Section 148-201-IV - ABUSE OR NEGLECTA.Definition Abuse or neglect is defined in 22 M.R.S.A. §4002(1).
B.Guidelines In making or reviewing a substantiation or indication finding, the following guidelines apply:
1. Abuse or neglect means any set of circumstances that(a) is caused by a person responsible for the child or from which a person responsible for the child has failed to protect the child, and(b) has caused or may in the future cause a child to suffer any of the following types of harm: (i) Physical harm (that is, physical injury, physical illness, or any physical condition that is contrary to the child's good health);(ii) Mental, emotional, or psychological harm or distress; or(iii) Sexual abuse or exploitation.2. There is abuse or neglect if there is threat of harm; it is not necessary that the child have already suffered the harm.3. It is not necessary that the person responsible for the child be at any legal or moral fault, or that the person have committed a crime.4. A person responsible for a child subjects the child to abuse or neglect either by taking some act (or course of action) that causes the harm or threat of harm to the child, or by failing to take some act (or course of action) to protect the child from the harm or threat of harm.5. Abuse or neglect does not include the threats of harm that occur regularly in everyday life, such as the risk of serious injury always inherent in riding in a car, as long as the person responsible for the child takes all reasonable and all legally-required precautions to reduce the threat of harm, such as using proper seat belts and child restraints. A precaution may be reasonable and therefore necessary to avoid abuse or neglect even though it is not legally required.6. Because the focus of the process is on the harm to the child and not blame of the person responsible for the child, any physical, cognitive or psychological limitations, or other special needs, of the person responsible for the child are not taken into account in determining whether the child is subject to abuse or neglect or what precautions are reasonable to protect a child from harm.7. Any special needs of a child are to be taken into account in determining what is necessary to protect the child from harm. For example, a child who is prone to self-injurious behavior may require closer supervision than other children.8. A person subjects a child to abuse or neglect when the person is the person responsible for the child, and has caused the harm or threat of harm, or has failed to protect the child from the harm or threat of harm. There is no limit to the number of people who may subject the same child to the same abuse or neglect. For example, if a parent leaves the child with a person whom the parent knows is a convicted or adjudicated sex offender, then both the sex offender and the parent have subjected the child to abuse or neglect, and both may be indicated or substantiated.9. Abuse or neglect may be a discrete event, a set of continuing circumstances, or a pattern of events or circumstances.10. A person responsible for a child does not subject a child to abuse or neglect or fail to protect a child from abuse or neglect if the person acts reasonably and responsibly given the totality of the circumstances directly related to the discrete event, set of continuing circumstances, or pattern of events or circumstances that threatened or caused harm and forms the basis of the indicated or substantiated decision.11. A child shall not be considered to be abused or neglected solely because treatment is by spiritual means by an accredited practitioner of a recognized religious organization.C.Special rule regarding sex offenders A child is presumed to be subject to abuse or neglect when the parent or person responsible for the child intentionally, knowingly, or recklessly allows, encourages, or fails to prevent contact between the child and a person who:
1. Has been convicted of an offense listed in Title 19-A, section 1653, subsection 6- A, paragraph A in which the victim was a minor at the time of the offense and the person was at least 5 years older than the minor at the time of the offense except that, if the offense was gross sexual assault under Title 17-A, section 253, subsection 1, paragraph B or C and the minor victim submitted as a result of compulsion, the presumption applies regardless of the ages of the person and the minor victim at the time of the offense;2. Has been adjudicated in an action under Title 22, chapter 1071 of sexually abusing a person who was a minor at the time of the abuse;3. Has been substantiated or indicated as a result of sexual abuse or exploitation of a minor. For purposes of this section, "intentionally," "knowingly" and "recklessly" have the meanings given them by 17-A M.R.S.A. §35(1), 17-A M.R.S.A. §35(2)17-A and M.R.S.A. §35(3)(A) & (B), respectively.
The parent or person responsible for the child may produce evidence to rebut the presumption.
This section shall not be construed to prevent a finding of abuse or neglect in other circumstances.
D.Sources of Authority In determining or reviewing whether a child was subjected to abuse or neglect, a Department employee (including a hearing officer) shall consider as authority any and all of the following:
1. Any relevant state statute, which may include statutes in the Maine Juvenile Code (a portion of Title 15 of the Maine Revised Statutes), Title 19-A of the Maine Revised Statutes, Title 22 of the Maine Revised Statutes, and any other statute that may be relevant;2. Any relevant Maine Supreme Judicial Court opinion;4. The Department's other promulgated rules; and5. The Department's unpromulgated policies, which shall be treated as persuasive, but not binding, authority. In the case of inconsistencies among any of the authorities listed above, the authorities shall be given the same weight and deference that they are given in courts.
10-148 C.M.R. ch. 201, § IV