Maine Revised Statutes Title 22 Sec. 4038-C – Permanency guardian
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As part of the permanency plan, the District Court may appoint a person or persons as guardian of a minor, to be known as a permanency guardian. “Permanency guardian,” when used in this section and in section 4038?D and Title 20?A, section 12572, means the person or persons appointed as the permanency guardian. [PL 2005, c. 471, §3 (AMD).]
1. Criteria. The District Court may appoint a person to be a permanency guardian only if the court finds that the prospective permanency guardian:
A. Has the ability to provide a safe home for the child; [PL 2005, c. 372, §6 (NEW).]
B. Has a close emotional bond with the child and that the child has a close emotional bond with the prospective permanency guardian; [PL 2005, c. 372, §6 (NEW).]
C. Is willing and able to make an informed, long-term commitment to the child; [PL 2011, c. 402, §6 (AMD).]
D. Has the skills to care for the child; and [PL 2011, c. 402, §7 (AMD).]
E. Has submitted to having fingerprints taken for the purposes of a national criminal history record check. [PL 2011, c. 402, §8 (NEW).]
[PL 2011, c. 402, §§6-8 (AMD).]
Terms Used In Maine Revised Statutes Title 22 Sec. 4038-C
- Department: means the Department of Health and Human Services. See Maine Revised Statutes Title 22 Sec. 1-A
- Entitlement: A Federal program or provision of law that requires payments to any person or unit of government that meets the eligibility criteria established by law. Entitlements constitute a binding obligation on the part of the Federal Government, and eligible recipients have legal recourse if the obligation is not fulfilled. Social Security and veterans' compensation and pensions are examples of entitlement programs.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Grandparent: means the parent of a child's parent. See Maine Revised Statutes Title 22 Sec. 4002
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Majority: when used in reference to age shall mean the age of 18 and over. See Maine Revised Statutes Title 1 Sec. 72
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Parent: means a natural or adoptive parent or a parent established under Title 19?A, chapter 61, unless parental rights have been terminated. See Maine Revised Statutes Title 22 Sec. 4002
- Person: means an individual, corporation, facility, institution or agency, public or private. See Maine Revised Statutes Title 22 Sec. 4002
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Relative: includes , for an Indian child as defined by the federal Indian Child Welfare Act of 1978, 25 United States Code § 1903, Subsection 4, or by the Maine Indian Child Welfare Act, section 3943, subsection 8, an extended family member as defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, an extended family member as defined by the federal Indian Child Welfare Act of 1978, 25 United States Code § 1903, Subsection 2 or the Maine Indian Child Welfare Act, section 3943, subsection 5. See Maine Revised Statutes Title 22 Sec. 4002
- Resource family: means a person or persons who provide care to a child in the child welfare system and who are foster parents, permanency guardians, adoptive parents or members of the child's extended birth family. See Maine Revised Statutes Title 22 Sec. 4002
- United States: includes territories and the District of Columbia. See Maine Revised Statutes Title 1 Sec. 72
2. 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?C, sections 5?207 and 5?208. A permanency guardianship terminates upon the minor’s death, adoption or attainment of majority or as ordered by the court pursuant to this section.
[PL 2019, c. 664, Pt. C, §1 (AMD).]
3. Parental and relative contact. A parent, grandparent or sibling of a child subject to a permanency guardianship or to a proceeding to establish a permanency guardianship may petition the court to determine rights of contact as provided in subsection 6. If the District Court determines that it is in the best interest of the child, it may order that the parent, grandparent or sibling of the child has a reasonable right of contact with the child and may specify the type, frequency, duration and conditions of that contact.
[PL 2005, c. 372, §6 (NEW).]
4. Child support. The parents shall pay the permanency guardian child support. Title 19?A, section 1652 and Title 19?A, chapter 63 govern the award of child support to the permanency guardian. The child support obligation may be enforced pursuant to Title 19?A, chapter 65 or 67.
If there is an existing child support order or obligation regarding the child, and if the District Court fails to make a child support order at the time of appointing a permanency guardian, the permanency guardian becomes the obligee under the existing support order or obligation. A copy of the order appointing the permanency guardian is sufficient proof of the permanency guardian’s status as obligee.
[PL 2005, c. 372, §6 (NEW).]
5. Jurisdiction over permanency guardian. The District Court has exclusive jurisdiction to appoint or remove a permanency guardian and to establish any rights of contact between a child and a parent, grandparent or sibling.
[PL 2005, c. 372, §6 (NEW).]
6. Proceedings to terminate permanency guardianship or to determine rights of contact. Proceedings to terminate permanency guardianship or to determine rights of contact are governed by the following.
A. Any party to the child protective proceeding may petition to terminate a permanency guardianship and any parent, grandparent or sibling of the child may petition the court to establish rights of contact with the child, except that a person having once petitioned unsuccessfully to terminate a permanency guardianship or to establish rights of contact may not bring a new petition to terminate the permanency guardianship or to establish rights of contact 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. [PL 2005, c. 372, §6 (NEW).]
B. Notice of a petition under paragraph A must be given in the manner provided for by Rule 4 of the Maine Rules of Civil Procedure to all parties to the child protective case and to the permanency guardian. [PL 2005, c. 372, §6 (NEW).]
C. The permanency guardianship may be terminated only if the petitioner proves by a preponderance of the evidence that the termination is in the best interest of the child. [PL 2005, c. 372, §6 (NEW).]
[PL 2005, c. 372, §6 (NEW).]
7. Effect on inheritance rights and public benefits. The appointment of a permanency guardian does not affect the inheritance rights between a child and the child’s parent or parents.
The appointment of a permanency guardian may not affect the child’s entitlement to benefits due that child from any 3rd person, agency or state or the United States. Except as required by federal law or regulation, the permanency guardian’s resources and income are not counted in determining eligibility for any public benefit to which the child may be entitled.
The permanency guardianship does not affect the rights and benefits that a Native American derives from descent from a member of a federally recognized Indian tribe.
[PL 2005, c. 521, §1 (AMD).]
8. Resignation, death or incapacity of permanency guardian. Resignation of a permanency guardian does not terminate the guardianship until it has been approved by the court. If a permanency guardian resigns, dies or becomes incapacitated, the District Court shall hold a judicial review and a permanency planning hearing at the earliest practicable time.
[PL 2005, c. 372, §6 (NEW).]
9. Preference. The District Court shall give preference for placement and permanency guardianship to a person nominated by a deceased permanency guardian in a valid will or by an incapacitated permanency guardian in a valid power of attorney, unless the District Court finds that the placement or permanency guardianship is not in the child’s best interest.
[PL 2005, c. 372, §6 (NEW).]
10. Limitation. The District Court does not have authority to provide a guardianship subsidy for permanency guardianship under section 4038?D.
[PL 2005, c. 683, Pt. A, §36 (AMD).]
11. Application to pending cases. The District Court may appoint a permanency guardian in a proceeding pending on September 17, 2005 or in a proceeding commenced on or after September 17, 2005.
[PL 2005, c. 521, §2 (NEW).]
12. Appointments terminate; later appointments. Unless the District Court has scheduled a judicial review or orders otherwise, the court’s appointments of the guardian ad litem and attorneys for parents and guardians terminate, and the attorneys and guardian ad litem have no further responsibilities to their clients or the court upon appointment of a permanency guardian pursuant to this section. If a party files a motion for judicial review when no judicial review is required pursuant to section 4038, subsection 1?A, or if a party files a petition pursuant to subsection 6 to terminate a permanency guardianship or determine rights of contact, the court shall appoint a guardian ad litem and attorneys for indigent parents and custodians, including permanency guardians, as required by section 4005.
[PL 2007, c. 284, §7 (NEW).]
13. Resource family license. The department shall issue a resource family license in accordance with standards adopted by the department to a resource family that meets the requirements and standards for permanency guardianship of children in foster care under subsection 1 and for a license fee established by the department.
[PL 2011, c. 402, §9 (NEW).]
SECTION HISTORY
PL 2005, c. 372, §6 (NEW). PL 2005, c. 471, §3 (AMD). PL 2005, c. 521, §§1,2 (AMD). PL 2005, c. 683, §A36 (AMD). PL 2007, c. 284, §7 (AMD). PL 2011, c. 402, §§6-9 (AMD). PL 2017, c. 402, Pt. C, §66 (AMD). PL 2017, c. 402, Pt. F, §1 (AFF). PL 2019, c. 417, Pt. B, §14 (AFF). PL 2019, c. 664, Pt. C, §1 (AMD).