An Act To Establish Permanent Subsidized Guardianship
Maine Legislature, Session 122, LD 1382
Committee Amendment CA_A_S305 (Senate)
Amends: 22 MRSA §4002, 22 MRSA §4038, 22 MRSA §4038-A, 22 MRSA §4052

COMMITTEE AMENDMENT ·A" to S.P. 481, L.D. 1382, 
Act To Establish Permanent Subsidized Guardianship" 
Bill, "An 
Amend the bill by striking out everything after the enacting 
clause and before the summary and inserting in its place the 
following: 
. Sec. 1. 18-A MRSA §S-201, as enacted by PL 1979, c. 540, §1, 
is amended to read: 
§5-201. Status of guardian of minor; genera1 
A person becomes a guardian of a minor by acceptance of a 
testamentary appointment or upon appointment by the court. The 
guardianship status continues until terminated, without regard to 
the location from time to time of the guardian and minor ward. 
This section does not apply to permanency guardians appointed in 
District Court child protective proceedings. 
If a minor has a 
permanency guardian, the court may not appoint another guardian 
without leave of the District Court in which the child protective 
proceeding is pending. 
Sec. 2. 22 MRSA §4002, sub-§7-A, as amended by PL 1987, c. 
769, Pt. A, §77, is repealed. 
Sec. 3. 22 MRS A §4036-B, sub-§S, as enacted by PL 2003, c. 
408, §1, is amended to read: 
5. 
Reasonab1e efforts to fina1ize permanency plan. 
The 
department 
shall 
make 
reasonable 
efforts 
to 
finalize 
the 
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permanency plan. 
In each order determining a permanency plan 
pursuant to section 40~gT-6Q96ee~ie&-+-A 4038-B, the court shall 
make a finding whether or not the department has made reasonable 
efforts to finalize the permanency plan. 
Sec. 4. 22 MRSA §4038, sub-§7-A, as 
amend~d PL 2001, c. 696, 
§32, is repealed. 
Sec. 5. 22 MRSA §4038-A, as amended by PL 1995, c. 694, Pt. 
D, §45 and affected by Pt. E, §2, is further amended to read: 
§4038-A. Transfer to District Court 
If a case is transferred to the District Court pursuant to 
Title 18-A, section 9-205, the court shall conduct a hearing and 
enter a dispositional order using the same standards as set forth 
in section 4036. 
The court after the hearing and entering of a 
dispositional order shall conduct reviews in accordance with 
section 4038 and permanency planning hearings in accordance with 
section 4038-B. 
Sec. 6. 22 MRSA §§4038-B to 4038-D are enacted to read: 
§4038-B. 
Permanency plans 
1. 
Mandated permanen£! planning hearing. 
Unless subsequent 
judicial 
reviews are not required pursuant to section 4038, 
subsection I-A, the District Court shall cC]lduct a permanency 
planning hearing and shall determine a permanency plan within the 
earlier of: 
A. 
Thirty days after a court order to cease reunification; 
~ 
B. 
Twelye months after the time a child is considered to 
have entered foster care. 
A child is considered to have 
entered foster care on the date of the first judicial 
finding that the child has been subjected to child abuse or 
neglect or on the 60th day after removal of the child from 
home, whichever occurs first. 
2. 
Subsegyent 
permanency 
planning 
hearings. 
Unless 
subsequent judicial reviews are not required pursuant to section 
4038, 
subsection 
I-A, 
the 
District 
Court 
shall 
conduct 
a 
permanency planning hearing within 12 months of the date of any 
prior permanency planning order. 
3. 
Permanency 
planning orders. 
After 
each 
permanency 
planning hearing, the District Court shall adopt a permanency 
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shall enter the order within the time limitations contained in 
subsection 1 or 2, whichever is agglicable to the permanency 
planning hearing. 
4. 
Contents of permanency plan. 
A permanency plan for a 
child under this section must contain determinations on the 
following issues. 
A. The permanency plan must determine whether and when, if 
agplicable, the child will be: 
(1) Returned to a garent. Before the court may enter an 
order returning the custody of the child to a parente 
the garent must show that the parent has carried out 
the 
responsibilities 
set 
forth 
in 
section 
4041, 
subsection 
I-A, 
paragraph 
B; 
that 
to 
the 
court's 
satisfaction the parent has rectified and resolved the 
problems that caused the removal of the child from home 
and any subsequent problems that would interfere wi th 
the parent' s ability to care for the child and protect 
the child 
from 
jeopardy; 
and 
that the 
parent 
can 
protect the child from jeopardy; 
( 2) Placed for adogtion, in which case the department 
shall file 
a 
petition for 
termination of parental 
rights; 
(3) Cared for by a permanency guardian, as provided in 
section 4038-C, or a guardian appoL'lt.ed by the Probate 
Court pursuant to Title IS-A, sections 5-206 and 5-207; 
(4) Placed with a fit and willing relative; or 
(5) 
Placed 
in 
another 
planned 
permanent 
living 
arrangement. 
The District Court 
may 
adopt 
another 
planned permanent living arrangement as the permanency 
plan for 
the child only after 
the 
department has 
documented 
to 
the 
court 
a 
compelling 
reason 
for 
determining that it would not be in the best interests 
of the child to be returned home, 
be referred for 
termination 
of 
parental 
rights 
or 
be 
placed 
for 
adoption, be cared for by a permanency guardian or be 
placed with a fit and willing relative. 
B. 
In the case of a child placed outside the state in which 
the parents of the child live. the permanency plan must 
determine whether the out-of-state placement continues to be 
appropriate and in the best interests of the child. 
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C. 
In the case of a child who is 16 years of age or older, 
the permanency plan must determine the services needed to 
assist the child to make the transition from foster care to 
independent living. 
5. 
Wishes of chi1d. 
The District Court shall consider, but 
is not bound by, the wishes of a child in mak~~g a determination 
under this section. 
§4038-C. 
Permanency guardian 
As part of the permanency plan, 
the District Court may 
appoint a person or persons as guardian of a minor, to be known 
as a permanency guardian. 
"Permanency guardian," when used in 
this section and in section 4038-D, means the person or persons 
appointed as the permanency guardian. 
1. 
Criteria. 
The District Court may appoint a person to be 
a 
permanency 
guardian 
only 
if 
the 
court 
finds 
that 
the 
prospective permanency guardian: 
A. 
Has the ability to provide a safe home for the child; 
B. 
Has a close emotional bond wi th the child and that the 
child has 
a 
close emotional bond with 
the prospective 
permanency guardian; 
C. 
Is willing and able to make 
an informed, 
long-term 
cOmmitment to the child; and 
D. 
Has the skills to care for the child and to obtain 
needed information about and assistance with any special 
needs of the child. 
2. 
Powers and duties of permanency guardian. 
A permanency 
guardian has all of the powers and duties of a guardian of a 
minor pursuant to Title l8-A, section 5-209. 
3. 
Parental and re1ative contact. 
A parent, grandparent or 
sibling of a child subject to a permanency guardianship or to a 
proceeding to establish a permanency guardianship may petition 
the 
court 
to 
determine 
rights 
of 
contact 
as 
provided 
in 
subsection 6. 
If the District Court determines that it is in the 
best interest of the child, it may 
order that the parent, 
grandparent or sibling of the child has a reasonable right of 
contact with the child and may specify the type, 
freguency, 
duration and conditions of that contact. 
4. 
PHd support. 
The parents shall pay the permanency 
guardian child support. 
Title 19 A, section 1652 and Title 19-A, 
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.. to S.P. 481, L.D. 1382 
chapter 63 govern the award of child support to the permanency 
guardian. 
The child support obligation may be enforced pursuant 
to Title 19-A, chapter 65 or 67. 
If there is 
an existing child support 
order or obligation 
regarding the child, and if. the District Court fails to make a 
child support order at the 
time of appointing 
a 
permanency 
guardian, the permanency guardian becomes thE! obligee under the 
existing sqpport order or obligation. 
A 
copy of the order 
appointing the permanency guardian is sufficient proof of the 
permanency guardian's status as obligee. 
5. 
Jurisdiction over permanenC.Y guardian. 
The District 
Court 
has 
exclqsiye 
jurisdiction 
to 
appoint 
or 
remove 
a 
permanency guardian 
and 
to establish any 
rights of contact 
between a child and a parent, grandparent or sibling. 
6. 
Proceedings to terminate permanency guardianship or to 
dete~ipe rights of contact. 
Proceedings to terminate permanency 
guardianship or to determine rights of contact are governed by 
the following. 
A. 
Any 
party to 
the 
child protective 
proceeding 
may 
petition to 
terminate 
a 
permanency guardianship and any 
parent, granoparent or sibling of the child may petition the 
court to establish rights of contact with the child, except 
that 
a 
person having 
once petitioneo unsuccessfully to 
terminate a permanency guardianship or to establish rights 
of contact may not bring a new petition to terminate the 
permanency guardianship or to establish_ rights of contact 
within 12 months after the eno of the previous proceeding, 
and then only if the petitioner alleges ano proves that 
there 
has 
been 
a 
substantial 
change 
of 
circumstances 
regaroing the chilO'S welfare. 
B. 
Notice of a petition under paragraph A must be given in 
the manner provided for by Rule 4 of the Maine Rules of 
Civil Procedure to all parties to the child protective case 
and to the permanency guardian. 
C. 
The permanency guardianship may be terminated only if 
the petitioner proves by a 
preponderance of the evidence 
that the termination is in the best interest of the child. 
7. 
Effect on inheritance rights and pub1ic benefits. 
The 
appointment 
of 
a 
permanency 
guardian 
does 
not 
affect 
the 
inheritance rights between a 
child and the child's parent or 
parents. 
COMMITTEE AMENDMENT 
~)~~ 2 
COMMITTEE AMENDMENT ,~, to S.P. 481, L.D. 1382 
The appointment of a 
permanency guardian may not affect the 
child's entitlement to benefits due that child from any 3rd 
person. agency or state or the United States. 
The permanency 
guardian's 
resources 
and 
income 
are 
counted 
in 
determining 
eligibility for any public benefit to which the child may be 
entitled. 
The 
permanency guardianship 
does 
not affect the 
rights 
and 
benefits that a 
Native American derives 
fIo:.n descent from 
a 
member of a federally recognized Indian tribe. 
8. 
Resignation. 
death 
or 
incapacity 
of 
permanency 
guardian. 
Resignation 
of 
a 
permanency 
guardian 
does 
not 
terminate the guardianship until it has been approved by the 
court. 
If 
a 
permanency 
guardian 
resigns. 
dies 
or 
becomes 
incapacitated. the District Court shall hold a judicial review 
and a 
permanency planning hearing at the earliest practicable 
time. 
9. 
Preference. 
The District Court shall give preference 
for placement and permanency guardianship to a person nominated 
by a 
deceased permanency guardian in a valid will or by an 
incapacitated permanency guardian in a valid power of attorney, 
unless the District Court finds that the placement or permanency 
guardianship is not in the child's best interest. 
10. 
Limitation. 
The District Court does not have authority 
to provide a 
guardianship subsidy for permanency guardianship 
under section 4308-D. 
§4038 D. 
Guardianshi:e subsid,y 
1. 
Establishment of :erogram= use of federal funds. 
There 
is 
established 
in 
the 
department 
the 
Guardianship 
Subsigy 
Program. referred to in this section as "the program." 
For the 
purposes of this section, the department is authorized to use 
funds that are appropriated for child welfare services and funds 
provided under the United States Social Security Act, Titles IV-B 
and 
IV E, 
or under 
any waiver that the department receives 
pursuant to those Titles. 
2. 
Eligibility for guardian§hi:e sub§idy :e~nts. Subject 
to rules adopted to implement this section, the department may 
provide subsidies for a special needs child who is placed in a 
permanency guardianship or in a 
similar status 
by 
a 
Native 
American tribe. when reasonable but unsuccessful efforts have 
been made to place the child without guardianship subsidies and 
if the child would not be placed in a permanency guardianship 
without the assistance of the program. 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT ·A .. to S.P. 481, L.D. 1382 
3. 
Definition of "special needs child." 
For purposes of 
this section, "special needs child" means a child who: 
A. 
Has a physical, mental or emotional handicap that makes 
placement difficult; 
B. 
Has a medical condition that makes placement difficult; 
C. 
Is a member of a sibling group that includes at least 
one member who is difficult to place; 
D. 
Is difficult to place because of age or race; 
E. Has been a victim of physical, emotional or sexual abuse 
or 
neglect 
that places 
the 
child at 
risk 
for 
future 
emotional difficulties; or 
F. 
Has in the family background factors such as severe 
mental 
illness, 
substance 
abuse. 
genetic 
or 
medical 
conditions or illnesses that place the child at risk for 
future problems. 
4. 
Amount of guardianship 
SubsiCV. 
The 
amount 
of 
a 
guardianship subsidy is determined according to this subsection. 
A. 
The amount may vary depending ypon the resources of the 
permanency guardian. the special needs of the child and the 
availability of other resources. 
B. 
The amount may not exceed the total cost of caring for 
the child if the child were to remain in the care or custody 
of the department, without regard to the i;e·urce of the funds. 
c. 
Except as provided in paragraph D, assistance may be 
provided only for special needs. 
D. 
Subject to rules adopted by the department. the amount 
may include up to $400 for reimbursement for legal expenses. 
including 
attorney' s 
fees. 
incurred 
by 
the 
permanency 
guardian to complete the permanency guardianship in Indian 
tribal court cases. 
5. 
Duration 
of 
guardianShip 
subsidy. 
A 
guardianship 
subsidy may be provided for a period of time based on the special 
needs of a child. 
The subsidy may continue until the termination 
of the permanency guardianship or until the permanency guardian 
is no longer caring for the child, at which time the guardianship 
subsidy ceases. 
If the child has need of educational benefits or 
has a physicaL mental or emotional handicap, the guardianship 
subsidy may continue until the child has attained 21 years of age 
COMMITTEE AMENDMENT 
t~ .. ia 
COMMITTEE AMENDMENT ,~, to S.P. 481, L.D. 1382 
if the child. the parents and the department agree that the need 
for care and support exists. 
6. 
Agministration of program. 
Applications for the program 
may be submitted by a prospective permanency guardian. 
A written 
agreement between 
the 
permanency guardian entering into the 
program and the department must precede the order creating the 
permanency guardianship. except that an application may be filed 
subsequent to the creation of the permanency guardianship if 
there were facts relevant to the child's eligibility that were 
not presented at the time of placement or if the child was 
eligible 
for 
participation in the 
program 
at 
the 
time 
of 
placement and the permanency guardian was not apprised of the 
program. 
7. 
Amma1 review required. 
If the subsidy continues for 
more than one year. the need for the subsidy must be reviewed 
pnnually. The subsidy continues regardless of the stpte in which 
the permpnency guardipn resides. or the state to which the 
permanency guprdian moves. if the permpnency guprdipn continues 
to be responsible for the child. 
8. 
Death of permanency guardian. 
Upon the death of all 
persons 
serving 
ps 
permpnency guprdian. 
the 
subsidy 
mpy 
be 
trpnsferred to 
a 
new 
legpl guprdipn 
ps 
long 
ps 
the 
child 
continues to be eligible for the guprdianship subsidy pursuant to 
the terms of the most 
recent agreement with the 
permpnency 
guprdipn. The department shall enter into a new agreement with 
the new legal guprdipn. 
9. 
AdQption of rules. 
The depprtment shall adopt rules for 
the program consistent with this section. 
Rules adopted pursuant 
to this subsection pre routine technical rules pursupnt to Title 
5. chapter 375. subchapter 2-A. 
10. 
Permanency guardian's eligibility for public benefits. 
The guardianship subsidy may not be counted as resources or 
income 
in 
the 
determinption 
of 
the 
permpnency 
guardipn' s 
eligibility for aay public benefit. 
Sec. 7. 22 MRSA §4052, sub-§2-A, 1rA, as amended by PL 2003, c. 
408, §7, is further amended to read: 
A. 
When a child has been in foster care for 15 of the most 
recent 22 months. 
The department must file the petition 
before the end of the child's 15th month in foster care. 
In 
calculating when to file a termination petition: 
(1) 
The time the child has been in foster care begins 
when the child is considered to have entered foster 
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v •. ·~ 
COMMITTEE AMENDMENT .. A to S.P. 481, L.D. 1382 
care as 
specified in section 
4Q~gT--SQBSeeE~9a--+-AT 
paFa~Faph-A 4038-B, subsection 1, paragraph B; 
(2) 
When a child experiences multiple exits from and 
entries into foster care during the 22-month period, 
all periods in foster care must be accumulated; and 
(3) 
The time in foster care does not include trial 
home visits or times during which 
the child is a 
runaway. 
This paragraph does not apply if the department is required 
to undertake reunification efforts and the department has 
not provided to the family of the child such services as the 
court determines to be necessary for the safe return of the 
child to the child's home consistent with the time period in 
the case plan;' 
SUMMARY 
This amendment replaces the bill. 
It provides for a new 
permanency guardianship plan for children in custody of the 
Department of Health 
and 
Human 
Services. 
It establishes 
a 
guardianship subsidy for special needs children placed under 
permanency guardianship by the District Court. 
FISCAL NOTE RE<JUR£D 
~~ee attached) 
COMMITTEE AMENDMENT 
Fiscal Detail and Notes 
• 
Approved: OS/27 /05 ~ae 
LD 1382 
LR0603(02) 
An Act To Establish Permanent Subsidized Guardianship 
Fiscal Note for Bill as Amended by Committee Amendment A, 
Committee: Health and Human Services 
Fiscal Note Required: Yes 
Fiscal Note 
Minor cost increase - General Fund 
Any additional costs to the Department of Health and Human Services can be absorbed by the department utilizing 
existing budgetary resources. 
LR0603(2) - Fiscal Note - Page 1 of 1