Illinois General Assembly - Full Text of HB3793
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Full Text of HB3793  102nd General Assembly

HB3793enr 102ND GENERAL ASSEMBLY

  
  
  

 


 
HB3793 EnrolledLRB102 17050 KMF 22478 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 through
23the central registry, involving the minor's parent, guardian

 

 

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1or custodian. After such testimony, the court may, consistent
2with the health, safety and best interests of the minor, enter
3an order that the minor shall be released upon the request of
4parent, guardian or custodian if the parent, guardian or
5custodian appears to take custody. If it is determined that a
6parent's, guardian's, or custodian's compliance with critical
7services mitigates the necessity for removal of the minor from
8his or her home, the court may enter an Order of Protection
9setting forth reasonable conditions of behavior that a parent,
10guardian, or custodian must observe for a specified period of
11time, not to exceed 12 months, without a violation; provided,
12however, that the 12-month period shall begin anew after any
13violation. "Custodian" includes the Department of Children and
14Family Services, if it has been given custody of the child, or
15any other agency of the State which has been given custody or
16wardship of the child. If it is consistent with the health,
17safety and best interests of the minor, the court may also
18prescribe shelter care and order that the minor be kept in a
19suitable place designated by the court or in a shelter care
20facility designated by the Department of Children and Family
21Services or a licensed child welfare agency; however, on and
22after January 1, 2015 (the effective date of Public Act
2398-803) and before January 1, 2017, a minor charged with a
24criminal offense under the Criminal Code of 1961 or the
25Criminal Code of 2012 or adjudicated delinquent shall not be
26placed in the custody of or committed to the Department of

 

 

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1Children and Family Services by any court, except a minor less
2than 16 years of age and committed to the Department of
3Children and Family Services under Section 5-710 of this Act
4or a minor for whom an independent basis of abuse, neglect, or
5dependency exists; and on and after January 1, 2017, a minor
6charged with a criminal offense under the Criminal Code of
71961 or the Criminal Code of 2012 or adjudicated delinquent
8shall not be placed in the custody of or committed to the
9Department of Children and Family Services by any court,
10except a minor less than 15 years of age and committed to the
11Department of Children and Family Services under Section 5-710
12of this Act or a minor for whom an independent basis of abuse,
13neglect, or dependency exists. An independent basis exists
14when the allegations or adjudication of abuse, neglect, or
15dependency do not arise from the same facts, incident, or
16circumstances which give rise to a charge or adjudication of
17delinquency.
18    In placing the minor, the Department or other agency
19shall, to the extent compatible with the court's order, comply
20with Section 7 of the Children and Family Services Act. In
21determining the health, safety and best interests of the minor
22to prescribe shelter care, the court must find that it is a
23matter of immediate and urgent necessity for the safety and
24protection of the minor or of the person or property of another
25that the minor be placed in a shelter care facility or that he
26or she is likely to flee the jurisdiction of the court, and

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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1is an immediate need to protect the child's health, safety,
2and welfare. Such restrictions or terminations must be based
3on available facts to the Department and its assigns when
4viewed in light of the surrounding circumstances and shall
5only occur on an individual case-by-case basis that
6continuation of the contact, as set out in the plan, would be
7contrary to the child's health, safety, and welfare. The
8Department shall file with the court and serve on the parties
9any amendments to the plan within 10 days, excluding weekends
10and holidays, of the change of the visitation.
11    Acceptance of services shall not be considered an
12admission of any allegation in a petition made pursuant to
13this Act, nor may a referral of services be considered as
14evidence in any proceeding pursuant to this Act, except where
15the issue is whether the Department has made reasonable
16efforts to reunite the family. In making its findings that it
17is consistent with the health, safety and best interests of
18the minor to prescribe shelter care, the court shall state in
19writing (i) the factual basis supporting its findings
20concerning the immediate and urgent necessity for the
21protection of the minor or of the person or property of another
22and (ii) the factual basis supporting its findings that
23reasonable efforts were made to prevent or eliminate the
24removal of the minor from his or her home or that no efforts
25reasonably could be made to prevent or eliminate the removal
26of the minor from his or her home. The parents, guardian,

 

 

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1custodian, temporary custodian and minor shall each be
2furnished a copy of such written findings. The temporary
3custodian shall maintain a copy of the court order and written
4findings in the case record for the child. The order together
5with the court's findings of fact in support thereof shall be
6entered of record in the court.
7    Once the court finds that it is a matter of immediate and
8urgent necessity for the protection of the minor that the
9minor be placed in a shelter care facility, the minor shall not
10be returned to the parent, custodian or guardian until the
11court finds that such placement is no longer necessary for the
12protection of the minor.
13    If the child is placed in the temporary custody of the
14Department of Children and Family Services for his or her
15protection, the court shall admonish the parents, guardian,
16custodian or responsible relative that the parents must
17cooperate with the Department of Children and Family Services,
18comply with the terms of the service plans, and correct the
19conditions which require the child to be in care, or risk
20termination of their parental rights. The court shall ensure,
21by inquiring in open court of each parent, guardian, custodian
22or responsible relative, that the parent, guardian, custodian
23or responsible relative has had the opportunity to provide the
24Department with all known names, addresses, and telephone
25numbers of each of the minor's living maternal and paternal
26adult relatives, including, but not limited to, grandparents,

 

 

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1aunts, uncles, and siblings. The court shall advise the
2parents, guardian, custodian or responsible relative to inform
3the Department if additional information regarding the minor's
4adult relatives becomes available.
5    (3) If prior to the shelter care hearing for a minor
6described in Sections 2-3, 2-4, 3-3 and 4-3 the moving party is
7unable to serve notice on the party respondent, the shelter
8care hearing may proceed ex parte. A shelter care order from an
9ex parte hearing shall be endorsed with the date and hour of
10issuance and shall be filed with the clerk's office and
11entered of record. The order shall expire after 10 days from
12the time it is issued unless before its expiration it is
13renewed, at a hearing upon appearance of the party respondent,
14or upon an affidavit of the moving party as to all diligent
15efforts to notify the party respondent by notice as herein
16prescribed. The notice prescribed shall be in writing and
17shall be personally delivered to the minor or the minor's
18attorney and to the last known address of the other person or
19persons entitled to notice. The notice shall also state the
20nature of the allegations, the nature of the order sought by
21the State, including whether temporary custody is sought, and
22the consequences of failure to appear and shall contain a
23notice that the parties will not be entitled to further
24written notices or publication notices of proceedings in this
25case, including the filing of an amended petition or a motion
26to terminate parental rights, except as required by Supreme

 

 

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1Court Rule 11; and shall explain the right of the parties and
2the procedures to vacate or modify a shelter care order as
3provided in this Section. The notice for a shelter care
4hearing shall be substantially as follows:
5
NOTICE TO PARENTS AND CHILDREN
6
OF SHELTER CARE HEARING
7        On ................ at ........., before the Honorable
8    ................, (address:) ................., the State
9    of Illinois will present evidence (1) that (name of child
10    or children) ....................... are abused, neglected
11    or dependent for the following reasons:
12    .............................................. and (2)
13    whether there is "immediate and urgent necessity" to
14    remove the child or children from the responsible
15    relative.
16        YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN
17    PLACEMENT of the child or children in foster care until a
18    trial can be held. A trial may not be held for up to 90
19    days. You will not be entitled to further notices of
20    proceedings in this case, including the filing of an
21    amended petition or a motion to terminate parental rights.
22        At the shelter care hearing, parents have the
23    following rights:
24            1. To ask the court to appoint a lawyer if they
25        cannot afford one.
26            2. To ask the court to continue the hearing to

 

 

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1        allow them time to prepare.
2            3. To present evidence concerning:
3                a. Whether or not the child or children were
4            abused, neglected or dependent.
5                b. Whether or not there is "immediate and
6            urgent necessity" to remove the child from home
7            (including: their ability to care for the child,
8            conditions in the home, alternative means of
9            protecting the child other than removal).
10                c. The best interests of the child.
11            4. To cross examine the State's witnesses.
 
12    The Notice for rehearings shall be substantially as
13follows:
14
NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
15
TO REHEARING ON TEMPORARY CUSTODY
16        If you were not present at and did not have adequate
17    notice of the Shelter Care Hearing at which temporary
18    custody of ............... was awarded to
19    ................, you have the right to request a full
20    rehearing on whether the State should have temporary
21    custody of ................. To request this rehearing,
22    you must file with the Clerk of the Juvenile Court
23    (address): ........................, in person or by
24    mailing a statement (affidavit) setting forth the
25    following:

 

 

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1            1. That you were not present at the shelter care
2        hearing.
3            2. That you did not get adequate notice
4        (explaining how the notice was inadequate).
5            3. Your signature.
6            4. Signature must be notarized.
7        The rehearing should be scheduled within 48 hours of
8    your filing this affidavit.
9        At the rehearing, your rights are the same as at the
10    initial shelter care hearing. The enclosed notice explains
11    those rights.
12        At the Shelter Care Hearing, children have the
13    following rights:
14            1. To have a guardian ad litem appointed.
15            2. To be declared competent as a witness and to
16        present testimony concerning:
17                a. Whether they are abused, neglected or
18            dependent.
19                b. Whether there is "immediate and urgent
20            necessity" to be removed from home.
21                c. Their best interests.
22            3. To cross examine witnesses for other parties.
23            4. To obtain an explanation of any proceedings and
24        orders of the court.
25    (4) If the parent, guardian, legal custodian, responsible
26relative, minor age 8 or over, or counsel of the minor did not

 

 

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1have actual notice of or was not present at the shelter care
2hearing, he or she may file an affidavit setting forth these
3facts, and the clerk shall set the matter for rehearing not
4later than 48 hours, excluding Sundays and legal holidays,
5after the filing of the affidavit. At the rehearing, the court
6shall proceed in the same manner as upon the original hearing.
7    (5) Only when there is reasonable cause to believe that
8the minor taken into custody is a person described in
9subsection (3) of Section 5-105 may the minor be kept or
10detained in a detention home or county or municipal jail. This
11Section shall in no way be construed to limit subsection (6).
12    (6) No minor under 16 years of age may be confined in a
13jail or place ordinarily used for the confinement of prisoners
14in a police station. Minors under 18 years of age must be kept
15separate from confined adults and may not at any time be kept
16in the same cell, room, or yard with adults confined pursuant
17to the criminal law.
18    (7) If the minor is not brought before a judicial officer
19within the time period as specified in Section 2-9, the minor
20must immediately be released from custody.
21    (8) If neither the parent, guardian or custodian appears
22within 24 hours to take custody of a minor released upon
23request pursuant to subsection (2) of this Section, then the
24clerk of the court shall set the matter for rehearing not later
25than 7 days after the original order and shall issue a summons
26directed to the parent, guardian or custodian to appear. At

 

 

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1the same time the probation department shall prepare a report
2on the minor. If a parent, guardian or custodian does not
3appear at such rehearing, the judge may enter an order
4prescribing that the minor be kept in a suitable place
5designated by the Department of Children and Family Services
6or a licensed child welfare agency.
7    (9) Notwithstanding any other provision of this Section
8any interested party, including the State, the temporary
9custodian, an agency providing services to the minor or family
10under a service plan pursuant to Section 8.2 of the Abused and
11Neglected Child Reporting Act, foster parent, or any of their
12representatives, on notice to all parties entitled to notice,
13may file a motion that it is in the best interests of the minor
14to modify or vacate a temporary custody order on any of the
15following grounds:
16        (a) It is no longer a matter of immediate and urgent
17    necessity that the minor remain in shelter care; or
18        (b) There is a material change in the circumstances of
19    the natural family from which the minor was removed and
20    the child can be cared for at home without endangering the
21    child's health or safety; or
22        (c) A person not a party to the alleged abuse, neglect
23    or dependency, including a parent, relative or legal
24    guardian, is capable of assuming temporary custody of the
25    minor; or
26        (d) Services provided by the Department of Children

 

 

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1    and Family Services or a child welfare agency or other
2    service provider have been successful in eliminating the
3    need for temporary custody and the child can be cared for
4    at home without endangering the child's health or safety.
5    In ruling on the motion, the court shall determine whether
6it is consistent with the health, safety and best interests of
7the minor to modify or vacate a temporary custody order.
8    The clerk shall set the matter for hearing not later than
914 days after such motion is filed. In the event that the court
10modifies or vacates a temporary custody order but does not
11vacate its finding of probable cause, the court may order that
12appropriate services be continued or initiated in behalf of
13the minor and his or her family.
14    (10) When the court finds or has found that there is
15probable cause to believe a minor is an abused minor as
16described in subsection (2) of Section 2-3 and that there is an
17immediate and urgent necessity for the abused minor to be
18placed in shelter care, immediate and urgent necessity shall
19be presumed for any other minor residing in the same household
20as the abused minor provided:
21        (a) Such other minor is the subject of an abuse or
22    neglect petition pending before the court; and
23        (b) A party to the petition is seeking shelter care
24    for such other minor.
25    Once the presumption of immediate and urgent necessity has
26been raised, the burden of demonstrating the lack of immediate

 

 

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1and urgent necessity shall be on any party that is opposing
2shelter care for the other minor.
3    (11) The changes made to this Section by Public Act 98-61
4apply to a minor who has been arrested or taken into custody on
5or after January 1, 2014 (the effective date of Public Act
698-61).
7    (12) After the court has placed a minor in the care of a
8temporary custodian pursuant to this Section, any party may
9file a motion requesting the court to grant the temporary
10custodian the authority to serve as a surrogate decision maker
11for the minor under the Health Care Surrogate Act for purposes
12of making decisions pursuant to paragraph (1) of subsection
13(b) of Section 20 of the Health Care Surrogate Act. The court
14may grant the motion if it determines by clear and convincing
15evidence that it is in the best interests of the minor to grant
16the temporary custodian such authority. In making its
17determination, the court shall weigh the following factors in
18addition to considering the best interests factors listed in
19subsection (4.05) of Section 1-3 of this Act:
20        (a) the efforts to identify and locate the respondents
21    and adult family members of the minor and the results of
22    those efforts;
23        (b) the efforts to engage the respondents and adult
24    family members of the minor in decision making on behalf
25    of the minor;
26        (c) the length of time the efforts in paragraphs (a)

 

 

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1    and (b) have been ongoing;
2        (d) the relationship between the respondents and adult
3    family members and the minor;
4        (e) medical testimony regarding the extent to which
5    the minor is suffering and the impact of a delay in
6    decision-making on the minor; and
7        (f) any other factor the court deems relevant.
8    If the Department of Children and Family Services is the
9temporary custodian of the minor, in addition to the
10requirements of paragraph (1) of subsection (b) of Section 20
11of the Health Care Surrogate Act, the Department shall follow
12its rules and procedures in exercising authority granted under
13this subsection.
14(Source: P.A. 99-625, eff. 1-1-17; 99-642, eff. 7-28-16;
15100-159, eff. 8-18-17; 100-863, eff. 8-14-18; 100-959, eff.
161-1-19.)