor. See Adjudication and Disposition Principles, Legal Representation and Petitioning for a Protection Order in Section XI and Judicial Review in Section VI-A. |
| 2. | Negotiation regarding specific contents of court orders with other counsel and the court can be anticipated because the law provides for a variety of dispositional alternatives. |
| a. | Agreements with other counsel or the court are not reached by the Assistant Attorney General without agreement by the caseworker and supervisor. See Legal Representation in Section XI. |
| (1) | Whenever the court orders custody to the Department, the Department |will request a written finding that reasonable efforts were made to |prevent removal from the home and/or rehabilitate and reunify the |family. |
| (2) | State law does not permit orders of custody to the department and placement with a parent; it does permit the department to place a child with a parent for a trial period. |
| (3) | The department actively seeks to avoid orders of legal custody to the department and physical custody to other persons. Supervision and/or services are not sufficient tools to carry out custodial responsibility. |
| (4) | When custody is ordered to other than the department (e.g., a parent or a relative) after the hearing on the Petition or subsequent reviews, |
| (a) | The department does not have further responsibilities for services unless specifically ordered by the court. |
| (b) | The department does, however, remain a party for any reviews. |
| c. | If a court makes a finding of jeopardy, and a determination that the child will remain at home in the custody of parents or return home, over the objections by the department, the department will assess the safety of the child and determine whether to seek further court action, which could include judicial review, filing a motion to stay the order, amend the order, appeal, or filing a new petition. |
| d. | Dispositional case plans |
The department actively seeks to avoid orders for services which are not in conformance with state and federal regulations (e.g., fees/services beyond the Department's fee schedules).
The department will present dispositional case plans which will promote protection of the child, and contain services which are relevant and available. Specific details which could hamper the department in making custodial decisions regarding the child or with which the department cannot realistically comply should be avoided since, technically, inability to comply is a violation of the court order.
| (1) | The preliminary protection order and/or petition always contain dates and times for subsequent hearings, and are served by a deputy sheriff unless otherwise ordered by the court. |
| (2) | Periodic judicial reviews are required under Title 22 MRSA 4038: |
| · | Within 18 months of the final protection order (C2), the court must make a determination regarding continuation of reunification efforts under 4038(6). |
| · | Within 6 months of a determination under 4038(6) that reunification efforts are to continue, there must be another review. |
| · | Within 2 years of an order that the department has no further responsibility for reunification, another review must occur. |
| (3) | No further periodic review is required when |
| · | Custody has been granted to a person other than a parent or the department. |
| · | Custody has been granted to a parent who did not have custody at the time the child protection petition was filed. |
| · | A formal long term foster care agreement is in effect pursuant to 22 MRSA 4061, unless petitioned for by any party or ordered by the court. |
| (4) | An order of termination of parental rights must be reviewed within two years, unless the child is adopted. |
| (5) | A review date will be requested which is consistent with the case plan for the child and any rehabilitation plan with the parents. |
| (6) | When a specific date and time for review is set in the order, and a party receives a copy of that order, further formal service of notice of that hearing for that party is usually not necessary. |
See Service of Legal Documents.
| 3. | Preparation of the order is usually done by the prevailing party, which would be the department when the department was the petitioner and there is a finding of jeopardy. The department will discourage preparation of an order by opposing attorneys; specific language in an order can be crucial in subsequent proceedings. |
Any proposed order by an opposing attorney or guardian ad litem will be reviewed by the Assistant Attorney General before being submitted to the court; the Assistant Attorney General may also prepare the department's proposed order for the court's consideration.
Any proposed order by an opposing attorney or guardian ad litem will be reviewed by the Assistant Attorney General before being submitted to the court; the Assistant Attorney General may also prepare the department's proposed order for the court's consideration.
| 4. | Specifically drafted orders, other than the department's Child Protection Order or Judicial Review forms, may be used. If so, the worker and Assistant Attorney General will need to be sure the order contains information regarding: |
| a. | Identity of petitioner; notice |
| b. | Findings of jeopardy and reasonable efforts |
| 5. | Findings of fact and conclusions of law will be requested by the Assistant Attorney General. |
| 6. | Sufficient attested or true copies will be needed for: |
| b. | Department of Human Services (2 copies) |
| c. | Parent(s) and other parties, if any |
| e. | Other person awarded custody. |
PROCEDURES
| 1. | Complete Child Protection Order (BSSCP-021) or Order After Review (BSSSC-076) for presentation to the court at the hearing with contents as follows: |
| a. | County, court, district, division, docket number. |
| b. | IN RE: Full legal names of children (must be correct and correspond to names on petition; if need be, check with Assistant Attorney General about adding a/k/a/, also known as). |
| d. | After "IT IS HEREBY ORDERED THAT," the full names of children must appear again, followed by the names of the parents, and any interested party. |
| e. | The protection ordered by the court. If different protection is ordered for different children, so specify. |
| f. | Support and terms. Support needs to be specifically addressed for each parent. According to the department's Support Enforcement and Location Unit (SELU), "joint" orders are not enforceable. There must be specification of amount, frequency, and starting date. |
| g. | Date of review, if set. |
| h. | Date of order, town where court is located. |
| I. | Court's district number under the line where the judge will sign. |
| 2. | When there is a preliminary protection order, |
| a. | The judge or clerk may give a copy of the order to parties present when the order is made. This can constitute service of notice for that party. See Service subsection in Section XI. |
| b. | If removing the child from the home is part of the order, written information must be provided to parents and custodians, in accordance with 22 MRSA 4033 (3-A). |
The petition [e.g. the Child and Family Services caseworker removing the child] must provide written information to the parents or custodians regarding the Assigned caseworker and work telephone number [could include the |local office, and the Adult and Children's Emergency Services 24 |hour number].
The location where the child will be taken.
A copy of the complete preliminary protection order.
Unless there is a sworn statement included in the petition that providing the information would cause a threat of serious harm to the child, the petitioner, or another person.
This information may be attached to or written on the order. A copy for the case record is useful documentation.
| c. | See Petitioning for a Child Protective Order in Section IV.D., especially item 10, and Family Reunification, Section VII. |
| 3. | For a final protection order (C2) and judicial reviews, after the judge has signed, the judge or the clerk will see that the parents and/or their attorney receive a copy of the decree, and will complete the back of the decree which includes notices and Service of the Order. |
The court will usually mail copies of orders to all parties or their counsel. The court clerk will attest the copies and keep the original in court file.
| 4. | Route with Legal Routing Form (BSSCF-014), petition, and other supporting material to Assistant Attorney General for official approval. |
| 5. | Route through the Central Office Child & Family Services legal secretary if the Assistant Attorney General is located in Human Services building in Augusta. If the Assistant Attorney General is stationed in Regional Office, send a copy of the order to the Child & Family Services legal secretary. |
The Central Office Child & Family Services secretary maintains a log of all judicial proceedings which is used for data purposes.
CROSS REFERENCE
Petitioning for a Child Protection Order (PC53) in Section IV
Adjudication and Disposition Principles in Section XI
Family Reunification, Section VII
Service of Legal Documents in Section XI
Legal Representation in Section XI
Judicial Review, Section VI.A.
