Illinois General Assembly - Full Text of Public Act 094-0604
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Public Act 094-0604


 

Public Act 0604 94TH GENERAL ASSEMBLY



 


 
Public Act 094-0604
 
HB3415 Enrolled LRB094 09228 LCB 39462 b

    AN ACT concerning minors.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Juvenile Court Act of 1987 is amended by
changing Sections 2-10 and 2-10.1 as follows:
 
    (705 ILCS 405/2-10)  (from Ch. 37, par. 802-10)
    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.
    (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.
    (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
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
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, 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
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
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 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
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 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. 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
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.
    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
eliminate the removal of the minor from his or her home. The
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.
    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
protection of the minor.
    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,
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.
    (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 provided
in this Section. The notice for a shelter care hearing shall be
substantially as follows:
NOTICE TO PARENTS AND CHILDREN
OF SHELTER CARE HEARING
        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:
    .............................................. and (2)
    that there is "immediate and urgent necessity" to remove
    the child or children from the responsible relative.
        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.
        At the shelter care hearing, parents have the following
    rights:
            1. To ask the court to appoint a lawyer if they
        cannot afford one.
            2. To ask the court to continue the hearing to
        allow them time to prepare.
            3. To present evidence concerning:
                a. Whether or not the child or children were
            abused, neglected or dependent.
                b. Whether or not there is "immediate and
            urgent necessity" to remove the child from home
            (including: their ability to care for the child,
            conditions in the home, alternative means of
            protecting the child other than removal).
                c. The best interests of the child.
            4. To cross examine the State's witnesses.
 
    The Notice for rehearings shall be substantially as
follows:
NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
TO REHEARING ON TEMPORARY CUSTODY
        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
    (address): ........................, in person or by
    mailing a statement (affidavit) setting forth the
    following:
            1. That you were not present at the shelter care
        hearing.
            2. That you did not get adequate notice (explaining
        how the notice was inadequate).
            3. Your signature.
            4. Signature must be notarized.
        The rehearing should be scheduled within 48 hours of
    your filing this affidavit.
        At the rehearing, your rights are the same as at the
    initial shelter care hearing. The enclosed notice explains
    those rights.
        At the Shelter Care Hearing, children have the
    following rights:
            1. To have a guardian ad litem appointed.
            2. To be declared competent as a witness and to
        present testimony concerning:
                a. Whether they are abused, neglected or
            dependent.
                b. Whether there is "immediate and urgent
            necessity" to be removed from home.
                c. Their best interests.
            3. To cross examine witnesses for other parties.
            4. To obtain an explanation of any proceedings and
        orders of the court.
    (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.
    (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).
    (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.
    (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.
    (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.
    (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:
        (a) It is no longer a matter of immediate and urgent
    necessity that the minor remain in shelter care; or
        (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
        (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.
(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;
90-590, eff. 1-1-99; 90-655, eff. 7-30-98.)
 
    (705 ILCS 405/2-10.1)  (from Ch. 37, par. 802-10.1)
    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
1980 and is consistent with the health, safety and best
interests of the minor.
    For the purposes of this Act, "case plan" and "service
plan" shall have the same meaning.
(Source: P.A. 90-28, eff. 1-1-98.)

Effective Date: 1/1/2006