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| Public Act 099-0625 | ||||
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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 of | ||||
through the central registry,
involving the minor's parent, | ||||
guardian or custodian. After such
testimony, the court may, | ||
consistent with
the health,
safety and best interests of the | ||
minor,
enter an order that the minor shall be released
upon the | ||
request of parent, guardian or custodian if the parent, | ||
guardian
or custodian appears to take custody. If it is | ||
determined that a parent's, guardian's, or custodian's | ||
compliance with critical services mitigates the necessity for | ||
removal of the minor from his or her home, the court may enter | ||
an Order of Protection setting forth reasonable conditions of | ||
behavior that a parent, guardian, or custodian must observe for | ||
a specified period of time, not to exceed 12 months, without a | ||
violation; provided, however, that the 12-month period shall | ||
begin anew after any violation. Custodian shall include any | ||
agency of
the State which has been given custody or wardship of | ||
the child. If it is
consistent with the health, safety and best | ||
interests of the
minor, the
court may also prescribe shelter | ||
care and
order that the minor be kept in a suitable place | ||
designated by the court or in
a shelter care facility | ||
designated by the Department of Children and Family
Services or | ||
a licensed child welfare
agency; however, on and after January | ||
1, 2015 (the effective date of Public Act 98-803) this | ||
amendatory Act of the 98th General Assembly and before January | ||
1, 2017, a minor charged with a
criminal offense under the | ||
Criminal Code of 1961 or the Criminal Code of 2012 or | ||
adjudicated delinquent
shall not be placed in the custody of or | ||
committed to the Department of
Children and Family Services by | ||
any court, except a minor less than 16
years of age and | ||
committed to the Department of Children and Family Services
| ||
under Section 5-710 of this Act or a minor for whom an | ||
independent
basis of
abuse, neglect, or dependency exists; and | ||
on and after January 1, 2017, a minor charged with a
criminal | ||
offense under the Criminal Code of 1961 or the Criminal Code of | ||
2012 or adjudicated delinquent
shall not be placed in the | ||
custody of or committed to the Department of
Children and | ||
Family Services by any court, except a minor less than 15 years | ||
of age and committed to the Department of Children and Family | ||
Services
under Section 5-710 of this Act or a minor for whom an | ||
independent
basis of
abuse, neglect, or dependency exists.
An | ||
independent basis exists when the allegations or adjudication | ||
of abuse, neglect, or dependency do not arise from the same | ||
facts, incident, or circumstances which give rise to a charge | ||
or adjudication of delinquency.
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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
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
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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. | ||
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 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.
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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 | ||
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. 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 ex-parte. A shelter
care | ||
order from an ex parte ex-parte hearing shall be endorsed with | ||
the date and
hour of issuance and shall be filed with the | ||
clerk's office and entered of
record. The order shall expire | ||
after 10 days from the time it is issued
unless before its | ||
expiration it is renewed, at a hearing upon appearance
of the | ||
party respondent, or upon an affidavit of the moving party as | ||
to all
diligent efforts to notify the party respondent by | ||
notice as herein
prescribed. The notice prescribed shall be in | ||
writing and shall be
personally delivered to the minor or the | ||
minor's attorney and to the last
known address of the other | ||
person or persons entitled to notice. The
notice shall also | ||
state the nature of the allegations, the nature of the
order | ||
sought by the State, including whether temporary custody is | ||
sought,
and the consequences of failure to appear and shall | ||
contain a notice
that the parties will not be entitled to | ||
further written notices or publication
notices of proceedings | ||
in this case, including the filing of an amended
petition or a | ||
motion to terminate parental rights, except as required by
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Supreme Court Rule 11; and shall explain the
right of
the | ||
parties and the procedures to vacate or modify a shelter care | ||
order as
provided in this Section. The notice for a shelter | ||
care hearing shall be
substantially as follows:
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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,
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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 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
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 | ||
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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(11) The changes made to this Section by Public Act 98-61 | ||
apply to a minor who has been
arrested or taken into custody on | ||
or after January 1, 2014 (the effective date
of Public Act | ||
98-61). | ||
(Source: P.A. 97-1076, eff. 8-24-12; 97-1150, eff. 1-25-13; | ||
98-61, eff. 1-1-14; 98-756, eff. 7-16-14; 98-803, eff. 1-1-15; | ||
revised 10-16-15.)
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