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

HB3793ham001 102ND GENERAL ASSEMBLY

Rep. Delia C. Ramirez

Filed: 4/8/2021

 

 


 

 


 
10200HB3793ham001LRB102 17050 KMF 23976 a

1
AMENDMENT TO HOUSE BILL 3793

2    AMENDMENT NO. ______. Amend House Bill 3793 by replacing
3everything after the enacting clause with the following:
 
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

 

 

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1court shall state in writing the factual basis supporting its
2finding and the minor, his or her parent, guardian, custodian
3and other persons able to give relevant testimony shall be
4examined before the court. The Department of Children and
5Family Services shall give testimony concerning indicated
6reports of abuse and neglect, of which they are aware through
7the central registry, involving the minor's parent, guardian
8or custodian. After such testimony, the court may, consistent
9with the health, safety and best interests of the minor, enter
10an order that the minor shall be released upon the request of
11parent, guardian or custodian if the parent, guardian or
12custodian appears to take custody. If it is determined that a
13parent's, guardian's, or custodian's compliance with critical
14services mitigates the necessity for removal of the minor from
15his or her home, the court may enter an Order of Protection
16setting forth reasonable conditions of behavior that a parent,
17guardian, or custodian must observe for a specified period of
18time, not to exceed 12 months, without a violation; provided,
19however, that the 12-month period shall begin anew after any
20violation. "Custodian" includes the Department of Children and
21Family Services, if it has been given custody of the child, or
22any other agency of the State which has been given custody or
23wardship of the child. If it is consistent with the health,
24safety and best interests of the minor, the court may also
25prescribe shelter care and order that the minor be kept in a
26suitable place designated by the court or in a shelter care

 

 

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1facility designated by the Department of Children and Family
2Services or a licensed child welfare agency; however, on and
3after January 1, 2015 (the effective date of Public Act
498-803) and before January 1, 2017, a minor charged with a
5criminal offense under the Criminal Code of 1961 or the
6Criminal Code of 2012 or adjudicated delinquent shall not be
7placed in the custody of or committed to the Department of
8Children and Family Services by any court, except a minor less
9than 16 years of age and committed to the Department of
10Children and Family Services under Section 5-710 of this Act
11or a minor for whom an independent basis of abuse, neglect, or
12dependency exists; and on and after January 1, 2017, a minor
13charged with a criminal offense under the Criminal Code of
141961 or the Criminal Code of 2012 or adjudicated delinquent
15shall not be placed in the custody of or committed to the
16Department of Children and Family Services by any court,
17except a minor less than 15 years of age and committed to the
18Department of Children and Family Services under Section 5-710
19of this Act or a minor for whom an independent basis of abuse,
20neglect, or dependency exists. An independent basis exists
21when the allegations or adjudication of abuse, neglect, or
22dependency do not arise from the same facts, incident, or
23circumstances which give rise to a charge or adjudication of
24delinquency.
25    In placing the minor, the Department or other agency
26shall, to the extent compatible with the court's order, comply

 

 

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1with Section 7 of the Children and Family Services Act. In
2determining the health, safety and best interests of the minor
3to prescribe shelter care, the court must find that it is a
4matter of immediate and urgent necessity for the safety and
5protection of the minor or of the person or property of another
6that the minor be placed in a shelter care facility or that he
7or she is likely to flee the jurisdiction of the court, and
8must further find that reasonable efforts have been made or
9that, consistent with the health, safety and best interests of
10the minor, no efforts reasonably can be made to prevent or
11eliminate the necessity of removal of the minor from his or her
12home. The court shall require documentation from the
13Department of Children and Family Services as to the
14reasonable efforts that were made to prevent or eliminate the
15necessity of removal of the minor from his or her home or the
16reasons why no efforts reasonably could be made to prevent or
17eliminate the necessity of removal. When a minor is placed in
18the home of a relative, the Department of Children and Family
19Services shall complete a preliminary background review of the
20members of the minor's custodian's household in accordance
21with Section 4.3 of the Child Care Act of 1969 within 90 days
22of that placement. If the minor is ordered placed in a shelter
23care facility of the Department of Children and Family
24Services or a licensed child welfare agency, the court shall,
25upon request of the appropriate Department or other agency,
26appoint the Department of Children and Family Services

 

 

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1Guardianship Administrator or other appropriate agency
2executive temporary custodian of the minor and the court may
3enter such other orders related to the temporary custody as it
4deems fit and proper, including the provision of services to
5the minor or his family to ameliorate the causes contributing
6to the finding of probable cause or to the finding of the
7existence of immediate and urgent necessity.
8    Where the Department of Children and Family Services
9Guardianship Administrator is appointed as the executive
10temporary custodian, the Department of Children and Family
11Services shall file with the court and serve on the parties a
12parent-child visiting plan, within 10 days, excluding weekends
13and holidays, after the appointment. The parent-child visiting
14plan shall set out the time and place of visits, the frequency
15of visits, the length of visits, who shall be present at the
16visits, and where appropriate, the minor's opportunities to
17have telephone and mail communication with the parents.
18    Where the Department of Children and Family Services
19Guardianship Administrator is appointed as the executive
20temporary custodian, and when the child has siblings in care,
21the Department of Children and Family Services shall file with
22the court and serve on the parties a sibling placement and
23contact plan within 10 days, excluding weekends and holidays,
24after the appointment. The sibling placement and contact plan
25shall set forth whether the siblings are placed together, and
26if they are not placed together, what, if any, efforts are

 

 

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1being made to place them together. If the Department has
2determined that it is not in a child's best interest to be
3placed with a sibling, the Department shall document in the
4sibling placement and contact plan the basis for its
5determination. For siblings placed separately, the sibling
6placement and contact plan shall set the time and place for
7visits, the frequency of the visits, the length of visits, who
8shall be present for the visits, and where appropriate, the
9child's opportunities to have contact with their siblings in
10addition to in person contact. If the Department determines it
11is not in the best interest of a sibling to have contact with a
12sibling, the Department shall document in the sibling
13placement and contact plan the basis for its determination.
14The sibling placement and contact plan shall specify a date
15for development of the Sibling Contact Support Plan, under
16subsection (f) of Section 7.4 of the Children and Family
17Services Act, and shall remain in effect until the Sibling
18Contact Support Plan is developed.
19    For good cause, the court may waive the requirement to
20file the parent-child visiting plan or the sibling placement
21and contact plan, or extend the time for filing either plan.
22Any party may, by motion, request the court to review the
23parent-child visiting plan to determine whether it is
24reasonably calculated to expeditiously facilitate the
25achievement of the permanency goal. A party may, by motion,
26request the court to review the parent-child visiting plan or

 

 

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1the sibling placement and contact plan to determine whether it
2is consistent with the minor's best interest. The court may
3refer the parties to mediation where available. The frequency,
4duration, and locations of visitation shall be measured by the
5needs of the child and family, and not by the convenience of
6Department personnel. Child development principles shall be
7considered by the court in its analysis of how frequent
8visitation should be, how long it should last, where it should
9take place, and who should be present. If upon motion of the
10party to review either plan and after receiving evidence, the
11court determines that the parent-child visiting plan is not
12reasonably calculated to expeditiously facilitate the
13achievement of the permanency goal or that the restrictions
14placed on parent-child contact or sibling placement or contact
15are contrary to the child's best interests, the court shall
16put in writing the factual basis supporting the determination
17and enter specific findings based on the evidence. The court
18shall enter an order for the Department to implement changes
19to the parent-child visiting plan or sibling placement or
20contact plan, consistent with the court's findings. At any
21stage of proceeding, any party may by motion request the court
22to enter any orders necessary to implement the parent-child
23visiting plan, sibling placement or contact plan or
24subsequently developed Sibling Contact Support Plan. Nothing
25under this subsection (2) shall restrict the court from
26granting discretionary authority to the Department to increase

 

 

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1opportunities for additional parent-child contacts or sibling
2contacts, without further court orders. Nothing in this
3subsection (2) shall restrict the Department from immediately
4restricting or terminating parent-child contact or sibling
5contacts, without either amending the parent-child visiting
6plan or the sibling contact plan or obtaining a court order,
7where the Department or its assigns reasonably believe there
8is an immediate need to protect the child's health, safety,
9and welfare. Such restrictions or terminations must be based
10on available facts to the Department and its assigns when
11viewed in light of the surrounding circumstances and shall
12only occur on an individual case-by-case basis that
13continuation of the contact, as set out in the plan, would be
14contrary to the child's health, safety, and welfare. The
15Department shall file with the court and serve on the parties
16any amendments to the plan within 10 days, excluding weekends
17and holidays, of the change of the visitation.
18    Acceptance of services shall not be considered an
19admission of any allegation in a petition made pursuant to
20this Act, nor may a referral of services be considered as
21evidence in any proceeding pursuant to this Act, except where
22the issue is whether the Department has made reasonable
23efforts to reunite the family. In making its findings that it
24is consistent with the health, safety and best interests of
25the minor to prescribe shelter care, the court shall state in
26writing (i) the factual basis supporting its findings

 

 

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1concerning the immediate and urgent necessity for the
2protection of the minor or of the person or property of another
3and (ii) the factual basis supporting its findings that
4reasonable efforts were made to prevent or eliminate the
5removal of the minor from his or her home or that no efforts
6reasonably could be made to prevent or eliminate the removal
7of the minor from his or her home. The parents, guardian,
8custodian, temporary custodian and minor shall each be
9furnished a copy of such written findings. The temporary
10custodian shall maintain a copy of the court order and written
11findings in the case record for the child. The order together
12with the court's findings of fact in support thereof shall be
13entered of record in the court.
14    Once the court finds that it is a matter of immediate and
15urgent necessity for the protection of the minor that the
16minor be placed in a shelter care facility, the minor shall not
17be returned to the parent, custodian or guardian until the
18court finds that such placement is no longer necessary for the
19protection of the minor.
20    If the child is placed in the temporary custody of the
21Department of Children and Family Services for his or her
22protection, the court shall admonish the parents, guardian,
23custodian or responsible relative that the parents must
24cooperate with the Department of Children and Family Services,
25comply with the terms of the service plans, and correct the
26conditions which require the child to be in care, or risk

 

 

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1termination of their parental rights. The court shall ensure,
2by inquiring in open court of each parent, guardian, custodian
3or responsible relative, that the parent, guardian, custodian
4or responsible relative has had the opportunity to provide the
5Department with all known names, addresses, and telephone
6numbers of each of the minor's living maternal and paternal
7adult relatives, including, but not limited to, grandparents,
8aunts, uncles, and siblings. The court shall advise the
9parents, guardian, custodian or responsible relative to inform
10the Department if additional information regarding the minor's
11adult relatives becomes available.
12    (3) If prior to the shelter care hearing for a minor
13described in Sections 2-3, 2-4, 3-3 and 4-3 the moving party is
14unable to serve notice on the party respondent, the shelter
15care hearing may proceed ex parte. A shelter care order from an
16ex parte hearing shall be endorsed with the date and hour of
17issuance and shall be filed with the clerk's office and
18entered of record. The order shall expire after 10 days from
19the time it is issued unless before its expiration it is
20renewed, at a hearing upon appearance of the party respondent,
21or upon an affidavit of the moving party as to all diligent
22efforts to notify the party respondent by notice as herein
23prescribed. The notice prescribed shall be in writing and
24shall be personally delivered to the minor or the minor's
25attorney and to the last known address of the other person or
26persons entitled to notice. The notice shall also state the

 

 

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

 

 

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1    proceedings in this case, including the filing of an
2    amended petition or a motion to terminate parental rights.
3        At the shelter care hearing, parents have the
4    following rights:
5            1. To ask the court to appoint a lawyer if they
6        cannot afford one.
7            2. To ask the court to continue the hearing to
8        allow them time to prepare.
9            3. To present evidence concerning:
10                a. Whether or not the child or children were
11            abused, neglected or dependent.
12                b. Whether or not there is "immediate and
13            urgent necessity" to remove the child from home
14            (including: their ability to care for the child,
15            conditions in the home, alternative means of
16            protecting the child other than removal).
17                c. The best interests of the child.
18            4. To cross examine the State's witnesses.
 
19    The Notice for rehearings shall be substantially as
20follows:
21
NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
22
TO REHEARING ON TEMPORARY CUSTODY
23        If you were not present at and did not have adequate
24    notice of the Shelter Care Hearing at which temporary
25    custody of ............... was awarded to

 

 

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1    ................, you have the right to request a full
2    rehearing on whether the State should have temporary
3    custody of ................. To request this rehearing,
4    you must file with the Clerk of the Juvenile Court
5    (address): ........................, in person or by
6    mailing a statement (affidavit) setting forth the
7    following:
8            1. That you were not present at the shelter care
9        hearing.
10            2. That you did not get adequate notice
11        (explaining how the notice was inadequate).
12            3. Your signature.
13            4. Signature must be notarized.
14        The rehearing should be scheduled within 48 hours of
15    your filing this affidavit.
16        At the rehearing, your rights are the same as at the
17    initial shelter care hearing. The enclosed notice explains
18    those rights.
19        At the Shelter Care Hearing, children have the
20    following rights:
21            1. To have a guardian ad litem appointed.
22            2. To be declared competent as a witness and to
23        present testimony concerning:
24                a. Whether they are abused, neglected or
25            dependent.
26                b. Whether there is "immediate and urgent

 

 

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1            necessity" to be removed from home.
2                c. Their best interests.
3            3. To cross examine witnesses for other parties.
4            4. To obtain an explanation of any proceedings and
5        orders of the court.
6    (4) If the parent, guardian, legal custodian, responsible
7relative, minor age 8 or over, or counsel of the minor did not
8have actual notice of or was not present at the shelter care
9hearing, he or she may file an affidavit setting forth these
10facts, and the clerk shall set the matter for rehearing not
11later than 48 hours, excluding Sundays and legal holidays,
12after the filing of the affidavit. At the rehearing, the court
13shall proceed in the same manner as upon the original hearing.
14    (5) Only when there is reasonable cause to believe that
15the minor taken into custody is a person described in
16subsection (3) of Section 5-105 may the minor be kept or
17detained in a detention home or county or municipal jail. This
18Section shall in no way be construed to limit subsection (6).
19    (6) No minor under 16 years of age may be confined in a
20jail or place ordinarily used for the confinement of prisoners
21in a police station. Minors under 18 years of age must be kept
22separate from confined adults and may not at any time be kept
23in the same cell, room, or yard with adults confined pursuant
24to the criminal law.
25    (7) If the minor is not brought before a judicial officer
26within the time period as specified in Section 2-9, the minor

 

 

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1must immediately be released from custody.
2    (8) If neither the parent, guardian or custodian appears
3within 24 hours to take custody of a minor released upon
4request pursuant to subsection (2) of this Section, then the
5clerk of the court shall set the matter for rehearing not later
6than 7 days after the original order and shall issue a summons
7directed to the parent, guardian or custodian to appear. At
8the same time the probation department shall prepare a report
9on the minor. If a parent, guardian or custodian does not
10appear at such rehearing, the judge may enter an order
11prescribing that the minor be kept in a suitable place
12designated by the Department of Children and Family Services
13or a licensed child welfare agency.
14    (9) Notwithstanding any other provision of this Section
15any interested party, including the State, the temporary
16custodian, an agency providing services to the minor or family
17under a service plan pursuant to Section 8.2 of the Abused and
18Neglected Child Reporting Act, foster parent, or any of their
19representatives, on notice to all parties entitled to notice,
20may file a motion that it is in the best interests of the minor
21to modify or vacate a temporary custody order on any of the
22following grounds:
23        (a) It is no longer a matter of immediate and urgent
24    necessity that the minor remain in shelter care; or
25        (b) There is a material change in the circumstances of
26    the natural family from which the minor was removed and

 

 

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1    the child can be cared for at home without endangering the
2    child's health or safety; or
3        (c) A person not a party to the alleged abuse, neglect
4    or dependency, including a parent, relative or legal
5    guardian, is capable of assuming temporary custody of the
6    minor; or
7        (d) Services provided by the Department of Children
8    and Family Services or a child welfare agency or other
9    service provider have been successful in eliminating the
10    need for temporary custody and the child can be cared for
11    at home without endangering the child's health or safety.
12    In ruling on the motion, the court shall determine whether
13it is consistent with the health, safety and best interests of
14the minor to modify or vacate a temporary custody order.
15    The clerk shall set the matter for hearing not later than
1614 days after such motion is filed. In the event that the court
17modifies or vacates a temporary custody order but does not
18vacate its finding of probable cause, the court may order that
19appropriate services be continued or initiated in behalf of
20the minor and his or her family.
21    (10) When the court finds or has found that there is
22probable cause to believe a minor is an abused minor as
23described in subsection (2) of Section 2-3 and that there is an
24immediate and urgent necessity for the abused minor to be
25placed in shelter care, immediate and urgent necessity shall
26be presumed for any other minor residing in the same household

 

 

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1as the abused minor provided:
2        (a) Such other minor is the subject of an abuse or
3    neglect petition pending before the court; and
4        (b) A party to the petition is seeking shelter care
5    for such other minor.
6    Once the presumption of immediate and urgent necessity has
7been raised, the burden of demonstrating the lack of immediate
8and urgent necessity shall be on any party that is opposing
9shelter care for the other minor.
10    (11) The changes made to this Section by Public Act 98-61
11apply to a minor who has been arrested or taken into custody on
12or after January 1, 2014 (the effective date of Public Act
1398-61).
14    (12) After the court has placed a minor in the care of a
15temporary custodian pursuant to this Section, any party may
16file a motion requesting the court to grant the temporary
17custodian the authority to serve as a surrogate decision maker
18for the minor under the Health Care Surrogate Act for purposes
19of making decisions pursuant to paragraph (1) of subsection
20(b) of Section 20 of the Health Care Surrogate Act. The court
21may grant the motion if it determines by clear and convincing
22evidence that it is in the best interests of the minor to grant
23the temporary custodian such authority. In making its
24determination, the court shall weigh the following factors in
25addition to considering the best interests factors listed in
26subsection (4.05) of Section 1-3 of this Act:

 

 

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1        (a) the efforts to identify and locate the respondents
2    and adult family members of the minor and the results of
3    those efforts;
4        (b) the efforts to engage the respondents and adult
5    family members of the minor in decision making on behalf
6    of the minor;
7        (c) the length of time the efforts in paragraphs (a)
8    and (b) have been ongoing;
9        (d) the relationship between the respondents and adult
10    family members and the minor;
11        (e) medical testimony regarding the extent to which
12    the minor is suffering and the impact of a delay in
13    decision-making on the minor; and
14        (f) any other factor the court deems relevant.
15    If the Department of Children and Family Services is the
16temporary custodian of the minor, in addition to the
17requirements of paragraph (1) of subsection (b) of Section 20
18of the Health Care Surrogate Act, the Department shall follow
19its rules and procedures in exercising authority granted under
20this subsection.
21(Source: P.A. 99-625, eff. 1-1-17; 99-642, eff. 7-28-16;
22100-159, eff. 8-18-17; 100-863, eff. 8-14-18; 100-959, eff.
231-1-19.)".