An Act To Establish Permanent Subsidized Guardianship
Maine Legislature, Session 122, LD 1382
Committee: Judiciary
Sponsors: ROSEN, SOCKALEXIS, FAIRCLOTH, WALCOTT
Amends: 22 MRSA §4002, 22 MRSA §4038, 22 MRSA §4038-A, 22 MRSA §4052

Legislative Document 
No. 1382 
S.P.481 
In Senate, March 22, 2005 
An Act To Establish Permanent Subsidized Guardianship 
Submitted by the Department of Health and Human Services pursuant to Joint Rule 204. 
Reference to the Committee on Judiciary suggested and ordered printed. 
Presented by Senator ROSEN of Hancock. 
JOY J. O'BRIEN 
Secretary of the Senate 
Cosponsored by Representative SOCKALEXIS of the Penobscot Nation and 
Representatives: FAIRCLOTH of Bangor, WALCOTT of Lewiston. 
Printed on recycled paper 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 18-A MRSA §S-201, as enac ted by PL 1979, c. 540, § 1, 
is amended to read: 
§5-201. Status of guardian of minor; qeneral 
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 
under Title 
22, 
section 4038-C. 
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 A, §77, is repealed.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-§5, as enacted by PL 2003, c. 
408, §1, is amended to read: 
5. 
Reasonable efforts to finalize permanency plan. 
The 
department 
shall 
make 
reasonable 
efforts 
to 
finalize 
the 
permanency plan. 
In each order determining a 
permanency plan 
pursuant to section 4G&Sr-S~9see~i9a-+-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 amended PL 2001, c. 696, 
§32, is repealed. 
Sec. S. 22 MRSA §4038-A, as amended by PL 1995, c. 694, Pte 
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 
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1. 
Mandated permanen~ planning hearing. 
Unless subsequent 
judicial reviews 
are not required pursuant to section 4038, 
subsection I-A, the District Court shall conduct a 
permanency 
planning hearing and shall determine a permanency plan within the 
earlier of: 
A, 
Thirty days after a court order to cease reunification: 
QI:. 
B, 
Twelve months after the time a child is considered to 
have 
entered 
foster 
care, 
For 
the 
purposes 
of 
this 
paragraph, 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. 
Subseqyent 
penmapency 
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. 
Permapen~ planning 
orders. 
After 
each 
permanency 
planning hearing, the District Court shall adopt a 
permanency 
plan for a child that complies with subsection 4. 
The court 
shall enter the order within the time limitations contained in 
subsection 1 or 2, 
whichever is applicable 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 
applicable, the ~bild will be: 
(1) Returned to a parent. Before the court may enter an 
order returning the custody of the child to a parent, 
the parent 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 subseguent problems that would interfere with 
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 adoption. in which case the department 
shall file 
a 
petition for 
termination of parental 
rights: 
(3) Cared for by a permanency guardian, as proyided in 
section 4038-C or a guardian appointed by the Probate 
Court pursuant to Title 18-A, sections 5-206 and 5-207: 
(4) Placed with a fit and willing relatiye: or 
(5) 
Placed 
in 
another 
planned 
permanent 
living 
arrangement. 
The District Court 
may 
adopt 
another 
planned permanent liying arrangement as the permanency 
plan for 
the child only after 
the 
department 
has 
do~umented to 
the 
court 
a 
compelling 
reason 
for 
getermining that it would not be in the best interests 
of the chilg to be returneg home. 
be referred for 
termination 
of 
parental 
rights 
or 
be 
placed 
for 
agoption. be careg for by a permanency guardian or be 
placed with a fit and willing relative. 
E. 
In the case of a child placed outsige 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 ang in the best interests of the child. 
C. 
In the case of a chilg who is 16 years of age or older. 
the· permanency plan must getermine the services needed to 
assj,st the chilg to make the transition from foster care to 
ingepengent living. 
5. 
Wishes of child 12 years of age or older. 
The District 
Court shall consiger. but is not bound by. the wishes of a child 
in making a determination unger this section if the child is 12 
years of age or olger. 
S4038 C. 
Permanency guardian 
As part of the permanency plan under section 4038-B. the 
District Court may appoint a person or persons as guardian of a 
minor, 
to 
be 
known 
as 
a 
permanency 
guardian. 
"Permanency 
guardian." when useg in this section and in section 4038-D. means 
the person or persons appointeg as the permanency guardian. 
1. 
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 18-A. section 5-209. 
2. 
Limitations 
on 
powers 
and 
duties 
of 
permanency 
guardian. 
When it is in a child I s best interests. the District 
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Court may limit the powers of the permanency guardian in the Same 
manner as the Probate Court may limit the powers of a guardian of 
a minor pursuant to Title IS-A. section 5-105. except that the 
District Court may not limit a permanency guardian's powers to; 
A. 
Protect the child; 
B. 
Educate the child; 
C. 
Maintain care and control over the person of the child; 
D. 
Maintain physical custody of the child; and 
E. 
Make decisions concerning the child. 
3. 
Jurisdiction oyer pem,pcDCX guardian. 
The District 
Court has exclusive jurisdiction to appoint. remove or limit the 
powers of a permanency guardian. 
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Proceedings 
to 
terminate 
or 
limit 
permanency 
guardianship. 
Termination 
or 
limitation 
of 
a 
permanency 
guardianship is as follows. 
A. 
Any 
party 
to 
the 
child protective 
proceeding 
may 
petition to terminate a permanency guardianship or to limit 
the 
powers 
of 
a 
permanency 
guardian. 
A 
person 
who 
petitioned 
unsuccessfully 
to 
terminate 
a 
permanency 
guardianship or limit the powers of a permanency guardian 
may not bring a 
new petition to terminate or modify that 
permanency guardianship within 12 months after the end of 
the previous proceeding. 
and then only if the petitioner 
alleges and proves that there has been a substantial change 
of circumstances regarding the child's welfare. 
The court 
may not appoint counsel for a person bringing a petition to 
terminate a permanency guardianship or to limit the powers 
of a permanency guardian unless the person is a parent of 
the child. 
B. 
A permanency guardianship may be terminated or modified 
if the petitioner proves by a preponderance of the evidence 
that 
the 
termination 
or 
modification 
is 
in 
the 
best 
interests of the child. 
Notice of any such petition must be 
given in the manner provided by Rule 4 of the Maine Rules of 
Civil Procedure to all parties to the child protective case 
and to the permanency guardian. 
§4038-D. 
Guardianship subsidY 
1. 
Establishment of program: use of federal funds. 
There 
is 
established 
in 
the 
department 
the 
Guardianship 
Subsidy 
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 guardianship subsidy payments. 
Subject 
to rules adopted by the department. the department may provide 
through the program subsidies for a special needs child who is 
placed in a permanency guardianship or in a similar status by a 
Natiye American tribe, when reasonable but unsuccessful efforts 
have been made to place the child without guardianship subsidies. 
if tbe cbild would not otberwise be placed in a 
permanency 
guardiansbip without the assistance of the program. 
3. 
Assistance with legal costs. 
The 
department shall. 
subject 
to 
rules 
adopted 
by 
the 
department, 
reimburse 
a 
prospective permanency guardian of 
a 
special needs child for 
legal expenses incurred by the permanency guardian for legal 
costs 
to 
complete 
the 
permanency 
guardianship 
legalization. 
capped at $400. 
4. 
Definition of "special needs child." 
For purposes of 
this section. a "special needs child" means a child who: 
A. 
Has a physical. mental or emotional handicap that makes 
placement difficult; 
B. 
HaG 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, prostitution or genetic or 
medical conditions or illnesses that place the child at risk 
for future problems. 
5. 
Amount 
of guardianship 
subsidy. 
The 
amount 
of 
a 
guardianship subsidy under the program may vary depending upon 
the resources of the permanency guardian and the special needs of 
the child as well as the availability of other resources but may 
not exceed the total cost of caring for the child if the child 
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were to remain in the care or custody of the department, without 
regard to the source of the funds. 
Assistance may be provided 
for special needs only. 
6. 
Duration of guardianship subsidy. 
Under the program, 
assistance may be provided for a period of time based on the 
special needs of a child. 
Except as otherwise provided in this 
subsection, the duration of the subsidy may continue until the 
termination 
of 
the 
permanency 
guardianship 
or 
until 
the 
permanency guardian is no longer supporting 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 if the child, the parents and the 
department agree that the need for care and support exists. 
7. 
Administration of program. 
Applications for the program 
may be submitted by a prospective permanency guardian. 
A written 
agreement between the family entering into the program and the 
department must precede the order under section 4038-C creating 
the permanency guardianship, except that an application may be 
filed subseguent 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 the reguest for the sUbsidy 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. 
8. 
Annual 
redetermination 
required. 
If 
the 
subsidy 
continues for more than one year, the need for the sUbsidy must 
be annually redetermined. The sUbsidy continues regardless of the 
state in which the permanency guardian resides, or the state to 
which the permanency guardian moves, if the family continues to 
be eligible based on the annual redetermination of need. 
9. 
Death of permanency guardian. 
Upon the death of all 
persons serving as permanency guardian for a child, the subsidy 
under the program may be transferred to a new legal guardian if 
the child continues to be eligible for the guardianship SUbsidy 
pursuant to the terms of the most recent agreement with the 
permanency guardian. 
The 
department 
shall enter 
into 
a 
new 
agreement with the new legal guardian . 
10. 
Adoption of rules. 
The department shall adopt rules 
for the program consistent with this section. 
Those rules are 
routine 
technical 
rules 
pursuant 
to 
Title 
5, 
chapter 
375, 
subchapter 2-A. 
Sec. 7. 22 MRSA §4052, sub-§2-A, ,A, 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 
care as 
specified in section 
4Q68T--SQasee~ieR--1-AT 
pa~a~~apR-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 
home visits or 
runaway. 
in foster care 
times during 
does 
which 
not include 
the child 
trial 
is 
a 
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 
The purpose of this bill is to add the concept of permanent 
legal guardianship to the dispositional alternatives available to 
District Courts under the Maine Revised Statutes, Title 22. 
This 
concept would allow relatives and other parties to be awarded 
permanent 
legal 
guardianship 
of 
children 
subject 
to 
child 
protection orders and actions and allow payment of a guardianship 
subsidy for special needs children who have been in the custody 
of the State or for Native American children in the custody of 
the tribe who move into a permanent legal guardianship status. 
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