When a court orders detention or a conditional release that authorizes even temporarily the juvenile's removal from the juvenile's home or when a court allows a conditional release ordered by a juvenile community corrections officer that authorizes, even temporarily, the juvenile's removal from the juvenile's home to remain in effect, the court shall determine whether reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from the juvenile's home or that no reasonable efforts are necessary because of the existence of an aggravating factor as defined in Title 22, section 4002, subsection 1-B, and whether continuation in the juvenile's home would be contrary to the welfare of the juvenile.__This determination does not affect whether the court orders detention or a conditional release or allows a conditional release to remain in effect, which continues to be governed by section 3203- A.

Sec. 4. 15 MRSA §3314, sub-§1, ¶C-1, as amended by PL 1987, c. 720, §5, is further amended to read:

C-1. The court may commit a juvenile to the custody of the Department of Human Services when the court has determined that reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from his the juvenile's home or that no reasonable efforts are necessary because of the existence of an aggravating factor as defined in Title 22, section 4002, subsection 1-B, and that continuation therein would be contrary to the welfare of the juvenile. The court may not enter an order under this paragraph unless the parents have had notice and an opportunity to be heard at the dispositional hearing.

Notwithstanding any other provision of law, the court shall may not commit a juvenile to the custody of the Department of Human Services unless such notice has been served on the parents, custodians and the Department of Human Services in accordance with District Court civil rules at least 10 days prior to the dispositional hearing. A party may waive this time requirement if the waiver is written and voluntarily and knowingly executed in court before a judge.

The Department of Human Services shall provide for the care and placement of the juvenile as for other children in the department's custody pursuant to the Child and Family Services and Child Protection Act, Title 22, chapter 1071, subchapter VII.

The court may impose conditions that may include participation by the juvenile or the juvenile's parents or legal guardian in treatment services aimed at the rehabilitation of the juvenile, reunification of the family and improvement of the home environment.

Sec. 5. 15 MRSA §3314, sub-§1, ¶F, as amended by PL 1997, c. 752, §19, is further amended to read:

F. The court may commit the juvenile to a Department of Corrections juvenile correctional facility. Whenever a juvenile is committed to a Department of Corrections juvenile correctional facility, the court shall determine whether reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from the juvenile's home or that no reasonable efforts are necessary because of the existence of an aggravating factor as defined in Title 22, section 4002, subsection 1-B, and whether continuation in the juvenile's home would be contrary to the welfare of the juvenile. This determination does not affect whether the court orders a commitment to a Department of Corrections juvenile correctional facility, which continues to be governed by section 3313.

Sec. 6. 15 MRSA §3314, sub-§2, as amended by PL 1999, c. 624, Pt. A, §8, is further amended to read:

2. Suspended disposition. The court may impose any of the dispositional alternatives provided in subsection 1 and may suspend its disposition and place the juvenile on a specified period of probation that is subject to such provisions of Title 17-A, section 1204 as the court may order and that is administered pursuant to the provisions of Title 34-A, chapter 5, subchapter IV, except that the court may not impose the condition set out in Title 17-A, section 1204, subsection 1-A. The court may impose as a condition of probation that a juvenile must reside outside the juvenile's home in a setting satisfactory to the juvenile community corrections officer if the court determines that reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from the juvenile's home or that no reasonable efforts are necessary because of the existence of an aggravating factor as defined in Title 22, section 4002, subsection 1-B, and that continuation in the juvenile's home would be contrary to the welfare of the juvenile. Imposition of such a condition does not affect the legal custody of the juvenile.

Modification of probation is governed by the procedures contained in Title 17-A, section 1202, subsection 2. Termination of

probation is governed by the procedures contained in Title 17-A, section 1202, subsection 3. Revocation of probation is governed by the procedures contained in Title 17-A, sections 1205, 1205-B, 1205-C and 1206, except that the provisions of those sections requiring a preliminary hearing do not apply and those provisions of Title 17-A, section 1206, subsection 7-A allowing a vacating of part of the suspension of execution apply only to a disposition under subsection 1, paragraph G or H; however, a disposition under subsection 1, paragraph F may be modified to a disposition under subsection 1, paragraph H. If the juvenile is being detained for an alleged violation of probation, the court shall review within 48 hours following the detention, excluding Saturdays, Sundays and legal holidays, the decision to detain the juvenile. Following that review, the court shall order the juvenile's release unless the court finds that there is probable cause to believe that the juvenile has violated a condition of probation and finds, by a preponderance of the evidence, that continued detention is necessary to meet one of the purposes of detention under section 3203-A, subsection 4, paragraph C.

Sec. 7. 15 MRSA §3315, sub-§1, as amended by PL 1997, c. 752, §24, is further amended to read:

1. Right to review. Every disposition pursuant to section 3314, other than unconditional discharge, must be reviewed not less than once in every 12 months until the juvenile is discharged. The review must be made by a representative of the Department of Corrections unless the juvenile was committed to the Department of Human Services, in which case such review must be made by a representative of the Department of Human Services. A report of the review must be made in writing to the juvenile's parents, guardian or legal custodian. A copy of the report must be forwarded to the program or programs that were reviewed, and the department whose personnel made the review shall retain a copy of the report in their files. The written report must be prepared in accordance with subsection 2. When a juvenile is placed in the custody of the Department of Human Services, reviews and permanency planning hearings must be conducted in accordance with Title 22, section 4038.__Title 22, sections 4005, 4039 and 4041 also apply.

Sec. 8. 15 MRSA §3315-A is enacted to read:

§3315-A.__Termination of parental rights

When a juvenile is in the custody of the Department of Human Services, Title 22, chapter 1071, subchapter VI also applies.

Sec. 9. 15 MRSA §3316, sub-§4, ¶B, as repealed and replaced by PL 1999, c. 127, Pt. B, §6, is amended to read:

B. If a juvenile is placed in a residence outside the juvenile's home pursuant to a voluntary services agreement, the Commissioner of Corrections or the commissioner's designee may request the court to make a determination whether reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from the juvenile's home or that no reasonable efforts are necessary because of the existence of an aggravating factor as defined in Title 22, section 4002, subsection 1-B, and whether continuation in the juvenile's home would be contrary to the welfare of the juvenile. If requested, the court shall make that determination prior to the expiration of 180 days from the start of the placement and shall review that determination not less than once every 12 months until the juvenile is no longer residing outside the juvenile's home.

Sec. 10. 18-A MRSA §9-308, sub-§(e), as enacted by PL 1995, c. 694, Pt. C, §7 and affected by Pt. E, §2, is amended to read:

(e) The department shall notify the grandparents of a child when the child is placed for adoption if the department has received notice that the grandparents were granted reasonable rights of visitation or access under Title 19-A, chapter 59 or Title 22, section 4005-B 4005-E.

Sec. 11. 22 MRSA §4002, sub-§1-B, ¶A, as enacted by PL 1997, c. 715, Pt. B, §1, is amended to read:

A. The parent has subjected the any child for whom the parent was responsible to aggravated circumstances, including, but not limited to, the following:

(1) Rape, gross sexual misconduct, gross sexual assault, sexual abuse, incest, aggravated assault, kidnapping, promotion of prostitution, abandonment, torture, chronic abuse or any other treatment that is heinous or abhorrent to society; or.

(2) Refusal for 6 months to comply with treatment required in a reunification plan.

Sec. 12. 22 MRSA §4002, sub-§1-B, ¶A-1 is enacted to read:

A-1.__The parent refused for 6 months to comply with treatment required in a reunification plan with regard to the child.

Sec. 13. 22 MRSA §4005, sub-§1, ¶D, as amended by PL 1997, c. 715, Pt. A, §2, is further amended to read:

D. The guardian ad litem shall make a written report of the investigation, findings and recommendations, and shall provide a copy of the report to each of the parties reasonably in advance of the hearing, and to the court, except that the guardian ad litem need not provide a written report prior to a hearing on a preliminary protection order. The court may admit the written report into evidence.

Sec. 14. 22 MRSA §4005, sub-§2, as amended by PL 1983, c. 783, §2, is further amended to read:

2. Parents. Parents and custodians are entitled to legal counsel in child protection proceedings, except for a request for a preliminary protection order under section 4034 or a petition for a medical treatment order under section 4071, but including hearings on those orders. They may request the court to appoint legal counsel for them. The court, if it finds them indigent, shall appoint and pay the reasonable costs and expenses of their legal counsel. The legal counsel appointed by the court under this section may also represent parents and custodians in a concurrent family matters action under Title 19-A in which the only major substantive matters are custody of and contact with the child.__The court shall pay the reasonable costs and expenses of the legal counsel.

Sec. 15. 22 MRSA §4005-A, as amended by PL 1997, c. 343, §1, is repealed.

Sec. 16. 22 MRSA §4005-B, as amended by PL 2001, c. 58, §1, is repealed.

Sec. 17. 22 MRSA §4005-C, as amended by PL 1999, c. 675, §1, is repealed.

Sec. 18. 22 MRSA §§4005-D and 4005-E are enacted to read:

§4005-D.__Access to and participating in proceedings

1.__Definitions.__For the purposes of this section, unless the context otherwise indicates, the following terms have the following meanings.

A.__"Foster parent" means a person who has had a child in that person's home for at least 120 days and who is licensed as a family foster home under chapter 1663.

B.__"Grandparent" means the biological or adoptive parent of a child's biological or adoptive parent.__"Grandparent" includes the parent of a child's parent whose parental

rights have been terminated, but only until the child is placed for adoption.

C.__"Interested person" means a person the court has determined as having a substantial relationship with a child or a substantial interest in the child's well-being, based on the type, strength and duration of the relationship or interest.__A person may request interested person status in a child protection proceeding either orally or in writing.

D.__"Intervenor" means a person who is granted intervenor status in a child protective proceeding pursuant to the Maine Rules of Civil Procedure, Rule 24, as long as intervention is consistent with section 4003.

E.__"Participant" means a person who is designated as an interested person under paragraph C and who demonstrates to the court that designation as a participant is in the best interests of the child and consistent with section 4003.__A person may request participant status in a child protection proceeding either orally or in writing.

2.__Interested persons.__Upon request, the court shall designate a foster parent, grandparent, preadoptive parent or a relative of a child by blood or marriage as an interested person unless the court finds good cause not to do so.__The court may also grant interested person status to other individuals who have a significant relationship to the child, including, but not limited to, teachers, coaches, counselors or a person who has provided or is providing care for the child.

3.__Access to proceedings.__An interested person, participant or intervenor may attend and observe all court proceedings under this chapter unless the court finds good cause to exclude the person.__The opportunity to attend court proceedings does not include the right to be heard or the right to present or cross- examine witnesses, present evidence or have access to pleadings or records.

4.__Right to be heard.__A participant or an intervenor has the right to be heard in any court proceeding under this chapter.__ The right to be heard does not include the right to present or cross-examine witnesses, present evidence or have access to pleadings or records.

5.__Intervention.__An intervenor may participate in any court proceeding under this chapter as a party as provided by the court when granting intervenor status under Maine Rules of Civil Procedure, Rule 24.__An intervenor has the rights of a party as ordered by the court in granting intervenor status, including the

right to present or cross-examine witnesses, present evidence and have access to pleadings and records.

6.__Confidentiality.__An interested person, a participant or an intervenor may not disclose outside the courtroom any confidential information learned by attending a court proceeding unless otherwise authorized.__Violation of this subsection is subject to sanctions imposed by the court.

§4005-E.__ Grandparents; visitation and access; placement

1.__Visitation and access.__A grandparent who is designated as an interested person or a participant under section 4005-D or who has been granted intervenor status under the Maine Rules of Civil Procedure, Rule 24 may request the court to grant reasonable rights of visitation or access.__When a child is placed in a prospective adoptive home and the prospective adoptive parents have signed an adoptive placement agreement, a grandparent's right to contact or have access to the child that was granted pursuant to this chapter is suspended.__If the adoption is not final within 18 months of adoptive placement, then the grandparent whose rights of contact or access were suspended may resume, as a matter of right and without further court order, contact with the child in accordance with the order granting that contact or access, unless the court determines after a hearing that the contact is not in the child's best interests.__A grandparent's rights of visitation or access terminate when the adoption is finalized pursuant to Title 18-A, section 9-308.__ Nothing in this section prohibits prospective adoptive parents from independently facilitating or permitting contact between a child and a grandparent, especially when a court has previously ordered rights of contact.

2.__Placement.__A grandparent who is designated as an interested person or a participant under section 4005-D or who has been granted intervenor status under the Maine Rules of Civil Procedure, Rule 24 may request the court to order that the child be placed with the grandparent.__A grandparent who has not been designated as a participant under section 4005-D may make the request for placement in writing.__In making a decision on the request, the court shall give the grandparents priority for consideration for placement if that placement is in the best interests of the child and consistent with section 4003.

Sec. 19. 22 MRSA §4008, sub-§2, ¶E, as amended by PL 1993, c. 294, §3, is further amended to read:

E. A person having the legal responsibility or authorization to educate, care for, evaluate, treat or supervise a child, parent or custodian who is the subject of

a record, or a member of a panel appointed by the department to review child deaths and serious injuries. This includes a member of a treatment team or group convened to plan for or treat a child or family that is the subject of a record. This may also include a member of a support team for foster parents, if that team has been reviewed and approved by the department;

Sec. 20. 22 MRSA §4008, sub-§3, ¶F, as amended by PL 1991, c. 630, §3, is further amended to read:

F. The Commissioner of Education when the information concerns teachers and other professional personnel issued certificates under Title 20-A, persons employed by schools approved pursuant to Title 20-A or any employees of schools operated by the Department of Education; and

Sec. 21. 22 MRSA §4008, sub-§3, ¶G, as amended by PL 1995, c. 694, Pt. D, §39 and affected by Pt. E, §2, is further amended to read:

G. The prospective adoptive parents. Prior to a child being placed for the purpose of adoption, the department shall comply with the requirements of Title 18-A, section 9- 304, subsection (b) and section 8205.; and

Sec. 22. 22 MRSA §4008, sub-§3, ¶H is enacted to read:

H.__Upon written request, a person having the legal authorization to evaluate or treat a child, parent or custodian who is the subject of a record.__This includes a member of a treatment team or group convened to plan for or treat a child or family that is the subject of a record.

Sec. 23. 22 MRSA §4010-B is enacted to read:

§4010-B.__Written policies

1.__Written policies.__By February 1, 2003, the department shall put in writing all policies that direct or guide procedural and substantive decision making by caseworkers, supervisors and other department personnel concerning child protective cases.

2.__Publicly available.__By February 1, 2003, the department shall make available to the public all policies that direct or guide procedural and substantive decision making by caseworkers, supervisors and other department personnel concerning child protective cases.__The department shall post and maintain the policies on a publicly accessible site on the Internet.

3.__Kinship care policies.__By September 1, 2002, the department shall make kinship care policies available in writing to the public.

4.__Rules.__this section does not affect the department's responsibility to adopt rules as otherwise required by law.

Sec. 24. 22 MRSA §4015, as amended by PL 1985, c. 495, §21, is further amended to read:

§4015. Privileged or confidential communications

The husband-wife and physician and psychotherapist-patient privileges under the Maine Rules of Evidence and the confidential quality of communication under Title 16, section 53-B; Title 20- A, sections 4008 and 6001, to the extent allowed by applicable federal law; Title 24-A, section 4224; Title 32, sections 1092-A and 7005; and Title 34-B, section 1207, are abrogated in relation to required reporting, cooperating with the department or a guardian ad litem in an investigation or other child protective activity or giving evidence in a child protection proceeding. Information released to the department pursuant to this section shall must be kept confidential and may not be disclosed by the department except as provided in section 4008.

Statements made to a licensed mental health professional in the course of counseling, therapy or evaluation where the privilege is abrogated under this section may not be used against the client in a criminal proceeding except to rebut the client's testimony contradicting those statements. Nothing in this section may limit any responsibilities of the professional pursuant to this Act.

Sec. 25. 22 MRSA §4021, sub-§§4 and 5 are enacted to read:

4.__Recording of planned interviews of children.__To the extent possible, the department shall record all planned questioning of and planned interviews with children.__No later than February 1, 2003, the commissioner shall provisionally adopt rules in accordance with Title 5, chapter 375 to establish procedures for the recording of planned questioning of and planned interviews with children.__Rules adopted pursuant to this subsection are major substantive rules as defined in Title 5, chapter 375, subchapter II-A.

Information collected in an interview that was not recorded may not be excluded from use in court proceedings solely because the interview was not recorded.

5.__Optional recording.__A person being questioned or

interviewed under this chapter or the parent of a child who is the subject of a proceeding under this chapter may not be prohibited from recording the questioning or interview.

Sec. 26. 22 MRSA §4031-A is enacted to read:

§4031-A.__Use of hearsay; fresh determination of jeopardy

1.__Findings or orders based on certain evidence inadmissible.__ If a finding or order from a prior proceeding is based on hearsay or other evidence that is not admissible in the current proceeding, that finding or order is not admissible in the current proceeding.

2.__Fresh determination of jeopardy.__The court must make a fresh determination of the question of jeopardy under section 4035 and at each subsequent review under section 4038.

Sec. 27. 22 MRSA §4032, sub-§2, as enacted by PL 1979, c. 733, §18, is amended to read:

2. Contents of petition. A petition shall must be sworn and shall include at least the following:

A. Name, date, place of birth and municipal residence, if known, of each child;

B. The name and address of the petitioner and the nature of his the petitioner's relationship to the child;

C. Name and municipal residence, if known, of each parent and custodian;

D. A summary statement of the facts which that the petitioner believes constitute the basis for the petition;

E. An allegation which that is sufficient for court action;

F. A request for specific court action;

G. A statement that the parents and custodians are entitled to legal counsel in the proceedings and that, if they want an attorney but are unable to afford one, they should contact the court as soon as possible to request appointed counsel; and

H. A statement that petition proceedings could lead to the termination of parental rights, under section 4051 et seq.;

I.__A statement explaining the specific reasonable efforts made to prevent the need to remove the child from the home or to resolve jeopardy;

J.__The names of relatives who may be able to provide care for the child; and

K.__The names of relatives who are members of an Indian tribe.

Sec. 28. 22 MRSA §4034, sub-§§1 and 2, as enacted by PL 1979, c. 733, §18, are amended to read:

1. Request. A petitioner may add to a child protection petition a request for a preliminary protection order, which shall or may request a preliminary protection order separately from the child protection petition.__A request for a preliminary protection order must include a sworn summary of facts to support the request.

2. Order. If the court finds by a preponderance of the evidence presented in the sworn summary or otherwise that there is an immediate risk of serious harm to the child, it may order any disposition under section 4036. A preliminary protection order shall automatically expire expires at the time of the issuing of a final protection order under section 4035 or a judicial review order under section 4038.

Sec. 29. 22 MRSA §4034, sub-§4, as amended by PL 1997, c. 715, Pt. A, §4, is further amended to read:

4. Summary preliminary hearing. If the custodial parent appears and does not consent, or if a noncustodial parent requests a hearing, then the court shall hold a summary preliminary hearing on that order within 10 14 days but not less than 7 days of its issuance or request. If a parent or custodian is not served with the petition before the summary preliminary hearing, the parent or custodian may request a subsequent preliminary hearing within 10 days after receipt of the petition. The petitioner bears the burden of proof. At a summary preliminary hearing, the court may limit testimony to the testimony of the caseworker, parent, custodian, guardian ad litem, foster parent, preadoptive parent or relative providing care and may admit evidence, including reports and records, that would otherwise be inadmissable as hearsay evidence. If after the hearing the court finds by a preponderance of the evidence that returning the child to the child's custodian would place the child in immediate risk of serious harm, it shall continue the order or make another disposition under section 4036. If the court's preliminary order includes a finding of an aggravating

factor, the court may order the department not to commence reunification or to cease reunification in accordance with section 4042, in which case the court shall conduct a hearing on jeopardy and conduct a permanency planning hearing.__The hearings must commence within 30 days of entry of the preliminary order.

Sec. 30. 22 MRSA §4034, sub-§5, as amended by PL 1997, c. 715, Pt. A, §5, is further amended to read:

5. Contents of order. The preliminary protection order must include a notice to the parents and custodians of their right to counsel, as required under section 4032, subsection 2, paragraph G and, if the order was made without consent, notice of the date and time of the summary preliminary hearing. The order must include a notice to the parent or custodian that if a parent or custodian is not served with the petition before the summary preliminary hearing, the parent or custodian is entitled to request a subsequent preliminary hearing within 10 days after receipt of the petition. The order must include a notice that visitation must be scheduled within 7 days of the issuance of the order unless there is a compelling reason not to schedule visitation.

Sec. 31. 22 MRSA §4034, sub-§6 is enacted to read:

6.__Visitation.__When the court issues a preliminary protection order, the court shall order the department to schedule visitation with the child's parents and siblings within 7 days of the issuance of the order, unless there is a compelling reason not to schedule such visitation.

Sec. 32. 22 MRSA §4035, sub-§2, as enacted by PL 1979, c. 733, §18, is amended to read:

2. Adjudication. After hearing evidence, the court shall make a finding, by a preponderance of the evidence, as to whether the child is in circumstances of jeopardy to his the child's health or welfare. The court shall state the evidence on which the finding is based.__The court shall make a specific finding concerning jeopardy for each parent.

Sec. 33. 22 MRSA §4035, sub-§3, as amended by PL 1983, c. 184, §5, is further amended to read:

3. Grounds for disposition. If the court determines that the child is in circumstances of jeopardy to his the child's health or welfare, the court shall hear any relevant evidence regarding proposed dispositions, including written or oral reports, recommendations or case plans. The court shall then make a written order of any disposition under section 4036,

although the court may order the child to be placed in the department's custody only if the court determines that the child is in circumstances of jeopardy to the child's health or welfare with regard to both parents. If possible, this dispositional phase shall must be conducted immediately after the adjudicatory phase. Written materials to be offered as evidence shall must be made available to each party's counsel and the guardian ad litem reasonably in advance of the dispositional phase.

Sec. 34. 22 MRSA §4036, sub-§1, ¶G-2, as enacted by PL 1997, c. 715, Pt. A, §11, is amended to read:

G-2. If the court's jeopardy order includes a finding of an aggravating factor, the court may order the department to cease reunification in accordance with section 4042, in which case a permanency planning hearing must commence within 30 days of the order to cease reunification.

Sec. 35. 22 MRSA §4038, sub-§7-A, as enacted by PL 1997, c. 715, Pt. B, §10, is amended to read:

7-A. Permanency planning hearing. The court shall conduct a permanency planning hearing and shall determine a permanency plan within 12 months of the time a child is considered to have entered foster care and every 12 months thereafter, unless subsequent reviews are no longer required pursuant to subsection 1-A. If the court's jeopardy ruling includes a finding of an aggravating factor, the court may order the department to cease reunification in accordance with section 4042, in which case a permanency planning hearing must commence within 30 days of the order to cease reunification.

A. A child is considered to have entered foster care on the date of the first judicial finding that the child has been subjected to child abuse or neglect or on the 60th day after removal of the child from home, whichever occurs first.

B. The permanency plan for the child must contain determinations on the following issues.

(1) The permanency plan must determine whether and when, if applicable, the child will be:

(a) Returned to the parent. Before the court may enter an order returning the custody of the child to a parent, the parent must show that the parent has carried out the responsibilities set forth in section 4041, subsection 1, paragraph B; that to the court's satisfaction the parent has rectified and resolved the problems that caused the removal

of the child from home and any subsequent problems that would interfere with the parent's ability to care for and protect the child from jeopardy; and that the parent can protect the child from jeopardy;

(b) Placed for adoption, in which case the department shall file a petition for termination of parental rights;

(c) Referred for legal guardianship; or

(d) Placed in another planned permanent living arrangement when the department has documented to the court a compelling reason for determining that it would not be in the best interests of the child to be returned home, be referred for termination of parental rights or be placed for adoption, be placed with a fit and willing relative, or be placed with a legal guardian.

(2) In the case of a child placed in foster care outside the state in which the parents of the child live, the permanency plan must determine whether the out-of-state placement continues to be appropriate and in the best interests of the child.

(3) In the case of a child who is 16 years of age or older, the permanency plan must determine the services needed to assist the child to make the transition from foster care to independent living.

C. The court shall consider, but is not bound by, the wishes of the child in making a determination under this subsection if the child is 12 years of age or older.

Sec. 36. 22 MRSA §4041, sub-§2, ¶A-1, as enacted by PL 1997, c. 715, Pt. B, §11, is repealed.

Sec. 37. 22 MRSA §4041, sub-§2, ¶A-2 is enacted to read:

A-2.__The court may order that the department need not commence or may cease reunification efforts only if the court finds, in accordance with section 4042, at least one of the following:

(1)__The existence of an aggravating factor; or

(2)__That continuation of reunification efforts is inconsistent with the permanency plan for the child.

(a)__When 2 placements with the same parent have failed and the child is returned to the custody of the department, the court shall make a finding that continuation of reunification efforts is inconsistent with the permanency plan for the child and order the department to cease reunification unless the parent demonstrates that reunification should be continued and the court determines reunification efforts to be in the best interests of the child.

(b)__If the permanency plan provides for a relative or other person to have custody of the child and the court has ordered custody of the child to that relative or other person, the court shall make a finding that continuation of reunification efforts is inconsistent with the permanency plan for the child and order the department to cease reunification unless the parent demonstrates that reunification should be continued and the court determines reunification efforts to be in the best interests of the child.

Sec. 38. 22 MRSA §4042 is enacted to read:

§4042.__Standard to cease reunification efforts

The court may order the department to not commence or to cease rehabilitation and reunification efforts only if the court has made its findings concerning reunification based on clear and convincing evidence.

Sec. 39. 22 MRSA §4052, sub-§2-A, ¶B, as enacted by PL 1997, c. 715, Pt. B, §14, is amended to read:

B. A court order includes a finding of an aggravating factor and an order to cease reunification in accordance with section 4042.

Sec. 40. 22 MRSA §4055, sub-§1, ¶A, as amended by PL 1995, c. 694, Pt. D, §48 and affected by Pt. E, §2, is further amended to read:

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; or

(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-A, article IX; and

Sec. 41. Representation of parents; pilot project. The Supreme Judicial Court shall establish a pilot project in one or more locations to provide representation to parents in child protective proceedings on a contract basis with one or more attorneys or firms. The Supreme Judicial Court shall evaluate the quality, effectiveness, adequacy and timeliness of the representation and the costs as compared to the traditional provision of court-appointed counsel. The Supreme Judicial Court shall report its conclusions and recommendations concerning the pilot project to the joint standing committee of the Legislature having jurisdiction over judiciary matters by January 31, 2003.

Sec. 42. Department of Human Services; report on kinship care. The Department of Human Services shall report to the joint standing committees of the Legislature having jurisdiction over judiciary matters and health and human services matters before February 1, 2003 on the following:

1. Changes in policies and procedures the department is planning to adopt in order to increase care by relatives and placement with relatives; and

2. The appropriate process by which the department will inform families involved in child protective cases and their relatives about kinship visitation and placement options.

SUMMARY

This bill contains the legislative recommendations of the Committee to Review the Child Protective System, created by Joint Order 2001, H.P. 1385. A full discussion of all the committee's recommendations is contained in the committee's final report, submitted to the Joint Standing Committee on Judiciary in January 2002.

This bill amends the Maine Juvenile Code to be consistent with federal law and the child protective statutes with regard to juveniles who are ordered by the court to be removed from their

homes. Before ordering removal, the court must make a finding as to whether reasonable efforts have been made to prevent or eliminate the need for removal of the juvenile from the juvenile's home, or that no reasonable efforts are necessary because of the existence of an aggravating factor as defined in the Maine Revised Statutes, Title 22, section 4002, subsection 1-B, and continuation in the juvenile's home would be contrary to the welfare of the juvenile. This determination does not affect whether the court orders detention or a conditional release.

This bill makes clear that when the juvenile is ordered into the custody of the Department of Human Services, the child protective requirements apply and the court must conduct the permanency planning hearings and judicial reviews required in child protective cases.

This bill makes clear that the Juvenile Court, when ordering a juvenile into the custody of the Department of Human Services, may impose conditions that may include participation by the juvenile or the juvenile's parents or legal guardian in treatment services aimed at the rehabilitation of the juvenile, reunification of the family and improvement of the home environment.

This bill requires the State Court Administrator to consult with appropriate interested parties and establish a program to provide information about the child protective system to parents. The program will provide information for parents at any stage in child protective proceedings. This is in addition to the parents' legal counsel. The program must be conducted under contract by one or more private providers. The provision of the information is not legal representation. This bill does not create any rights for the parents or any other person. Failure to establish the program or provide information does not affect the rights of the parents in the case that do not already exist. The State Court Administrator must report every year to the joint standing committee of the Legislature having jurisdiction over judiciary matters about the program.

Current law provides a definition of "aggravating factor." It is significant because an aggravating factor can be the basis for a cease-reunification order, and gives the court the ability to put the case on a fast track towards termination of parental rights. If a parent has committed rape, gross sexual misconduct, gross sexual assault or other actions that are heinous and abhorrent to society against the child who is the subject of the petition, the court may find the existence of an aggravating factor. If the parent has committed the same act against a different child, however, no aggravating finding may be made, even if the victim is another child in the household. This is

inconsistent with the termination provisions, which allow the court to presume that a parent is unfit if the parent has acted in a heinous or abhorrent manner towards any child. This section changes the definition of aggravating factor to apply to any child for whom the parent was responsible. This expands the number of parents with an aggravating factor to include people who have behaved in a way that the statute currently defines to be so extreme as to indicate a lack of rehabilitative potential.

Current law requires the guardian ad litem to provide a written report to the court and parties. In some cases, a question has been raised as to whether the report may be considered by the court as evidence. Most courts do rely on the reports when orders are issued. This bill clarifies the law to provide that the court may admit as evidence the guardian's report.

This bill clarifies the statute with regard to the scope of the authority of a parent's court-appointed attorney. There are situations in which there is a family matters proceeding, such as a divorce or other action to determine parental rights and responsibilities, that is taking place at the same time as a child protective proceeding involving the same child. The change makes it clear that the parent's attorney, appointed by the court to represent the parent in the child protective proceeding, may also represent that parent in the family matters proceeding if the only major substantive issues in the family matters proceeding are custody of and contact with the child.

The bill rewrites the statutes governing access to and participation in child protective proceedings for nonparties. Three tiers are established. "Interested persons" may observe court proceedings, but have no opportunity to speak during the proceeding. The judge may designate as an "interested person" any person who has a substantial relationship with the child or a substantial interest in the child's well-being, based on the type, strength and duration of the relationship or interest. The following will be designated as "interested persons" upon request, unless the court finds good cause not to do so: foster parents, grandparents, preadoptive parents and a relative of the child by blood relation or marriage. The provision allows others who have a significant relationship with the child to qualify as "interested persons." This includes, but is not limited to, teachers, coaches, counselors and child care providers.

Participants are individuals that qualify as interested persons and request participant status, which will allow them an opportunity to be heard in the child protective proceeding. The court may designate an individual as a participant if the individual demonstrates to the court that the designation is in

the best interests of the child and is consistent with the purposes of the child protective laws. Although participants have the right to speak, they do not have the right to cross- examine witnesses, present their own witnesses or evidence or have access to pleadings or records.

The 3rd tier is that of intervenors. This bill eliminates special provisions for certain persons who seek intervenor status. The Maine Rules of Civil Procedure, Rule 24 governs to whom the court may grant intervenor status, although the court must still determine that granting intervenor status is consistent with the purposes of the child protective laws. As in any other civil case, once a court has granted an individual intervenor status, that intervenor becomes a party to the proceeding.

A grandparent is not required to seek intervenor status in order to seek visitation with or access to the child, or to ask the court to order that the child be placed with the grandparent. Current procedures and opportunities for grandparents are otherwise retained. The grandparent must simply be designated as an interested person, although being designated a participant or being granted intervenor status also puts the grandparent in the position to make requests to the court.

The bill requires the Department of Human Services to release upon written request relevant confidential records to persons who have the legal authorization to evaluate or treat a child or a family member.

The bill requires the Department of Human Services to produce decision-making policies in writing and make them publicly available. It requires the department to post the most current policies on a publicly accessible site on the Internet. The policies must address kinship care and placement.

Current law abrogates the mental health evidentiary privileges under the Maine Rules of Evidence and state and federal law in relation to child protective activities. The statute describing the domestic or family violence counseling privilege acknowledges this abrogation. This bill includes in the child protective laws a corresponding recognition of the domestic or family violence privilege.

When a parent in a child protective action faces criminal charges relating to the abuse of the child, the parent is often reluctant to engage in treatment for fear this will be used against the parent in the criminal action. Current law limits the use in the criminal court of the patient's statements to a mental health professional. The bill amends the statute to

provide that the statements may not be used at all in the criminal case, so that parents will not hesitate to enter into services in the child protective proceeding because criminal charges are pending.

The Department of Human Services is required, to the extent possible, to record all planned questioning of and interviews with children. The department must adopt rules to establish procedures to record interviews; the rules are major substantive rules. The fact that an interview was not recorded does not by itself require the exclusion of the information collected in the interview.

This bill also clarifies that any person who is being questioned or interviewed may record the questioning or interview.

The restrictions on the admissibility of evidence in a preliminary protection order hearing are more liberal than in other proceedings, at least in part to allow the court to act when the child is in immediate danger. If a finding is made based on that evidence, the finding is admissible and given at least some precedential weight under current law and procedures in subsequent proceedings even though the underlying evidence would not be admissible in those proceedings. This bill enacts a new provision of law that prohibits the admissibility of a finding or order from a previous proceeding if the evidence that the finding or order was based on would not be admissible in the current proceeding. To the extent this new provision is inconsistent with recent Maine Law Court decisions, including In re Isaiah B, 1999 ME 174, 740 A.2d 988, the holdings of those decisions are overruled prospectively from the effective date of this Act.

The bill requires the court to state on which evidence the jeopardy finding or order is based. This will identify findings based on otherwise inadmissible evidence.

This bill amends the statute listing the information that must be included in a child protective petition. The additions are consistent with the department's responsibilities under federal and state laws. The petition must include a statement of the reasonable efforts made to prevent the need to remove the child from the home or to resolve jeopardy. The petition must include the names of relatives who may be able to provide care for the child. The petition must also include the names of relatives who are members of an Indian tribe.

Current law provides that the preliminary protection order expires once a jeopardy order is issued. This bill amends the statute to clarify that a request for a preliminary protection

order may be added to the petition, as is currently provided, or may be filed independently. The preliminary protection order then expires after a jeopardy order or a judicial review order is issued.

Current law provides that if the court's preliminary protection order includes a finding of an aggravating factor, the court may order the department not to commence reunification or to cease reunification, in which case a permanency hearing must commence within 30 days. This bill amends the law to provide that the court must conduct a hearing on jeopardy, which can be combined with the permanency planning hearing. This avoids authorizing the court to hold a permanency planning hearing before finding jeopardy.

Current law provides that if the court determines that the child is in circumstances of jeopardy to the child's health or welfare, the court shall hear evidence regarding the proposed dispositions and shall make a written order of disposition. The question has been raised in various courts whether a finding that the custodial parent presents jeopardy is sufficient, or whether the court must find that each parent presents jeopardy to the child before custody to the department is ordered. This issue comes up when there is a noncustodial parent, particularly one who lives out of the State. This bill amends the statute to provide that the court must make a specific finding concerning jeopardy for each parent. It authorizes the court to order custody to the department only if the court finds the child is in jeopardy with regard to both parents.

This bill removes the department's responsibilities to pursue reunification of the family if the permanency plan for the child calls for custody with a relative and the court has ordered custody of the child to that relative.

Current law allows the court to order the Department of Human Services to either not commence or to cease efforts to reunify the family based on a finding by the preponderance of the evidence. The bill allows the court to make such an order only if the court has found by clear and convincing evidence that reunification is not in the best interests of the child.

This bill slightly adjusts the timing of the preliminary protection hearing after a preliminary protection order is issued. In many cases, the preliminary protection order has been issued on a Friday and the hearing scheduled for the next business day, the following Monday, leaving the parents with too little time to work with an attorney, collect relevant information and prepare their case. The bill provides that the hearing can not be held less than 7 days after the order is

issued and must be held before 14 days have passed since the issuance of the order.

The bill corrects a conflict in the statute by clarifying that annual permanency planning reviews are not required for a child protective case if the facts of the case fall into one of the 4 categories listed earlier in the same section of statute. The Maine Revised Statutes, Title 22, section 4038, subsection 1-A provides that no subsequent review is required unless a party petitions for a review or the court orders a review, once certain custody orders are made.

The bill requires the court to order the department to schedule visitation with the child's parents and siblings within 7 days of the issuance of the order. Such visitation is not required if there is a compelling reason not to.

The bill directs the Supreme Judicial Court to consider establishing a pilot project to provide representation to parents in child protective proceedings on a contract basis with one or more attorneys or firms. A similar pilot project was undertaken to provide representation for criminal defendants.

The bill requires the Department of Human Services to report to the joint standing committee of the Legislature having jurisdiction over judiciary matters and health and human services matters about planned changes to increase care by relatives and placement with relatives, and how the department will inform families about visitation and placement options for relatives.

Current law lists the provisions under which a court may have ordered a child to be removed from the home before termination of parental rights may be considered. This bill adds a cross- reference to the Maine Juvenile Code under which the Juvenile Court may order the child removed from the home.