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Full Text of SB2512  99th General Assembly

SB2512enr 99TH GENERAL ASSEMBLY

  
  
  

 


 
SB2512 EnrolledLRB099 15281 RLC 43281 b

1    AN ACT concerning courts.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Juvenile Court Act of 1987 is amended by
5changing Section 2-10 as follows:
 
6    (705 ILCS 405/2-10)  (from Ch. 37, par. 802-10)
7    Sec. 2-10. Temporary custody hearing. At the appearance of
8the minor before the court at the temporary custody hearing,
9all witnesses present shall be examined before the court in
10relation to any matter connected with the allegations made in
11the petition.
12    (1) If the court finds that there is not probable cause to
13believe that the minor is abused, neglected or dependent it
14shall release the minor and dismiss the petition.
15    (2) If the court finds that there is probable cause to
16believe that the minor is abused, neglected or dependent, the
17court shall state in writing the factual basis supporting its
18finding and the minor, his or her parent, guardian, custodian
19and other persons able to give relevant testimony shall be
20examined before the court. The Department of Children and
21Family Services shall give testimony concerning indicated
22reports of abuse and neglect, of which they are aware of
23through the central registry, involving the minor's parent,

 

 

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1guardian or custodian. After such testimony, the court may,
2consistent with the health, safety and best interests of the
3minor, enter an order that the minor shall be released upon the
4request of parent, guardian or custodian if the parent,
5guardian or custodian appears to take custody. If it is
6determined that a parent's, guardian's, or custodian's
7compliance with critical services mitigates the necessity for
8removal of the minor from his or her home, the court may enter
9an Order of Protection setting forth reasonable conditions of
10behavior that a parent, guardian, or custodian must observe for
11a specified period of time, not to exceed 12 months, without a
12violation; provided, however, that the 12-month period shall
13begin anew after any violation. Custodian shall include any
14agency of the State which has been given custody or wardship of
15the child. If it is consistent with the health, safety and best
16interests of the minor, the court may also prescribe shelter
17care and order that the minor be kept in a suitable place
18designated by the court or in a shelter care facility
19designated by the Department of Children and Family Services or
20a licensed child welfare agency; however, on and after January
211, 2015 (the effective date of Public Act 98-803) this
22amendatory Act of the 98th General Assembly and before January
231, 2017, a minor charged with a criminal offense under the
24Criminal Code of 1961 or the Criminal Code of 2012 or
25adjudicated delinquent shall not be placed in the custody of or
26committed to the Department of Children and Family Services by

 

 

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1any court, except a minor less than 16 years of age and
2committed to the Department of Children and Family Services
3under Section 5-710 of this Act or a minor for whom an
4independent basis of abuse, neglect, or dependency exists; and
5on and after January 1, 2017, a minor charged with a criminal
6offense under the Criminal Code of 1961 or the Criminal Code of
72012 or adjudicated delinquent shall not be placed in the
8custody of or committed to the Department of Children and
9Family Services by any court, except a minor less than 15 years
10of age and committed to the Department of Children and Family
11Services under Section 5-710 of this Act or a minor for whom an
12independent basis of abuse, neglect, or dependency exists. An
13independent basis exists when the allegations or adjudication
14of abuse, neglect, or dependency do not arise from the same
15facts, incident, or circumstances which give rise to a charge
16or adjudication of delinquency.
17    In placing the minor, the Department or other agency shall,
18to the extent compatible with the court's order, comply with
19Section 7 of the Children and Family Services Act. In
20determining the health, safety and best interests of the minor
21to prescribe shelter care, the court must find that it is a
22matter of immediate and urgent necessity for the safety and
23protection of the minor or of the person or property of another
24that the minor be placed in a shelter care facility or that he
25or she is likely to flee the jurisdiction of the court, and
26must further find that reasonable efforts have been made or

 

 

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1that, consistent with the health, safety and best interests of
2the minor, no efforts reasonably can be made to prevent or
3eliminate the necessity of removal of the minor from his or her
4home. The court shall require documentation from the Department
5of Children and Family Services as to the reasonable efforts
6that were made to prevent or eliminate the necessity of removal
7of the minor from his or her home or the reasons why no efforts
8reasonably could be made to prevent or eliminate the necessity
9of removal. When a minor is placed in the home of a relative,
10the Department of Children and Family Services shall complete a
11preliminary background review of the members of the minor's
12custodian's household in accordance with Section 4.3 of the
13Child Care Act of 1969 within 90 days of that placement. If the
14minor is ordered placed in a shelter care facility of the
15Department of Children and Family Services or a licensed child
16welfare agency, the court shall, upon request of the
17appropriate Department or other agency, appoint the Department
18of Children and Family Services Guardianship Administrator or
19other appropriate agency executive temporary custodian of the
20minor and the court may enter such other orders related to the
21temporary custody as it deems fit and proper, including the
22provision of services to the minor or his family to ameliorate
23the causes contributing to the finding of probable cause or to
24the finding of the existence of immediate and urgent necessity.
25    Where the Department of Children and Family Services
26Guardianship Administrator is appointed as the executive

 

 

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1temporary custodian, the Department of Children and Family
2Services shall file with the court and serve on the parties a
3parent-child visiting plan, within 10 days, excluding weekends
4and holidays, after the appointment. The parent-child visiting
5plan shall set out the time and place of visits, the frequency
6of visits, the length of visits, who shall be present at the
7visits, and where appropriate, the minor's opportunities to
8have telephone and mail communication with the parents.
9    Where the Department of Children and Family Services
10Guardianship Administrator is appointed as the executive
11temporary custodian, and when the child has siblings in care,
12the Department of Children and Family Services shall file with
13the court and serve on the parties a sibling placement and
14contact plan within 10 days, excluding weekends and holidays,
15after the appointment. The sibling placement and contact plan
16shall set forth whether the siblings are placed together, and
17if they are not placed together, what, if any, efforts are
18being made to place them together. If the Department has
19determined that it is not in a child's best interest to be
20placed with a sibling, the Department shall document in the
21sibling placement and contact plan the basis for its
22determination. For siblings placed separately, the sibling
23placement and contact plan shall set the time and place for
24visits, the frequency of the visits, the length of visits, who
25shall be present for the visits, and where appropriate, the
26child's opportunities to have contact with their siblings in

 

 

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1addition to in person contact. If the Department determines it
2is not in the best interest of a sibling to have contact with a
3sibling, the Department shall document in the sibling placement
4and contact plan the basis for its determination. The sibling
5placement and contact plan shall specify a date for development
6of the Sibling Contact Support Plan, under subsection (f) of
7Section 7.4 of the Children and Family Services Act, and shall
8remain in effect until the Sibling Contact Support Plan is
9developed.
10     For good cause, the court may waive the requirement to
11file the parent-child visiting plan or the sibling placement
12and contact plan, or extend the time for filing either plan.
13Any party may, by motion, request the court to review the
14parent-child visiting plan to determine whether it is
15reasonably calculated to expeditiously facilitate the
16achievement of the permanency goal. A party may, by motion,
17request the court to review the parent-child visiting plan or
18the sibling placement and contact plan to determine whether it
19is consistent with the minor's best interest. The court may
20refer the parties to mediation where available. The frequency,
21duration, and locations of visitation shall be measured by the
22needs of the child and family, and not by the convenience of
23Department personnel. Child development principles shall be
24considered by the court in its analysis of how frequent
25visitation should be, how long it should last, where it should
26take place, and who should be present. If upon motion of the

 

 

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1party to review either plan and after receiving evidence, the
2court determines that the parent-child visiting plan is not
3reasonably calculated to expeditiously facilitate the
4achievement of the permanency goal or that the restrictions
5placed on parent-child contact or sibling placement or contact
6are contrary to the child's best interests, the court shall put
7in writing the factual basis supporting the determination and
8enter specific findings based on the evidence. The court shall
9enter an order for the Department to implement changes to the
10parent-child visiting plan or sibling placement or contact
11plan, consistent with the court's findings. At any stage of
12proceeding, any party may by motion request the court to enter
13any orders necessary to implement the parent-child visiting
14plan, sibling placement or contact plan or subsequently
15developed Sibling Contact Support Plan. Nothing under this
16subsection (2) shall restrict the court from granting
17discretionary authority to the Department to increase
18opportunities for additional parent-child contacts or sibling
19contacts, without further court orders. Nothing in this
20subsection (2) shall restrict the Department from immediately
21restricting or terminating parent-child contact or sibling
22contacts, without either amending the parent-child visiting
23plan or the sibling contact plan or obtaining a court order,
24where the Department or its assigns reasonably believe that
25continuation of the contact, as set out in the plan, would be
26contrary to the child's health, safety, and welfare. The

 

 

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1Department shall file with the court and serve on the parties
2any amendments to the plan within 10 days, excluding weekends
3and holidays, of the change of the visitation.
4    Acceptance of services shall not be considered an admission
5of any allegation in a petition made pursuant to this Act, nor
6may a referral of services be considered as evidence in any
7proceeding pursuant to this Act, except where the issue is
8whether the Department has made reasonable efforts to reunite
9the family. In making its findings that it is consistent with
10the health, safety and best interests of the minor to prescribe
11shelter care, the court shall state in writing (i) the factual
12basis supporting its findings concerning the immediate and
13urgent necessity for the protection of the minor or of the
14person or property of another and (ii) the factual basis
15supporting its findings that reasonable efforts were made to
16prevent or eliminate the removal of the minor from his or her
17home or that no efforts reasonably could be made to prevent or
18eliminate the removal of the minor from his or her home. The
19parents, guardian, custodian, temporary custodian and minor
20shall each be furnished a copy of such written findings. The
21temporary custodian shall maintain a copy of the court order
22and written findings in the case record for the child. The
23order together with the court's findings of fact in support
24thereof shall be entered of record in the court.
25    Once the court finds that it is a matter of immediate and
26urgent necessity for the protection of the minor that the minor

 

 

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1be placed in a shelter care facility, the minor shall not be
2returned to the parent, custodian or guardian until the court
3finds that such placement is no longer necessary for the
4protection of the minor.
5    If the child is placed in the temporary custody of the
6Department of Children and Family Services for his or her
7protection, the court shall admonish the parents, guardian,
8custodian or responsible relative that the parents must
9cooperate with the Department of Children and Family Services,
10comply with the terms of the service plans, and correct the
11conditions which require the child to be in care, or risk
12termination of their parental rights. The court shall ensure,
13by inquiring in open court of each parent, guardian, custodian
14or responsible relative, that the parent, guardian, custodian
15or responsible relative has had the opportunity to provide the
16Department with all known names, addresses, and telephone
17numbers of each of the minor's living maternal and paternal
18adult relatives, including, but not limited to, grandparents,
19aunts, uncles, and siblings. The court shall advise the
20parents, guardian, custodian or responsible relative to inform
21the Department if additional information regarding the minor's
22adult relatives becomes available.
23    (3) If prior to the shelter care hearing for a minor
24described in Sections 2-3, 2-4, 3-3 and 4-3 the moving party is
25unable to serve notice on the party respondent, the shelter
26care hearing may proceed ex parte ex-parte. A shelter care

 

 

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1order from an ex parte ex-parte hearing shall be endorsed with
2the date and hour of issuance and shall be filed with the
3clerk's office and entered of record. The order shall expire
4after 10 days from the time it is issued unless before its
5expiration it is renewed, at a hearing upon appearance of the
6party respondent, or upon an affidavit of the moving party as
7to all diligent efforts to notify the party respondent by
8notice as herein prescribed. The notice prescribed shall be in
9writing and shall be personally delivered to the minor or the
10minor's attorney and to the last known address of the other
11person or persons entitled to notice. The notice shall also
12state the nature of the allegations, the nature of the order
13sought by the State, including whether temporary custody is
14sought, and the consequences of failure to appear and shall
15contain a notice that the parties will not be entitled to
16further written notices or publication notices of proceedings
17in this case, including the filing of an amended petition or a
18motion to terminate parental rights, except as required by
19Supreme Court Rule 11; and shall explain the right of the
20parties and the procedures to vacate or modify a shelter care
21order as provided in this Section. The notice for a shelter
22care hearing shall be substantially as follows:
23
NOTICE TO PARENTS AND CHILDREN
24
OF SHELTER CARE HEARING
25        On ................ at ........., before the Honorable
26    ................, (address:) ................., the State

 

 

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1    of Illinois will present evidence (1) that (name of child
2    or children) ....................... are abused, neglected
3    or dependent for the following reasons:
4    .............................................. and (2)
5    whether there is "immediate and urgent necessity" to remove
6    the child or children from the responsible relative.
7        YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN
8    PLACEMENT of the child or children in foster care until a
9    trial can be held. A trial may not be held for up to 90
10    days. You will not be entitled to further notices of
11    proceedings in this case, including the filing of an
12    amended petition or a motion to terminate parental rights.
13        At the shelter care hearing, parents have the following
14    rights:
15            1. To ask the court to appoint a lawyer if they
16        cannot afford one.
17            2. To ask the court to continue the hearing to
18        allow them time to prepare.
19            3. To present evidence concerning:
20                a. Whether or not the child or children were
21            abused, neglected or dependent.
22                b. Whether or not there is "immediate and
23            urgent necessity" to remove the child from home
24            (including: their ability to care for the child,
25            conditions in the home, alternative means of
26            protecting the child other than removal).

 

 

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1                c. The best interests of the child.
2            4. To cross examine the State's witnesses.
 
3    The Notice for rehearings shall be substantially as
4follows:
5
NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
6
TO REHEARING ON TEMPORARY CUSTODY
7        If you were not present at and did not have adequate
8    notice of the Shelter Care Hearing at which temporary
9    custody of ............... was awarded to
10    ................, you have the right to request a full
11    rehearing on whether the State should have temporary
12    custody of ................. To request this rehearing,
13    you must file with the Clerk of the Juvenile Court
14    (address): ........................, in person or by
15    mailing a statement (affidavit) setting forth the
16    following:
17            1. That you were not present at the shelter care
18        hearing.
19            2. That you did not get adequate notice (explaining
20        how the notice was inadequate).
21            3. Your signature.
22            4. Signature must be notarized.
23        The rehearing should be scheduled within 48 hours of
24    your filing this affidavit.
25        At the rehearing, your rights are the same as at the

 

 

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1    initial shelter care hearing. The enclosed notice explains
2    those rights.
3        At the Shelter Care Hearing, children have the
4    following rights:
5            1. To have a guardian ad litem appointed.
6            2. To be declared competent as a witness and to
7        present testimony concerning:
8                a. Whether they are abused, neglected or
9            dependent.
10                b. Whether there is "immediate and urgent
11            necessity" to be removed from home.
12                c. Their best interests.
13            3. To cross examine witnesses for other parties.
14            4. To obtain an explanation of any proceedings and
15        orders of the court.
16    (4) If the parent, guardian, legal custodian, responsible
17relative, minor age 8 or over, or counsel of the minor did not
18have actual notice of or was not present at the shelter care
19hearing, he or she may file an affidavit setting forth these
20facts, and the clerk shall set the matter for rehearing not
21later than 48 hours, excluding Sundays and legal holidays,
22after the filing of the affidavit. At the rehearing, the court
23shall proceed in the same manner as upon the original hearing.
24    (5) Only when there is reasonable cause to believe that the
25minor taken into custody is a person described in subsection
26(3) of Section 5-105 may the minor be kept or detained in a

 

 

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1detention home or county or municipal jail. This Section shall
2in no way be construed to limit subsection (6).
3    (6) No minor under 16 years of age may be confined in a
4jail or place ordinarily used for the confinement of prisoners
5in a police station. Minors under 18 years of age must be kept
6separate from confined adults and may not at any time be kept
7in the same cell, room, or yard with adults confined pursuant
8to the criminal law.
9    (7) If the minor is not brought before a judicial officer
10within the time period as specified in Section 2-9, the minor
11must immediately be released from custody.
12    (8) If neither the parent, guardian or custodian appears
13within 24 hours to take custody of a minor released upon
14request pursuant to subsection (2) of this Section, then the
15clerk of the court shall set the matter for rehearing not later
16than 7 days after the original order and shall issue a summons
17directed to the parent, guardian or custodian to appear. At the
18same time the probation department shall prepare a report on
19the minor. If a parent, guardian or custodian does not appear
20at such rehearing, the judge may enter an order prescribing
21that the minor be kept in a suitable place designated by the
22Department of Children and Family Services or a licensed child
23welfare agency.
24    (9) Notwithstanding any other provision of this Section any
25interested party, including the State, the temporary
26custodian, an agency providing services to the minor or family

 

 

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1under a service plan pursuant to Section 8.2 of the Abused and
2Neglected Child Reporting Act, foster parent, or any of their
3representatives, on notice to all parties entitled to notice,
4may file a motion that it is in the best interests of the minor
5to modify or vacate a temporary custody order on any of the
6following grounds:
7        (a) It is no longer a matter of immediate and urgent
8    necessity that the minor remain in shelter care; or
9        (b) There is a material change in the circumstances of
10    the natural family from which the minor was removed and the
11    child can be cared for at home without endangering the
12    child's health or safety; or
13        (c) A person not a party to the alleged abuse, neglect
14    or dependency, including a parent, relative or legal
15    guardian, is capable of assuming temporary custody of the
16    minor; or
17        (d) Services provided by the Department of Children and
18    Family Services or a child welfare agency or other service
19    provider have been successful in eliminating the need for
20    temporary custody and the child can be cared for at home
21    without endangering the child's health or safety.
22    In ruling on the motion, the court shall determine whether
23it is consistent with the health, safety and best interests of
24the minor to modify or vacate a temporary custody order.
25    The clerk shall set the matter for hearing not later than
2614 days after such motion is filed. In the event that the court

 

 

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1modifies or vacates a temporary custody order but does not
2vacate its finding of probable cause, the court may order that
3appropriate services be continued or initiated in behalf of the
4minor and his or her family.
5    (10) When the court finds or has found that there is
6probable cause to believe a minor is an abused minor as
7described in subsection (2) of Section 2-3 and that there is an
8immediate and urgent necessity for the abused minor to be
9placed in shelter care, immediate and urgent necessity shall be
10presumed for any other minor residing in the same household as
11the abused minor provided:
12        (a) Such other minor is the subject of an abuse or
13    neglect petition pending before the court; and
14        (b) A party to the petition is seeking shelter care for
15    such other minor.
16    Once the presumption of immediate and urgent necessity has
17been raised, the burden of demonstrating the lack of immediate
18and urgent necessity shall be on any party that is opposing
19shelter care for the other minor.
20    (11) The changes made to this Section by Public Act 98-61
21apply to a minor who has been arrested or taken into custody on
22or after January 1, 2014 (the effective date of Public Act
2398-61).
24(Source: P.A. 97-1076, eff. 8-24-12; 97-1150, eff. 1-25-13;
2598-61, eff. 1-1-14; 98-756, eff. 7-16-14; 98-803, eff. 1-1-15;
26revised 10-16-15.)