SB1478 103RD GENERAL ASSEMBLY

LRB103 25788 KTG 52137 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB1478

Introduced 2/7/2023, by Sen. Ann Gillespie

SYNOPSIS AS INTRODUCED:

20 ILCS 505/17a-16 new
20 ILCS 521/5
705 ILCS 405/1-5	from Ch. 37, par. 801-5
705 ILCS 405/1-6.5 new

Amends the Children and Family Services Act. Creates the Due Process for Youth Oversight Commission (Commission) to oversee the creation and implementation of a youth's statutory right to counsel in abuse and neglect proceedings conducted in accordance with the Juvenile Court Act of 1987. Requires the Commission to provide direction and operational phases for implementation statewide, provide status reports and recommendations to the General Assembly regarding implementation, and provide ongoing implementation and program oversight for 5 years after statewide transition is completed. Contains provisions concerning the Commission's membership; term limits; scheduled meetings; data support provided by the Department of Children and Family Services; Commission duties; and the date of the Commission's dissolution. Amends the Foster Children's Bill of Rights Act. Expands the rights afforded to every child placed in foster care to include the right to have a court appoint an attorney to represent the youth in any abuse or neglect case who will advocate for the youth's wishes and make recommendations to the court regarding the youth's care. Provides that this right applies to court proceedings pending or commenced on or after a date established by the Commission by administrative rule. Amends the Juvenile Court Act of 1987. Provides that immediately upon the filing of an abuse or neglect petition, the court shall appoint counsel for each minor who is the subject of that petition, unless the minor has already retained counsel. Provides that this requirement shall apply to court proceedings pending or commenced on or after a date established by the Commission by administrative rule. Provides that each respondent in any petition filed under the Act who is 8 years of age or older shall be furnished a written "Notice of Rights" at or before the first hearing at which the respondent appears. Provides that counsel appointed by a court to represent a minor in neglect or abuse proceedings shall have a minimum of one in-person contact with the minor prior to each hearing and at least one in-person contact every quarter. Effective immediately.

A BILL FOR

AN ACT concerning children.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Children and Family Services Act is amended by adding Section 17a-16 as follows:

(20 ILCS 505/17a-16 new)

Sec. 17a-16. Due Process for Youth Oversight Commission.

(a) Purpose. The Due Process for Youth Oversight Commission is created to oversee the creation and implementation of a youth's statutory right to counsel in proceedings conducted in accordance with Article II of the Juvenile Court Act of 1987. The Commission shall provide direction and operational phases for implementation statewide, provide status reports and recommendations to the General Assembly regarding implementation, and provide ongoing implementation and program oversight for 5 years after statewide transition is completed.

(b) Membership; operations. The Commission shall consist of the following members:

(1) One member of the Senate appointed by the Senate President.

(2) One member of the Senate appointed by the Senate Minority Leader.

(3) One member of the House of Representatives appointed by the Speaker of the House of Representatives.

(4) One member of the House of Representatives appointed by the Minority Leader of the House of Representatives.

(5) The Director of Children and Family Services or the Director's designee.

(6) One member of the Governor's Office appointed by the Governor.

(7) Two members who are judges from different counties who preside over proceedings in accordance with Article II of the Juvenile Court Act of 1987, appointed by the Chief Justice of the Illinois Supreme Court.

(8) One member representing the Administrative Office of the Illinois Courts, appointed by the Chief Justice of the Illinois Supreme Court.

(9) The Public Defender of Cook County or that Public Defender's designee.

(10) One member who provides legal representation on behalf of an Office of the Public Defender from a central region, appointed by that central region's Public Defender.

(11) One member who provides legal representation on behalf of an Office of the Public Defender from a downstate county with a population less than 500,000, appointed by that downstate jurisdiction's Public Defender.

(12) The Cook County Public Guardian, or the Cook County Public Guardian's designee.

(13) One member who is licensed to practice law in the State of Illinois and who provides client-directed legal services to indigent persons on behalf of a not-for-profit civil legal aid organization serving at least 5 counties in Illinois, appointed by the Commission's co-chairs.

(14) One member who manages a major law firm's pro bono program serving Illinois residents, appointed by the Commission's co-chairs.

(15) One member from a State university law school who is appointed as an attorney to represent minors in proceedings pending under Article II of the Juvenile Court Act of 1987 appointed by the Commission's co-chairs.

(16) Two members who have recent experience as youth in the child welfare system, at least one of whom identifies with a population disproportionately overrepresented in the child welfare system, appointed by the Commission's co-chairs.

(17) One member from a statewide organization advocating for the advancement of civil liberties for at least 80 years in Illinois, appointed by the Commission's co-chairs.

(18) One member who is a licensed clinical social worker who is employed by a non-for-profit agency contracted by the Department to provide services to youth who are the subjects of cases pending under Article II of the Juvenile Court Act of 1987, appointed by the Commission's co-chairs.

(19) A licensed attorney who is a member of the Illinois State Bar Association Child Law Section, appointed by the Commission's co-chairs.

The Commission shall have 2 co-chairs, one of whom shall be the House member appointed under paragraph (3) by the Speaker of the House of Representatives and one of whom shall be the Senate member appointed under paragraph (1) by the President of the Senate. Members shall serve 5-year terms or until the Commission dissolves. If a vacancy occurs in the Commission membership, the vacancy shall be filled in the same manner as the original appointment for the remainder of the unexpired term. Commission members shall serve without compensation except for members appointed under paragraph (16) of this subsection who shall receive stipends provided or issued by the Department.

The Commission shall convene meetings on a quarterly basis at the direction of the co-chairs. The first meeting shall be noticed 30 days after the effective date of this amendatory Act of the 103rd General Assembly. At the direction of the Illinois Supreme Court, the Administrative Office of the Illinois Courts shall provide administrative support to the Commission. The Commission shall dissolve 5 years after the effective date of this amendatory Act of the 103rd General Assembly.

For the full duration of the Commission and for the purposes of achieving the duties required under subsection (c), the Department of Children and Family Services shall provide the Commission with all necessary data held by the Department, with personal identifying information redacted. At the direction of the Illinois Supreme Court, the Administrative Office of the Illinois Courts shall provide necessary information to the Commission to aid the Commission in developing phases for statewide implementation of legal counsel for youth who are the subjects of proceedings pending under Article II of the Juvenile Court Act of 1987.

(c) Duties. No later than January 1, 2024, the Commission shall be authorized and empowered to take all action that is necessary and appropriate to complete the following duties:

(1) Review court practices and relevant case docket data related to the provision of legal counsel to parties in abuse and neglect proceedings.

(2) Provide recommendations on how to achieve the goal of ensuring that each youth is appointed an attorney who represents the youth in accordance with the Illinois Rules of Professional Conduct, taking into account current models of practice, applicable federal requirements, and the feasibility of proposed models, including current resources and the time needed to develop resources throughout the State.

(3) Provide recommendations regarding caseload levels for attorneys who are appointed to represent youth in pending cases arising under Article II of the Juvenile Court Act of 1987. Such recommendations shall take into account the jurisdictions in which cases are pending, the percentage of the attorney's practice that is spent on cases arising under Article II of the Juvenile Court Act of 1987, the complexity of the cases, and other relevant factors. Provide recommendations on how to ensure adherence to recommended caseload levels.

(4) Provide recommendations to the Illinois Supreme Court regarding any changes to any Illinois Supreme Court rules that are applicable to the representation of youth with pending cases arising under Article II of the Juvenile Court Act of 1987.

(5) Develop and provide recommendations to the Illinois Supreme Court regarding training for attorneys who represent youth in proceedings pending under Article II of the Juvenile Court Act.

(6) Make recommendations regarding the provision of a written "Notice of Rights" as described in Section 1-5 of the Juvenile Court Act of 1987 to every youth who is the subject of a proceeding under Article II of the Juvenile Court Act of 1987.

(7) Determine a plan for reducing and eventually eliminating the use of a single attorney filling the dual role of guardian ad litem and client-directed attorney.

(8) Report findings and recommendations annually to the Governor, the General Assembly, the Illinois Supreme Court, and the Department of Children and Family Services beginning the first year after the Commission convenes its first meeting. The report shall include, but not be limited to, the following:

(A) recommendations on the framework, guidelines, implementation phases, and timeline or benchmarks for the program providing attorneys to youth with pending cases arising under Article II of the Juvenile Court Act of 1987;

(B) recommendations for strengthening and expanding attorney workforce capacity;

(C) implementation progress and oversight findings;

(D) program funding and resource recommendations; and

(E) recommended statutory changes to improve program delivery.

Section 10. The Foster Children's Bill of Rights Act is amended by changing Section 5 as follows:

(20 ILCS 521/5)

Sec. 5. Foster Children's Bill of Rights. It is the policy of this State that every child and adult in the care of the Department of Children and Family Services who is placed in foster care shall have the following rights:

(1) To live in a safe, healthy, and comfortable home where he or she is treated with respect.

(2) To be free from physical, sexual, emotional, or other abuse, or corporal punishment.

(3) To receive adequate and healthy food, adequate clothing, and, for youth in group homes, residential treatment facilities, and foster homes, an allowance.

(4) To receive medical, dental, vision, and mental health services.

(5) To be free of the administration of medication or chemical substances, unless authorized by a physician.

(6) To contact family members, unless prohibited by court order, and social workers, attorneys, foster youth advocates and supporters, Court Appointed Special Advocates (CASAs), and probation officers.

(7) To visit and contact brothers and sisters, unless prohibited by court order.

(8) To contact the Advocacy Office for Children and Families established under the Children and Family Services Act or the Department of Children and Family Services' Office of the Inspector General regarding violations of rights, to speak to representatives of these offices confidentially, and to be free from threats or punishment for making complaints.

(9) To make and receive confidential telephone calls and send and receive unopened mail, unless prohibited by court order.

(10) To attend religious services and activities of his or her choice.

(11) To maintain an emancipation bank account and manage personal income, consistent with the child's age and developmental level, unless prohibited by the case plan.

(12) To not be locked in a room, building, or facility premises, unless placed in a secure child care facility licensed by the Department of Children and Family Services under the Child Care Act of 1969 and placed pursuant to Section 2-27.1 of the Juvenile Court Act of 1987.

(13) To attend school and participate in extracurricular, cultural, and personal enrichment activities, consistent with the child's age and developmental level, with minimal disruptions to school attendance and educational stability.

(14) To work and develop job skills at an age-appropriate level, consistent with State law.

(15) To have social contacts with people outside of the foster care system, including teachers, church members, mentors, and friends.

(16) If he or she meets age requirements, to attend services and programs operated by the Department of Children and Family Services or any other appropriate State agency that aim to help current and former foster youth achieve self-sufficiency prior to and after leaving foster care.

(17) To attend court hearings and speak to the judge.

(18) To have storage space for private use.

(19) To be involved in the development of his or her own case plan and plan for permanent placement.

(20) To review his or her own case plan and plan for permanent placement, if he or she is 12 years of age or older and in a permanent placement, and to receive information about his or her out-of-home placement and case plan, including being told of changes to the case plan.

(21) To be free from unreasonable searches of personal belongings.

(22) To the confidentiality of all juvenile court records consistent with existing law.

(23) To have fair and equal access to all available services, placement, care, treatment, and benefits, and to not be subjected to discrimination or harassment on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity, mental or physical disability, or HIV status.

(24) To have caregivers and child welfare personnel who have received sensitivity training and instruction on matters concerning race, ethnicity, national origin, color, ancestry, religion, mental and physical disability, and HIV status.

(25) To have caregivers and child welfare personnel who have received instruction on cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth in out-of-home care.

(26) At 16 years of age or older, to have access to existing information regarding the educational options available, including, but not limited to, the coursework necessary for vocational and postsecondary educational programs, and information regarding financial aid for postsecondary education.

(27) To have access to age-appropriate, medically accurate information about reproductive health care, the prevention of unplanned pregnancy, and the prevention and treatment of sexually transmitted infections at 12 years of age or older.

(28) To receive a copy of this Act from and have it fully explained by the Department of Children and Family Services when the child or adult is placed in the care of the Department of Children and Family Services.

(29) To be placed in the least restrictive and most family-like setting available and in close proximity to his or her parent's home consistent with his or her health, safety, best interests, and special needs.

(30) To participate in an age and developmentally appropriate intake process immediately after placement in the custody or guardianship of the Department. During the intake process, the Department shall provide the youth with a document describing inappropriate acts of affection, discipline, and punishment by guardians, foster parents, foster siblings, or any other adult responsible for the youth's welfare. The Department shall review and discuss the document with the child. The Department must document completion of the intake process in the child's records as well as giving a copy of the document to the child.

(31) To participate in appropriate intervention and counseling services after removal from the home of origin in order to assess whether the youth is exhibiting signs of traumatic stress, special needs, or mental illness.

(32) To receive a home visit by an assigned child welfare specialist, per existing Department policies and procedures, on a monthly basis or more frequently as needed. In addition to what existing policies and procedures outline, home visits shall be used to assess the youth's well-being and emotional health following placement, to determine the youth's relationship with the youth's guardian or foster parent or with any other adult responsible for the youth's welfare or living in or frequenting the home environment, and to determine what forms of discipline, if any, the youth's guardian or foster parent or any other person in the home environment uses to correct the youth.

(33) To be enrolled in an independent living services program prior to transitioning out of foster care where the youth will receive classes and instruction, appropriate to the youth's age and developmental capacity, on independent living and self-sufficiency in the areas of employment, finances, meals, and housing as well as help in developing life skills and long-term goals.

(34) To be assessed by a third-party entity or agency prior to enrollment in any independent living services program in order to determine the youth's readiness for a transition out of foster care based on the youth's individual needs, emotional development, and ability, regardless of age, to make a successful transition to adulthood.

(35) To have a court appoint an attorney to represent the youth in any case arising under Article II of the Juvenile Court Act of 1987 who will advocate for the youth's wishes and make recommendations to the court regarding the youth's care, including requests for court intervention to address the youth's concerns, quality of care, permanency goals, visitation, placement and service plans, education, and needs. The changes made to this Section by this amendatory Act of the 103rd General Assembly apply to court proceedings pending or commenced on or after a date established by the Due Process for Youth Oversight Commission by administrative rule.

(Source: P.A. 102-810, eff. 1-1-23.)

Section 15. The Juvenile Court Act of 1987 is amended by changing Section 1-5 and by adding Section 1-6.5 as follows:

(705 ILCS 405/1-5) (from Ch. 37, par. 801-5)

Sec. 1-5. Rights of parties to proceedings.

(1) Except as provided in this Section and paragraph (2) of Sections 2-22, 3-23, 4-20, 5-610 or 5-705, the minor who is the subject of the proceeding and his or her parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and also, although proceedings under this Act are not intended to be adversary in character, the right to be represented by counsel. Immediately upon the filing of a petition under Article II of this Act, the court shall appoint counsel for each minor who is the subject of that petition, unless the minor has already retained counsel. The changes made to this Section by this amendatory Act of the 103rd General Assembly apply to court proceedings pending or commenced on or after a date established by the Due Process for Youth Oversight Commission by administrative rule.

At the request of any party financially unable to employ counsel, with the exception of a foster parent permitted to intervene under this Section, the court shall appoint the Public Defender or such other counsel as the case may require. Counsel appointed for the minor and any indigent party shall appear at all stages of the trial court proceeding, and such appointment shall continue through the permanency hearings and termination of parental rights proceedings subject to withdrawal, vacating of appointment, or substitution pursuant to Supreme Court Rules or the Code of Civil Procedure. Following the dispositional hearing, the court may require appointed counsel, other than counsel for the minor or counsel for the guardian ad litem, to withdraw his or her appearance upon failure of the party for whom counsel was appointed under this Section to attend any subsequent proceedings.

No hearing on any petition or motion filed under this Act may be commenced unless the minor who is the subject of the proceeding is represented by counsel. Notwithstanding the preceding sentence, if a guardian ad litem has been appointed for the minor under Section 2-17 of this Act and the guardian ad litem is a licensed attorney at law of this State, or in the event that a court appointed special advocate has been appointed as guardian ad litem and counsel has been appointed to represent the court appointed special advocate, the court may not require the appointment of counsel to represent the minor unless the court finds that the minor's interests are in conflict with what the guardian ad litem determines to be in the best interest of the minor. Each adult respondent 8 years of age or older shall be furnished a written "Notice of Rights" at or before the first hearing at which the respondent he or she appears.

(1.5) The Department shall maintain a system of response to inquiry made by parents or putative parents as to whether their child is under the custody or guardianship of the Department; and if so, the Department shall direct the parents or putative parents to the appropriate court of jurisdiction, including where inquiry may be made of the clerk of the court regarding the case number and the next scheduled court date of the minor's case. Effective notice and the means of accessing information shall be given to the public on a continuing basis by the Department.

(2) (a) Though not appointed guardian or legal custodian or otherwise made a party to the proceeding, any current or previously appointed foster parent or relative caregiver, or representative of an agency or association interested in the minor has the right to be heard by the court, but does not thereby become a party to the proceeding.

In addition to the foregoing right to be heard by the court, any current foster parent or relative caregiver of a minor and the agency designated by the court or the Department of Children and Family Services as custodian of the minor who is alleged to be or has been adjudicated an abused or neglected minor under Section 2-3 or a dependent minor under Section 2-4 of this Act has the right to and shall be given adequate notice at all stages of any hearing or proceeding under this Act.

Any foster parent or relative caregiver who is denied his or her right to be heard under this Section may bring a mandamus action under Article XIV of the Code of Civil Procedure against the court or any public agency to enforce that right. The mandamus action may be brought immediately upon the denial of those rights but in no event later than 30 days after the foster parent has been denied the right to be heard.

(b) If after an adjudication that a minor is abused or neglected as provided under Section 2-21 of this Act and a motion has been made to restore the minor to any parent, guardian, or legal custodian found by the court to have caused the neglect or to have inflicted the abuse on the minor, a foster parent may file a motion to intervene in the proceeding for the sole purpose of requesting that the minor be placed with the foster parent, provided that the foster parent (i) is the current foster parent of the minor or (ii) has previously been a foster parent for the minor for one year or more, has a foster care license or is eligible for a license or is not required to have a license, and is not the subject of any findings of abuse or neglect of any child. The juvenile court may only enter orders placing a minor with a specific foster parent under this subsection (2)(b) and nothing in this Section shall be construed to confer any jurisdiction or authority on the juvenile court to issue any other orders requiring the appointed guardian or custodian of a minor to place the minor in a designated foster home or facility. This Section is not intended to encompass any matters that are within the scope or determinable under the administrative and appeal process established by rules of the Department of Children and Family Services under Section 5(o) of the Children and Family Services Act. Nothing in this Section shall relieve the court of its responsibility, under Section 2-14(a) of this Act to act in a just and speedy manner to reunify families where it is the best interests of the minor and the child can be cared for at home without endangering the child's health or safety and, if reunification is not in the best interests of the minor, to find another permanent home for the minor. Nothing in this Section, or in any order issued by the court with respect to the placement of a minor with a foster parent, shall impair the ability of the Department of Children and Family Services, or anyone else authorized under Section 5 of the Abused and Neglected Child Reporting Act, to remove a minor from the home of a foster parent if the Department of Children and Family Services or the person removing the minor has reason to believe that the circumstances or conditions of the minor are such that continuing in the residence or care of the foster parent will jeopardize the child's health and safety or present an imminent risk of harm to that minor's life.

(c) If a foster parent has had the minor who is the subject of the proceeding under Article II in his or her home for more than one year on or after July 3, 1994 and if the minor's placement is being terminated from that foster parent's home, that foster parent shall have standing and intervenor status except in those circumstances where the Department of Children and Family Services or anyone else authorized under Section 5 of the Abused and Neglected Child Reporting Act has removed the minor from the foster parent because of a reasonable belief that the circumstances or conditions of the minor are such that continuing in the residence or care of the foster parent will jeopardize the child's health or safety or presents an imminent risk of harm to the minor's life.

(d) The court may grant standing to any foster parent if the court finds that it is in the best interest of the child for the foster parent to have standing and intervenor status.

(3) Parties respondent are entitled to notice in compliance with Sections 2-15 and 2-16, 3-17 and 3-18, 4-14 and 4-15 or 5-525 and 5-530, as appropriate. At the first appearance before the court by the minor, his parents, guardian, custodian or responsible relative, the court shall explain the nature of the proceedings and inform the parties of their rights under the first 2 paragraphs of this Section.

If the child is alleged to be abused, neglected or dependent, the court shall admonish the parents that if the court declares the child to be a ward of the court and awards custody or guardianship to the Department of Children and Family Services, the parents must cooperate with the Department of Children and Family Services, comply with the terms of the service plans, and correct the conditions that require the child to be in care, or risk termination of their parental rights.

Upon an adjudication of wardship of the court under Sections 2-22, 3-23, 4-20 or 5-705, the court shall inform the parties of their right to appeal therefrom as well as from any other final judgment of the court.

When the court finds that a child is an abused, neglected, or dependent minor under Section 2-21, the court shall admonish the parents 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 that require the child to be in care, or risk termination of their parental rights.

When the court declares a child to be a ward of the court and awards guardianship to the Department of Children and Family Services under Section 2-22, 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 that require the child to be in care, or risk termination of their parental rights.

(4) No sanction may be applied against the minor who is the subject of the proceedings by reason of his refusal or failure to testify in the course of any hearing held prior to final adjudication under Section 2-22, 3-23, 4-20 or 5-705.

(5) In the discretion of the court, the minor may be excluded from any part or parts of a dispositional hearing and, with the consent of the parent or parents, guardian, counsel or a guardian ad litem, from any part or parts of an adjudicatory hearing.

(6) The general public except for the news media and the crime victim, as defined in Section 3 of the Rights of Crime Victims and Witnesses Act, shall be excluded from any hearing and, except for the persons specified in this Section only persons, including representatives of agencies and associations, who in the opinion of the court have a direct interest in the case or in the work of the court shall be admitted to the hearing. However, the court may, for the minor's safety and protection and for good cause shown, prohibit any person or agency present in court from further disclosing the minor's identity. Nothing in this subsection (6) prevents the court from allowing other juveniles to be present or to participate in a court session being held under the Juvenile Drug Court Treatment Act.

(7) A party shall not be entitled to exercise the right to a substitution of a judge without cause under subdivision (a)(2) of Section 2-1001 of the Code of Civil Procedure in a proceeding under this Act if the judge is currently assigned to a proceeding involving the alleged abuse, neglect, or dependency of the minor's sibling or half sibling and that judge has made a substantive ruling in the proceeding involving the minor's sibling or half sibling.

(Source: P.A. 101-147, eff. 1-1-20.)

(705 ILCS 405/1-6.5 new)

Sec. 1-6.5. Counsel appointed for minors subject to Article II proceedings. Counsel appointed by a court to represent a minor in neglect or abuse proceedings under Article II of this Act shall have a minimum of one in-person contact with the minor prior to each hearing and at least one in-person contact every quarter. For good cause shown, the court may allow video or telephonic contact in lieu of face-to-face interviews required under this Section or may excuse face-to-face interviews required under this Section if the minor's location is unknown to the Department or the minor's counsel.

Section 99. Effective date. This Act takes effect upon becoming law.