An Act To Expand Courts' Authority To Protect Children When a Parent Has Been Awarded Sole Parental Rights and Responsibilities
Maine Legislature, Session 130, LD 1030
Committee: Judiciary
Amends: Title 25, Section 5, 18-C MRSA §5, 19-A MRSA §1658, 22 MRSA §4052, 22 MRSA §4055

Legislative Document
No. 1030
H.P. 765
House of Representatives, March 10, 2021
An Act To Expand Courts' Authority To Protect Children When a 
Parent Has Been Awarded Sole Parental Rights and Responsibilities
Reported by Representative HARNETT of Gardiner for the Family Law Advisory 
Commission pursuant to the Maine Revised Statutes, Title 19-A, section 354, subsection 2.
Reference to the Committee on Judiciary suggested and ordered printed pursuant to Joint 
Rule 218.
ROBERT B. HUNT
Clerk
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  18-C MRSA §5-204, sub-§2, ¶C, as enacted by PL 2017, c. 402, Pt. A, §2 
and affected by PL 2019, c. 417, Pt. B, §14, is amended to read:
C.  By clear and convincing evidence that the parents are unwilling or unable to 
exercise their parental rights, including but not limited to the following situations:
(1)  The parent is currently unwilling or unable to meet the minor's needs and that 
will have a substantial adverse effect on the minor's well-being if the minor lives 
with the parent; or
(2)  The parent has failed, without good cause, to maintain a parental relationship 
with the minor, including but not limited to failing to maintain regular contact with 
the minor for a length of time that evidences an intent to abandon the minor.; or
(3)  A prior court order concerning the minor granted another parent, who is now 
deceased, exclusive parental rights and responsibilities with respect to all aspects 
of the minor's welfare without reserving for the parent who is now the respondent 
in the guardianship proceeding any rights to make decisions, to have access to 
records or to have contact with the minor and:
(a)  Such order was in effect at the time of the death of the parent awarded 
exclusive parental rights and responsibilities; and
(b)  There is neither a substantial change in circumstances between the time of 
the entry of the order and the parent's death nor other facts that would render a 
finding based on the order to be inequitable or unjust.
Sec. 2.  19-A MRSA §1658, as repealed and replaced by PL 2015, c. 427, §1, is 
amended to read:
§1658.  Termination of parental rights and responsibilities in cases involving sexual 
assault
This section applies to the termination of parental rights and responsibilities with 
respect to a specific child conceived as a result of an act of sexual assault by the parent of 
that child.
1.  Petitioner.  The A petition for termination of a parent's parental rights and 
responsibilities with respect to a specific child may be filed by the other another parent or, 
if the other parent is a minor, the parent or guardian of the other parent a child's minor 
parent on any grounds set forth in subsection 3.  A parent may not file a petition under this 
section to terminate the parent's own parental rights and responsibilities.
1-A.  Filing and contents of petition.  A petition to terminate parental rights and 
responsibilities must be filed in the District Court and in the same case as a prior 
adjudication of parental rights and responsibilities, if any.  The petition must be sworn and 
must include at least the following:
A.  The name and date and place of birth of the child;
B.  The name and address of the petitioner and the nature of the petitioner's relationship 
to the child;
C.  The name of each of the child's parents;
D.  A summary statement of the alleged facts that the petitioner believes constitute 
grounds for termination under subsection 2;
E.  A statement of the effects of a termination order; and
F.  A statement that the parent whose rights and responsibilities are the subject of the 
petition to terminate parental rights and responsibilities is entitled to legal counsel in 
the termination proceedings and that, if the parent wants an attorney and is unable to 
afford one, the parent should contact the court as soon as possible to request appointed 
counsel.
2.  Petition Grounds for petition.  The petitioner may file a petition with the District 
Court that requests the termination of the parental rights and responsibilities of the parent 
and alleges following allegations, if proven, are sufficient grounds to terminate a parent's 
parental rights and responsibilities under this section:
A.  That the The parent was convicted of a crime involving sexual assault, as defined 
in Title 17‑A, section 253, 254 or 556, or a comparable crime in another jurisdiction, 
that resulted in the conception of the child; or
B.  That the The child was conceived as a result of an act of sexual assault, as defined 
in Title 17‑A, section 253, 254 or 556, or a comparable crime in another jurisdiction.; 
or
C.  A final order, other than in a protection from abuse matter under chapter 101, that 
has been in effect for at least 12 months grants the petitioner exclusive parental rights 
and responsibilities with respect to all aspects of the child's welfare, with the exception 
of the right and responsibility for support, without reserving for the parent any rights 
to make decisions, to have access to records or to have contact with the child, and 
termination of the parent's parental rights and responsibilities is necessary to protect 
the child from serious harm or the threat of serious harm.
2-A.  Procedure on petition to terminate parental rights and responsibilities.  Once 
a petition to terminate parental rights and responsibilities is filed, the following procedure 
applies.
A.  The court shall appoint an attorney for a parent who is the subject of a petition to 
terminate parental rights and responsibilities under this section and who is indigent.  In 
a contested action, the court may also appoint counsel for any indigent petitioner who 
files a petition under this section when the parent who is the subject of the petition is 
represented by counsel.
B.  The court shall appoint a guardian ad litem for the child if the petition to terminate 
parental rights and responsibilities is brought under subsection 2, paragraph C.  The 
appointment may be made at any time, but the court shall make every effort to make 
the appointment as soon as possible after the commencement of the proceeding.
C.  The court may hold a status conference prior to scheduling a hearing on the petition 
to terminate parental rights and responsibilities.
D.  The court may refer the parties to mediation prior to conducting a hearing on a 
petition to terminate parental rights and responsibilities.
E.  A parent may consent to an order terminating the parent's rights and responsibilities 
after a judge has fully explained the effects of the termination order and if such consent 
is written and voluntarily and knowingly executed in court.  A parent's consent to the 
order is not a sufficient basis to enter an order in the absence of the findings required 
in subsection 3-A and any other applicable provisions of this section.
F.  The federal Indian Child Welfare Act of 1978, United States Code, Title 25, Section 
1901 et seq., governs all proceedings under this section that pertain to an Indian child 
as defined in that Act.
3.  Termination.  Except as provided in subsection 4, if the petitioner proves the 
allegation in subsection 2, paragraph A by a preponderance of the evidence, the court shall 
terminate the parental rights and responsibilities of the parent.  If the petitioner proves the 
allegation in subsection 2, paragraph B by clear and convincing evidence, the court may 
terminate the parental rights and responsibilities of the parent.  
3-A.  Termination.  The court:
A.  Shall order termination of the parent's parental rights and responsibilities if the 
court finds based on a preponderance of the evidence that the petitioner has proven the 
allegations in subsection 2, paragraph A unless the court determines that the exception 
in subsection 4 applies; or
B.  May order termination of the parent's parental rights and responsibilities if the court 
finds based on clear and convincing evidence:
(1)  That the petitioner has proven the allegations in subsection 2, paragraph B; or
(2)  That the petitioner has proven the allegations in subsection 2, paragraph C and, 
if so, that the termination is also in the best interest of the child.  Evidence that 
termination is necessary to protect the child from harm or threat of serious harm 
may include, but is not limited to, proof of:
(a)  The parent's conduct demonstrating an intent to permanently forgo all 
parental duties or relinquish parental claims regarding the child; or
(b)  The parent's acts of abuse, as defined in section 4002, subsection 1, upon 
the petitioner or a minor child in the parent's or petitioner's household.
Except as provided in this section or in Title 18-C, section 9-204, a court may not terminate 
the parental rights and responsibilities of a parent on a petition filed by another parent or 
the parent or guardian of a child's minor parent.
4.  Exception.  The court is not required to terminate the parental rights and 
responsibilities of a parent convicted of gross sexual assault under Title 17‑A, section 253, 
subsection 1, paragraph B that resulted in the conception of the child if:
A.  The parent or guardian of the other parent filed the petition;
B.  The other parent informs the court that the sexual act was consensual; and
C.  The other parent opposes the termination of the parental rights and responsibilities 
of the parent convicted of the gross sexual assault.
5.  Effects of termination order.  An order terminating parental rights and 
responsibilities under this section has the effects set forth in Title 22, section 4056.
Sec. 3.  22 MRSA §4052, sub-§1, as amended by PL 1997, c. 715, Pt. B, §12, is 
further amended to read:
1.  Petitioner.  A termination petition may be brought by the custodian custodial parent 
of the child, by the parent or guardian of another parent of the child if that parent is a minor, 
by a person who has filed a petition to adopt the child pursuant to Title 18-C, Article 9 or 
by the department.  If the petitioner is a parent of the child or a parent or guardian of another 
parent of the child if that parent is a minor, the court shall follow the requirements of Title 
19-A, section 1658.  If the petitioner is also petitioning to adopt the child, the court shall 
follow the requirements of Title 18-C, section 9-204.
Sec. 4.  22 MRSA §4052, sub-§3, as amended by PL 1981, c. 369, §14, is further 
amended to read:
3.  Contents of petition.  A termination petition shall must be sworn and shall must 
include at least the following:
A.  The name, date and place of birth and municipal residence, if known, of the child;
B.  The name and address of the petitioner and the nature of his the petitioner's 
relationship to the child;
C.  The name and municipal residence, if known, of each of the child's parents;
D.  The names and address of the guardian ad litem of the child in the any related child 
protection proceeding, parental rights and responsibilities proceeding or adoption 
proceeding;
E.  A summary statement of the facts which that the petitioner believes constitute the 
basis for the request for termination;
F.  An allegation which that is sufficient for termination;
G.  A statement of the effects of a termination order; and
H.  A statement that the parents are entitled to legal counsel in the termination 
proceedings and that, if they want an attorney and are unable to afford one, they should 
contact the court as soon as possible to request appointed counsel.
Sec. 5.  22 MRSA §4055, sub-§1, as amended by PL 2017, c. 402, Pt. C, §69 and 
affected by PL 2019, c. 417, Pt. B, §14, is further amended to read:
1.  Grounds.  The court may order termination of parental rights if:
A.  One of the following conditions has been met:
(1)  Custody has been removed from the parent under:
(a)  Section 4035 or 4038;
(b)  Title 19‑A, section 1502 or 1653;
(c)  Section 3792 prior to the effective date of this chapter; or
(d)  Title 15, section 3314, subsection 1, paragraph C‑1; or
(2)  The petition has been filed as part of an adoption proceeding in Title 18‑C, 
Article 9 or by a parent of the child or a parent or guardian of another parent of the 
child if that parent is a minor pursuant to Title 19-A, section 1658; and
B.  Either:
(1)  The parent consents to the termination. Consent shall be after a judge has fully 
explained the effects of a termination order and such consent is written and 
voluntarily and knowingly executed in court before a judge. The judge shall 
explain the effects of a termination order; or
(2)  The court finds, based on clear and convincing evidence, that:
(a)  Termination is in the best interest of the child; and
(b)  Either:
(i)  The parent is unwilling or unable to protect the child from jeopardy 
and these circumstances are unlikely to change within a time which is 
reasonably calculated to meet the child's needs;
(ii)  The parent has been unwilling or unable to take responsibility for the 
child within a time which is reasonably calculated to meet the child's 
needs;
(iii)  The child has been abandoned; or
(iv)  The parent has failed to make a good faith effort to rehabilitate and 
reunify with the child pursuant to section 4041.; or
(3)  In the case of a petition brought as part of an adoption proceeding pursuant to 
Title 18-C, Article 9 or by a parent of the child or a parent or guardian of another 
parent of the child if that parent is a minor pursuant to Title 19-A, section 1658, 
the court finds that the applicable standards for termination of parental rights have 
been proven.
SUMMARY
This legislation is proposed by the Family Law Advisory Commission pursuant to the 
Maine Revised Statutes, Title 19-A, section 354, subsection 2.
This bill expands courts' authority to protect children when a parent has been awarded 
sole parental rights and responsibilities in 2 ways.  First, it amends the Maine Uniform 
Probate Code to ensure the court has authority to appoint a guardian for a minor upon the 
death of the parent who was awarded exclusive parental rights and responsibilities.  Second, 
it provides a process to allow, in very limited situations, one parent to file a petition to 
terminate another parent's parental rights and responsibilities outside of an adoption 
proceeding.
The Maine Uniform Probate Code currently allows a court to appoint a guardian for a 
minor when the court finds the appointment is in the best interest of the minor and the court 
finds by clear and convincing evidence that the parents are unwilling or unable to exercise 
their parental rights and responsibilities.  The law provides 2 examples of situations in 
which the parents are unable or unwilling to exercise their parental rights and 
responsibilities.  The bill adds a 3rd example:  when the parent to whom a court has awarded 
exclusive parental rights and responsibilities dies and the court finds by clear and 
convincing evidence that there is neither a substantial change in circumstances between the 
time of the order and the parent's death nor other facts that would render a finding based 
on the order to be inequitable or unjust.  Current law provides that when one parent dies, 
all parental rights and responsibilities pertaining to a child devolve upon the surviving 
parent.  The bill allows a court to appoint a guardian if the deceased parent had been 
awarded exclusive parental rights and responsibilities, with the now-surviving parent 
having been given no rights of contact, access to records or decision making, if the order 
was in effect at the time of the parent's death.  The court must find that clear and convincing 
evidence exists to show that there is neither a substantial change in circumstances between 
the entry of the exclusive parental rights and responsibilities order and the parent's death 
nor that other facts exist that would render a finding based on the order to be inequitable or 
unjust.
In current law, Title 19-A, section 1658 allows a petition to terminate the parental rights 
and responsibilities of a parent who committed sexual assault and the sexual assault 
resulted in the conception of a child.  The bill allows a petition to be filed to terminate the 
parental rights and responsibilities of a parent in another context:  when a final court order 
awarded exclusive parental rights and responsibilities to another parent and that order has 
been in effect at least 12 months and the petition alleges that termination of the parent's 
rights and responsibilities is necessary to protect the child from serious harm or the threat 
of serious harm.  The order must have awarded exclusive parental rights and responsibilities 
with respect to all aspects of the child's welfare, with the possible exception of the right 
and responsibility for support, without reserving for the parent any rights to make decisions, 
to have access to records or to have contact with the child.
The bill allows the parent of a child to file a petition to terminate the parental rights 
and responsibilities of another parent of the child.  If the child's parent is a minor, the parent 
or guardian of the parent who is a minor may file a termination petition.
This bill clarifies the procedure for the termination of parental rights and 
responsibilities once a petition is filed.  The court must appoint an attorney for a parent 
who is the subject of a termination petition and is indigent.  If the action is contested and 
the parent who is the subject of the petition is represented by counsel, then the court may 
appoint an attorney for any indigent petitioner.
If the petition alleges that termination of parental rights and responsibilities is 
necessary to protect the child from serious harm or threat of serious harm and an order 
awarding exclusive parental rights and responsibilities has been in effect at least 12 months, 
the court shall appoint a guardian ad litem.
A parent may consent to an order terminating the parent's rights and responsibilities 
after a judge has fully explained the effects of a termination order and if such consent is 
written and voluntarily and knowingly executed in court.  Even if a parent consents to the 
termination of that parent's rights and responsibilities, the court must nevertheless still 
make the required findings.  For a petition that is based on an exclusive order of parental 
rights and responsibilities and that alleges that termination is necessary to protect the child 
from serious harm or the threat of serious harm, the petitioner must prove by clear and 
convincing evidence the allegations as well as that termination is in the best interest of the 
child.  Evidence that termination is necessary to protect the child from harm or threat of 
serious harm may include, but is not limited to, proof of the parent's conduct demonstrating 
an intent to permanently forgo all parental duties or relinquish parental claims regarding 
the child or proof of the parent's acts of abuse, as defined in the child protection laws, upon 
the petitioner or a minor child in the parent's or petitioner's household.
The bill provides that, except as provided in Title 19-A, section 1658 and the adoption 
laws in Title 18-C, a court may not terminate the parental rights and responsibilities of a 
parent on a petition filed by another parent or the parent or guardian of a child's parent who 
is a minor.
The bill amends the child protection laws to make consistent who may file a petition 
to terminate the parental rights to a child.  The requirements set out in the bill apply when 
a parent or the parent or guardian of a minor parent is petitioning to terminate another 
parent's parental rights and responsibilities, but if the petitioner is also petitioning to adopt 
the child, the requirements of the adoption laws in Title 18-C, Article 9 apply.