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Public Act 094-0604
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| HB3415 Enrolled |
LRB094 09228 LCB 39462 b |
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AN ACT concerning minors.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Juvenile Court Act of 1987 is amended by |
changing Sections 2-10 and 2-10.1 as follows:
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(705 ILCS 405/2-10) (from Ch. 37, par. 802-10)
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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.
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(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.
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(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
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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. 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 |
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suitable place designated by the court or in
a shelter care |
facility designated by the Department of Children and Family
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Services or a licensed child welfare
agency; however, a minor |
charged with a
criminal offense under the Criminal Code of 1961 |
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 13
years of age and |
committed to the Department of Children and Family Services
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under Section 5-710 of this Act or a minor for whom an |
independent
basis of
abuse, neglect, or dependency exists, |
which must be defined by departmental
rule.
In placing the |
minor, the Department or other
agency shall, to the extent
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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
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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
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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
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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
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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 |
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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.
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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. For |
good cause, the court may waive the requirement to file the |
parent-child visiting plan or extend the time for filing the |
parent-child visiting 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 and is |
consistent with the minor's best interest. 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 the 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 |
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placed on parent-child 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, 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. Nothing under this subsection (2) shall restrict the |
court from granting discretionary authority to the Department |
to increase opportunities for additional parent-child |
contacts, without further court orders. Nothing in this |
subsection (2) shall restrict the Department from immediately |
restricting or terminating parent-child contact, without |
either amending the parent-child visiting plan or obtaining a |
court order, where the Department or its assigns reasonably |
believe that continuation of parent-child contact, as set out |
in the parent-child visiting 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 |
visitation plan within 10 days, excluding weekends and |
holidays, of the change of the visitation. Any party may, by |
motion, request the court to review the parent-child visiting |
plan to determine whether the parent-child visiting plan is |
reasonably calculated to expeditiously facilitate the |
achievement of the permanency goal, and is consistent with the |
minor's health, safety, and best interest.
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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 |
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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
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eliminate the removal of the minor from his or her home. The
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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.
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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
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protection of the minor.
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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,
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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.
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(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. A shelter
care order from an |
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 |
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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
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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
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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
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substantially as follows:
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NOTICE TO PARENTS AND CHILDREN
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OF SHELTER CARE HEARING
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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:
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..............................................
and (2) |
that there is "immediate and urgent necessity" to remove |
the child
or children from the responsible relative.
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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.
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At the shelter care hearing, parents have the following |
rights:
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1. To ask the court to appoint a lawyer if they |
cannot afford one.
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2. To ask the court to continue the hearing to |
allow them time to
prepare.
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3. To present evidence concerning:
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a. Whether or not the child or children were |
abused, neglected
or dependent.
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b. Whether or not there is "immediate and |
urgent necessity" to remove
the child from home |
(including: their ability to care for the child,
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conditions in the home, alternative means of |
protecting the child other
than removal).
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c. The best interests of the child.
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4. To cross examine the State's witnesses.
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The Notice for rehearings shall be substantially as |
follows:
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NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
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TO REHEARING ON TEMPORARY CUSTODY
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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
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(address): ........................, in person or by |
mailing a statement
(affidavit) setting forth the |
following:
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1. That you were not present at the shelter care |
hearing.
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2. That you did not get adequate notice (explaining |
how the notice
was inadequate).
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3. Your signature.
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4. Signature must be notarized.
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The rehearing should be scheduled within 48 hours of |
your filing this
affidavit.
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At the rehearing, your rights are the same as at the |
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initial shelter care
hearing. The enclosed notice explains |
those rights.
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At the Shelter Care Hearing, children have the |
following rights:
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1. To have a guardian ad litem appointed.
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2. To be declared competent as a witness and to |
present testimony
concerning:
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a. Whether they are abused, neglected or |
dependent.
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b. Whether there is "immediate and urgent |
necessity" to be
removed from home.
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c. Their best interests.
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3. To cross examine witnesses for other parties.
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4. To obtain an explanation of any proceedings and |
orders of the
court.
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(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,
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after the filing of the affidavit. At the rehearing, the court |
shall
proceed in the same manner as upon the original hearing.
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(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).
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(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 17 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.
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(7) If the minor is not brought before a judicial officer |
within the
time period as specified in Section 2-9, the minor |
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must immediately be
released from custody.
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(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.
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(9) Notwithstanding any other provision of this
Section any |
interested party, including the State, the temporary
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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:
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(a) It is no longer a matter of immediate and urgent |
necessity that the
minor remain in shelter care; or
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(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
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(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
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(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 |
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without endangering the child's health or safety.
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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.
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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.
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(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
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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:
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(a) Such other minor is the subject of an abuse or |
neglect petition
pending before the court; and
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(b) A party to the petition is seeking shelter care for |
such other minor.
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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.
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(Source: P.A. 89-21, eff. 7-1-95; 89-422; 89-582,
eff. 1-1-97; |
89-626, eff. 8-9-96; 90-28, eff. 1-1-98; 90-87, eff. 9-1-97;
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90-590, eff. 1-1-99; 90-655, eff. 7-30-98.)
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(705 ILCS 405/2-10.1) (from Ch. 37, par. 802-10.1)
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Sec. 2-10.1. Whenever a minor is placed in shelter care |
with the
Department or a licensed child welfare agency in |
accordance with Section
2-10, the Department or agency, as |
appropriate, shall prepare and file with
the court within 45 |
days of placement under Section 2-10 a case plan which
complies |
with the federal Adoption Assistance and Child Welfare Act of |