Public Act 100-0959
 
HB5157 EnrolledLRB100 19550 HEP 34818 b


  
    AN ACT concerning civil law.
  
 
    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 of 
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 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; revised 10-5-17.)
 
    Section 10. The Health Care Surrogate Act is amended  by 
changing Section 25 as follows:
 



    (755 ILCS 40/25)  (from Ch. 110 1/2, par. 851-25)


    Sec. 25. Surrogate decision making. 

    (a) When a patient lacks
decisional capacity, the health 
care provider must make a reasonable
inquiry as to the 
availability and authority of a health care agent under
the 
Powers of Attorney for Health Care Law.  When no health care 
agent is
authorized and available, the health care provider 
must make a reasonable
inquiry as to the availability of 
possible surrogates listed in items (1)
through (4) of this

subsection.  For purposes of this Section, a reasonable inquiry 
includes,
but is not
limited to, identifying a member of the 
patient's family or other health care
agent by
examining the 
patient's personal effects or medical records.  If a family

member or other
health care agent is identified, an attempt to 
contact that person by telephone
must be
made within 24 hours 
after a determination by the provider that the patient
lacks

decisional capacity.
No person shall be liable for civil 
damages or subject to
professional discipline based on a claim 
of violating a patient's
right to confidentiality as a result 
of making a reasonable
inquiry as to the availability of a 
patient's family member
or health care agent, except for 
willful or wanton misconduct.

    The surrogate decision makers, as
identified by the 
attending physician, are then authorized to make decisions
as 
follows:  (i) for patients who lack decisional capacity and do 
not have a
qualifying condition, medical treatment decisions 
may be made in
accordance with subsection (b-5) of Section 20; 
and (ii) for patients who
lack decisional capacity and have a 
qualifying condition, medical treatment
decisions including

whether to forgo life-sustaining treatment on behalf of the

patient may be made without court order or judicial involvement 
in the
following order of
priority:


        (1) the patient's guardian of the person;


        (2) the patient's spouse;


        (3) any adult son or daughter of the patient;


        (4) either parent of the patient;


        (5) any adult brother or sister of the patient;


        (6) any adult grandchild of the patient;


        (7) a close friend of the patient;


        (8) the patient's guardian of the estate; .
        (9) the patient's temporary custodian appointed under 
    subsection (2) of Section 2-10 of the Juvenile Court Act of 
    1987 if the court has entered an order granting such 
    authority pursuant to subsection (12) of Section 2-10 of 
    the Juvenile Court Act of 1987. 

    The health care provider shall have the right to rely on 
any of the above
surrogates if the provider believes after 
reasonable inquiry that neither a
health care agent under the 
Powers of Attorney for Health Care Law nor a
surrogate of 
higher priority is available.

    Where there are multiple surrogate decision makers at the 
same
priority level in the hierarchy, it shall be the 
responsibility of
those surrogates to make reasonable efforts 
to reach a consensus as
to their decision on behalf of the 
patient regarding the forgoing
of life-sustaining treatment.  
If 2 or more surrogates who are in
the same category and have 
equal priority indicate to the attending
physician that they 
disagree about the health care matter at issue,
a majority of 
the available persons in that category (or the parent
with 
custodial rights) shall control, unless the minority (or the

parent without custodial rights) initiates guardianship 
proceedings in
accordance with the Probate Act of 1975.  No 
health care provider or other
person is required to seek 
appointment of a guardian.

    (b) After a surrogate has been identified, the name, 
address,
telephone number, and relationship of that person to 
the patient
shall be recorded in the patient's medical record.

    (c) Any surrogate who becomes unavailable for any reason 
may be replaced
by applying the provisions of Section 25 in the 
same manner as for the
initial choice of surrogate.

    (d) In the event an individual of a higher priority to an 
identified
surrogate becomes available and willing to be the 
surrogate, the individual
with higher priority may be 
identified as the surrogate.  In the event
an individual in a 
higher, a lower, or the same priority level or a health
care 
provider seeks to challenge the priority of or the 
life-sustaining
treatment decision of the recognized surrogate 
decision maker, the
challenging party may initiate 
guardianship proceedings in accordance with
the Probate Act of 
1975.

    (e) The surrogate decision maker shall have the same right 
as
the patient to receive medical information and medical 
records and to
consent to disclosure.

    (f) Any surrogate shall have the authority to make 
decisions for the patient until removed by the patient who no 
longer lacks decisional capacity, appointment of a guardian of 
the person, or the patient's death. 
(Source: P.A. 96-492, eff. 8-14-09.)