Maine Child Protection: What happens when DHHS investigates a household?

This is the second part of our guide to Child Protection proceedings in Maine. It covers what can happen when DHHS investigates a household because they believe that a child may be at risk of being harmed. For more information of what happens when DHHS is first called, read the first part of this guide: Maine Child Protection: What does DHHS do when they get a complaint of child abuse?

What happens if DHHS decides that there is a problem in my household that is harming my kids?

This section outlines the beginning steps that DHHS and the Court follow in a child protection case. Each case is different, but this explains generally how the system works.

DHHS worker starts a “safety assessment”

If DHHS believes there is a problem in your household, a case worker may visit you to investigate. They may also talk to others about your child’s situation. As part of that process, the DHHS caseworker may:

Interview the child. They may not tell you before doing this.
Talk with parents and give them a chance to ask questions and give information. You can politely refuse to talk to the caseworker until you have talked with a lawyer.
Contact professionals in the local community who have information about your child, even if you don't talk to the caseworker.
Make a decision at the end of the “assessment” about whether the reported abuse or neglect actually happened. DHHS will make one of the following findings:
- DHHS decides that the child has not been abuse or neglected. DHHS will send parents a letter telling them the decision.
- DHHS decides that the child has been abused or neglected, but the risk of harm is not high. This is called an “indication.” DHHS will send parents a letter telling them the decision. The letter must also include information for parents on how to ask for a review of that decision. The caseworker may continue limited involvement with a family or refer a family for community services.
- DHHS decides that the child has been abused or neglected, putting the child at risk of harm. This is called a “substantiation.” DHHS will send parents a letter telling them the decision. The letter must also include information for parents on how they can ask for a review of that decision.

NOTE: Being "Indicated" or "Substantiated" means that you have a permanent record at DHHS. If you are "Substantiated," this can have consequences for you later on. If you apply to work in the child services field, your potential employer can find out from DHHS that you have this record. It could prevent you from being hired. If you are "Indicated," DHHS will keep your record private. If an employer asks about your record, DHHS will respond that you do not have one.

For more information about challenging what happens with your DHHS record, go to DHHS Substantiation.

After “substantiation” what happens?

The DHHS caseworker will work with the family to create a “safety plan.” The caseworker will put the plan in writing and review it with the parents. The plan could include community services for the child and parents. Safety plans are voluntary agreements between parents and DHHS, and parents do not have to participate if they do not agree with what DHHS thinks should happen.

If parents do participate in a safety plan, the caseworker will continue working with them to provide services and support. This will usually involve a “Family Team Meeting” where DHHS meets with parents and their supports to make a more permanent Family Plan.

If a parent does not agree to a safety plan, or is not following an agreed-to safety plan, DHHS can take other steps to make sure a child is safe. This includes potential court action. In Maine, only a court can order a child removed from your care.

State petitions Court and asks for a Preliminary Protection Order (P.P.O.)

If DHHS files a Child Protection Petition, they will probably also ask a judge for a Preliminary Protection Order (PPO). This usually includes a request that your child immediately be removed from your care. DHHS must have a PPO to remove your child from your care. The DHHS worker will ask for a PPO if they believe that there is an "immediate risk of serious harm" to your child. DHHS can ask the Court for a PPO without telling you first if the caseworker convinces the court that:

the child will suffer serious harm before the caseworker can send you proper notice, or
telling you would increase the risk of serious harm to the child

The Judge will review the petition and a sworn summary of the facts that support DHHS’ request.

If the Judge decides to grant the PPO

The judge can protect your child with a PPO in a number of different ways. This includes allowing DHHS to remove your child from your home and place them:

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 in your home has been resolved and your child can go home.

In order to get a PPO, DHHS must convince the judge that there is an immediate risk of serious harm.

If the judge signs a PPO that allows your child to be physically taken from your home, you will be given the name and office phone number of the caseworker and your child's location. 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.

The Order must also say that a visit between you and your children must be scheduled within 7 days, unless the Judge finds a very good reason not to schedule this visit.

Parents do not get to tell the Court their side of the story when DHHS files this petition. The Court will schedule a hearing to be held within 7 to 14 days to give parents an chance to be there.

Your right to a lawyer

Each parent has the right to be represented by a lawyer. Even if the parents are married or live together, each parent will get their own lawyer.

If you cannot afford to pay, you can ask the Court to appoint you a free lawyer. You will get a copy of DHHS’ Petition, which is filed with the Court. If you do not already have a lawyer when you get this, read your copy of the Petition carefully. It will include a Notice of Hearing. If this Notice does not say that the Court has appointed a lawyer for you, contact the Court immediately to ask for a lawyer.

Follow the Court clerk’s instructions. You will meet with a "financial screener" and fill out and sign an affidavit showing the Court that you do not have enough money to hire a lawyer. If the Court agrees that you cannot afford a lawyer, it will appoint one for you. Talk to your lawyer as soon as possible to get ready for your first hearing.

There will be many court hearings throughout the whole DHHS case. The lawyer will represent you during all of the court hearings.

NOTE:Parents with mental health or mental disabilities issues may be able to get a lawyer through the Maine Disabilities Rights Center. Call 1-800-452-1948 (v/tty).

A state lawyer from the Attorney General's office will represent DHHS in court. This person is called an Assistant Attorney General (AAG).

Guardian ad Litem appointed to represent your child

If the Court enters a PPO removing your child from your care, the judge will appoint a guardian ad litem (GAL) to represent your child's best interests. The GAL is a neutral person, meaning they are not on the parents' or DHHS' side, but find out information for the Court about your child to help the Court make decisions. The role of the GAL is to get to know your child by meeting with them, with you, and with other people who know your child. The GAL should also work to get any services your child may need if DHHS is not providing them.

The GAL must then give the Court a written report, stating a plan that they believe is in your child's best interests. For example, they could say that the child should return to your home or that the child should stay in foster care. The GAL will also share with the Court what your child’s preferences are. The GAL should make an updated report for every major stage of the case. You and your lawyer should review the report before every court appearance. Make sure it is accurate and covers everything . For example, if the GAL has met with the other parent and not you, that is a problem.

In some counties in Maine, the GAL 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 your child’s GAL. If you have more than one child, one GAL will represent all of your children’s best interests.

The GAL must visit with your child within 7 days of being appointed by the Court and at least once every 3 months during the case. You should work closely with DHHS and the GAL to resolve any problems they find.

Summary Preliminary Hearing (C-1 Hearing)

If you were not notified of the State’s Petition before the Court issued a PPO, you still have the chance for a "preliminary" court hearing. This hearing is sometimes called a C-1 hearing. You must be notified of this hearing. If DHHS did not notify you before the hearing date, you have the right to ask for this hearing within 10 days of the day DHHS does notify you of its Petition to the Court.

At that hearing, the court can limit testimony to the DHHS caseworker, you, the other parent, the child’s custodian, the GAL, and relatives or foster parents who are caring for your child. The court may review reports and records, which could not be used in other types of court hearings. At this hearing, DHHS must prove that it is more likely than not that:

your child would be in immediate risk of serious harm if returned to your care, and
DHHS made efforts to avoid having to remove your child from your home

In very serious cases, DHHS will also present to the court its decision not to provide try to bring your family back together. This is called "reunification services." In this case, DHHS would propose an adoption or long-term foster care placement.

Again, DHHS must prove that your child is in "immediate risk of serious harm." If the judge thinks that DHHS has proven this, your child will stay in the current placement. If the judge does not believe that there is such a risk, the PPO will end and your child must be returned to you. But this is still only the beginning stage of your case. It is not over until the judge rules on DHHS’ Child Protection Petition.

Case Management Conference

A few weeks later, the court will hold a case management conference. Usually the state’s lawyer, you and your lawyer, the other parent and their lawyer, and the GAL will be there. It is not a formal court hearing. It is a more informal meeting where the Judge explores if you and DHHS can make an agreement and avoid a court hearing.

Jeopardy hearing (C-2 Hearing)

Within 120 days (4 months) of the filing of the child protection petition, the court must hold a “jeopardy hearing” — sometimes called a C-2 Hearing — and issue its “Jeopardy Order.” This hearing addresses the original Child Protection Petition. If DHHS did not ask for a PPO earlier, then the jeopardy hearing will be your first court hearing.

Now the judge decides whether your child would be "in circumstances of jeopardy to their health or welfare" if returned to you. DHHS has the legal burden of proving this. If the judge decides that the child is in jeopardy, they will issue a Jeopardy Order. This Order describes how your child is in jeopardy while in your care and what must be done to protect them. This can range from DHHS supervision of your family while your children remain in your care to removing your child from the home. If the Judge does not find jeopardy, the DHHS case will be closed.

If you agree to DHHS’ claims, there will not be a hearing. The Jeopardy Order will be made by agreement.

When a Jeopardy Order is entered, either by agreement or by the Court, DHHS is required to draft “reunification plans” for each parent. These plans are personalized to each parent with specific requirements and services.

Reunification

“Reunification” is the state’s goal. This means that the state must propose and develop a plan to help bring you and your child back together again. The plan should be accomplished in 18 months or less. In some cases, DHHS can get the court to approve a longer plan. DHHS should work with you to make this plan. It should arrange for services for you and your child, as appropriate. For example, the plan can provide parenting classes, counseling, transportation, childcare, or housing assistance. The plan should also provide for visitation with your child, which may be supervised. You should have input in the plan, and it should be in writing. At every Court hearing, the Judge will review your plan and measure your progress.

The Children's Ombudsman Program (866) 621-0758

You can seek help from the Ombudsman when:

You are concerned about what is happening between your children and DHHS.
You think that DHHS is interfering with your rights as a parent.
You disagree with the plan developed by a DHHS caseworker.

If DHHS is trying to make a plan that seems unreasonable, try to get a third party to help you convince DHHS that you need to be heard. This might be a social worker, religious leader or other professional who is involved with your family. Or try contacting the Ombudsman Program.

You are responsible for following the plan and making the needed changes in your parenting. You also must maintain meaningful contact with your child. You may be ordered to pay child support.

What happens after the Jeopardy Hearing is over? How can I get my kids back?

Once the court makes its decision, or you and DHHS reach an agreement about jeopardy, DHHS will assign you a new worker called a "permanency caseworker." This caseworker will work with you to make the changes required of you and others in your home before you get your kids back. The caseworker must also see that your child's needs are being met while your child is in DHHS custody.

You and the caseworker will write a "service agreement” as part of the reunification plan. It spells out:

everything that DHHS must do for you and your child, and
everything you are expected to do.

The plan should be designed to bring you and your children back together. This “service agreement” may require things like:

evaluations by a psychologist or social worker
counseling
a substance abuse evaluation
anything else that addresses the problems in your home

You and DHHS should try to agree on the service providers (like mental health workers or counselors) who will work with you. If you cannot agree, where MaineCare is paying for the services, you should be allowed to choose your provider. As long as you are opting for a qualified professional with the required skills, you should be able to choose a provider you know or trust.

Your plan should be clear about your behavioral goals. You want to be sure that if you meet certain behavioral goals, then you have successfully completed that part of the plan. Otherwise, you may find yourself in this position: you followed the plan and thought you were making progress, while DHHS says that you participated but didn’t make any progress. In other words, it’s important to be clear about exactly what you need to do to meet DHHS’ expectations. Just saying that you’re going to attend a certain class or go to treatment sessions is not enough.

Another common issue is DHHS requiring you to participate in treatment or meetings that have no record of success. You want to insist that the plan you are following is one involving methods that are proven to effectively address your issues. If you know treatment professionals whom you trust, ask for their opinion about the type of treatment, or plan, DHHS is recommending.

The key goal for everyone is curing the problems identified in the plan. So, for example, if an evaluation says that you have a substance use problem, you will have to both attend substance use counseling and submit to drug tests. A refused test will generally be treated like a positive test. The service providers and the GAL must tell the Court if you have resolved the problem.

Usually you only have 15 months from the date DHHS filed its Petition to show that it is safe for your children to return. After that DHHS must move forward with another plan to protect your child, called a “permanency plan.” Remember, the purpose of DHHS is to protect the health and welfare of children. Providing stability is an important part of that process. So if reunification is not going to work, DHHS must develop a different permanent plan for your child.

Enter into a service plan as quickly as possible, and follow it.If DHHS believes that you are not cooperating, or not acting quickly enough, they can start “Contingency Planning” before your service plan has been completed. This can even happen before a Jeopardy Order.

Will There Be Any Other Hearings?

Yes. You may also have two other types of court hearings.

Judicial Review

You, your child’s GAL, or the State can ask the court to review the Jeopardy Order at any time. Also, except in a rare type of case, the court must review the order at least once every six months until the child turns 18, is adopted, or is emancipated (if at least 16 years old). Usually judicial reviews happen more often than once every six months, especially in the early stages of reunification services.

A Judicial Review is a “check-in.” The Judge will review how you are doing with the reunification or service plan and whether DHHS is giving you the services you need. The Judge will also review how your child is doing.

At a judicial review, the judge may order any 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 with someone else

Permanency Planning Hearing

If your child is placed in foster care, the court must also hold a "permanency planning hearing" within 12 months of the placement and at least once every 12 months after that. The "permanency plan" will say whether DHHS is planning to return your child to you. If not, then the plan must say what other long-term ideas are being considered. For example: termination of parental rights and adoption, or placement with a relative. If your child is 16 years old or older, the permanency plan must address the services your child needs to learn about and adjust to independent living.

The court must also hold a "permanency planning hearing" within 30 days of issuing an Order that allows DHHS to stop providing reunification services.

What happens if DHHS says I have not met the goals of the Service Plan? (Petition to Terminate Parental Rights)

If DHHS believes that you have not worked to correct the problems that put your child in jeopardy (or too much time has passed without enough progress), they can "cease reunification" between you and your child. This means that DHHS is no longer required to try to bring you and your child back together.

DHHS must tell you in writing when it decides to "cease reunification."
They must ask the court to approve this decision.
The GAL will also say if they support DHHS’ decision to cease reunification.
DHHS must ask for 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. These are usually called "aggravating factors." Here are some examples:

a parent has abused the child sexually or has treated the child outrageously in other ways
a parent's parental rights to another child have been terminated
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

NOTE: Maine law, effective July 29, 2016, allows the courts to terminate the parental rights of a parent who committed a criminal sexual assault that resulted in pregnancy and the birth of a child

If DHHS decides not to reunify you and your child, 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, and you have not made enough progress toward reunification, or
the court finds another "aggravating factor" and approves DHHS's decision to "cease reunification"

You have an absolute right to a hearing on the Termination Petition. At this hearing, DHHS must prove that you are unable or unwilling to parent your child. DHHS must also prove that it is in the best interests of your child to end your parental rights. DHHS must prove these points with "clear and convincing evidence"—a very high standard of proof. The Court will consider:

what is in the best interests of your child,
your rights as a parent,
how long your child has been in DHHS custody, and
what you have done to remove the risk of harm to your child

If the court agrees that you have not taken the necessary steps to provide a safe home for your child, the court may terminate your rights.

In determining “fitness to parent,” the judge must 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 child

The judge must also consider your child's age and attachments to other people, as well as your child's physical or emotional needs. You may testify and present evidence and witnesses. Your lawyer may question the DHHS witnesses. The GAL will be at the hearing, will submit a report with their recommendations, and may testify.

You can agree to a termination of parental rights if you think that is in the best interests of your child.

If the Court terminates your parental rights after a hearing, you have the right to appeal this decision to the Maine Supreme Judicial Court. This Court will decide whether the trial judge followed the law when they ended your parental rights. The Court will base its review of your case on what happened in the trial court. You will not have a new trial. If you have a court-appointed lawyer and you decide to appeal, this lawyer will continue to represent you.

If your parental rights are terminated, you will not have the right to visit your child or be involved in your child's life. DHHS’s goal for your child at this point is adoption by someone else.

What are the rules about my family's privacy rights, including treatment records? Who will know about our personal information?

All information about your case is closed to the public, including when you are in court. DHHS and court workers must follow rules that prohibit them from disclosing anything about your case. Also, you should not share any private records.

The GAL must also respect privacy rules. But be aware that the GAL does have access to all records about your children and you, including your mental health records.

What can I do to protect my child from the child's other parent?

If you need to protect your child from the child's other parent and you are willing to live separately from the other parent, talk to your lawyer about getting a "parental rights and responsibilities order" from the court. The court may issue this type of order while the DHHS child protection case is pending, if it will protect the child and is in the child's best interest.

Can my children see each other if they have been placed in different homes?

If the court believes that this is in the children's best interests, yes. Through the GAL, a child may ask the court to order visits with their siblings. Also, DHHS must work with prospective adoptive parents to arrange sibling visits for an adopted child, when DHHS believes that visits would be in the child's best interests.