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Parental Rights Matters in Maine Probate Courts

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Parental Rights Matters in Maine Probate Courts Maine Law Review Volume 68 Number 1 Article 11 January 2016 From Orphans to Families in Crisis: Parental Rights Matters in Maine Probate Courts Deirdre M. Smith Follow this and additional works at: https://digitalcommons.mainelaw.maine.edu/mlr Part of the Family Law Commons Recommended Citation Deirdre M. Smith, From Orphans to Families in Crisis: Parental Rights Matters in Maine Probate Courts, 68 Me. L. Rev. 45 (2016). Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol68/iss1/11 This Article is brought to you for free and open access by the Journals at University of Maine School of Law Digital Commons. It has been accepted for inclusion in Maine Law Review by an authorized editor of University of Maine School of Law Digital Commons. For more information, please contact [email protected]. FROM ORPHANS TO FAMILIES IN CRISIS: PARENTAL RIGHTS MATTERS IN MAINE PROBATE COURTS Deirdre M. Smith ABSTRACT I. INTRODUCTION II. A SHORT HISTORY OF MAINE’S PROBATE COURTS AND THEIR JURISDICTION OVER PARENTAL RIGHTS MATTERS A. Probate Courts’ Early Statutory Authority Regarding Minors B. The Maine Legislature Expands Probate Courts’ Role over Parental Rights Matters C. Probate Courts’ Concurrent Jurisdiction, Past and Present III. PARENTAL RIGHTS MATTERS IN PROBATE COURTS TODAY A. Parental Rights Determinations under the Maine Probate Code 1. Guardianship of Minors 2. Adoption, Termination of Parental Rights, and Paternity Proceedings 3. Change of Name of Minor Child B. The Impact of Probate Courts’ Exclusive Jurisdiction of Certain Parental Rights Proceedings 1. The probate courts’ limited statutory authority and lack of a centralized system hinder their ability to effectively address the needs of families in crisis 2. The “split jurisdiction” of district and probate courts over parental rights matters leads to confusion, delay, inefficiencies, and inconsistent rulings 3. The probate courts’ “informality” and limited resources can result in inadequate due process and access to justice for litigants 4. The practice of law by Maine Probate Judges undermines the delivery of justice in parental rights matters IV. PROPOSALS FOR REFORM A. Attempts to Reform the Probate Court System B. Jurisdictional and Structural Reforms 1. Eliminate the “Scattered Jurisdiction” and Enable the District Court to Serve as a Child’s “Home Court” 2. Recording of Proceedings 3. Law Practice by Probate Court Judges 4. Comprehensive Reform C. Reforming the Maine Probate Code – Moving Beyond the Orphan Model 1. Minor Guardianships 2. Adoptions, Paternity, and Termination of Parental Rights 3. Change of Name 4. Appointment of GALs V. CONCLUSION 46 MAINE LAW REVIEW [Vol. 68:1 FROM ORPHANS TO FAMILIES IN CRISIS: PARENTAL RIGHTS MATTERS IN MAINE PROBATE COURTS Deirdre M. Smith* ABSTRACT This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine’s probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine’s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent’s estate to the current scope—a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine probate courts now adjudicate questions implicating parental rights in a wide range of scenarios. However, the basic structure of Maine’s probate courts has remained unchanged since 1855. Maine law assigns exclusive jurisdiction of these often complex and contentious matters to a non-centralized group of county-based courts, each of which has limited resources and a single, part-time elected judge who usually has a busy law practice as his or her primary job. This Article provides a close examination of the central issues involved in the parental rights matters currently adjudicated in the probate courts under the Maine Probate Code. It analyzes the challenges presented by the probate courts’ exclusive jurisdiction of these matters, including the incidence of conflicts and confusion when the Maine District Court has addressed a parental rights issue involving a child who is also the focus of a probate court proceeding, as well as the limitations presented by the probate courts’ structure and operation. Finally, this Article discusses potential reforms aimed at improving the adjudication of parental rights matters under the Maine Probate Code (MPC) including eliminating the “split jurisdiction” between probate and district courts, structural changes to probate courts to ensure fairness and due process for all participants, and substantive reforms to the MPC provisions concerning parental rights so that the law will better reflect the contexts in which these cases arise today and address the needs of the families involved in these cases. Combined, these proposed reforms would mitigate the acute problems described in the Article to better serve both the * Professor of Law and Director of the Cumberland Legal Aid Clinic, University of Maine School of Law. Many people contributed to this Article’s development. I received excellent research assistance from Maine Law alumnae Jacqueline Moss and Kaitlyn Husar, as well as from Garbrecht Law Library Reference Librarian Maureen Quinlan and Library Specialist Sherry McCall. I appreciated the comments and reactions of those who attended presentations of the research in this Article, including the University of Maine School of Law Faculty Workshop and the meetings of the Family Law Section and Juvenile Justice and Child Protection Section of the Maine State Bar Association. I owe many thanks to Barbara Herrnstein Smith, David Owen, and Jennifer Wriggins for reviewing earlier drafts of this Article and for providing valuable comments and feedback. Finally, I would like to thank all of the attorneys, judges, and litigants who shared their experiences, concerns, and ideas with me, and, in particular, the faculty, student attorneys, and clients of the Cumberland Legal Aid Clinic with whom I have had the privilege of working. The collective wisdom I received from others directly shaped the views and proposals expressed in this Article. 2016] FROM ORPHANS TO FAMILIES IN CRISIS 47 courts that must adjudicate these difficult cases and the families at the center of them. I. INTRODUCTION Probate courts are primarily associated with death, and specifically with the administration of decedents’ estates,1 but they have an important role with respect to children’s interests as well. Since their establishment in 1821, Maine probate courts’ jurisdiction has included matters addressing the property and care of a decedent’s surviving children.2 The Maine Legislature enlarged slightly the courts’ authority with respect to children during the 19th century to include exclusive jurisdiction over adoptions and name changes when it enacted those statutes.3 Over time, these courts have overseen an increasing number of cases involving the care, support, and custody of children who have living parents. Most significantly, during the last thirty-five years, the scope and use of Maine’s minor guardianship laws have expanded substantially, and the Maine Legislature has granted probate courts the jurisdiction to determine paternity and terminate parents’ rights in the context of adoption proceedings.4 At the same time, pressures on Maine’s child protection system have led to the frequent use of minor guardianships to address concerns about child welfare and an increasing number of adoption and related proceedings.5 As a result of this combination of factors, Maine probate courts now adjudicate questions implicating parental rights in a wide range of scenarios. However, the basic structure of Maine’s probate courts has remained unchanged since 1855. Maine law assigns exclusive jurisdiction of these often complex and contentious matters to a non-centralized group of county-based courts, each of which has limited resources and a single, part-time elected judge who usually has a busy law practice as his or her primary job.6 These courts have a very limited relationship to the state court system, and they are entirely unconnected with the Maine Judicial Branch’s Family Division. The Maine Legislature established the Family Division in 1997 to “provide a system of justice that is responsive to the needs of families and the support of their children” and to oversee all divorce, child protection, parental rights and responsibilities, juvenile, and other matters concerning children.7 Maine’s split jurisdiction system, perhaps unique in the country,8 precludes coordination and consolidation of matters involving the same child in the 1. According to Black’s Law Dictionary, the term “probate” refers to: “The judicial procedure by which a testamentary document is established to be a valid will; the proving of a will to the satisfaction of the court.” Probate, BLACK’S LAW DICTIONARY (10th ed. 2014). The word “probate” derives from the Latin probare meaning “to try, test, approve, prove.” Probate, WEBSTER’S THIRD INTERNATIONAL DICTIONARY 1806 (2002). For a history of probate courts generally, stemming from their origins in English Ecclesiastical Courts’ jurisdiction over decedents’ estates, see Eugene M. Haertle, The History of the Probate Court, 45 MARQ. L. REV. 546 (1962). 2. See infra notes 25–48 and accompanying text. 3. See infra notes 49–55
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