SB1706eng 96TH GENERAL ASSEMBLY

SB1706 Engrossed LRB096 10309 RLC 20479 b

AN ACT concerning criminal law.

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 Sections 5-410 and 5-740 as follows:

(705 ILCS 405/5-410)

Sec. 5-410. Non-secure custody or detention.

(1) Any minor arrested or taken into custody pursuant to this Act who requires care away from his or her home but who does not require secured custody pursuant to paragraph (a) of subsection (2) physical restriction shall be given temporary care in a foster family home or other shelter facility designated by the court.

(2) (a) Any minor 10 years of age or older arrested pursuant to this Act where there is probable cause to believe that the minor is a delinquent minor and that (i) secured custody is a matter of immediate and urgent necessity for the protection of the minor or of the person or property of another, (ii) the minor is likely to flee the jurisdiction of the court, or (iii) the minor was taken into custody under a warrant, may be kept or detained in an authorized detention facility. No minor under 12 years of age shall be detained in a county jail or a municipal lockup for more than 6 hours. Where a court orders a minor to be kept or detained in a facility authorized for juvenile detention in accordance with this Act and it appears from the record that, not withstanding the order of detention, removal of the minor from the minor's home may also be in the minor's best interest, the court shall further determine whether the removal is, in fact, in the best interests of the minor, consistent with paragraphs (a-5) and (a-10) of this subsection (2) and shall include such findings on the initial court order authorizing the detention.

(a-5) For any minor determined to need care away from home in foster care or shelter care, but who does not require secured custody pursuant to paragraph (a) of this subsection (2) the court shall order, in accordance with subsection (1) of this Section, consistent with the health, safety, and best interests of the minor, the removal because the minor's home cannot provide the quality of care and level of support and supervision the minor needs at the time. Removal from the home may be in the minor's and community's best interest for any of the following reasons: (i) the minor is without the care necessary for the minor's well-being through no fault or lack of concern by a parent, guardian, custodian, or other person, (ii) the minor has no parent, guardian, custodian, or other person able to return the minor to the court when required, or (iii) for the protection of the minor.

(a-10) For any minor who does not require secured custody pursuant to paragraph (a) of this subsection (2) and who is determined to need care away from home in foster care or shelter care the court, in accordance with paragraph (a) of this subsection (2), shall further find that reasonable efforts have been made or that, consistent with the health, safety, and best interests of the minor and the community, 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 Probation Department 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.

In making its findings that it is consistent with the health, safety, and best interests of the minor and the community 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, (ii) the factual basis for the finding of the minor's and community's best interests, and (iii) 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.

Once the court determines that the minor requires care away from home for the protection of the minor and places the minor in a shelter care facility or foster care, 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.

(a-15) If the court determines that the minor requires care away from home for the protection of the minor and places the minor in a shelter care facility, there shall be a rebuttable presumption that such findings comply with the factors outlined in paragraphs (a-5) and (a-10) of this subsection (2).

(b) The written authorization of the probation officer or detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) constitutes authority for the superintendent of any juvenile detention home to detain and keep a minor for up to 40 hours, excluding Saturdays, Sundays and court-designated holidays. These records shall be available to the same persons and pursuant to the same conditions as are law enforcement records as provided in Section 5-905.

(b-4) The consultation required by subsection (b-5) shall not be applicable if the probation officer or detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) utilizes a scorable detention screening instrument, which has been developed with input by the State's Attorney, to determine whether a minor should be detained, however, subsection (b-5) shall still be applicable where no such screening instrument is used or where the probation officer, detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) deviates from the screening instrument.

(b-5) Subject to the provisions of subsection (b-4), if a probation officer or detention officer (or other public officer designated by the court in a county having 3,000,000 or more inhabitants) does not intend to detain a minor for an offense which constitutes one of the following offenses he or she shall consult with the State's Attorney's Office prior to the release of the minor: first degree murder, second degree murder, involuntary manslaughter, criminal sexual assault, aggravated criminal sexual assault, aggravated battery with a firearm, aggravated or heinous battery involving permanent disability or disfigurement or great bodily harm, robbery, aggravated robbery, armed robbery, vehicular hijacking, aggravated vehicular hijacking, vehicular invasion, arson, aggravated arson, kidnapping, aggravated kidnapping, home invasion, burglary, or residential burglary.

(c) Except as otherwise provided in paragraph (a), (d), or (e), no minor shall be detained in a county jail or municipal lockup for more than 12 hours, unless the offense is a crime of violence in which case the minor may be detained up to 24 hours. For the purpose of this paragraph, "crime of violence" has the meaning ascribed to it in Section 1-10 of the Alcoholism and Other Drug Abuse and Dependency Act.

(i) The period of detention is deemed to have begun once the minor has been placed in a locked room or cell or handcuffed to a stationary object in a building housing a county jail or municipal lockup. Time spent transporting a minor is not considered to be time in detention or secure custody.

(ii) Any minor so confined shall be under periodic supervision and shall not be permitted to come into or remain in contact with adults in custody in the building.

(iii) Upon placement in secure custody in a jail or lockup, the minor shall be informed of the purpose of the detention, the time it is expected to last and the fact that it cannot exceed the time specified under this Act.

(iv) A log shall be kept which shows the offense which is the basis for the detention, the reasons and circumstances for the decision to detain and the length of time the minor was in detention.

(v) Violation of the time limit on detention in a county jail or municipal lockup shall not, in and of itself, render inadmissible evidence obtained as a result of the violation of this time limit. Minors under 17 years of age shall 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 criminal law. Persons 17 years of age and older who have a petition of delinquency filed against them may be confined in an adult detention facility. In making a determination whether to confine a person 17 years of age or older who has a petition of delinquency filed against the person, these factors, among other matters, shall be considered:

(A) The age of the person;

(B) Any previous delinquent or criminal history of the person;

(C) Any previous abuse or neglect history of the person; and

(D) Any mental health or educational history of the person, or both.

(d) (i) If a minor 12 years of age or older is confined in a county jail in a county with a population below 3,000,000 inhabitants, then the minor's confinement shall be implemented in such a manner that there will be no contact by sight, sound or otherwise between the minor and adult prisoners. Minors 12 years of age or older must be kept separate from confined adults and may not at any time be kept in the same cell, room, or yard with confined adults. This paragraph (d)(i) shall only apply to confinement pending an adjudicatory hearing and shall not exceed 40 hours, excluding Saturdays, Sundays and court designated holidays. To accept or hold minors during this time period, county jails shall comply with all monitoring standards promulgated by the Department of Corrections and training standards approved by the Illinois Law Enforcement Training Standards Board.

(ii) To accept or hold minors, 12 years of age or older, after the time period prescribed in paragraph (d)(i) of this subsection (2) of this Section but not exceeding 7 days including Saturdays, Sundays and holidays pending an adjudicatory hearing, county jails shall comply with all temporary detention standards promulgated by the Department of Corrections and training standards approved by the Illinois Law Enforcement Training Standards Board.

(iii) To accept or hold minors 12 years of age or older, after the time period prescribed in paragraphs (d)(i) and (d)(ii) of this subsection (2) of this Section, county jails shall comply with all programmatic and training standards for juvenile detention homes promulgated by the Department of Corrections.

(e) When a minor who is at least 15 years of age is prosecuted under the criminal laws of this State, the court may enter an order directing that the juvenile be confined in the county jail. However, any juvenile confined in the county jail under this provision shall be separated from adults who are confined in the county jail in such a manner that there will be no contact by sight, sound or otherwise between the juvenile and adult prisoners.

(f) For purposes of appearing in a physical lineup, the minor may be taken to a county jail or municipal lockup under the direct and constant supervision of a juvenile police officer. During such time as is necessary to conduct a lineup, and while supervised by a juvenile police officer, the sight and sound separation provisions shall not apply.

(g) For purposes of processing a minor, the minor may be taken to a County Jail or municipal lockup under the direct and constant supervision of a law enforcement officer or correctional officer. During such time as is necessary to process the minor, and while supervised by a law enforcement officer or correctional officer, the sight and sound separation provisions shall not apply.

(3) If the probation officer or State's Attorney (or such other public officer designated by the court in a county having 3,000,000 or more inhabitants) determines that the minor may be a delinquent minor as described in subsection (3) of Section 5-105, and should be retained in custody but does not require physical restriction, the minor may be placed in non-secure custody for up to 40 hours pending a detention hearing.

(4) Any minor taken into temporary custody, not requiring secure detention, may, however, be detained in the home of his or her parent or guardian subject to such conditions as the court may impose.

(Source: P.A. 93-255, eff. 1-1-04.)

(705 ILCS 405/5-740)

Sec. 5-740. Placement; legal custody or guardianship.

(1) As to a minor adjudged a ward of the court, if the court finds that the minor's home cannot provide the quality of care and level of support and supervision the minor needs at the time and that the removal of the minor from the home is in the minor's and community's best interest for any of the following reasons: (i) the minor is without the care necessary for the minor's well-being through no fault or lack of concern by a parent, guardian, custodian, or other person, or (ii) for the protection of the minor, the court may:

(a) place him or her in the custody of a suitable relative or other person;

(b) place him or her under the temporary guardianship of a probation officer;

(c) commit him or her to an agency for care or placement, except an institution under the authority of the Department of Corrections, the Department of Juvenile Justice or of the Department of Children and Family Services;

(d) commit him or her to some licensed training school or industrial school, or

(e) commit him or her to any appropriate institution having among its purposes the care of delinquent children, including a child protective facility maintained by a child protection district serving the county from which commitment is made, but not including any institution under the authority of the Department of Corrections, the Department of Juvenile Justice, or of the Department of Children and Family Services. As to any minor adjudged a ward of the court who is determined to need care away from home in placement pursuant to subsection (1) above the court, in accordance with this subsection (1), shall further find that reasonable efforts have been made or that, consistent with the health, safety and best interests of the minor and the community, 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 Probation Department 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.

In making its findings that it is consistent with the health, safety and best interests of the minor and the community to remove the minor from the home the court shall state in writing the factual basis for the finding of the minor's and community's best interests, and 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.

If the court finds that the removal of a minor adjudged a ward of the court from his home is in the best interest of the minor and community and the court finds that it is for the protection of the minor, 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 court finds that the parents, guardian, or legal custodian of a minor adjudged a ward of the court are unfit or are unable, for some reason other than financial circumstances alone, to care for, protect, train or discipline the minor or are unwilling to do so, and that appropriate services aimed at family preservation and family reunification have been unsuccessful in rectifying the conditions which have led to a finding of unfitness or inability to care for, protect, train or discipline the minor, and that it is in the best interest of the minor to take him or her from the custody of his or her parents, guardian or custodian, the court may:

(a) place him or her in the custody of a suitable relative or other person;

(b) place him or her under the guardianship of a probation officer;

(c) commit him or her to an agency for care or placement, except an institution under the authority of the Department of Corrections or of the Department of Children and Family Services;

(d) commit him or her to some licensed training school or industrial school; or

(e) commit him or her to any appropriate institution having among its purposes the care of delinquent children, including a child protective facility maintained by a child protection district serving the county from which commitment is made, but not including any institution under the authority of the Department of Corrections or of the Department of Children and Family Services.

(2) When making such placement, the court, wherever possible, shall select a person holding the same religious belief as that of the minor or a private agency controlled by persons of like religious faith of the minor and shall require the Department of Children and Family Services to otherwise comply with Section 7 of the Children and Family Services Act in placing the child. In addition, whenever alternative plans for placement are available, the court shall ascertain and consider, to the extent appropriate in the particular case, the views and preferences of the minor.

(3) When a minor is placed with a suitable relative or other person, the court shall appoint him or her the legal custodian or guardian of the person of the minor. When a minor is committed to any agency, the court shall appoint the proper officer or representative of the proper officer as legal custodian or guardian of the person of the minor. Legal custodians and guardians of the person of the minor have the respective rights and duties set forth in subsection (9) of Section 5-105 except as otherwise provided by order of court; but no guardian of the person may consent to adoption of the minor. An agency whose representative is appointed guardian of the person or legal custodian of the minor may place him or her in any child care facility, but the facility must be licensed under the Child Care Act of 1969 or have been approved by the Department of Children and Family Services as meeting the standards established for such licensing. Like authority and restrictions shall be conferred by the court upon any probation officer who has been appointed guardian of the person of a minor.

(4) No placement by any probation officer or agency whose representative is appointed guardian of the person or legal custodian of a minor may be made in any out of State child care facility unless it complies with the Interstate Compact on the Placement of Children.

(5) The clerk of the court shall issue to the guardian or legal custodian of the person a certified copy of the order of court, as proof of his or her authority. No other process is necessary as authority for the keeping of the minor.

(6) Legal custody or guardianship granted under this Section continues until the court otherwise directs, but not after the minor reaches the age of 21 years except as set forth in Section 5-750.

(7) Whenever a minor is removed from home and placed in foster care or other residential placement and the county will be responsible for the costs of such placement under Section 6-7 of this Act, then the Court shall order that the Probation Department shall be responsible for the child's placement, care, and control until such time as the Court finds that such placement is no longer required.

(Source: P.A. 90-590, eff. 1-1-99.)