Provided by the
Maine Child Welfare Ombudsman Program
The following information has been obtained from Pine Tree Legal Assistance and DHHS.
You Do Have Rights!
The Department of Human Services (DHHS) may intervene in families when it believes that a child is in danger of being harmed. As a parent, however, you also have rights. Your best protection is the right to be heard by a judge on a continuing basis. In deciding any protective custody case, the judge must follow these principles in the order listed:
1. Protect the child from jeopardy,
2. Give custody to a parent or relative if appropriate conditions can be applied,
3. Make sure the decision is in the best interest of the child, and
4. End DHHS custody at the earliest possible time.
Also, DHHS must try to work things out with you. That usually means a plan made with you to end the danger to your child or children. Sometimes that means that the Department will provide services to help you take the steps necessary to keep your child or children safe.
In July 1998, the Maine legislature made some changes in the court procedures with the objective of speeding up the process and having DHHS and the court make early decisions about what should happen after your child has been removed from your home. Those decisions may include the goal of reunification with the family, placement with another family member, short-term or long-term foster care, termination of parental rights leading to adoption, or some other plan.
Who Told The State About My Kids And Me?
Often DHHS becomes involved when someone has reported a problem of child abuse or neglect in the household. Doctors, counselors, teachers, social workers, and many other professionals are required by law to report suspected abuse or neglect. Sometimes a parent will call DHHS because he or she needs help working out a particular situation, needs services from DHHS, or believes a child has been hurt in some way by another person or family member. The Department does not have to tell you who made the complaint, if telling you might put that person or agency in danger.
What Happens Once DHHS Decides There Is A Problem In My Household?
A. Worker Comes to Your Home
If DHHS believes there is an abuse/neglect problem in your household, a “protective services case worker” will visit you to investigate. If you and the caseworker can agree, DHHS will open a file and develop a “case plan” with you. This means that you and the caseworker have agreed that abuse/neglect is a problem in your family and that you and DHHS together will work to correct the situation. Often, DHHS will then provide services to meet needs that have been identified. No court is involved. Your family situation will probably be reviewed every three months to make sure that things are going as planned. The file will be closed when the problem is resolved and no child is deemed to be at further risk, or if the family decides they no longer want services.
If you and the caseworker cannot agree, and the caseworker believes that more must be done to protect the child, legal action is an option and the case may go before a judge. The caseworker will file a Child Protection Petition asking a judge to approve or set up a plan to protect your child.
In a small number of cases, the Department¡|s caseworker may not do an initial visit. The information given to the Department may be enough to convince the Department that it must act immediately to protect your child or children. The caseworker may see your child or children without your knowledge. They may also petition the Court for custody of your child or children without telling you they are going to do it. They must show that your child or children would have been placed in greater danger if they followed the usual procedure of seeing you first.
B. Preliminary Protection Order (P.P.O.)
When your caseworker files the Child Protection Petition, a judge may be asked for a Preliminary Protection Order (PPO). The worker will ask for a PPO if it is believed that there is an “immediate risk of serious harm” to your child. DHHS can ask for a PPO without telling you if the caseworker believes:
that the child will suffer serious harm before proper notice can be sent, or
that telling you would increase the risk of serious harm to the child.
If the judge signs a PPO, you will get a copy of the Petition and Order. If the Order allows your child to be physically taken from your home, you will be given the name and work telephone number of the case worker and your child’s location. However, DHHS doesn’t have to give you this information if the caseworker believes that this would cause a threat of serious harm to the child or another person.
With a PPO, a judge can protect your child in a number of different ways. This includes allowing DHHS to remove your child from the home and place him with a relative, in a treatment center, or in a licensed foster home. Your child will be cared for until the judge or DHHS decides that the problem has been resolved and your child can go home. In order to get a PPO, DHHS must convince the judge that there is, in fact, an immediate risk of serious harm.
C. Summary Preliminary Hearing (C-1 Hearing)
If a judge has granted a Preliminary Protection Order, you should get a hearing within
7-14 days of the PPO being signed or within ten days of the time the order is served upon you. However, court schedules often get backed up, so the hearing may not be scheduled within the 7-14 day period. The Order signed by the judge will tell you the date of your hearing. Be sure to go to the hearing. This hearing is sometimes called a C-1 hearing.
The summary hearing is now relatively streamlined. The court can limit testimony at this stage to the DHHS caseworker, parents, custodian, Guardian ad Litem, or foster parent. Reports and records, which could not be used in normal court hearings, may be reviewed by the court at the summary hearing. At this hearing, DHHS must present:
its preliminary plan to reunify your child with you (if the child has been removed),
its efforts to avoid removing your child from the home (if the child has not been removed), or
its decision not to provide reunification services to your family at all.
At the summary hearing, DHHS must prove to the judge that your child is in “immediate risk of serious harm”. If the judge does not believe that there is such a risk, the PPO will end and your child must be returned to you. Your case is not over, however, until the judge rules on the original Child Protection Petition.
D. Right To An Attorney
Even if you cannot afford a lawyer, you still have the right to have a lawyer appointed to help you in this type of case. Be sure to ask the judge to appoint a lawyer for you. Later on, you will need to fill out and sign an affidavit showing the court that you do not have enough money to hire a lawyer. The lawyer will represent you during all of the court proceedings.
Talk to your lawyer as soon as possible to prepare for your hearing. Your lawyer will help you present your side. You should talk to him or her about witnesses. Service providers who can testify to your ability to keep your children safe are often effective. If DHHS has asked you to see a mental health professional to help to determine if you can keep your children safe, you should talk to your attorney about that request.
A state lawyer from the Attorney General’s office will represent DHHS in court. The judge will appoint someone else to represent the interests of your child. This person is called a “Guardian ad Litem.” In some counties in Maine, the Guardian will be a volunteer with a group called CASA (“Court Appointed Special Assistants”). If CASA volunteers are not available, the court may appoint a lawyer to be the Guardian. The Guardian will investigate the situation, interview parents and others, such as teachers or counselors, and tell the court what he/she believes is best for the child. You should work closely with DHHS and the Guardian to fix any problems at home.
E. Right to Have My Child or Children Placed with a Relative
When a child must leave his own home in order to be safe, federal law now requires that the State child welfare agency (Department of Human Services) consider placing the child with relatives , first. The law does not require DHHS to place with relatives. It just requires DHHS to consider relatives who are willing to care for the child.
If you have relatives who can safely care for your child, you can ask them to come forward and tell DHHS (and the Court if necessary) that they want to care for your children. They will need to be licensed as a foster home. If they have problems with substance abuse, a criminal history or serious mental illness, DHHS will probably not approve them to care for your children. DHHS will do a background check on your relatives, so it is important to tell DHHS the truth about any history they may have.
You should also discuss this with your lawyer.
F. Jeopardy hearing (C-2 Hearing)
The next step in the hearing process is the jeopardy hearing, which is sometimes called a C-2 Hearing. This hearing is held to decide the original Child Protection Petition. The jeopardy hearing will be held after the judge has ruled on the PPO. If DHHS has not asked for a PPO, then the jeopardy hearing will be your first court hearing. At this stage, the judge decides the case based on whether DHHS has shown that your child would be “in circumstances of jeopardy to his/her health or welfare” if returned to you. If the judge decides that the child is in jeopardy, a Jeopardy Order will be made that says what must be done to protect your child. As with a PPO, these protective steps can range from DHHS supervision of your family to removing your child from the home.
The law requires the court to issue the Jeopardy Order within 120 days of the time the original petition was filed. That deadline may be extended if there is a good reason to do so. However, court scheduling problems do not qualify as a good reason for delay under the law.
What Happens After The Jeopardy Hearing Is Over? How Can I Get My Kids Back?
Once there has been a decision or agreement after the jeopardy hearing, the protective services case worker will no longer be involved in your case. If your child has been placed in DHHS custody, a “children¡|s services caseworker¡¨ will be assigned to your case. The children¡|s services caseworker will work with you to fix whatever must be changed before you can regain custody. The children¡|s services caseworker also makes sure your child’s needs are being met while your child is in DHHS custody.
Most often, the worker will be providing services to try to “reunify” you with your children. Often, you and the children¡|s services caseworker will write a “family service plan”, which spells out everything that DHHS must do for you and your child and everything you must do in return. This agreement may require such things as evaluations by a psychologist or social worker, counseling, a substance abuse evaluation, or anything else that addresses the problems in your home.
You should have some say in how this plan is developed. You cannot say no to it if you want to get your child or children back. You can, however, have a say in who provides services. For example, you may already to working with a counselor. You may have a mental health case manager. You can insist that these people be involved.
If the caseworker refuses to consider your ideas about who should provide services, you can call the Ombudsman.
Will There Be Any Other Hearings?
Yes. You can ask for a court review of the Jeopardy Order at any time. Under Maine law, when a court has made a Jeopardy Order, the court must review the order at least once every six months until the child turns 18 or is adopted. Judicial reviews are not required, however, when custody is granted to someone other than DHHS or the non-custodial parent.
Even though regular judicial reviews are not required in this situation, a review still must be held if a party requests it or if the judge orders it.
At a judicial review, the judge may order one of the following:
that your child be returned to you,
that you and the caseworker continue to work on reunification, or
that DHHS stop its reunification efforts and make permanent plans for the child’s custody.
If your child is placed in foster care, the court must also hold a hearing called “permanency planning hearing” within 12 months of the placement and at least once every 12 months after that. The “permanency plan” will state whether your child will be returned to you. If your child will not be returned, the plan must state what other permanency plans–such as adoption or placement with a relative–are being considered. The court must hold a “permanency planning hearing” within 30 days of giving a Jeopardy Order that allows DHHS to stop providing reunification services.
What Happens If DHHS Decides Not To Return My Kids To Me? Petition to Terminate Parental Rights.
If DHHS believes that you have not worked to correct the problems which put your child in jeopardy, DHHS can cease reunification efforts between you and your child. This means that DHHS is no longer required to try to reunify you and your child. DHHS must tell you in writing when it decides to “cease reunification.” DHHS must ask the court to approve its decision and must ask for this court approval either before stopping services or within 10 days of the time it stops services.
Reunification services may be stopped for a number of reasons. Examples of reasons used by DHHS to stop services include:
A parent has abused the specific child or another child since services were started.
A parent has refused to take part in treatment or has made so little progress that
reunification could not take place within a reasonable time.
If DHHS determines that reunification efforts have not been successful or are unlikely to be, it must decide whether to file a Petition To Terminate Parental Rights (TPR). This Petition asks the court to end any rights you have as the parent of your child. The law requires DHHS to file a petition for TPR if your child has been in foster care for 15 out of the previous 22 months or if the court finds an “aggravating factor” and approves DHHS’s decision to “cease reunification”. At this point, DHHS may avoid filing a petition for TPR only by convincing the court that there are compelling reasons why the petition would not be in your child’s best interest. If DHHS decides not to ask for a TPR, you may still be able to visit your child. DHHS must also come up with permanency plans for your child. These plans may include a long term foster care placement, which means that your child will live with a foster family until age 18.
You have an absolute right to a hearing on DHHS’s Termination Petition. At this hearing, DHHS must prove, by “clear and convincing evidence,” that it is in the best interests of your child to end your parental rights. The “clear and convincing” test is very high. The court will heavily weigh the parent’s rights before making the extreme decision to end your parental rights.
If a judge decides to end your parental rights, he/she must decide that is in the best interest of your child. The judge must also find that you:
are unwilling or unable to protect your child, or take responsibility for your child,
have abandoned your child, or
have failed to make a good faith effort to rehabilitate yourself or reunify with your
The judge must consider your child’s age and attachments, as well as your child’s physical or emotional needs. As in the jeopardy hearings, you may testify and present evidence and witnesses. Your lawyer may question the DHHS witnesses.
If your parental rights are ended, you will not have the right to visit your child or be involved in your child’s life. You may, however, “appeal” this decision directly to the Maine Supreme Judicial Court. The Maine Supreme Court will decide whether the judge who decided your case had enough reason to end your parental rights. During the appeal process, you will continue to be represented by a lawyer.
Remember: You have many chances to be heard by a judge. You will also get many services from DHHS to help you address the problems in your home. If you cooperate with DHHS, every effort must be taken to return your child to your home.
MCA Ombudsman Program provides this information as a public service. It is not legal advice. Sometimes the laws change. While every effort is made to ensure that this information is up-to-date and correct, we cannot guarantee that. We are not acting as your lawyer. Always consult a lawyer, if you can, before taking legal action.