(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, the minor's 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 the minor's 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 the
minor 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 the minor's
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 the minor's 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 the minor's
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. 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 the minor's home or that no efforts reasonably could be made to prevent or
eliminate the removal of the minor from the minor's 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 the minor's 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 adult relatives, including, but not limited to, grandparents, siblings of the minor's parents, 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:
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.............................................. and (2)
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| whether there is "immediate and urgent necessity" to remove the child or children from the responsible relative.
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YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN
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| 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.
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At the shelter care hearing, parents have the
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1. To ask the court to appoint a lawyer if they
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2. To ask the court to continue the hearing to
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| allow them time to prepare.
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3. To present evidence concerning:
a. Whether or not the child or children were
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| abused, neglected or dependent.
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b. Whether or not there is "immediate and
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| 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).
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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:
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1. That you were not present at the shelter care
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2. That you did not get adequate notice
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| (explaining how the notice was inadequate).
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3. Your signature.
4. Signature must be notarized.
The rehearing should be scheduled within 48 hours of
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| your filing this affidavit.
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At the rehearing, your rights are the same as at the
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| initial shelter care hearing. The enclosed notice explains those rights.
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At the Shelter Care Hearing, children have the
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1. To have a guardian ad litem appointed.
2. To be declared competent as a witness and to
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| present testimony concerning:
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a. Whether they are abused, neglected or
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b. Whether there is "immediate and urgent
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| necessity" to be removed from home.
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c. Their best interests.
3. To cross examine witnesses for other parties.
4. To obtain an explanation of any proceedings
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(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, the parent, guardian, legal custodian, responsible
relative, minor age 8 or over, or counsel of the minor 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
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| necessity that the minor remain in shelter care; or
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(b) There is a material change in the circumstances
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| 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
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(c) A person not a party to the alleged abuse,
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| neglect or dependency, including a parent, relative or legal guardian, is capable of assuming temporary custody of the minor; or
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(d) Services provided by the Department of Children
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| 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.
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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. If the
minor is being restored to the custody of a parent, legal custodian, or guardian who lives
outside of Illinois, and an Interstate Compact has been requested and refused, the court may order the
Department of Children and Family Services to arrange for an assessment of the minor's
proposed living arrangement and for ongoing monitoring of the health, safety, and best
interest of the minor and compliance with any order of protective supervision entered in
accordance with Section 2-20 or 2-25.
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 the minor's 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
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| neglect petition pending before the court; and
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(b) A party to the petition is seeking shelter care
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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
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| respondents and adult family members of the minor and the results of those efforts;
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(b) the efforts to engage the respondents and
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| adult family members of the minor in decision making on behalf of the minor;
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(c) the length of time the efforts in paragraphs
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| (a) and (b) have been ongoing;
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(d) the relationship between the respondents and
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| adult family members and the minor;
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(e) medical testimony regarding the extent to which
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| the minor is suffering and the impact of a delay in decision-making on the minor; and
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(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. 102-489, eff. 8-20-21; 102-502, eff. 1-1-22; 102-813, eff. 5-13-22; 103-22, eff. 8-8-23.)
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