Full Text of HB2543 94th General Assembly
HB2543 94TH GENERAL ASSEMBLY
|
|
|
94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006 HB2543
Introduced 2/18/2005, by Rep. Mary E. Flowers SYNOPSIS AS INTRODUCED: |
|
705 ILCS 405/2-10 |
from Ch. 37, par. 802-10 |
705 ILCS 405/2-10.1 |
from Ch. 37, par. 802-10.1 |
|
Amends the Juvenile Court Act of 1987. Provides that 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 5 days, excluding weekends and holidays, after the appointment. Provides that 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. Provides that 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.
|
| |
|
|
A BILL FOR
|
|
|
|
|
HB2543 |
|
LRB094 09292 RXD 39531 b |
|
| 1 |
| AN ACT concerning criminal law.
| 2 |
| Be it enacted by the People of the State of Illinois,
| 3 |
| represented in the General Assembly:
| 4 |
| Section 5. The Juvenile Court Act of 1987 is amended by | 5 |
| changing Sections 2-10 and 2-10.1 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 | 8 |
| the
minor before the court at the temporary custody hearing, | 9 |
| all
witnesses present shall be examined before the court in | 10 |
| relation to any
matter connected with the allegations made in | 11 |
| the petition.
| 12 |
| (1) If the court finds that there is not probable cause to | 13 |
| believe
that the minor is abused, neglected or dependent it | 14 |
| shall release
the minor and dismiss the petition.
| 15 |
| (2) If the court finds that there is probable cause to | 16 |
| believe that
the minor is abused, neglected or dependent, the | 17 |
| court shall state in writing
the factual basis supporting its | 18 |
| finding and the minor, his or her parent,
guardian, custodian | 19 |
| and other persons able to give relevant testimony
shall be | 20 |
| examined before the court. The Department of Children and
| 21 |
| Family Services shall give testimony concerning indicated | 22 |
| reports of abuse
and neglect, of which they are aware of | 23 |
| through the central registry,
involving the minor's parent, | 24 |
| guardian or custodian. After such
testimony, the court may, | 25 |
| consistent with
the health,
safety and best interests of the | 26 |
| minor,
enter an order that the minor shall be released
upon the | 27 |
| request of parent, guardian or custodian if the parent, | 28 |
| guardian
or custodian appears to take custody. Custodian shall | 29 |
| include any agency of
the State which has been given custody or | 30 |
| wardship of the child. If it is
consistent with the health, | 31 |
| safety and best interests of the
minor, the
court may also | 32 |
| prescribe shelter care and
order that the minor be kept in a |
|
|
|
HB2543 |
- 2 - |
LRB094 09292 RXD 39531 b |
|
| 1 |
| suitable place designated by the court or in
a shelter care | 2 |
| facility designated by the Department of Children and Family
| 3 |
| Services or a licensed child welfare
agency; however, a minor | 4 |
| charged with a
criminal offense under the Criminal Code of 1961 | 5 |
| or adjudicated delinquent
shall not be placed in the custody of | 6 |
| or committed to the Department of
Children and Family Services | 7 |
| by any court, except a minor less than 13
years of age and | 8 |
| committed to the Department of Children and Family Services
| 9 |
| under Section 5-710 of this Act or a minor for whom an | 10 |
| independent
basis of
abuse, neglect, or dependency exists, | 11 |
| which must be defined by departmental
rule.
In placing the | 12 |
| minor, the Department or other
agency shall, to the extent
| 13 |
| compatible with the court's order, comply with Section 7 of the | 14 |
| Children and
Family Services Act.
In determining
the health, | 15 |
| safety and best interests of the minor to prescribe shelter
| 16 |
| care, the court must
find that it is a matter of immediate and | 17 |
| urgent necessity for the safety
and protection
of the minor or | 18 |
| of the person or property of another that the minor be placed
| 19 |
| in a shelter care facility or that he or she is likely to flee | 20 |
| the jurisdiction
of the court, and must further find that | 21 |
| reasonable efforts have been made or
that, consistent with the | 22 |
| health, safety and best interests of
the minor, no efforts | 23 |
| reasonably can be made to
prevent or eliminate the necessity of | 24 |
| removal of the minor from his or her
home. The court shall | 25 |
| require documentation from the Department of Children and
| 26 |
| Family Services as to the reasonable efforts that were made to | 27 |
| prevent or
eliminate the necessity of removal of the minor from | 28 |
| his or her home or the
reasons why no efforts reasonably could | 29 |
| be made to prevent or eliminate the
necessity of removal. When | 30 |
| a minor is placed in the home of a relative, the
Department of | 31 |
| Children and Family Services shall complete a preliminary
| 32 |
| background review of the members of the minor's custodian's | 33 |
| household in
accordance with Section 4.3 of the Child Care Act | 34 |
| of 1969 within 90 days of
that placement. If the minor is | 35 |
| ordered placed in a shelter care facility of
the Department of | 36 |
| Children and
Family Services or a licensed child welfare |
|
|
|
HB2543 |
- 3 - |
LRB094 09292 RXD 39531 b |
|
| 1 |
| agency, the court shall, upon
request of the appropriate | 2 |
| Department or other agency, appoint the
Department of Children | 3 |
| and Family Services Guardianship Administrator or
other | 4 |
| appropriate agency executive temporary custodian of the minor | 5 |
| and the
court may enter such other orders related to the | 6 |
| temporary custody as it
deems fit and proper, including the | 7 |
| provision of services to the minor or
his family to ameliorate | 8 |
| the causes contributing to the finding of probable
cause or to | 9 |
| the finding of the existence of immediate and urgent necessity.
| 10 |
| Where the Department of Children and Family Services | 11 |
| Guardianship Administrator is appointed as the executive | 12 |
| temporary custodian, the Department of Children and Family | 13 |
| Services shall file with the court and serve on the parties a | 14 |
| parent-child visiting plan, within 5 days, excluding weekends | 15 |
| and holidays, after the appointment. The parent-child visiting | 16 |
| plan shall set out the time and place of visits, the frequency | 17 |
| of visits, the length of visits, who shall be present at the | 18 |
| visits, and where appropriate, the minor's opportunities to | 19 |
| have telephone and mail communication with the parents. For | 20 |
| good cause, the court may waive the requirement to file the | 21 |
| parent-child visiting plan or extend the time for filing the | 22 |
| parent-child visiting plan. Any party may, by motion, request | 23 |
| the court to review the parent-child visiting plan to determine | 24 |
| whether it is reasonably calculated to expeditiously | 25 |
| facilitate the achievement of reunification and is consistent | 26 |
| with the minor's best interest. The frequency, duration, and | 27 |
| locations of visitation shall be measured by the needs of the | 28 |
| child and family, and not by the convenience of Department | 29 |
| personnel. Child development principles shall be considered by | 30 |
| the court in its analysis of how frequent visitation should be, | 31 |
| how long it should last, where it should take place, and who | 32 |
| should be present. If after receiving evidence, the court | 33 |
| determines that the parent-child visiting plan is not | 34 |
| reasonably calculated to expeditiously facilitate the | 35 |
| achievement of reunification or that the restrictions placed on | 36 |
| parent-child contact are contrary to the child's best |
|
|
|
HB2543 |
- 4 - |
LRB094 09292 RXD 39531 b |
|
| 1 |
| interests, the court shall put in writing the factual basis | 2 |
| supporting the determination and enter specific findings based | 3 |
| on the evidence. The court shall enter an order for the | 4 |
| Department to implement changes to the parent-child visiting | 5 |
| plan, consistent with the court's findings. At any stage of | 6 |
| proceeding, any party may by motion request the court to enter | 7 |
| any orders necessary to implement the parent-child visiting | 8 |
| plan. Nothing under this subsection (2) shall restrict the | 9 |
| court from granting discretionary authority to the Department | 10 |
| to increase opportunities for additional parent-child | 11 |
| contacts, without further court orders. Nothing in this | 12 |
| subsection (2) shall restrict the Department from immediately | 13 |
| restricting or terminating parent-child contact, without | 14 |
| either amending the parent-child visiting plan or obtaining a | 15 |
| court order, where the Department or its assigns reasonably | 16 |
| believe that continuation of parent-child contact, as set out | 17 |
| in the parent-child visiting plan, would place the minor in | 18 |
| imminent risk of harm. Where the restriction or termination on | 19 |
| parent-child contact is inconsistent with the parent-child | 20 |
| visiting plan filed with the court, the Department shall file | 21 |
| with the court and serve on the parties an amended plan within | 22 |
| 5 days, excluding weekends and holidays, after restricting or | 23 |
| terminating parent-child contact. Any party may, by motion, | 24 |
| request the court to review the parent-child visiting plan to | 25 |
| determine whether the parent-child visiting plan is reasonably | 26 |
| calculated to expeditiously facilitate the achievement of | 27 |
| reunification, and is consistent with the minor's best | 28 |
| interest.
| 29 |
| Acceptance of services shall not be considered an admission | 30 |
| of any
allegation in a petition made pursuant to this Act, nor | 31 |
| may a referral of
services be considered as evidence in any | 32 |
| proceeding pursuant to this Act,
except where the issue is | 33 |
| whether the Department has made reasonable
efforts to reunite | 34 |
| the family. In making its findings that it is
consistent with | 35 |
| the health, safety and best
interests of the minor to prescribe | 36 |
| shelter care, the court shall state in
writing (i) the factual |
|
|
|
HB2543 |
- 5 - |
LRB094 09292 RXD 39531 b |
|
| 1 |
| basis supporting its findings concerning the
immediate and | 2 |
| urgent necessity for the protection of the minor or of the | 3 |
| person
or property of another and (ii) the factual basis | 4 |
| supporting its findings that
reasonable efforts were made to | 5 |
| prevent or eliminate the removal of the minor
from his or her | 6 |
| home or that no efforts reasonably could be made to prevent or
| 7 |
| eliminate the removal of the minor from his or her home. The
| 8 |
| parents, guardian, custodian, temporary custodian and minor | 9 |
| shall each be
furnished a copy of such written findings. The | 10 |
| temporary custodian shall
maintain a copy of the court order | 11 |
| and written findings in the case record
for the child. The | 12 |
| order together with the court's findings of fact in
support | 13 |
| thereof shall be entered of record in the court.
| 14 |
| Once the court finds that it is a matter of immediate and | 15 |
| urgent necessity
for the protection of the minor that the minor | 16 |
| be placed in a shelter care
facility, the minor shall not be | 17 |
| returned to the parent, custodian or guardian
until the court | 18 |
| finds that such placement is no longer necessary for the
| 19 |
| protection of the minor.
| 20 |
| If the child is placed in the temporary custody of the | 21 |
| Department of
Children
and Family
Services for his or her | 22 |
| protection, the court shall admonish the parents,
guardian,
| 23 |
| custodian or responsible relative that the parents must | 24 |
| cooperate with the
Department of Children and Family Services, | 25 |
| comply
with the terms of the service plans, and correct the | 26 |
| conditions which require
the child to be in care, or risk | 27 |
| termination of their parental
rights.
| 28 |
| (3) If prior to the shelter care hearing for a minor | 29 |
| described in Sections
2-3, 2-4, 3-3 and 4-3 the moving party is | 30 |
| unable to serve notice on the
party respondent, the shelter | 31 |
| care hearing may proceed ex-parte. A shelter
care order from an | 32 |
| ex-parte hearing shall be endorsed with the date and
hour of | 33 |
| issuance and shall be filed with the clerk's office and entered | 34 |
| of
record. The order shall expire after 10 days from the time | 35 |
| it is issued
unless before its expiration it is renewed, at a | 36 |
| hearing upon appearance
of the party respondent, or upon an |
|
|
|
HB2543 |
- 6 - |
LRB094 09292 RXD 39531 b |
|
| 1 |
| affidavit of the moving party as to all
diligent efforts to | 2 |
| notify the party respondent by notice as herein
prescribed. The | 3 |
| notice prescribed shall be in writing and shall be
personally | 4 |
| delivered to the minor or the minor's attorney and to the last
| 5 |
| known address of the other person or persons entitled to | 6 |
| notice. The
notice shall also state the nature of the | 7 |
| allegations, the nature of the
order sought by the State, | 8 |
| including whether temporary custody is sought,
and the | 9 |
| consequences of failure to appear and shall contain a notice
| 10 |
| that the parties will not be entitled to further written | 11 |
| notices or publication
notices of proceedings in this case, | 12 |
| including the filing of an amended
petition or a motion to | 13 |
| terminate parental rights, except as required by
Supreme Court | 14 |
| Rule 11; and shall explain the
right of
the parties and the | 15 |
| procedures to vacate or modify a shelter care order as
provided | 16 |
| in this Section. The notice for a shelter care hearing shall be
| 17 |
| substantially as follows:
| 18 |
| NOTICE TO PARENTS AND CHILDREN
| 19 |
| OF SHELTER CARE HEARING
| 20 |
| On ................ at ........., before the Honorable | 21 |
| ................,
(address:) ................., the State | 22 |
| of Illinois will present evidence
(1) that (name of child | 23 |
| or children) ....................... are abused,
neglected | 24 |
| or dependent for the following reasons:
| 25 |
| ..............................................
and (2) | 26 |
| that there is "immediate and urgent necessity" to remove | 27 |
| the child
or children from the responsible relative.
| 28 |
| YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN | 29 |
| PLACEMENT of the
child or children in foster care until a | 30 |
| trial can be held. A trial may
not be held for up to 90 | 31 |
| days. You will not be entitled to further notices
of | 32 |
| proceedings in this case, including the filing of an | 33 |
| amended petition or a
motion to terminate parental rights.
| 34 |
| At the shelter care hearing, parents have the following | 35 |
| rights:
| 36 |
| 1. To ask the court to appoint a lawyer if they |
|
|
|
HB2543 |
- 7 - |
LRB094 09292 RXD 39531 b |
|
| 1 |
| cannot afford one.
| 2 |
| 2. To ask the court to continue the hearing to | 3 |
| allow them time to
prepare.
| 4 |
| 3. To present evidence concerning:
| 5 |
| a. Whether or not the child or children were | 6 |
| abused, neglected
or dependent.
| 7 |
| b. Whether or not there is "immediate and | 8 |
| urgent necessity" to remove
the child from home | 9 |
| (including: their ability to care for the child,
| 10 |
| conditions in the home, alternative means of | 11 |
| protecting the child other
than removal).
| 12 |
| c. The best interests of the child.
| 13 |
| 4. To cross examine the State's witnesses.
| 14 |
| The Notice for rehearings shall be substantially as | 15 |
| follows:
| 16 |
| NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
| 17 |
| TO REHEARING ON TEMPORARY CUSTODY
| 18 |
| If you were not present at and did not have adequate | 19 |
| notice of the
Shelter Care Hearing at which temporary | 20 |
| custody of ............... was
awarded to | 21 |
| ................, you have the right to request a full | 22 |
| rehearing
on whether the State should have temporary | 23 |
| custody of ................. To
request this rehearing, | 24 |
| you must file with the Clerk of the Juvenile Court
| 25 |
| (address): ........................, in person or by | 26 |
| mailing a statement
(affidavit) setting forth the | 27 |
| following:
| 28 |
| 1. That you were not present at the shelter care | 29 |
| hearing.
| 30 |
| 2. That you did not get adequate notice (explaining | 31 |
| how the notice
was inadequate).
| 32 |
| 3. Your signature.
| 33 |
| 4. Signature must be notarized.
| 34 |
| The rehearing should be scheduled within 48 hours of | 35 |
| your filing this
affidavit.
|
|
|
|
HB2543 |
- 8 - |
LRB094 09292 RXD 39531 b |
|
| 1 |
| At the rehearing, your rights are the same as at the | 2 |
| initial shelter care
hearing. The enclosed notice explains | 3 |
| those rights.
| 4 |
| At the Shelter Care Hearing, children have the | 5 |
| following rights:
| 6 |
| 1. To have a guardian ad litem appointed.
| 7 |
| 2. To be declared competent as a witness and to | 8 |
| present testimony
concerning:
| 9 |
| a. Whether they are abused, neglected or | 10 |
| dependent.
| 11 |
| b. Whether there is "immediate and urgent | 12 |
| necessity" to be
removed from home.
| 13 |
| c. Their best interests.
| 14 |
| 3. To cross examine witnesses for other parties.
| 15 |
| 4. To obtain an explanation of any proceedings and | 16 |
| orders of the
court.
| 17 |
| (4) If the parent, guardian, legal custodian, responsible | 18 |
| relative,
minor age 8 or over, or counsel of the minor did not | 19 |
| have actual notice of
or was not present at the shelter care | 20 |
| hearing, he or she may file an
affidavit setting forth these | 21 |
| facts, and the clerk shall set the matter for
rehearing not | 22 |
| later than 48 hours, excluding Sundays and legal holidays,
| 23 |
| after the filing of the affidavit. At the rehearing, the court | 24 |
| shall
proceed in the same manner as upon the original hearing.
| 25 |
| (5) Only when there is reasonable cause to believe that the | 26 |
| minor
taken into custody is a person described in subsection | 27 |
| (3) of Section
5-105 may the minor be
kept or detained in a | 28 |
| detention home or county or municipal jail. This
Section shall | 29 |
| in no way be construed to limit subsection (6).
| 30 |
| (6) No minor under 16 years of age may be confined in a | 31 |
| jail or place
ordinarily used for the confinement of prisoners | 32 |
| in a police station. Minors
under 17 years of age must be kept | 33 |
| separate from confined adults and may
not at any time be kept | 34 |
| in the same cell, room, or yard with adults confined
pursuant | 35 |
| to the criminal law.
| 36 |
| (7) If the minor is not brought before a judicial officer |
|
|
|
HB2543 |
- 9 - |
LRB094 09292 RXD 39531 b |
|
| 1 |
| within the
time period as specified in Section 2-9, the minor | 2 |
| must immediately be
released from custody.
| 3 |
| (8) If neither the parent, guardian or custodian appears | 4 |
| within 24
hours to take custody of a minor released upon | 5 |
| request pursuant to
subsection (2) of this Section, then the | 6 |
| clerk of the court shall set the
matter for rehearing not later | 7 |
| than 7 days after the original order and
shall issue a summons | 8 |
| directed to the parent, guardian or custodian to
appear. At the | 9 |
| same time the probation department shall prepare a report
on | 10 |
| the minor. If a parent, guardian or custodian does not appear | 11 |
| at such
rehearing, the judge may enter an order prescribing | 12 |
| that the minor be kept
in a suitable place designated by the | 13 |
| Department of Children and Family
Services or a licensed child | 14 |
| welfare agency.
| 15 |
| (9) Notwithstanding any other provision of this
Section any | 16 |
| interested party, including the State, the temporary
| 17 |
| custodian, an agency providing services to the minor or family | 18 |
| under a
service plan pursuant to Section 8.2 of the Abused and | 19 |
| Neglected Child
Reporting Act, foster parent, or any of their | 20 |
| representatives, on notice
to all parties entitled to notice, | 21 |
| may file a motion that it is in the best
interests of the minor | 22 |
| to modify or vacate a
temporary custody order on any of the | 23 |
| following grounds:
| 24 |
| (a) It is no longer a matter of immediate and urgent | 25 |
| necessity that the
minor remain in shelter care; or
| 26 |
| (b) There is a material change in the circumstances of | 27 |
| the natural
family from which the minor was removed and the | 28 |
| child can be cared for at
home without endangering the | 29 |
| child's health or safety; or
| 30 |
| (c) A person not a party to the alleged abuse, neglect | 31 |
| or dependency,
including a parent, relative or legal | 32 |
| guardian, is capable of assuming
temporary custody of the | 33 |
| minor; or
| 34 |
| (d) Services provided by the Department of Children and | 35 |
| Family Services
or a child welfare agency or other service | 36 |
| provider have been successful in
eliminating the need for |
|
|
|
HB2543 |
- 10 - |
LRB094 09292 RXD 39531 b |
|
| 1 |
| temporary custody and the child can be cared for at
home | 2 |
| without endangering the child's health or safety.
| 3 |
| In ruling on the motion, the court shall determine whether | 4 |
| it is consistent
with the health, safety and best interests of | 5 |
| the minor to modify
or vacate a temporary custody order.
| 6 |
| The clerk shall set the matter for hearing not later than | 7 |
| 14 days after
such motion is filed. In the event that the court | 8 |
| modifies or vacates a
temporary custody order but does not | 9 |
| vacate its finding of probable cause,
the court may order that | 10 |
| appropriate services be continued or initiated in
behalf of the | 11 |
| minor and his or her family.
| 12 |
| (10) When the court finds or has found that there is | 13 |
| probable cause to
believe a minor is an abused minor as | 14 |
| described in subsection (2) of Section
2-3
and that there is an | 15 |
| immediate and urgent necessity for the abused minor to be
| 16 |
| placed in shelter care, immediate and urgent necessity shall be | 17 |
| presumed for
any other minor residing in the same household as | 18 |
| the abused minor provided:
| 19 |
| (a) Such other minor is the subject of an abuse or | 20 |
| neglect petition
pending before the court; and
| 21 |
| (b) A party to the petition is seeking shelter care for | 22 |
| such other minor.
| 23 |
| Once the presumption of immediate and urgent necessity has | 24 |
| been raised, the
burden of demonstrating the lack of immediate | 25 |
| and urgent necessity shall be on
any party that is opposing | 26 |
| shelter care for the other minor.
| 27 |
| (Source: P.A. 89-21, eff. 7-1-95; 89-422 ; 89-582,
eff. 1-1-97; | 28 |
| 89-626, eff. 8-9-96; 90-28, eff. 1-1-98; 90-87, eff. 9-1-97;
| 29 |
| 90-590, eff. 1-1-99; 90-655, eff. 7-30-98.)
| 30 |
| (705 ILCS 405/2-10.1) (from Ch. 37, par. 802-10.1)
| 31 |
| Sec. 2-10.1. Whenever a minor is placed in shelter care | 32 |
| with the
Department or a licensed child welfare agency in | 33 |
| accordance with Section
2-10, the Department or agency, as | 34 |
| appropriate, shall prepare and file with
the court within 45 | 35 |
| days of placement under Section 2-10 a case plan which
complies |
|
|
|
HB2543 |
- 11 - |
LRB094 09292 RXD 39531 b |
|
| 1 |
| with the federal Adoption Assistance and Child Welfare Act of | 2 |
| 1980
and is consistent with the health, safety and best | 3 |
| interests of
the minor.
| 4 |
| For the purposes of this Act, "case plan" and "service | 5 |
| plan" shall have the same meaning. Where the minor's permanency | 6 |
| goal is to return home, each case plan filed pursuant to this | 7 |
| Act shall include an updated parent-child visiting plan. At all | 8 |
| stages of the proceeding, the parent-child visiting plan shall | 9 |
| be reviewable by the court pursuant to the procedure provided | 10 |
| under paragraph (2) of Section 2-10 of this Act. Nothing in | 11 |
| this Section shall prevent parent-child visitation where the | 12 |
| minor's permanency goal is other than to return home.
| 13 |
| (Source: P.A. 90-28, eff. 1-1-98.)
|
|