Illinois Compiled Statutes
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705 ILCS 405/3-12
(705 ILCS 405/3-12)
(from Ch. 37, par. 803-12)
Shelter care hearing.
At the appearance of the
minor before the court at the shelter care 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 a person requiring authoritative intervention, 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 a person requiring authoritative intervention, the minor, his or
her parent, guardian, custodian and other persons able to give relevant
testimony shall be examined before the court. After such testimony, the
court may enter an order that the minor shall be released upon the request
of a parent, guardian or custodian if the parent, guardian or custodian
appears to take custody. "Custodian" includes the Department of Children and Family Services, if it has been given custody of the child, or any other agency of the State which has been given custody or wardship of the child. The Court shall require
documentation by representatives of the Department of Children and Family
Services or the probation department as to the reasonable efforts that were
made to prevent or eliminate the necessity of removal of the minor from his
or her home, and shall consider the testimony of any person as to those
reasonable efforts. If the court finds that it is a
matter of immediate and urgent necessity for the 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 further finds that reasonable efforts have
been made or good cause has been shown why reasonable efforts cannot
prevent or eliminate the necessity of removal of the minor from his or her
home, the court may 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; otherwise it shall release the minor from custody.
If the court prescribes shelter care, then 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. 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 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.
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 reasonable
efforts have been made or that good cause has been shown why reasonable
efforts cannot prevent or eliminate the necessity of removal of the minor
from his or her home, the court shall state in writing its findings
concerning the nature of the services that were offered or the efforts that
were made to prevent removal of the child and the apparent reasons that such
services or efforts could not prevent the need for removal. 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
The order together with the court's findings of fact and 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.
(3) If prior to the shelter care hearing for a minor described in
Sections 2-3, 2-4, 3-3, and 4-3 the petitioner 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 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.
At the shelter care hearing, parents have the following rights:
1. To ask the court to appoint a lawyer if they
2. To ask the court to continue the hearing to allow
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
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 one day of your filing this
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
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
(4) If the parent, guardian, legal custodian, responsible relative, 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 18 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 specified in Section 3-11, 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 to modify or vacate a temporary custody order on any of the
(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; or
(c) A person, 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.
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) The changes made to this Section by Public Act 98-61 apply to a minor who has been
arrested or taken into custody on or after January 1, 2014 (the effective date
of Public Act 98-61).
(Source: P.A. 99-642, eff. 7-28-16; 100-159, eff. 8-18-17.)