HB2628sam001 99TH GENERAL ASSEMBLY

Sen. John M. Sullivan

Filed: 5/7/2015

09900HB2628sam001 LRB099 10671 RLC 35278 a

AMENDMENT TO HOUSE BILL 2628

AMENDMENT NO. ______. Amend House Bill 2628 by replacing everything after the enacting clause with the following:

"Section 5. The Juvenile Court Act of 1987 is amended by changing Sections 2-17 and 2-17.1 and by adding Sections 2-17.2, 2-17.3, 2-17.4, 2-17.5, and 2-17.6 as follows:

(705 ILCS 405/2-17) (from Ch. 37, par. 802-17)

Sec. 2-17. Guardian ad litem.

(1) Immediately upon the filing of a petition alleging that the minor is a person described in Sections 2-3 or 2-4 of this Article, the court shall appoint a guardian ad litem for the minor if:

(a) such petition alleges that the minor is an abused or neglected child; or

(b) such petition alleges that charges alleging the commission of any of the sex offenses defined in Article 11 or in Sections 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 12-13, 12-14, 12-14.1, 12-15 or 12-16 of the Criminal Code of 1961 or the Criminal Code of 2012, have been filed against a defendant in any court and that such minor is the alleged victim of the acts of defendant in the commission of such offense.

Unless the guardian ad litem appointed pursuant to this paragraph (1) is an attorney at law he shall be represented in the performance of his duties by counsel. The guardian ad litem shall represent the best interests of the minor and shall present recommendations to the court consistent with that duty.

(2) Before proceeding with the hearing, the court shall appoint a guardian ad litem for the minor if

(a) no parent, guardian, custodian or relative of the minor appears at the first or any subsequent hearing of the case;

(b) the petition prays for the appointment of a guardian with power to consent to adoption; or

(c) the petition for which the minor is before the court resulted from a report made pursuant to the Abused and Neglected Child Reporting Act.

(3) The court may appoint a guardian ad litem for the minor whenever it finds that there may be a conflict of interest between the minor and his parents or other custodian or that it is otherwise in the minor's best interest to do so.

(4) Unless the guardian ad litem is an attorney, he shall be represented by counsel.

(5) The reasonable fees of a guardian ad litem appointed under this Section shall be fixed by the court and charged to the parents of the minor, to the extent they are able to pay. If the parents are unable to pay those fees, they shall be paid from the general fund of the county.

(6) A guardian ad litem appointed under this Section, shall receive copies of any and all classified reports of child abuse and neglect made under the Abused and Neglected Child Reporting Act in which the minor who is the subject of a report under the Abused and Neglected Child Reporting Act, is also the minor for whom the guardian ad litem is appointed under this Section.

(7) The appointed guardian ad litem shall remain the child's guardian ad litem throughout the entire juvenile trial court proceedings, including permanency hearings and termination of parental rights proceedings, unless there is a substitution entered by order of the court.

(8) The guardian ad litem or an agent of the guardian ad litem shall have a minimum of one in-person contact with the minor and one contact with one of the current foster parents or caregivers prior to the adjudicatory hearing, and at least one additional in-person contact with the child and one contact with one of the current foster parents or caregivers after the adjudicatory hearing but prior to the first permanency hearing. The guardian ad litem or an agent of the guardian ad litem shall have and one additional in-person contact with the child and one contact with one of the current foster parents or caregivers each subsequent year, but if the child's parent or caregiver has been the subject of at least 3 indicated reports filed under the Abused and Neglected Child Reporting Act then the guardian ad litem or an agent of the guardian ad litem shall have a minimum of one additional in-person contact with the child and one contact with one of the current foster parents or caregivers once every 3 months. For good cause shown, the judge may excuse face-to-face interviews required in this subsection.

(9) In counties with a population of 100,000 or more but less than 3,000,000, each guardian ad litem must successfully complete a training program approved by the Department of Children and Family Services. The Department of Children and Family Services shall provide training materials and documents to guardians ad litem who are not mandated to attend the training program. The Department of Children and Family Services shall develop and distribute to all guardians ad litem a bibliography containing information including but not limited to the juvenile court process, termination of parental rights, child development, medical aspects of child abuse, and the child's need for safety and permanence.

(Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)

(705 ILCS 405/2-17.1)

Sec. 2-17.1. Court appointed special advocate.

(1) The court may appoint a special advocate upon the filing of a petition under this Article or at any time during the pendency of a proceeding under this Article. Except in counties with a population over 3,000,000, the court appointed special advocate may also serve as guardian ad litem by appointment of the court under Section 2-17 of this Act. The court shall not deny a petition to appoint a special advocate for the sole reason that the child is not or has not been in foster care.

(2) The court appointed special advocate shall act as a monitor and shall be notified of all administrative case reviews pertaining to the minor and work with the parties' attorneys, the guardian ad litem, and others assigned to the minor's case to protect the minor's health, safety and best interests and insure the proper delivery of child welfare services. The court may consider, at its discretion, testimony of the court appointed special advocate pertaining to the well-being of the child.

(3) Court appointed special advocates shall serve as volunteers without compensation and shall receive training consistent with nationally developed standards.

(4) No person convicted of a criminal offense as specified in Section 4.2 of the Child Care Act of 1969 and no person identified as a perpetrator of an act of child abuse or neglect as reflected in the Department of Children and Family Services State Central Register shall serve as a court appointed special advocate.

(5) All costs associated with the appointment and duties of the court appointed special advocate shall be paid by the court appointed special advocate or an organization of court appointed special advocates. In no event shall the court appointed special advocate be liable for any costs of services provided to the child.

(6) The court may remove the court appointed special advocate or the guardian ad litem from a case upon finding that the court appointed special advocate or the guardian ad litem has acted in a manner contrary to the child's best interest or if the court otherwise deems continued service is unwanted or unnecessary.

(7) In any county in which a program of court appointed special advocates is in operation, the provisions of this Section shall apply unless the county board of that county, by resolution, determines that the county shall not be governed by this Section.

(8) Any court appointed special advocate acting in good faith within the scope of his or her appointment shall have immunity from any civil or criminal liability that otherwise might result by reason of his or her actions, except in cases of willful and wanton misconduct. For the purpose of any civil or criminal proceedings, the good faith of any court appointed special advocate shall be presumed.

(Source: P.A. 90-28, eff. 1-1-98; 90-608, eff. 6-30-98; 91-357, eff. 7-29-99.)

(705 ILCS 405/2-17.2 new)

Sec. 2-17.2. Powers and duties of guardian ad litem.

(a) A guardian ad litem appointed to represent a child:

(1) shall:

(A) within a reasonable time after the appointment, interview:

(i) the child in a developmentally appropriate manner, if the child is 4 years of age or older;

(ii) each person who has significant knowledge of the child's history and condition, including any foster parent of the child; and

(iii) the parties to the proceeding;

(B) seek to elicit in a developmentally appropriate manner the child's expressed objectives of representation;

(C) consider the impact on the child in formulating the presentation of the child's expressed objectives of representation to the court;

(D) investigate the facts of the case to the extent the guardian ad litem considers appropriate;

(E) obtain and review copies of relevant records relating to the child as provided by Section 2-17.6;

(F) participate in the conduct of the proceedings to the same extent as an attorney for a party;

(G) take any action consistent with the child's interests that the guardian ad litem considers necessary to expedite the proceedings;

(H) encourage settlement and the use of alternative forms of dispute resolution;

(I) review and sign, or decline to sign, a proposed or agreed order affecting the child;

(J) review the medical care provided to the child and in a developmentally appropriate manner, seek to elicit the child's opinion on the medical care provided; and

(K) become familiar with the American Bar Association's standards of practice for attorneys who represent children in abuse and neglect cases, the suggested amendments to those standards adopted by the National Association of Counsel for Children, and the American Bar Association's standards of practice for attorneys who represent children in custody cases;

(2) must be trained in child advocacy or have experience determined by the court to be equivalent to that training; and

(3) is entitled to:

(A) request clarification from the court if the role of the guardian ad litem is ambiguous;

(B) request a hearing or trial on the merits;

(C) consent or refuse to consent to an interview of the child by another attorney;

(D) receive a copy of each pleading or other paper filed with the court;

(E) receive notice of each hearing regarding the child;

(F) participate in any case staffing concerning the child conducted by an authorized agency; and

(G) attend all legal proceedings regarding the child.

(b) Except as otherwise provided by this Section, the guardian ad litem appointed for a child shall, in a developmentally appropriate manner:

(1) advise the child; and

(2) represent the child's expressed objectives of representation and follow the child's expressed objectives of representation during the course of proceedings if the guardian ad litem determines that the child is competent to understand the nature of an attorney-client relationship and has formed that relationship with the guardian ad litem.

(c) Except as provided by subsection (e), a guardian ad litem appointed for a child shall:

(1) meet before each court hearing with:

(A) the child, if the child is at least 4 years of age; and

(B) the individual or individuals with whom the child ordinarily resides, including the child's parent, conservator, guardian, caretaker, or custodian; and

(2) if the child or individual is not present at the court hearing, file a written statement with the court indicating that the guardian ad litem complied with paragraph (1) of this subsection (c).

(d) A meeting required by subsection (c) must take place:

(1) a sufficient time before the hearing to allow the guardian ad litem to prepare for the hearing in accordance with the child's expressed objectives of representation; and

(2) in a private setting that allows for confidential communications between the guardian ad litem and the child or individual with whom the child ordinarily resides, as applicable.

(e) A guardian ad litem appointed for a child is not required to comply with subsection (c) before a hearing if the court finds at that hearing that the guardian ad litem has shown good cause why the guardian ad litem's compliance with that subsection is not feasible or in the best interest of the child. Additionally, a court may, on a showing of good cause, authorize a guardian ad litem to comply with subsection (c) by conferring with the child or other individual, as appropriate, by telephone or video conference.

(705 ILCS 405/2-17.3 new)

Sec. 2-17.3. Substituted judgment of attorney for child.

(a) A guardian ad litem appointed to represent a child may determine that the child cannot meaningfully formulate the child's objectives of representation in a case because the child:

(1) lacks sufficient maturity to understand and form an attorney-client relationship with the guardian ad litem;

(2) despite appropriate legal counseling, continues to express objectives of representation that would be seriously injurious to the child; or

(3) for any other reason is incapable of making reasonable judgments and engaging in meaningful communication.

(b) A guardian ad litem who determines that the child cannot meaningfully formulate the child's expressed objectives of representation may present to the court a position that the guardian ad litem determines will serve the best interests of the child.

(705 ILCS 405/2-17.4 new)

Sec. 2-17.4. Discipline of guardian ad litem. A guardian ad litem who is an attorney and who fails to perform the duties required by Sections 2-17 and 2-17.2 is subject to disciplinary action in accordance with the Illinois Supreme Court Rules of Professional Conduct.

(705 ILCS 405/2-17.5 new)

Sec. 2-17.5. Duties of court appointed special advocate.

(a) Subject to any specific limitation in the order of appointment, a court appointed special advocate shall advocate the best interests of the child after reviewing the facts and circumstances of the case. In determining the best interests of the child, a court appointed special advocate shall consider the child's expressed objectives of representation.

(b) A court appointed special advocate shall, in a developmentally appropriate manner:

(1) with the consent of the child, ensure that the child's expressed objectives of representation are made known to the court;

(2) explain the role of the court appointed special advocate to the child; and

(3) inform the child that the court appointed special advocate may use information that the child provides in providing assistance to the court.

(c) A court appointed special advocate shall become familiar with the American Bar Association's standards of practice for attorneys who represent children in custody cases.

(d) A court appointed special advocate may not disclose confidential communications between the court appointed special advocate and the child unless the court appointed special advocate determines that disclosure is necessary to assist the court regarding the best interests of the child.

(705 ILCS 405/2-17.6 new)

Sec. 2-17.6. Access to child and information relating to child.

(a) In conjunction with an appointment under Section 2-17 or Section 2-17.1, the court shall issue an order authorizing the guardian ad litem or court appointed special advocate to have immediate access to the child and any information relating to the child.

(b) Without requiring a further order or release, the custodian of any relevant records relating to the child, including records regarding social services, law enforcement records, school records, records of a probate or court proceeding, and records of a trust or account for which the child is a beneficiary, shall provide access to a person authorized to access the records under subsection (a).

(c) Without requiring a further order or release, the custodian of a medical, mental health, or drug or alcohol treatment record of a child that is privileged or confidential under any other law shall release the record to a person authorized to access the record under subsection (a), except that a child's drug or alcohol treatment record that is confidential under 42 U.S.C. 290dd-2 may only be released as provided under applicable federal regulations.

(d) The disclosure of a confidential record under this Section does not affect the confidentiality of the record, and the person provided access to the record may not disclose the record further except as provided by court order or other law.

Section 10. The Illinois Marriage and Dissolution of Marriage Act is amended by changing Section 604 as follows:

(750 ILCS 5/604) (from Ch. 40, par. 604)

Sec. 604. Interviews.)

(a) The court may interview the child in chambers to ascertain the child's wishes as to his custodian and as to visitation, but if the child's parent or caregiver has been the subject of at least 3 indicated reports filed under the Abused and Neglected Child Reporting Act and the child is at least 4 years old then the court shall interview the child in chambers to ascertain the child's wishes as to his or her custodian and as to visitation. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The court shall cause a court reporter to be present who shall make a complete record of the interview instantaneously to be part of the record in the case.

(b) The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court's witness. Professional personnel consulted by the court are subject to subpoena for the purposes of discovery, trial, or both. The court shall allocate the costs and fees of those professional personnel between the parties based upon the financial ability of each party and any other criteria the court considers appropriate. Upon the request of any party or upon the court's own motion, the court may conduct a hearing as to the reasonableness of those fees and costs.

(Source: P.A. 97-47, eff. 1-1-12.)".