Three-Person Child Protection Petition
What can you do when the Maine Department of Health and Human Services (DHHS) cannot or will not help a youth who is in danger of being harmed?
You can file a Three-Person Petition (also called a Three-Party Petition) in District Court. Under the Maine Child Protection laws, three or more people can file a Child Protection petition, asking the Court to order DHHS or a third party like a relative to take custody of and provide services to a youth. The Petition must contain certain basic information about the youth and the youth’s parents, and must also describe why the youth is at risk of harm.
The “Three Persons”
The three or more people needed to file a Child Protection Petition can be anybody 18 or older. The Petition must state the relationship each person has with the youth. They do not need to be relatives, professionals, or someone with a great deal of knowledge about the child. It can be a neighbor, a friend’s parent, a teacher, a coach, a shelter staff worker, a social worker, etc.
Writing the Petition
The Petition has to state:
- The name, date, place of birth and town residence, if known, of the youth;
- The name and address of each petitioner and how each person knows the youth;
- The name and town residence, if known, of both parents and the custodian (person who has legal custody and power over the youth);
- A statement of facts for why the petition is being filed;
- An allegation that is sufficient for court action (see below);
- A request for specific court action;
- A statement that tells the parents and custodians they are entitled to a lawyer and that, if they want a lawyer but cannot afford one, they should contact the court as soon as possible to request one be appointed to them;
- A statement that the petition proceedings could lead to termination of parental rights under 22 MRSA §4051;
- A statement explaining the reasonable efforts that have been made to keep the children from having to be removed from their home;
- The names of relatives who may be able to provide care for the child; and
- If the child has relatives who are members of an Indian Tribe, the names of those relatives.
View sample Petition here. The Petition must be “sworn.” This means that the statement above should be made and signed “under oath” by each of the 3 Petitioners. Affidavits may be attached to the Petition. View a sample Affidavit. Affidavits must also be signed “under oath.” “Under oath” simply means a document that begins with the magic words, “I hereby declare under the penalties of perjury that the following is true and correct,” and is signed before a notary public or an attorney.
Child Protection proceedings focus on whether the child is in “jeopardy” (or at risk) of serious abuse or neglect. There are four categories of serious abuse or neglect. That means at least one of these four categories must be alleged.
- Serious harm or threat of serious harm (this means sexual abuse, sexual exploitation, serious injury or serious mental or emotional injury which now or in the future is likely to result in a serious mental, behavioral or personality disorder, such as severe anxiety, depression, or withdrawal, aggressive behavior, or serious developmental delay);
- Lack of adequate food, clothing, shelter, supervision or care (including health care), which causes a threat of serious harm;
- Abandonment of the child or failure to have someone be responsible for the child, creating a threat of serious harm; or
- Termination of voluntary placement by the parents, when the imminent return of the child to the custodian causes a threat of serious harm.
Here is a sample allegation that could be put in a Petition:
“Justin Youth is in jeopardy because there is no adult responsible for him. He is homeless and without adequate shelter, supervision or care. This causes a threat of serious harm.”
Getting the initial Jeopardy Order (also called a Protective Order) can take a while, up to 120 days. This is because you must draft papers, file them with the court, get a hearing date, notify the other parties, and then wait for the hearing date. (See more details below.) If you have a true emergency and cannot wait for the Court to act, you may be allowed to temporarily bypass some of these steps by asking the court for a "Preliminary Protective Order." To get this type of emergency order, you must prove an immediate threat of harm to the youth. This will probably require a personal court appearance by at least one Petitioner and a DHHS representative, prior to the later court hearing on the Jeopardy Order. If your situation requires this type of immediate order, contact KIDS LEGAL or an attorney to get additional instructions and advice.
Filing and Serving the Petition
File your Petition with District Court where the child is located or resides. The Court must fill out a Notice of Hearing, to be included with the Petition, before the Petition is given to the other parties.
Next, copies of the court papers must be delivered to (or “served on”):
- An officer, director, or manager of the Maine DHHS,
- Each parent,
- The custodians (person with legal custody and power over the child), if there are any, and
- The guardian ad litem for the child, if the child has one.
When serving the Petition, you must also serve a Summons (which is a form you get from the court clerk). Service must be completed at least 10 days before the Court hearing is scheduled, unless there is a request for an emergency hearing. Otherwise, you will have to ask for a later hearing date.
You can serve the Summons and Petition by first-class mail, but the person must “acknowledge service.” To serve by mail, you must send:
- A copy of the Summons,
- A copy of the Petition (including hearing notice and affidavits; see attached samples)
- Two copies of a pre-drafted letter or form for the person who is served to sign, saying that he got the papers (sample attached), and
- A self-addressed stamped envelope for him to send this form back to you.
When you get back the signed acknowledgement forms, file them with the Court. Then the Court knows that service on the necessary people was made.
If the person will not sign the form, then you must have him served by Sheriff. Take or mail to the Sheriff’s office:
- the original Summons,
- a copy of the Summons, and
- a copy of the Petition.
Tell them where they can find the person to be served. After the service is made, the Sheriff will send the original Summons with “proof of service” back to you. There will be a charge for this service. Then file the Summons with the Court so the Court knows that service on the necessary people was made.
The Court will schedule a hearing. Each Petitioner must go to that hearing. The Petitioners will go first and should be prepared to testify and explain why the child is in jeopardy. It is up to the petitioners to prove the child is in jeopardy. They must prove this by “a preponderance of the evidence.” This means that it is more likely than not that the child is in jeopardy. If DHHS or the child’s parents do not agree that the child is in jeopardy, they will try to prove the child is not in jeopardy. The Court will then decide after hearing the evidence. Your testimony is evidence. The hearing must be held within 120 days of when you file the Petition.
If the Court finds the child is in jeopardy, it will issue an order which states what should happen. This is called a disposition. Each Petitioner should be prepared to testify about what should happen with the child. Possible options are:
- DHHS will supervise the child and family in the child’s home
- Treatment services will be provided to the child and his family
- Necessary emergency medical treatment will be provided to the child
- The child (if 16) will be emancipated
- Custody is awarded to DHHS or someone else, and/or
- Contact between an abuser and the child is prohibited
If DHHS fights the Petition, you may want to get a lawyer.
Updated August, 2017