A.
Pending matters
1. If a person is
or becomes a party (including as an intervenor) to any of the proceedings
listed in paragraph 5, the appeal process in these rules shall be dismissed
without prejudice. The order or notice dismissing the appeal process shall
contain a statement that the person has 60 days after the conclusion of the
other proceeding to request that the appeal process be reinstated, that the
person may contact the Department or the Child Welfare Ombudsman for further
information, that a favorable result in the other proceeding does not
necessarily mean that the finding will be reversed, and that if the person is
in doubt about the effect of the other proceeding, then the person should
request a reinstatement of the appeal process pursuant to these rules. The
notice shall give phone numbers and email addresses for the person to contact
the Department and the Child Welfare Ombudsman.
2. To preserve any right to an appeal after
the conclusion of the other proceeding, the person must file a request for a
paper review after receipt of the original notice, as provided in Section X,
even if the person is a party to one of the proceedings listed in paragraph
5.
3. At the conclusion of the
proceeding that caused the dismissal, the person will be entitled to have the
appeal process reinstated, unless the Department is entitled to record the
person as substantiated or indicated pursuant to paragraph B of this
part.
4. In order to reinstate the
process, the person must file a request for an appeal as provided in Section X
within 60 days of the conclusion of the other proceeding, unless a "good cause"
exception has been granted by the Department.
5. The proceedings that result in dismissal
of the appeal process in these rules are the following:
a. Proceedings pursuant to Maine
Revised Statutes, Title 22, chapter 1071 (child protective);
b. Any other civil proceeding in which there
is a factual issue of whether or not the substantiated or indicated person
subjected the child(ren) to abuse or neglect or of whether the substantiated or
indicated person committed the conduct or omissions that created the
circumstances of abuse or neglect;
c. Any proceeding similar to a and b above in
another state or territory of the United States; or
d. Any criminal or juvenile proceeding in
which the person is charged with conduct substantially similar to the conduct
upon which the Department based its finding.
6. For purposes of this section, another
proceeding "concludes" on the date following the last date on which any
post-judgment motions may be filed pursuant to the Maine Rules of Civil
Procedure or Maine Rules of Criminal Procedure, as
the case may be, if no direct appeal is taken from the judgment. If a direct
appeal is taken from the judgment, and if the judgment is affirmed on appeal,
then the proceeding "concludes" on the date that the Law Court issues its
mandate (usually two weeks after the decision is published). If a direct appeal
is taken from the judgment, and the appeal results in the case being remanded
to the trial court, then the proceeding "concludes" when the remand is
resolved, namely on the date following the date that any post-judgment motions
may be filed.
B.
Determinations based on findings from other proceedings
1. If a court of competent jurisdiction
specifically finds that a person has abused or neglected a child, or that a
child is in circumstances of jeopardy with regard to the person, or a court of
another state or United States territory makes a similar finding, the
Department may record and report the person as substantiated for abuse or
neglect of a child.
2. If an agency
of another state (including political subdivisions of other states) determines
that a person abused or neglected a child, or makes a similar finding, the
Department may record and report the person as substantiated or indicated,
depending on the severity found by the other agency, for abuse or neglect of a
child, if the person had the opportunity for an administrative hearing on the
finding by the other state's agency.
3. If a person is convicted of a crime where
the charges arose out of the same conduct or pattern of conduct as that upon
which the Department based its finding, then the Department may record and
report the person as substantiated for abuse or neglect of a child.
4. The Department must make a finding that a
specific allegation of abuse or neglect was substantiated if the Department was
a party to a case in which a court of competent jurisdiction found as a factual
matter that the specific alleged conduct did occur. If the Department is a
party to the case, and the court does not find that the child is in
circumstances of jeopardy, the Department is not required to change its
finding(s) that a person has abused or neglected a child.
C.
Simultaneous administrative
proceedings
If a finding forms a basis for the Department's action
against any license or certificate that the substantiated or indicated person
holds to operate a facility for children listed in Maine Revised
Statutes, Title 22, sections 7801 or 8301- A, and if the substantiated
or indicated person timely requests an administrative hearing on the
Department's action, then the administrative hearing on the finding may, in the
discretion of the Chief Administrative Hearings Officer, be consolidated with
the hearing on the Department's action against the license or certificate to
operate a facility for children.