An Act To Clarify Child Protection Proceedings
Maine Legislature, Session 124, LD 1188
Committee: Judiciary
Sponsors: PERRY
Amends: 22 MRSA §4021, 22 MRSA §4033, 22 MRSA §4036, 22 MRSA §4037

Legislative Document 
No. 1188 
S.P.436 
In Senate, March 25, 2009 
An Act To Clarify Child Protection Proceedings 
Reference to the Committee on Judiciary suggested and ordered printed . 
Presented by Senator PERRY of Penobscot. 
PrintcLl on fI:cyc1ed paper 
. 9t8(J~ 
JOY 1. O'BRIEN 
Secretary of the Senate 
Be it enacted by the People 9f the State of Maine as follows: 
Sec. 1. 22 MRSA §4021, sub-§l,as amended byPL 2007, c. 586, §§14 and 15, is 
further amended to read: 
1. Subpoenas and obtaining criminal history .. The commissioner, his delegate the 
commissioner's desi?J1ee or the legal counsel for the depa~ment may: 
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A. Issue subpoenas a subpoena requiring persons a person to disclose or provide to· 
the department information or records in· their the person's possession that are 
riecessary and relevant to an investigation of a report of suspected abuse or neglect or 
suspicious child death, to a subsequent child protection proceeding or to a panel 
appointed by the department to review child deaths and serious injuries. 
(1) The department may apply to the District Court to enforce a subpoena. 
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(2) A person who complies with a subpoena is immune from civil or criminal. 
liability that might otherwise result from the act of turning over or providing 
information or records to the department;-aoo.!C 
A subpoena requesting a telephone record, utility bill or other personal document of a 
person under this paragraph must allow the person at least 7 days to disclose or 
provide the information requested in the subpoena. 
A person who receives a 
subpoena under this paragraph requesting a telephone record, utility bill· or other 
personal document of the person may petition the court to quash all or part of the 
subpoena; and 
B.· Obtain nonconviction data and other criminal history record information under 
Title 16, chapter 3, subchapter 8 that the commissioner, the commissioner's delegate 
or the legal counsel for the department considers relevant to an abuse or neglect case 
or the investigation of a suspicious child death. 
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Sec. 2. 22 MRS A §4032, sub-§4 is enacted to read: 
4. Duty of department. If the department is the petitioner under subsection 1, 
paragraph A, at least 1 o days prior to any hearing on a matter brought under this section 
the department shall prepare and provide to the court and all parties to the matter a report 
detailing the purpose of, service provided for and amount Of any. expenditure made or 
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authorized by the department to prevent the removal of the child from the child's home or 
to reunify "the child with the child's parents or custodian and to prosecute the matter. . 
·Sec.3. 22 MRSA §4033, sub-§2, as enacted by PL 1979, c. 733, § 18, is repealed. 
Sec. 4. 22 MRSA §4033, sub-§2-A is enacted to read: 
2-A. Notice of preliminary protection order. A petitioner shall attempt to notify 
each parent or custodian of a child of the intent to file a request for a preliminary 
protection order for that child and of the time and place at which the request will be 
made. The petitioner shall state in sworn testimony or affidavit the specific steps taken to 
notify each parent or custodian of the child who is the subject of the preliminary 
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protection order or the facts that are the basis for not giving the notice under paragraph A 
Page I - 124LR1198(OI)-1 
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or B. 
The court shall make specific factual findings of the attempt to notify by the 
petitioner or of the exception from notification under paragraph· A or B in its order 
concerning the request. If a parent or custodian of the child or counsel for a parent or 
custodian is, present at the time of the request' for the preliminary protection order, the 
parent, custodian or counsel musthave the opportunity to review, contest and respond to 
each fact supporting the attempt for or exception from the notice required by' this 
subsection. 'If a court aimroves a preliminary protection order under this section and a 
parent or custodian of the child or counsel for a parent or custodian is not present .at the 
time of the request for the preliminary protection order, the parent, custodian or counsel 
must have the opportunity to review, contest and respond to any statement by the 
petitioner regarding notice required by this subsection at the next hearing held upon the 
same matter, If a court finds by a preponderance of the evidence that a fact or statement 
made by the petitioner under this subsection is untruthful or intentionally incomplete or 
misleading, the individual swearing to the fact or statement may not testify or be called as 
a witness in the matter and may be found in contempt and sanctioned by the court. Notice 
under this· subsection is not required if: 
A. The child would suffer serious harm during the time needed to notify the parents 
or custodian; or 
B. Prior notice to the parents or custodian would increase the risk of serious harm to 
the child or petitioner. 
Sec. 5. 22 MRS A §4033, sub-§6 is enacted to read: 
. 6. Report. The District Court shall maintain a record of the number of: 
A. Preliminary protection proceedings requested;. 
B. Preliminary protection proceeding requests granted; 
C. Parents or custodians of the child or counsel to a parent or custodian who were 
present at a preliminmy protection proceeding; and 
D. 
Preliminmy protection requests in which notice was not made pursuant to. an 
exception under subsection 2-A, paragraph A or B. 
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The District Court shall make the information required by this subsection available to the 
public by request and on a publicly accessible portion of the District Court's website. 
Sec. 6. 22 MRS A §4036, sub-§ 1, as amended by PL 2005, c. 526, § 1, is further 
amended to read: 
. 
1. Disposition. 
In a protection order, the court may order one or more of the 
. following: 
A. No change in custody; 
B. Departmental supervision of the child and family in .the child's [tome; 
C. That the child, the custodians, the parents and other appropriate family members 
accept treatment or services to ameliorate the circumstances related to the jeopardy; 
D. Necessary emergency medical treatment for the child when the custodians are 
unwilling or unable to consent; 
E. Emancipation of the child, if the requirements of Title 15, section 3506-A are met; 
F. Removal of the child [rom hls the child's custodian and granting custody to a 
noncustodial parent, other person or the department; 
F-l. Removal of the perpetrator from the child's home, prohibiting direct or indirect 
contact with the child by the perpetrator and prohibiting other specific acts by the 
perpetrator which the court finds may threaten the child; , 
F-2. Visitation between the child and a sibling pursuant to se'ction4068; 
O. 
Payment by the parents of a reasonable amount of support for the, child as 
deterinined or modified according to Title 19-A, chapter 63; 
,0-2. If the court's jeopardy order includes a finding of an aggravating factor, the 
court may order the department to cease reunification, in which case a pennanency 
planning hearing must commence within 30 days of the order to cease reunification~~ 
or 
H. Other specific conditions governing custody;--er.o 
I. The court may not order and the 'State may not' pay for the defendant to attend a ' 
batterers' intervention program unless the program is certified under Title 19 A. 
section 4014. 
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The court may 110t order and the State may not pay for the defendant to attend a batterers' 
intervention'program unless the program is certified under Title 19-A, section 4014. 
Once a disposition has been ordered under this subsection, unless a party moves the court 
or the disposition order directly provides otherwise, a dispute concerning the disposition 
between the department and a party subject to the disposition must be adjudicated by the 
, department pursuant to Title 5, chapter 375, subchapter 4. 
Sec. 7. 
MRSA §4036-lB, sllIb-§4, as enacted by PL 2003, c. 408, §1, IS, 
amended to read: 
4. Reasonable efforts to reunify. The department shall make reasonable efforts to 
rehabilitate and reunify the faInily as provided in section 4041, subsection I-A unless the 
court has ordered that the department need not commence or may cease reunification 
pursuant to section 4041, subsection 2. Reasonable efforts include offering and providing 
appropriate services to the faInily and do not include caseworker actions or duties. The 
department shall document the reasonable efforts offered or provided to a faInily under 
this subsection on a fonn produced by the department and approved by the court. In the 
jeopardy order pursuant to section 4035 and in each judicial review order pursuant to 
section 4038, the court shall make a finding whether or not the department has made 
reasonable efforts to rehabilitate and reunitY the family. 
Sec. 8. 22 MRSA §4037, as amended by PL 1995, c. 694, Pt. D, §44 and affected 
by Pt. E, §2, is further amended to read: 
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§4037. Authority of custodian 
When custody of the child is ordered to the department or other custodian under a 
preliminary or final protection order, the custodian has full custody of the child subject to 
the temis of the order and other applicable law. Custody does not include the right to 
initiate adoption proceeding~ without parental consent, except as provided under Title 
18-A, section· 9-302. Custody does not exclude a parent or custodian of a child in custody 
from receiving records or information concerning the health, education or other personal 
activities of the child directly from the provider or, if the information or record is in the 
department's possession, upon request to the department. 
Sec. 9. 22 MRS A §4062, sub-§4, as enacted by PL J 999, c. 382, § 1, is amended 
to read: 
4. Kinship preference. In the residential placement of a child, the department shall 
consider giving give preference to an adult ~elative over anonrelated caregiver when 
determining placement for a child, as long as the related caregiver meets all relevant state 
child protection standards to prevent or minimize trauma from the .separation of the child 
from family, friends and educational, religious and social activities. If the court places a 
child with a caregiver other than an adult relative, the court must make a finding that 
there is no suitable adult relative with ,whom to place the child. The court may. not 
terminate the parental rights ofa parent if the parent's child is placed with a relative under 
this subsection, except if the court finds an aggravating factor as defined by section 4002, . 
subsection I-B. 
SUMMARY 
TIns bill amends the child custody laws. It: 
1. 
Giving a person 7 days to petition the court to qu~sh a subpoena requesting 
telephone or utility bills or personal information; 
2. Requires the Department of Health and Human Services to provide a report prior 
to a child protective proceeding detailing the expenses incurred prosecuting the 
proceeding and in attempting to unify a child with or prevent removal of the child from 
the child's family; 
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3. Requires the department to provide sworn testimony or affidavit as to efforts to 
notify the parents or custodian oLa child or facts justifying exception to notice in a 
preliminary protection proceeding; 
4. Requires District Courts to keep publicly accessible records relating to preliminary 
protection hearings incluqing notice given, exceptions to notice taken and other 
information; 
5. 
Requires parties under most circumstances to resolve disputes within the 
adjudiCatory structure of the department after disposition in a protection proceeding has 
been ordered; 
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6. Clarifies what constitutes reasonable efforts in the department's requirement to 
rehabilitate or reunify a family; 
7. Clarifies the rights of a parent when a child is in the custody of an adult relative; 
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8. Strengthens the provisions requiringplacement of a child with an adult relative. 
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