Maine Revised Statutes

§4038-E. Adoption from permanency guardianship

The department may petition the District Court to have a permanency guardian adopt the child in the permanency guardian's care and to change the child's name. [RR 2011, c. 1, §34 (COR).]

1. Contents of petition for adoption from permanency guardianship.   The petition for adoption from permanency guardianship must be sworn and must include at least the following:
A. The name, date and place of birth, if known, of the child and the child's current residence; [2011, c. 402, §15 (NEW).]
B. The child's proposed new name, if any; [2011, c. 402, §15 (NEW).]
C. The name and residence of the permanency guardian and the relationship to the child; [2011, c. 402, §15 (NEW).]
D. The name and residence, if known, of each of the child's parents; [2011, c. 402, §15 (NEW).]
E. The name and residence of the former guardian ad litem of the child in the related child protection proceeding; [2011, c. 402, §15 (NEW).]
F. The names and residences of all persons known to the department that affect custody, visitation or access to the child; [2011, c. 402, §15 (NEW).]
G. A summary statement of the facts that the petitioner believes constitute the basis for the request for the adoption from permanency guardianship, including a statement that the permanency guardian intends to establish a parent and child relationship and that the permanency guardian is a fit and proper person able to care and provide for the child's welfare; [2011, c. 402, §15 (NEW).]
H. A statement of the intent of the parents to consent to the adoption; [2011, c. 420, Pt. I, §1 (AMD); 2011, c. 420, Pt. I, §5 (AFF).]
I. A statement of the effects of a consent and adoption order; and [2011, c. 402, §15 (NEW).]
J. A statement that the parents are entitled to legal counsel in the adoption from permanency guardianship proceeding and that, if they want an attorney and are unable to afford one, they should contact the court as soon as possible to request appointed counsel. [2011, c. 420, Pt. I, §1 (AMD); 2011, c. 420, Pt. I, §5 (AFF).]
[ 2011, c. 420, Pt. I, §1 (AMD); 2011, c. 420, Pt. I, §5 (AFF) .]
2. Accompanying documents and information.   The sworn petition must be accompanied by:
A. The birth certificate of the child; [2011, c. 402, §15 (NEW).]
B. A background check for each prospective adoptive parent, which must include:
(1) A screening of the permanency guardian for child abuse cases in the records of the department;
(2) The national criminal history record check for noncriminal justice purposes for each permanency guardian under subsection 7, paragraph A or updated check if the original was completed more than 2 years prior to the filing of the petition; and
(3) The state criminal history record check for noncriminal justice purposes for each permanency guardian under subsection 7, paragraph A or updated check if the original was completed more than 2 years prior to the filing of the petition; [2011, c. 402, §15 (NEW).]
C. The home study of the permanency guardian under subsection 7, paragraph B or an updated home study if the original was completed more than 2 years prior to the filing of the petition; and [2011, c. 402, §15 (NEW).]
D. The child's background information collected pursuant to subsection 7, paragraph B. [2011, c. 402, §15 (NEW).]
[ 2011, c. 402, §15 (NEW) .]
3. Scheduling of case management conference.   On the filing of the petition, the court shall set a time and date for a case management conference.
[ 2011, c. 402, §15 (NEW) .]
4. Venue.   A petition for adoption from permanency guardianship must be brought in the court that issued the final permanency guardianship appointment. The court, for the convenience of the parties or other good cause, may transfer the petition to another district or division.
[ 2011, c. 402, §15 (NEW) .]
5. Guardian ad litem; attorneys.   The court shall appoint a guardian ad litem and attorneys for indigent parents and custodians, including the permanency guardians, in the same manner as guardians ad litem and attorneys are appointed under section 4005.
[ 2011, c. 402, §15 (NEW) .]
6. Service.  The petition and the notice of the case management conference must be served on the parents and the guardian ad litem for the child at least 10 days prior to the scheduled case management conference date. Service must be in accordance with the Maine Rules of Civil Procedure or in any other manner ordered by the court.
[ 2011, c. 420, Pt. I, §2 (AMD); 2011, c. 420, Pt. I, §5 (AFF) .]
7. Background checks for each permanency guardian seeking to adopt the child.   The department may, pursuant to rules adopted by the department, at any time before the filing of the petition for adoption from permanency guardianship, conduct background checks of each permanency guardian of the child and a home study.
A. The department may, pursuant to rules adopted pursuant to Title 18-A, section 9-304, subsection (a-2), request a background check for each permanency guardian. The background check must include criminal history record information obtained from the Maine Criminal Justice Information System and the Federal Bureau of Investigation.
(1) The criminal history record information obtained from the Maine Criminal Justice Information System must include a record of public criminal history record information as defined in Title 16, section 703, subsection 8.
(2) The criminal history record information obtained from the Federal Bureau of Investigation must include other state and national criminal history record information.
(3) Each permanency guardian of the child shall submit to having fingerprints taken. The State Police, upon receipt of the fingerprint card, may charge the department for the expenses incurred in processing state and national criminal history record checks. The State Police shall take or cause to be taken the applicant's fingerprints and shall forward the fingerprints to the State Bureau of Identification so that the bureau can conduct state and national criminal history record checks. Except for the portion of the payment, if any, that constitutes the processing fee charged by the Federal Bureau of Investigation, all money received by the State Police for purposes of this paragraph must be paid over to the Treasurer of State. The money must be applied to the expenses of administration incurred by the Department of Public Safety.
(4) The subject of a Federal Bureau of Investigation criminal history record check may obtain a copy of the criminal history record check by following the procedures outlined in 28 Code of Federal Regulations, Sections 16.32 and 16.33. The subject of a state criminal history record check may inspect and review the criminal history record information pursuant to Title 16, section 709.
(5) State and federal criminal history record information may be used by the department for the purpose of screening each permanency guardian in determining whether the adoption is in the best interests of the child.
(6) Information obtained pursuant to this paragraph is confidential. The results of background checks received by the department are for official use only and may not be disseminated outside the department except to a court considering an adoption petition under this section. [2013, c. 267, Pt. B, §20 (AMD).]
B. The home study must include an investigation of the conditions and antecedents of the child to determine whether the child is a proper subject for adoption and whether the proposed home is suitable for the child. [2011, c. 402, §15 (NEW).]
[ 2013, c. 267, Pt. B, §20 (AMD) .]
8. Consent.   Before an adoption is granted, written consent to the adoption must be given by:
A. The child, if the child is 12 years of age or older; [2011, c. 402, §15 (NEW).]
B. The child's parents; and [2011, c. 420, Pt. I, §3 (AMD); 2011, c. 420, Pt. I, §5 (AFF).]
C. The permanency guardian who has legal custody of the child. [2011, c. 402, §15 (NEW).]
The consents to adoption must be written and voluntarily and knowingly executed before a judge. The judge shall explain the effects of the consent to adoption. Before the adoption is granted, the court shall ensure that each permanency guardian is informed of the existence of the adoption registry and the services available under Title 22, section 2706-A.
[ 2011, c. 420, Pt. I, §3 (AMD); 2011, c. 420, Pt. I, §5 (AFF) .]
9. Dismissal.   If the parents do not consent, the court shall dismiss the adoption petition and conduct a judicial review hearing consistent with section 4038-C, subsection 12.
[ 2011, c. 402, §15 (NEW) .]
10. Hearing on petition for adoption from permanency guardianship.   The court shall hold a hearing prior to granting the petition for adoption from permanency guardianship. The department, as the petitioner, has the burden of proof.
A. The judge may interview the child. If the judge chooses to interview the child and the child is 12 years of age or older, the judge shall interview the child outside of the presence of a permanency guardian in order to determine the child's perspective about the adoption and other relevant issues. [2011, c. 402, §15 (NEW).]
B. The court shall grant an order of adoption if:
(1) All necessary consents have been duly executed;
(2) The permanency guardian is a suitable adopting parent and desires to establish a parent and child relationship with the child; and
(3) The adoption is in the best interest of the child. [2011, c. 402, §15 (NEW).]
C. If the judge is satisfied by a preponderance of the evidence with the identity and relations of the parties, the ability of the permanency guardian to bring up and educate the child properly and the fitness and propriety of the adoption and that the adoption is in the best interest of the child, the judge shall grant the adoption setting forth the facts and ordering that from that date the child is the child of the permanency guardian and must be accorded that status set forth in subsection 12 and that the child's name is changed, without requiring public notice of that change.
After the adoption has been granted, the department shall file a certificate of adoption with the State Registrar of Vital Statistics on a form prescribed and furnished by the state registrar.
The department shall notify the biological parents whose parental rights have been terminated and grandparents who were granted reasonable rights of visitation or access pursuant to section 4005-E or Title 19-A, section 1803. [2011, c. 402, §15 (NEW).]
[ 2011, c. 402, §15 (NEW) .]
11. Effect of consent to adoption by the parent.   An order granting the adoption has the following effect.
A. An order granting the adoption of the child by the permanency guardian divests the consenting parent and child of all legal rights, powers, privileges, immunities, duties and obligations to each other as parent and child, except the inheritance rights between the child and the parent. [2011, c. 420, Pt. I, §4 (AMD); 2011, c. 420, Pt. I, §5 (AFF).]
B. An adoption order may not disentitle a child to benefits due the child from any 3rd person, agency or state or the United States and may not affect the rights and benefits that a Native American derives from descent from a member of a federally recognized Indian tribe. [2011, c. 420, Pt. I, §4 (AMD); 2011, c. 420, Pt. I, §5 (AFF).]
[ 2011, c. 420, Pt. I, §4 (AMD); 2011, c. 420, Pt. I, §5 (AFF) .]
12. Rights of adopted persons.   Except as otherwise provided by law, an adopted person has all the same rights, including inheritance rights, that a child born to the adoptive parent would have. An adoptee also retains the right to inherit from the adoptee's biological parents if the adoption order so provides.
[ 2011, c. 402, §15 (NEW) .]
SECTION HISTORY
RR 2011, c. 1, §34 (COR). 2011, c. 402, §15 (NEW). 2011, c. 420, Pt. I, §§1-4 (AMD). 2011, c. 420, Pt. I, §5 (AFF). 2013, c. 267, Pt. B, §20 (AMD).