Public Act 099-0625
 
SB2512 EnrolledLRB099 15281 RLC 43281 b


  
    AN ACT concerning courts.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  
 
 
    Section 5. The Juvenile Court Act of 1987 is amended  by 
changing Section 2-10 as follows:
 


    (705 ILCS 405/2-10)  (from Ch. 37, par. 802-10)



    Sec. 2-10. Temporary custody hearing. At the appearance of 
the
minor before the court at the temporary custody hearing, 
all
witnesses present shall be examined before the court in 
relation to any
matter connected with the allegations made in 
the petition.

    (1) If the court finds that there is not probable cause to 
believe
that the minor is abused, neglected or dependent it 
shall release
the minor and dismiss the petition.

    (2) If the court finds that there is probable cause to 
believe that
the minor is abused, neglected or dependent, the 
court shall state in writing
the factual basis supporting its 
finding and the minor, his or her parent,
guardian, custodian 
and other persons able to give relevant testimony
shall be 
examined before the court.  The Department of Children and

Family Services shall give testimony concerning indicated 
reports of abuse
and neglect, of which they are aware of 
through the central registry,
involving the minor's parent, 
guardian or custodian.  After such
testimony, the court may, 
consistent with
the health,
safety and best interests of the 
minor,
enter an order that the minor shall be released
upon the 
request of parent, guardian or custodian if the parent, 
guardian
or custodian appears to take custody. If it is 
determined that a parent's, guardian's, or custodian's 
compliance with critical services mitigates the necessity for 
removal of the minor from his or her home, the court may enter 
an Order of Protection setting forth reasonable conditions of 
behavior that a parent, guardian, or custodian must observe for 
a specified period of time, not to exceed 12 months, without a 
violation; provided, however, that the 12-month period shall 
begin anew after any violation. Custodian shall include any 
agency of
the State which has been given custody or wardship of 
the child. If it is
consistent with the health, safety and best 
interests of the
minor, the
court may also prescribe shelter 
care and
order that the minor be kept in a suitable place 
designated by the court or in
a shelter care facility 
designated by the Department of Children and Family
Services or 
a licensed child welfare
agency; however, on and after January 
1, 2015 (the effective date of Public Act 98-803) this 
amendatory Act of the 98th General Assembly and before January 
1, 2017, a minor charged with a
criminal offense under the 
Criminal Code of 1961 or the Criminal Code of 2012 or 
adjudicated delinquent
shall not be placed in the custody of or 
committed to the Department of
Children and Family Services by 
any court, except a minor less than 16

years of age and 
committed to the Department of Children and Family Services

under Section 5-710 of this Act or a minor for whom an 
independent
basis of
abuse, neglect, or dependency exists; and 
on and after January 1, 2017, a minor charged with a
criminal 
offense under the Criminal Code of 1961 or the Criminal Code of 
2012 or adjudicated delinquent
shall not be placed in the 
custody of or committed to the Department of
Children and 
Family Services by any court, except a minor less than 15 years 
of age and committed to the Department of Children and Family 
Services
under Section 5-710 of this Act or a minor for whom an 
independent
basis of
abuse, neglect, or dependency exists.

 An 
independent basis exists when the allegations or adjudication 
of abuse, neglect, or dependency do not arise from the same 
facts, incident, or circumstances which  give rise to a charge 
or adjudication of delinquency.
 
    In placing the minor, the Department or other
agency shall, 
to the extent
compatible with the court's order, comply with 
Section 7 of the Children and
Family Services Act.
In 
determining
the health, safety and best interests of the minor 
to prescribe shelter
care, the court must
find that it is a 
matter of immediate and urgent necessity for the safety
and 
protection
of the minor or of the person or property of another 
that the minor be placed
in a shelter care facility or that he 
or she is likely to flee the jurisdiction
of the court, and 
must further find that reasonable efforts have been made or

that, consistent with the health, safety and best interests of

the minor, no efforts reasonably can be made to
prevent or 
eliminate the necessity of removal of the minor from his or her

home. The court shall require documentation from the Department 
of Children and
Family Services as to the reasonable efforts 
that were made to prevent or
eliminate the necessity of removal 
of the minor from his or her home or the
reasons why no efforts 
reasonably could be made to prevent or eliminate the
necessity 
of removal. When a minor is placed in the home of a relative, 
the
Department of Children and Family Services shall complete a 
preliminary
background review of the members of the minor's 
custodian's household in
accordance with Section 4.3 of the 
Child Care Act of 1969 within 90 days of
that placement.  If the 
minor is ordered placed in a shelter care facility of
the 
Department of Children and
Family Services or a licensed child 
welfare agency, the court shall, upon
request of the 
appropriate Department or other agency, appoint the
Department 
of Children and Family Services Guardianship Administrator or

other appropriate agency executive temporary custodian of the 
minor and the
court may enter such other orders related to the 
temporary custody as it
deems fit and proper, including the 
provision of services to the minor or
his family to ameliorate 
the causes contributing to the finding of probable
cause or to 
the finding of the existence of immediate and urgent necessity.

    Where the Department of Children and Family Services 
Guardianship Administrator is appointed as the executive 
temporary custodian, the Department of Children and Family 
Services shall file with the court and serve on the parties a 
parent-child visiting plan, within 10 days, excluding weekends 
and holidays, after the appointment.  The parent-child visiting 
plan shall set out the time and place of visits, the frequency 
of visits, the length of visits, who shall be present at the 
visits, and where appropriate, the minor's opportunities to 
have telephone and mail communication with the parents.
    Where the Department of Children and Family Services 
Guardianship Administrator is
appointed as the executive 
temporary custodian, and when the child has siblings in care,

the Department of Children and Family Services shall file with 
the court and serve on the
parties a sibling placement and 
contact plan within 10 days, excluding weekends and
holidays, 
after the appointment. The sibling placement and contact plan 
shall set forth
whether the siblings are placed together, and 
if they are not placed together, what, if any,
efforts are 
being made to place them together. If the Department has 
determined that it is
not in a child's best interest to be 
placed with a sibling, the Department shall document in
the 
sibling placement and contact plan the basis for its 
determination. For siblings placed
separately, the sibling 
placement and contact plan shall set the time and place for 
visits,
the frequency of the visits, the length of visits, who 
shall be present for the visits, and
where appropriate, the 
child's opportunities to have contact with their siblings in 
addition to
in person contact. If the Department determines it 
is not in the best interest of a sibling to
have contact with a 
sibling, the Department shall document in the sibling placement 
and
contact plan the basis for its determination. The sibling 
placement and contact plan shall
specify a date for development 
of the Sibling Contact Support Plan, under subsection (f) of 
Section 7.4 of the Children and Family Services Act, and shall 
remain in effect until the Sibling Contact Support Plan is 
developed. 
      For good cause, the court may waive the requirement to 
file the parent-child visiting plan or the sibling placement 
and contact plan, or extend the time for filing either plan.  
Any party may, by motion, request the court to review the 
parent-child visiting plan to determine whether it is 
reasonably calculated to expeditiously facilitate the 
achievement of the permanency goal. A party may, by motion, 
request the court to review the parent-child visiting plan or 
the sibling placement and contact plan to determine whether it 
is consistent with the minor's best interest.  The court may 
refer the parties to mediation where available. The frequency, 
duration, and locations of visitation shall be measured by the 
needs of the child and family, and not by the convenience of 
Department personnel.  Child development principles shall be 
considered by the court in its analysis of how frequent 
visitation should be, how long it should last, where it should 
take place, and who should be present.  If upon motion of the 
party to review either plan and after receiving evidence, the 
court determines that the parent-child visiting plan is not 
reasonably calculated to expeditiously facilitate the 
achievement of the permanency goal or that the restrictions 
placed on parent-child contact or sibling placement or contact 
are contrary to the child's best interests, the court shall put 
in writing the factual basis supporting the determination and 
enter specific findings based on the evidence.  The court shall 
enter an order for the Department to implement changes to the 
parent-child visiting plan or sibling placement or contact 
plan, consistent with the court's findings.  At any stage of 
proceeding, any party may by motion request the court to enter 
any orders necessary to implement the parent-child visiting 
plan, sibling placement or contact plan or subsequently 
developed Sibling Contact Support Plan.  Nothing under this 
subsection (2) shall restrict the court from granting 
discretionary authority to the Department to increase 
opportunities for additional parent-child contacts or sibling 
contacts, without further court orders.  Nothing in this 
subsection (2) shall restrict the Department from immediately 
restricting or terminating parent-child contact or sibling 
contacts, without either amending the parent-child visiting 
plan or the sibling contact plan or obtaining a court order, 
where the Department or its assigns reasonably believe that 
continuation of the contact, as set out in the plan, would be 
contrary to the child's health, safety, and welfare. The 
Department shall file with the court and serve on the parties 
any amendments to the plan within 10 days, excluding weekends 
and holidays, of the change of the visitation.

    Acceptance of services shall not be considered an admission 
of any
allegation in a petition made pursuant to this Act, nor 
may a referral of
services be considered as evidence in any 
proceeding pursuant to this Act,
except where the issue is 
whether the Department has made reasonable
efforts to reunite 
the family. In making its findings that it is
consistent with 
the health, safety and best
interests of the minor to prescribe 
shelter care, the court shall state in
writing (i) the factual 
basis supporting its findings concerning the
immediate and 
urgent necessity for the protection of the minor or of the 
person
or property of another and (ii) the factual basis 
supporting its findings that
reasonable efforts were made to 
prevent or eliminate the removal of the minor
from his or her 
home or that no efforts reasonably could be made to prevent or

eliminate the removal of the minor from his or her home.  The

parents, guardian, custodian, temporary custodian and minor 
shall each be
furnished a copy of such written findings.  The 
temporary custodian shall
maintain a copy of the court order 
and written findings in the case record
for the child. The 
order together with the court's findings of fact in
support 
thereof shall be entered of record in the court.

    Once the court finds that it is a matter of immediate and 
urgent necessity
for the protection of the minor that the minor 
be placed in a shelter care
facility, the minor shall not be 
returned to the parent, custodian or guardian
until the court 
finds that such placement is no longer necessary for the

protection of the minor.

    If the child is placed in the temporary custody of the 
Department of
Children
and Family
Services for his or her 
protection, the court shall admonish the parents,
guardian,

custodian or responsible relative that the parents must 
cooperate with the
Department of Children and Family Services, 
comply
with the terms of the service plans, and correct the 
conditions which require
the child to be in care, or risk 
termination of their parental
rights. The court shall ensure, 
by inquiring in open court of each parent, guardian, custodian 
or responsible relative, that the parent, guardian, custodian 
or responsible relative has had the opportunity to provide the 
Department with all known names, addresses, and telephone 
numbers of each of the minor's living maternal and paternal 
adult relatives, including, but not limited to, grandparents, 
aunts, uncles, and siblings.  The court shall advise the 
parents, guardian, custodian or responsible relative to inform 
the Department if additional information regarding the minor's 
adult relatives becomes available. 

    (3) If prior to the shelter care hearing for a minor 
described in Sections
2-3, 2-4, 3-3 and 4-3 the moving party is 
unable to serve notice on the
party respondent, the shelter 
care hearing may proceed ex parte ex-parte.  A shelter
care 
order from an ex parte ex-parte hearing shall be endorsed with 
the date and
hour of issuance and shall be filed with the 
clerk's office and entered of
record. The order shall expire 
after 10 days from the time it is issued
unless before its 
expiration it is renewed, at a hearing upon appearance
of the 
party respondent, or upon an affidavit of the moving party as 
to all
diligent efforts to notify the party respondent by 
notice as herein
prescribed.  The notice prescribed shall be in 
writing and shall be
personally delivered to the minor or the 
minor's attorney and to the last
known address of the other 
person or persons entitled to notice.  The
notice shall also 
state the nature of the allegations, the nature of the
order 
sought by the State, including whether temporary custody is 
sought,
and the consequences of failure to appear and shall 
contain a notice
that the parties will not be entitled to 
further written notices or publication
notices of proceedings 
in this case, including the filing of an amended
petition or a 
motion to terminate parental rights, except as required by

Supreme Court Rule 11; and shall explain the
right of
the 
parties and the procedures to vacate or modify a shelter care 
order as
provided in this Section.  The notice for a shelter 
care hearing shall be
substantially as follows:

NOTICE TO PARENTS AND CHILDREN


OF SHELTER CARE HEARING


        On ................ at ........., before the Honorable 
    ................,
(address:) ................., the State 
    of Illinois will present evidence
(1) that (name of child 
    or children) ....................... are abused,
neglected 
    or dependent for the following reasons:

    ..............................................
and (2) 
    whether there is "immediate and urgent necessity" to remove 
    the child
or children from the responsible relative.

        YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN 
    PLACEMENT of the
child or children in foster care until a 
    trial can be held.  A trial may
not be held for up to 90 
    days.  You will not be entitled to further notices
of 
    proceedings in this case, including the filing of an 
    amended petition or a
motion to terminate parental rights.

        At the shelter care hearing, parents have the following 
    rights:

            1. To ask the court to appoint a lawyer if they 
        cannot afford one.

            2. To ask the court to continue the hearing to 
        allow them time to
prepare.

            3. To present evidence concerning:

                a. Whether or not the child or children were 
            abused, neglected
or dependent.

                b. Whether or not there is "immediate and 
            urgent necessity" to remove
the child from home 
            (including: their ability to care for the child,

            conditions in the home, alternative means of 
            protecting the child other
than removal).

                c. The best interests of the child.

            4. To cross examine the State's witnesses.

 

    The Notice for rehearings shall be substantially as 
follows:

NOTICE OF PARENT'S AND CHILDREN'S RIGHTS


TO REHEARING ON TEMPORARY CUSTODY


        If you were not present at and did not have adequate 
    notice of the
Shelter Care Hearing at which temporary 
    custody of ............... was
awarded to 
    ................, you have the right to request a full 
    rehearing
on whether the State should have temporary 
    custody of .................  To
request this rehearing, 
    you must file with the Clerk of the Juvenile Court

    (address): ........................, in person or by 
    mailing a statement
(affidavit) setting forth the 
    following:

            1. That you were not present at the shelter care 
        hearing.

            2. That you did not get adequate notice (explaining 
        how the notice
was inadequate).

            3. Your signature.

            4. Signature must be notarized.

        The rehearing should be scheduled within 48 hours of 
    your filing this
affidavit.

        At the rehearing, your rights are the same as at the 
    initial shelter care
hearing.  The enclosed notice explains 
    those rights.

        At the Shelter Care Hearing, children have the 
    following rights:

            1. To have a guardian ad litem appointed.

            2. To be declared competent as a witness and to 
        present testimony
concerning:

                a. Whether they are abused, neglected or 
            dependent.

                b. Whether there is "immediate and urgent 
            necessity" to be
removed from home.

                c. Their best interests.

            3. To cross examine witnesses for other parties.

            4. To obtain an explanation of any proceedings and 
        orders of the
court.

    (4) If the parent, guardian, legal custodian, responsible 
relative,
minor age 8 or over, or counsel of the minor did not 
have actual notice of
or was not present at the shelter care 
hearing, he or she may file an
affidavit setting forth these 
facts, and the clerk shall set the matter for
rehearing not 
later than 48 hours, excluding Sundays and legal holidays,

after the filing of the affidavit. At the rehearing, the court 
shall
proceed in the same manner as upon the original hearing.

    (5) Only when there is reasonable cause to believe that the 
minor
taken into custody is a person described in subsection 
(3) of Section
5-105 may the minor be
kept or detained in a 
detention home or county or municipal jail.  This
Section shall 
in no way be construed to limit subsection (6).

    (6) No minor under 16 years of age may be confined in a 
jail or place
ordinarily used for the confinement of prisoners 
in a police station.  Minors
under 18 years of age must be kept 
separate from confined adults and may
not at any time be kept 
in the same cell, room, or yard with adults confined
pursuant 
to the criminal law.

    (7) If the minor is not brought before a judicial officer 
within the
time period as specified in Section 2-9, the minor 
must immediately be
released from custody.

    (8) If neither the parent, guardian or custodian appears 
within 24
hours to take custody of a minor released upon 
request pursuant to
subsection (2) of this Section, then the 
clerk of the court shall set the
matter for rehearing not later 
than 7 days after the original order and
shall issue a summons 
directed to the parent, guardian or custodian to
appear.  At the 
same time the probation department shall prepare a report
on 
the minor.  If a parent, guardian or custodian does not appear 
at such
rehearing, the judge may enter an order prescribing 
that the minor be kept
in a suitable place designated by the 
Department of Children and Family
Services or a licensed child 
welfare agency.

    (9) Notwithstanding any other provision of this
Section any 
interested party, including the State, the temporary

custodian, an agency providing services to the minor or family 
under a
service plan pursuant to Section 8.2 of the Abused and 
Neglected Child
Reporting Act, foster parent, or any of their 
representatives, on notice
to all parties entitled to notice, 
may file a motion that it is in the best
interests of the minor 
to modify or vacate a
temporary custody order on any of the 
following grounds:

        (a) It is no longer a matter of immediate and urgent 
    necessity that the
minor remain in shelter care; or

        (b) There is a material change in the circumstances of 
    the natural
family from which the minor was removed and the 
    child can be cared for at
home without endangering the 
    child's health or safety; or

        (c) A person not a party to the alleged abuse, neglect 
    or dependency,
including a parent, relative or legal 
    guardian, is capable of assuming
temporary custody of the 
    minor; or

        (d) Services provided by the Department of Children and 
    Family Services
or a child welfare agency or other service 
    provider have been successful in
eliminating the need for 
    temporary custody and the child can be cared for at
home 
    without endangering the child's health or safety.

    In ruling on the motion, the court shall determine whether 
it is consistent
with the health, safety and best interests of 
the minor to modify
or vacate a temporary custody order.

    The clerk shall set the matter for hearing not later than 
14 days after
such motion is filed.  In the event that the court 
modifies or vacates a
temporary custody order but does not 
vacate its finding of probable cause,
the court may order that 
appropriate services be continued or initiated in
behalf of the 
minor and his or her family.

    (10) When the court finds or has found that there is 
probable cause to
believe a minor is an abused minor as 
described in subsection (2) of Section
2-3
and that there is an 
immediate and urgent necessity for the abused minor to be

placed in shelter care, immediate and urgent necessity shall be 
presumed for
any other minor residing in the same household as 
the abused minor provided:

        (a) Such other minor is the subject of an abuse or 
    neglect petition
pending before the court; and

        (b) A party to the petition is seeking shelter care for 
    such other minor.

    Once the presumption of immediate and urgent necessity has 
been raised, the
burden of demonstrating the lack of immediate 
and urgent necessity shall be on
any party that is opposing 
shelter care for the other minor.

    (11) The changes made to this Section by Public Act 98-61 
apply to a minor who has been
arrested or taken into custody on 
or after January 1, 2014 (the effective date
of Public Act 
98-61). 
(Source: P.A. 97-1076, eff. 8-24-12; 97-1150, eff. 1-25-13; 
98-61, eff. 1-1-14;  98-756, eff. 7-16-14; 98-803, eff. 1-1-15; 
revised 10-16-15.)