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| Public Act 102-0502 | ||||
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AN ACT concerning courts.
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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 Section 2-10 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 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" includes the Department of Children and | ||
Family Services, if it has been given custody of the child, or | ||
any other 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) 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.
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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
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that, consistent with the health, safety and best interests of
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the minor, no efforts reasonably can be made to
prevent or | ||
eliminate the necessity of removal of the minor from his or her
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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
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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,
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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 there | ||
is an immediate need to protect the child's health, safety, | ||
and welfare. Such restrictions or terminations must be based | ||
on available facts to the Department and its assigns when | ||
viewed in light of the surrounding circumstances and shall | ||
only occur on an individual case-by-case basis 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
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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
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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
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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. 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.
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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 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
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provided in this Section. The notice for a shelter care | ||
hearing shall be
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) | ||
whether 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 | ||
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,
| ||
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
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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 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.
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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 | ||
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
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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
| ||
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
| ||
(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). | ||
(12) After the court has placed a minor in the care of a | ||
temporary custodian pursuant to this Section, any party may | ||
file a motion requesting the court to grant the temporary | ||
custodian the authority to serve as a surrogate decision maker | ||
for the minor under the Health Care Surrogate Act for purposes | ||
of making decisions pursuant to paragraph (1) of subsection | ||
(b) of Section 20 of the Health Care Surrogate Act. The court | ||
may grant the motion if it determines by clear and convincing | ||
evidence that it is in the best interests of the minor to grant | ||
the temporary custodian such authority. In making its | ||
determination, the court shall weigh the following factors in | ||
addition to considering the best interests factors listed in | ||
subsection (4.05) of Section 1-3 of this Act: | ||
(a) the efforts to identify and locate the respondents | ||
and adult family members of the minor and the results of | ||
those efforts; | ||
(b) the efforts to engage the respondents and adult | ||
family members of the minor in decision making on behalf | ||
of the minor; | ||
(c) the length of time the efforts in paragraphs (a) | ||
and (b) have been ongoing; | ||
(d) the relationship between the respondents and adult | ||
family members and the minor; | ||
(e) medical testimony regarding the extent to which | ||
the minor is suffering and the impact of a delay in | ||
decision-making on the minor; and | ||
(f) any other factor the court deems relevant. | ||
If the Department of Children and Family Services is the | ||
temporary custodian of the minor, in addition to the | ||
requirements of paragraph (1) of subsection (b) of Section 20 | ||
of the Health Care Surrogate Act, the Department shall follow | ||
its rules and procedures in exercising authority granted under | ||
this subsection. | ||
(Source: P.A. 99-625, eff. 1-1-17; 99-642, eff. 7-28-16; | ||
100-159, eff. 8-18-17; 100-863, eff. 8-14-18; 100-959, eff. | ||
1-1-19.)
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