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Public Act 102-0502


 

Public Act 0502 102ND GENERAL ASSEMBLY

  
  
  

 


 
Public Act 102-0502
 
HB3793 EnrolledLRB102 17050 KMF 22478 b

    AN ACT concerning courts.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Juvenile Court Act of 1987 is amended by
changing Section 2-10 as follows:
 
    (705 ILCS 405/2-10)  (from Ch. 37, par. 802-10)
    Sec. 2-10. Temporary custody hearing. At the appearance of
the minor before the court at the temporary custody hearing,
all witnesses present shall be examined before the court in
relation to any matter connected with the allegations made in
the petition.
    (1) If the court finds that there is not probable cause to
believe that the minor is abused, neglected or dependent it
shall release the minor and dismiss the petition.
    (2) If the court finds that there is probable cause to
believe that the minor is abused, neglected or dependent, the
court shall state in writing the factual basis supporting its
finding and the minor, his or her parent, guardian, custodian
and other persons able to give relevant testimony shall be
examined before the court. The Department of Children and
Family Services shall give testimony concerning indicated
reports of abuse and neglect, of which they are aware through
the central registry, involving the minor's parent, guardian
or custodian. After such testimony, the court may, consistent
with the health, safety and best interests of the minor, enter
an order that the minor shall be released upon the request of
parent, guardian or custodian if the parent, guardian or
custodian appears to take custody. If it is determined that a
parent's, guardian's, or custodian's compliance with critical
services mitigates the necessity for removal of the minor from
his or her home, the court may enter an Order of Protection
setting forth reasonable conditions of behavior that a parent,
guardian, or custodian must observe for a specified period of
time, not to exceed 12 months, without a violation; provided,
however, that the 12-month period shall begin anew after any
violation. "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. If it is consistent with the health,
safety and best interests of the minor, the court may also
prescribe shelter care and order that the minor be kept in a
suitable place designated by the court or in a shelter care
facility designated by the Department of Children and Family
Services or a licensed child welfare agency; however, on and
after January 1, 2015 (the effective date of Public Act
98-803) and before January 1, 2017, a minor charged with a
criminal offense under the Criminal Code of 1961 or the
Criminal Code of 2012 or adjudicated delinquent shall not be
placed in the custody of or committed to the Department of
Children and Family Services by any court, except a minor less
than 16 years of age and committed to the Department of
Children and Family Services under Section 5-710 of this Act
or a minor for whom an independent basis of abuse, neglect, or
dependency exists; and on and after January 1, 2017, a minor
charged with a criminal offense under the Criminal Code of
1961 or the Criminal Code of 2012 or adjudicated delinquent
shall not be placed in the custody of or committed to the
Department of Children and Family Services by any court,
except a minor less than 15 years of age and committed to the
Department of Children and Family Services under Section 5-710
of this Act or a minor for whom an independent basis of abuse,
neglect, or dependency exists. An independent basis exists
when the allegations or adjudication of abuse, neglect, or
dependency do not arise from the same facts, incident, or
circumstances which give rise to a charge or adjudication of
delinquency.
    In placing the minor, the Department or other agency
shall, to the extent compatible with the court's order, comply
with Section 7 of the Children and Family Services Act. In
determining the health, safety and best interests of the minor
to prescribe shelter care, the court must find that it is a
matter of immediate and urgent necessity for the safety and
protection of the minor or of the person or property of another
that the minor be placed in a shelter care facility or that he
or she is likely to flee the jurisdiction of the court, and
must further find that reasonable efforts have been made or
that, consistent with the health, safety and best interests of
the minor, no efforts reasonably can be made to prevent or
eliminate the necessity of removal of the minor from his or her
home. The court shall require documentation from the
Department of Children and Family Services as to the
reasonable efforts that were made to prevent or eliminate the
necessity of removal of the minor from his or her home or the
reasons why no efforts reasonably could be made to prevent or
eliminate the necessity of removal. When a minor is placed in
the home of a relative, the Department of Children and Family
Services shall complete a preliminary background review of the
members of the minor's custodian's household in accordance
with Section 4.3 of the Child Care Act of 1969 within 90 days
of that placement. If the minor is ordered placed in a shelter
care facility of the Department of Children and Family
Services or a licensed child welfare agency, the court shall,
upon request of the appropriate Department or other agency,
appoint the Department of Children and Family Services
Guardianship Administrator or other appropriate agency
executive temporary custodian of the minor and the court may
enter such other orders related to the temporary custody as it
deems fit and proper, including the provision of services to
the minor or his family to ameliorate the causes contributing
to the finding of probable cause or to the finding of the
existence of immediate and urgent necessity.
    Where the Department of Children and Family Services
Guardianship Administrator is appointed as the executive
temporary custodian, the Department of Children and Family
Services shall file with the court and serve on the parties a
parent-child visiting plan, within 10 days, excluding weekends
and holidays, after the appointment. The parent-child visiting
plan shall set out the time and place of visits, the frequency
of visits, the length of visits, who shall be present at the
visits, and where appropriate, the minor's opportunities to
have telephone and mail communication with the parents.
    Where the Department of Children and Family Services
Guardianship Administrator is appointed as the executive
temporary custodian, and when the child has siblings in care,
the Department of Children and Family Services shall file with
the court and serve on the parties a sibling placement and
contact plan within 10 days, excluding weekends and holidays,
after the appointment. The sibling placement and contact plan
shall set forth whether the siblings are placed together, and
if they are not placed together, what, if any, efforts are
being made to place them together. If the Department has
determined that it is not in a child's best interest to be
placed with a sibling, the Department shall document in the
sibling placement and contact plan the basis for its
determination. For siblings placed separately, the sibling
placement and contact plan shall set the time and place for
visits, the frequency of the visits, the length of visits, who
shall be present for the visits, and where appropriate, the
child's opportunities to have contact with their siblings in
addition to in person contact. If the Department determines it
is not in the best interest of a sibling to have contact with a
sibling, the Department shall document in the sibling
placement and contact plan the basis for its determination.
The sibling placement and contact plan shall specify a date
for development of the Sibling Contact Support Plan, under
subsection (f) of Section 7.4 of the Children and Family
Services Act, and shall remain in effect until the Sibling
Contact Support Plan is developed.
    For good cause, the court may waive the requirement to
file the parent-child visiting plan or the sibling placement
and contact plan, or extend the time for filing either plan.
Any party may, by motion, request the court to review the
parent-child visiting plan to determine whether it is
reasonably calculated to expeditiously facilitate the
achievement of the permanency goal. A party may, by motion,
request the court to review the parent-child visiting plan or
the sibling placement and contact plan to determine whether it
is consistent with the minor's best interest. The court may
refer the parties to mediation where available. The frequency,
duration, and locations of visitation shall be measured by the
needs of the child and family, and not by the convenience of
Department personnel. Child development principles shall be
considered by the court in its analysis of how frequent
visitation should be, how long it should last, where it should
take place, and who should be present. If upon motion of the
party to review either plan and after receiving evidence, the
court determines that the parent-child visiting plan is not
reasonably calculated to expeditiously facilitate the
achievement of the permanency goal or that the restrictions
placed on parent-child contact or sibling placement or contact
are contrary to the child's best interests, the court shall
put in writing the factual basis supporting the determination
and enter specific findings based on the evidence. The court
shall enter an order for the Department to implement changes
to the parent-child visiting plan or sibling placement or
contact plan, consistent with the court's findings. At any
stage of proceeding, any party may by motion request the court
to enter any orders necessary to implement the parent-child
visiting plan, sibling placement or contact plan or
subsequently developed Sibling Contact Support Plan. Nothing
under this subsection (2) shall restrict the court from
granting discretionary authority to the Department to increase
opportunities for additional parent-child contacts or sibling
contacts, without further court orders. Nothing in this
subsection (2) shall restrict the Department from immediately
restricting or terminating parent-child contact or sibling
contacts, without either amending the parent-child visiting
plan or the sibling contact plan or obtaining a court order,
where the Department or its assigns reasonably believe there
is an immediate need to protect the child's health, safety,
and welfare. Such restrictions or terminations must be based
on available facts to the Department and its assigns when
viewed in light of the surrounding circumstances and shall
only occur on an individual case-by-case basis that
continuation of the contact, as set out in the plan, would be
contrary to the child's health, safety, and welfare. The
Department shall file with the court and serve on the parties
any amendments to the plan within 10 days, excluding weekends
and holidays, of the change of the visitation.
    Acceptance of services shall not be considered an
admission of any allegation in a petition made pursuant to
this Act, nor may a referral of services be considered as
evidence in any proceeding pursuant to this Act, except where
the issue is whether the Department has made reasonable
efforts to reunite the family. In making its findings that it
is consistent with the health, safety and best interests of
the minor to prescribe shelter care, the court shall state in
writing (i) the factual basis supporting its findings
concerning the immediate and urgent necessity for the
protection of the minor or of the person or property of another
and (ii) the factual basis supporting its findings that
reasonable efforts were made to prevent or eliminate the
removal of the minor from his or her home or that no efforts
reasonably could be made to prevent or eliminate the removal
of the minor from his or her home. The parents, guardian,
custodian, temporary custodian and minor shall each be
furnished a copy of such written findings. The temporary
custodian shall maintain a copy of the court order and written
findings in the case record for the child. The order together
with the court's findings of fact in support thereof shall be
entered of record in the court.
    Once the court finds that it is a matter of immediate and
urgent necessity for the protection of the minor that the
minor be placed in a shelter care facility, the minor shall not
be returned to the parent, custodian or guardian until the
court finds that such placement is no longer necessary for the
protection of the minor.
    If the child is placed in the temporary custody of the
Department of Children and Family Services for his or her
protection, the court shall admonish the parents, guardian,
custodian or responsible relative that the parents must
cooperate with the Department of Children and Family Services,
comply with the terms of the service plans, and correct the
conditions which require the child to be in care, or risk
termination of their parental rights. The court shall ensure,
by inquiring in open court of each parent, guardian, custodian
or responsible relative, that the parent, guardian, custodian
or responsible relative has had the opportunity to provide the
Department with all known names, addresses, and telephone
numbers of each of the minor's living maternal and paternal
adult relatives, including, but not limited to, grandparents,
aunts, uncles, and siblings. The court shall advise the
parents, guardian, custodian or responsible relative to inform
the Department if additional information regarding the minor's
adult relatives becomes available.
    (3) If prior to the shelter care hearing for a minor
described in Sections 2-3, 2-4, 3-3 and 4-3 the moving party is
unable to serve notice on the party respondent, the shelter
care hearing may proceed ex parte. A shelter care order from an
ex parte hearing shall be endorsed with the date and hour of
issuance and shall be filed with the clerk's office and
entered of record. The order shall expire after 10 days from
the time it is issued unless before its expiration it is
renewed, at a hearing upon appearance of the party respondent,
or upon an affidavit of the moving party as to all diligent
efforts to notify the party respondent by notice as herein
prescribed. The notice prescribed shall be in writing and
shall be personally delivered to the minor or the minor's
attorney and to the last known address of the other person or
persons entitled to notice. The notice shall also state the
nature of the allegations, the nature of the order sought by
the State, including whether temporary custody is sought, and
the consequences of failure to appear and shall contain a
notice that the parties will not be entitled to further
written notices or publication notices of proceedings in this
case, including the filing of an amended petition or a motion
to terminate parental rights, except as required by Supreme
Court Rule 11; and shall explain the right of the parties and
the procedures to vacate or modify a shelter care order as
provided in this Section. The notice for a shelter care
hearing shall be substantially as follows:
NOTICE TO PARENTS AND CHILDREN
OF SHELTER CARE HEARING
        On ................ at ........., before the Honorable
    ................, (address:) ................., the State
    of Illinois will present evidence (1) that (name of child
    or children) ....................... are abused, neglected
    or dependent for the following reasons:
    .............................................. and (2)
    whether there is "immediate and urgent necessity" to
    remove the child or children from the responsible
    relative.
        YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN
    PLACEMENT of the child or children in foster care until a
    trial can be held. A trial may not be held for up to 90
    days. You will not be entitled to further notices of
    proceedings in this case, including the filing of an
    amended petition or a motion to terminate parental rights.
        At the shelter care hearing, parents have the
    following rights:
            1. To ask the court to appoint a lawyer if they
        cannot afford one.
            2. To ask the court to continue the hearing to
        allow them time to prepare.
            3. To present evidence concerning:
                a. Whether or not the child or children were
            abused, neglected or dependent.
                b. Whether or not there is "immediate and
            urgent necessity" to remove the child from home
            (including: their ability to care for the child,
            conditions in the home, alternative means of
            protecting the child other than removal).
                c. The best interests of the child.
            4. To cross examine the State's witnesses.
 
    The Notice for rehearings shall be substantially as
follows:
NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
TO REHEARING ON TEMPORARY CUSTODY
        If you were not present at and did not have adequate
    notice of the Shelter Care Hearing at which temporary
    custody of ............... was awarded to
    ................, you have the right to request a full
    rehearing on whether the State should have temporary
    custody of ................. To request this rehearing,
    you must file with the Clerk of the Juvenile Court
    (address): ........................, in person or by
    mailing a statement (affidavit) setting forth the
    following:
            1. That you were not present at the shelter care
        hearing.
            2. That you did not get adequate notice
        (explaining how the notice was inadequate).
            3. Your signature.
            4. Signature must be notarized.
        The rehearing should be scheduled within 48 hours of
    your filing this affidavit.
        At the rehearing, your rights are the same as at the
    initial shelter care hearing. The enclosed notice explains
    those rights.
        At the Shelter Care Hearing, children have the
    following rights:
            1. To have a guardian ad litem appointed.
            2. To be declared competent as a witness and to
        present testimony concerning:
                a. Whether they are abused, neglected or
            dependent.
                b. Whether there is "immediate and urgent
            necessity" to be removed from home.
                c. Their best interests.
            3. To cross examine witnesses for other parties.
            4. To obtain an explanation of any proceedings and
        orders of the court.
    (4) If the parent, guardian, legal custodian, responsible
relative, minor age 8 or over, or counsel of the minor did not
have actual notice of or was not present at the shelter care
hearing, he or she may file an affidavit setting forth these
facts, and the clerk shall set the matter for rehearing not
later than 48 hours, excluding Sundays and legal holidays,
after the filing of the affidavit. At the rehearing, the court
shall proceed in the same manner as upon the original hearing.
    (5) Only when there is reasonable cause to believe that
the minor taken into custody is a person described in
subsection (3) of Section 5-105 may the minor be kept or
detained in a detention home or county or municipal jail. This
Section shall in no way be construed to limit subsection (6).
    (6) No minor under 16 years of age may be confined in a
jail or place ordinarily used for the confinement of prisoners
in a police station. Minors under 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 as specified in Section 2-9, the minor
must immediately be released from custody.
    (8) If neither the parent, guardian or custodian appears
within 24 hours to take custody of a minor released upon
request pursuant to subsection (2) of this Section, then the
clerk of the court shall set the matter for rehearing not later
than 7 days after the original order and shall issue a summons
directed to the parent, guardian or custodian to appear. At
the same time the probation department shall prepare a report
on the minor. If a parent, guardian or custodian does not
appear at such rehearing, the judge may enter an order
prescribing that the minor be kept in a suitable place
designated by the Department of Children and Family Services
or a licensed child welfare agency.
    (9) Notwithstanding any other provision of this Section
any interested party, including the State, the temporary
custodian, an agency providing services to the minor or family
under a service plan pursuant to Section 8.2 of the Abused and
Neglected Child Reporting Act, foster parent, or any of their
representatives, on notice to all parties entitled to notice,
may file a motion that it is in the best interests of the minor
to modify or vacate a temporary custody order on any of the
following grounds:
        (a) It is no longer a matter of immediate and urgent
    necessity that the minor remain in shelter care; or
        (b) There is a material change in the circumstances of
    the natural family from which the minor was removed and
    the child can be cared for at home without endangering the
    child's health or safety; or
        (c) A person not a party to the alleged abuse, neglect
    or dependency, including a parent, relative or legal
    guardian, is capable of assuming temporary custody of the
    minor; or
        (d) Services provided by the Department of Children
    and Family Services or a child welfare agency or other
    service provider have been successful in eliminating the
    need for temporary custody and the child can be cared for
    at home without endangering the child's health or safety.
    In ruling on the motion, the court shall determine whether
it is consistent with the health, safety and best interests of
the minor to modify or vacate a temporary custody order.
    The clerk shall set the matter for hearing not later than
14 days after such motion is filed. In the event that the court
modifies or vacates a temporary custody order but does not
vacate its finding of probable cause, the court may order that
appropriate services be continued or initiated in behalf of
the minor and his or her family.
    (10) When the court finds or has found that there is
probable cause to believe a minor is an abused minor as
described in subsection (2) of Section 2-3 and that there is an
immediate and urgent necessity for the abused minor to be
placed in shelter care, immediate and urgent necessity shall
be presumed for any other minor residing in the same household
as the abused minor provided:
        (a) Such other minor is the subject of an abuse or
    neglect petition pending before the court; and
        (b) A party to the petition is seeking shelter care
    for such other minor.
    Once the presumption of immediate and urgent necessity has
been raised, the burden of demonstrating the lack of immediate
and urgent necessity shall be on any party that is opposing
shelter care for the other minor.
    (11) 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).
    (12) After the court has placed a minor in the care of a
temporary custodian pursuant to this Section, any party may
file a motion requesting the court to grant the temporary
custodian the authority to serve as a surrogate decision maker
for the minor under the Health Care Surrogate Act for purposes
of making decisions pursuant to paragraph (1) of subsection
(b) of Section 20 of the Health Care Surrogate Act. The court
may grant the motion if it determines by clear and convincing
evidence that it is in the best interests of the minor to grant
the temporary custodian such authority. In making its
determination, the court shall weigh the following factors in
addition to considering the best interests factors listed in
subsection (4.05) of Section 1-3 of this Act:
        (a) the efforts to identify and locate the respondents
    and adult family members of the minor and the results of
    those efforts;
        (b) the efforts to engage the respondents and adult
    family members of the minor in decision making on behalf
    of the minor;
        (c) the length of time the efforts in paragraphs (a)
    and (b) have been ongoing;
        (d) the relationship between the respondents and adult
    family members and the minor;
        (e) medical testimony regarding the extent to which
    the minor is suffering and the impact of a delay in
    decision-making on the minor; and
        (f) any other factor the court deems relevant.
    If the Department of Children and Family Services is the
temporary custodian of the minor, in addition to the
requirements of paragraph (1) of subsection (b) of Section 20
of the Health Care Surrogate Act, the Department shall follow
its rules and procedures in exercising authority granted under
this subsection.
(Source: P.A. 99-625, eff. 1-1-17; 99-642, eff. 7-28-16;
100-159, eff. 8-18-17; 100-863, eff. 8-14-18; 100-959, eff.
1-1-19.)

Effective Date: 1/1/2022