Rep. Barbara Flynn Currie
Filed: 4/12/2013
| |||||||
| |||||||
| |||||||
1 | AMENDMENT TO HOUSE BILL 2404
| ||||||
2 | AMENDMENT NO. ______. Amend House Bill 2404, AS AMENDED, by | ||||||
3 | replacing the introductory clause of Section 5 with the | ||||||
4 | following:
| ||||||
5 | "Section 5. The Juvenile Court Act of 1987 is amended by | ||||||
6 | changing Sections 1-7, 1-8, 1-9, 2-10, 3-12, 4-9, 5-105, 5-120, | ||||||
7 | 5-130, 5-401.5, 5-410, 5-901, 5-905, and 5-915 as follows:"; | ||||||
8 | and | ||||||
9 | by inserting after the last line of Sec. 1-8 of Section 5 the | ||||||
10 | following:
| ||||||
11 | "(705 ILCS 405/1-9) (from Ch. 37, par. 801-9)
| ||||||
12 | Sec. 1-9. Expungement of law enforcement and juvenile court | ||||||
13 | records.
| ||||||
14 | (1) Expungement of law enforcement and juvenile court | ||||||
15 | delinquency records
shall be governed by Section 5-915.
| ||||||
16 | (2) This subsection (2) applies to expungement of law |
| |||||||
| |||||||
1 | enforcement and
juvenile court records other than delinquency | ||||||
2 | proceedings. Whenever any
person has attained the age of 18 17 | ||||||
3 | or whenever all juvenile court
proceedings
relating to that | ||||||
4 | person have been terminated, whichever is later, the person
may | ||||||
5 | petition the court to expunge law enforcement records relating | ||||||
6 | to incidents
occurring before his 18th 17th birthday or his | ||||||
7 | juvenile court records, or both, if
the minor was placed under | ||||||
8 | supervision pursuant to Sections
2-20, 3-21, or 4-18, and such | ||||||
9 | order of supervision has since been successfully
terminated.
| ||||||
10 | (3) The chief judge of the circuit in which an arrest was | ||||||
11 | made or a charge
was brought or any judge of that circuit | ||||||
12 | designated by the chief judge may,
upon verified petition of a | ||||||
13 | person who is the subject of an arrest or a
juvenile court | ||||||
14 | proceeding pursuant to subsection (2) of
this Section, order | ||||||
15 | the law enforcement records or juvenile court records,
or both, | ||||||
16 | to be expunged from the official records of the arresting | ||||||
17 | authority
and the clerk of the circuit court. Notice of the | ||||||
18 | petition shall be served
upon the State's Attorney and upon the | ||||||
19 | arresting authority which is the
subject of the petition for | ||||||
20 | expungement.
| ||||||
21 | (4) The changes made to this Section by this amendatory Act | ||||||
22 | of the 98th General Assembly apply to law enforcement and | ||||||
23 | juvenile court records of a minor who has been arrested or | ||||||
24 | taken into custody on or after the effective date of this | ||||||
25 | amendatory Act. | ||||||
26 | (Source: P.A. 90-590, eff. 1-1-99.)
|
| |||||||
| |||||||
1 | (705 ILCS 405/2-10) (from Ch. 37, par. 802-10)
| ||||||
2 | Sec. 2-10. Temporary custody hearing. At the appearance of | ||||||
3 | the
minor before the court at the temporary custody hearing, | ||||||
4 | all
witnesses present shall be examined before the court in | ||||||
5 | relation to any
matter connected with the allegations made in | ||||||
6 | the petition.
| ||||||
7 | (1) If the court finds that there is not probable cause to | ||||||
8 | believe
that the minor is abused, neglected or dependent it | ||||||
9 | shall release
the minor and dismiss the petition.
| ||||||
10 | (2) If the court finds that there is probable cause to | ||||||
11 | believe that
the minor is abused, neglected or dependent, the | ||||||
12 | court shall state in writing
the factual basis supporting its | ||||||
13 | finding and the minor, his or her parent,
guardian, custodian | ||||||
14 | and other persons able to give relevant testimony
shall be | ||||||
15 | examined before the court. The Department of Children and
| ||||||
16 | Family Services shall give testimony concerning indicated | ||||||
17 | reports of abuse
and neglect, of which they are aware of | ||||||
18 | through the central registry,
involving the minor's parent, | ||||||
19 | guardian or custodian. After such
testimony, the court may, | ||||||
20 | consistent with
the health,
safety and best interests of the | ||||||
21 | minor,
enter an order that the minor shall be released
upon the | ||||||
22 | request of parent, guardian or custodian if the parent, | ||||||
23 | guardian
or custodian appears to take custody. If it is | ||||||
24 | determined that a parent's, guardian's, or custodian's | ||||||
25 | compliance with critical services mitigates the necessity for |
| |||||||
| |||||||
1 | removal of the minor from his or her home, the court may enter | ||||||
2 | an Order of Protection setting forth reasonable conditions of | ||||||
3 | behavior that a parent, guardian, or custodian must observe for | ||||||
4 | a specified period of time, not to exceed 12 months, without a | ||||||
5 | violation; provided, however, that the 12-month period shall | ||||||
6 | begin anew after any violation. Custodian shall include any | ||||||
7 | agency of
the State which has been given custody or wardship of | ||||||
8 | the child. If it is
consistent with the health, safety and best | ||||||
9 | interests of the
minor, the
court may also prescribe shelter | ||||||
10 | care and
order that the minor be kept in a suitable place | ||||||
11 | designated by the court or in
a shelter care facility | ||||||
12 | designated by the Department of Children and Family
Services or | ||||||
13 | a licensed child welfare
agency; however, a minor charged with | ||||||
14 | a
criminal offense under the Criminal Code of 1961 or the | ||||||
15 | Criminal Code of 2012 or adjudicated delinquent
shall not be | ||||||
16 | placed in the custody of or committed to the Department of
| ||||||
17 | Children and Family Services by any court, except a minor less | ||||||
18 | than 15
years of age and committed to the Department of | ||||||
19 | Children and Family Services
under Section 5-710 of this Act or | ||||||
20 | a minor for whom an independent
basis of
abuse, neglect, or | ||||||
21 | dependency exists.
An independent basis exists when the | ||||||
22 | allegations or adjudication of abuse, neglect, or dependency do | ||||||
23 | not arise from the same facts, incident, or circumstances which | ||||||
24 | give rise to a charge or adjudication of delinquency.
| ||||||
25 | In placing the minor, the Department or other
agency shall, | ||||||
26 | to the extent
compatible with the court's order, comply with |
| |||||||
| |||||||
1 | Section 7 of the Children and
Family Services Act.
In | ||||||
2 | determining
the health, safety and best interests of the minor | ||||||
3 | to prescribe shelter
care, the court must
find that it is a | ||||||
4 | matter of immediate and urgent necessity for the safety
and | ||||||
5 | protection
of the minor or of the person or property of another | ||||||
6 | that the minor be placed
in a shelter care facility or that he | ||||||
7 | or she is likely to flee the jurisdiction
of the court, and | ||||||
8 | must further find that reasonable efforts have been made or
| ||||||
9 | that, consistent with the health, safety and best interests of
| ||||||
10 | the minor, no efforts reasonably can be made to
prevent or | ||||||
11 | eliminate the necessity of removal of the minor from his or her
| ||||||
12 | home. The court shall require documentation from the Department | ||||||
13 | of Children and
Family Services as to the reasonable efforts | ||||||
14 | that were made to prevent or
eliminate the necessity of removal | ||||||
15 | of the minor from his or her home or the
reasons why no efforts | ||||||
16 | reasonably could be made to prevent or eliminate the
necessity | ||||||
17 | of removal. When a minor is placed in the home of a relative, | ||||||
18 | the
Department of Children and Family Services shall complete a | ||||||
19 | preliminary
background review of the members of the minor's | ||||||
20 | custodian's household in
accordance with Section 4.3 of the | ||||||
21 | Child Care Act of 1969 within 90 days of
that placement. If the | ||||||
22 | minor is ordered placed in a shelter care facility of
the | ||||||
23 | Department of Children and
Family Services or a licensed child | ||||||
24 | welfare agency, the court shall, upon
request of the | ||||||
25 | appropriate Department or other agency, appoint the
Department | ||||||
26 | of Children and Family Services Guardianship Administrator or
|
| |||||||
| |||||||
1 | other appropriate agency executive temporary custodian of the | ||||||
2 | minor and the
court may enter such other orders related to the | ||||||
3 | temporary custody as it
deems fit and proper, including the | ||||||
4 | provision of services to the minor or
his family to ameliorate | ||||||
5 | the causes contributing to the finding of probable
cause or to | ||||||
6 | the finding of the existence of immediate and urgent necessity.
| ||||||
7 | Where the Department of Children and Family Services | ||||||
8 | Guardianship Administrator is appointed as the executive | ||||||
9 | temporary custodian, the Department of Children and Family | ||||||
10 | Services shall file with the court and serve on the parties a | ||||||
11 | parent-child visiting plan, within 10 days, excluding weekends | ||||||
12 | and holidays, after the appointment. The parent-child visiting | ||||||
13 | plan shall set out the time and place of visits, the frequency | ||||||
14 | of visits, the length of visits, who shall be present at the | ||||||
15 | visits, and where appropriate, the minor's opportunities to | ||||||
16 | have telephone and mail communication with the parents. | ||||||
17 | Where the Department of Children and Family Services | ||||||
18 | Guardianship Administrator is
appointed as the executive | ||||||
19 | temporary custodian, and when the child has siblings in care,
| ||||||
20 | the Department of Children and Family Services shall file with | ||||||
21 | the court and serve on the
parties a sibling placement and | ||||||
22 | contact plan within 10 days, excluding weekends and
holidays, | ||||||
23 | after the appointment. The sibling placement and contact plan | ||||||
24 | shall set forth
whether the siblings are placed together, and | ||||||
25 | if they are not placed together, what, if any,
efforts are | ||||||
26 | being made to place them together. If the Department has |
| |||||||
| |||||||
1 | determined that it is
not in a child's best interest to be | ||||||
2 | placed with a sibling, the Department shall document in
the | ||||||
3 | sibling placement and contact plan the basis for its | ||||||
4 | determination. For siblings placed
separately, the sibling | ||||||
5 | placement and contact plan shall set the time and place for | ||||||
6 | visits,
the frequency of the visits, the length of visits, who | ||||||
7 | shall be present for the visits, and
where appropriate, the | ||||||
8 | child's opportunities to have contact with their siblings in | ||||||
9 | addition to
in person contact. If the Department determines it | ||||||
10 | is not in the best interest of a sibling to
have contact with a | ||||||
11 | sibling, the Department shall document in the sibling placement | ||||||
12 | and
contact plan the basis for its determination. The sibling | ||||||
13 | placement and contact plan shall
specify a date for development | ||||||
14 | of the Sibling Contact Support Plan, under subsection (f) of | ||||||
15 | Section 7.4 of the Children and Family Services Act, and shall | ||||||
16 | remain in effect until the Sibling Contact Support Plan is | ||||||
17 | developed. | ||||||
18 | For good cause, the court may waive the requirement to | ||||||
19 | file the parent-child visiting plan or the sibling placement | ||||||
20 | and contact plan, or extend the time for filing either plan. | ||||||
21 | Any party may, by motion, request the court to review the | ||||||
22 | parent-child visiting plan to determine whether it is | ||||||
23 | reasonably calculated to expeditiously facilitate the | ||||||
24 | achievement of the permanency goal. A party may, by motion, | ||||||
25 | request the court to review the parent-child visiting plan or | ||||||
26 | the sibling placement and contact plan to determine whether it |
| |||||||
| |||||||
1 | is consistent with the minor's best interest. The court may | ||||||
2 | refer the parties to mediation where available. The frequency, | ||||||
3 | duration, and locations of visitation shall be measured by the | ||||||
4 | needs of the child and family, and not by the convenience of | ||||||
5 | Department personnel. Child development principles shall be | ||||||
6 | considered by the court in its analysis of how frequent | ||||||
7 | visitation should be, how long it should last, where it should | ||||||
8 | take place, and who should be present. If upon motion of the | ||||||
9 | party to review either plan and after receiving evidence, the | ||||||
10 | court determines that the parent-child visiting plan is not | ||||||
11 | reasonably calculated to expeditiously facilitate the | ||||||
12 | achievement of the permanency goal or that the restrictions | ||||||
13 | placed on parent-child contact or sibling placement or contact | ||||||
14 | are contrary to the child's best interests, the court shall put | ||||||
15 | in writing the factual basis supporting the determination and | ||||||
16 | enter specific findings based on the evidence. The court shall | ||||||
17 | enter an order for the Department to implement changes to the | ||||||
18 | parent-child visiting plan or sibling placement or contact | ||||||
19 | plan, consistent with the court's findings. At any stage of | ||||||
20 | proceeding, any party may by motion request the court to enter | ||||||
21 | any orders necessary to implement the parent-child visiting | ||||||
22 | plan, sibling placement or contact plan or subsequently | ||||||
23 | developed Sibling Contact Support Plan. Nothing under this | ||||||
24 | subsection (2) shall restrict the court from granting | ||||||
25 | discretionary authority to the Department to increase | ||||||
26 | opportunities for additional parent-child contacts or sibling |
| |||||||
| |||||||
1 | contacts, without further court orders. Nothing in this | ||||||
2 | subsection (2) shall restrict the Department from immediately | ||||||
3 | restricting or terminating parent-child contact or sibling | ||||||
4 | contacts, without either amending the parent-child visiting | ||||||
5 | plan or the sibling contact plan or obtaining a court order, | ||||||
6 | where the Department or its assigns reasonably believe that | ||||||
7 | continuation of the contact, as set out in the plan, would be | ||||||
8 | contrary to the child's health, safety, and welfare. The | ||||||
9 | Department shall file with the court and serve on the parties | ||||||
10 | any amendments to the plan within 10 days, excluding weekends | ||||||
11 | and holidays, of the change of the visitation.
| ||||||
12 | Acceptance of services shall not be considered an admission | ||||||
13 | of any
allegation in a petition made pursuant to this Act, nor | ||||||
14 | may a referral of
services be considered as evidence in any | ||||||
15 | proceeding pursuant to this Act,
except where the issue is | ||||||
16 | whether the Department has made reasonable
efforts to reunite | ||||||
17 | the family. In making its findings that it is
consistent with | ||||||
18 | the health, safety and best
interests of the minor to prescribe | ||||||
19 | shelter care, the court shall state in
writing (i) the factual | ||||||
20 | basis supporting its findings concerning the
immediate and | ||||||
21 | urgent necessity for the protection of the minor or of the | ||||||
22 | person
or property of another and (ii) the factual basis | ||||||
23 | supporting its findings that
reasonable efforts were made to | ||||||
24 | prevent or eliminate the removal of the minor
from his or her | ||||||
25 | home or that no efforts reasonably could be made to prevent or
| ||||||
26 | eliminate the removal of the minor from his or her home. The
|
| |||||||
| |||||||
1 | parents, guardian, custodian, temporary custodian and minor | ||||||
2 | shall each be
furnished a copy of such written findings. The | ||||||
3 | temporary custodian shall
maintain a copy of the court order | ||||||
4 | and written findings in the case record
for the child. The | ||||||
5 | order together with the court's findings of fact in
support | ||||||
6 | thereof shall be entered of record in the court.
| ||||||
7 | Once the court finds that it is a matter of immediate and | ||||||
8 | urgent necessity
for the protection of the minor that the minor | ||||||
9 | be placed in a shelter care
facility, the minor shall not be | ||||||
10 | returned to the parent, custodian or guardian
until the court | ||||||
11 | finds that such placement is no longer necessary for the
| ||||||
12 | protection of the minor.
| ||||||
13 | If the child is placed in the temporary custody of the | ||||||
14 | Department of
Children
and Family
Services for his or her | ||||||
15 | protection, the court shall admonish the parents,
guardian,
| ||||||
16 | custodian or responsible relative that the parents must | ||||||
17 | cooperate with the
Department of Children and Family Services, | ||||||
18 | comply
with the terms of the service plans, and correct the | ||||||
19 | conditions which require
the child to be in care, or risk | ||||||
20 | termination of their parental
rights.
| ||||||
21 | (3) If prior to the shelter care hearing for a minor | ||||||
22 | described in Sections
2-3, 2-4, 3-3 and 4-3 the moving party is | ||||||
23 | unable to serve notice on the
party respondent, the shelter | ||||||
24 | care hearing may proceed ex-parte. A shelter
care order from an | ||||||
25 | ex-parte hearing shall be endorsed with the date and
hour of | ||||||
26 | issuance and shall be filed with the clerk's office and entered |
| |||||||
| |||||||
1 | of
record. The order shall expire after 10 days from the time | ||||||
2 | it is issued
unless before its expiration it is renewed, at a | ||||||
3 | hearing upon appearance
of the party respondent, or upon an | ||||||
4 | affidavit of the moving party as to all
diligent efforts to | ||||||
5 | notify the party respondent by notice as herein
prescribed. The | ||||||
6 | notice prescribed shall be in writing and shall be
personally | ||||||
7 | delivered to the minor or the minor's attorney and to the last
| ||||||
8 | known address of the other person or persons entitled to | ||||||
9 | notice. The
notice shall also state the nature of the | ||||||
10 | allegations, the nature of the
order sought by the State, | ||||||
11 | including whether temporary custody is sought,
and the | ||||||
12 | consequences of failure to appear and shall contain a notice
| ||||||
13 | that the parties will not be entitled to further written | ||||||
14 | notices or publication
notices of proceedings in this case, | ||||||
15 | including the filing of an amended
petition or a motion to | ||||||
16 | terminate parental rights, except as required by
Supreme Court | ||||||
17 | Rule 11; and shall explain the
right of
the parties and the | ||||||
18 | procedures to vacate or modify a shelter care order as
provided | ||||||
19 | in this Section. The notice for a shelter care hearing shall be
| ||||||
20 | substantially as follows:
| ||||||
21 | NOTICE TO PARENTS AND CHILDREN
| ||||||
22 | OF SHELTER CARE HEARING
| ||||||
23 | On ................ at ........., before the Honorable | ||||||
24 | ................,
(address:) ................., the State | ||||||
25 | of Illinois will present evidence
(1) that (name of child | ||||||
26 | or children) ....................... are abused,
neglected |
| |||||||
| |||||||
1 | or dependent for the following reasons:
| ||||||
2 | ..............................................
and (2) | ||||||
3 | whether there is "immediate and urgent necessity" to remove | ||||||
4 | the child
or children from the responsible relative.
| ||||||
5 | YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN | ||||||
6 | PLACEMENT of the
child or children in foster care until a | ||||||
7 | trial can be held. A trial may
not be held for up to 90 | ||||||
8 | days. You will not be entitled to further notices
of | ||||||
9 | proceedings in this case, including the filing of an | ||||||
10 | amended petition or a
motion to terminate parental rights.
| ||||||
11 | At the shelter care hearing, parents have the following | ||||||
12 | rights:
| ||||||
13 | 1. To ask the court to appoint a lawyer if they | ||||||
14 | cannot afford one.
| ||||||
15 | 2. To ask the court to continue the hearing to | ||||||
16 | allow them time to
prepare.
| ||||||
17 | 3. To present evidence concerning:
| ||||||
18 | a. Whether or not the child or children were | ||||||
19 | abused, neglected
or dependent.
| ||||||
20 | b. Whether or not there is "immediate and | ||||||
21 | urgent necessity" to remove
the child from home | ||||||
22 | (including: their ability to care for the child,
| ||||||
23 | conditions in the home, alternative means of | ||||||
24 | protecting the child other
than removal).
| ||||||
25 | c. The best interests of the child.
| ||||||
26 | 4. To cross examine the State's witnesses.
|
| |||||||
| |||||||
1 | The Notice for rehearings shall be substantially as | ||||||
2 | follows:
| ||||||
3 | NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
| ||||||
4 | TO REHEARING ON TEMPORARY CUSTODY
| ||||||
5 | If you were not present at and did not have adequate | ||||||
6 | notice of the
Shelter Care Hearing at which temporary | ||||||
7 | custody of ............... was
awarded to | ||||||
8 | ................, you have the right to request a full | ||||||
9 | rehearing
on whether the State should have temporary | ||||||
10 | custody of ................. To
request this rehearing, | ||||||
11 | you must file with the Clerk of the Juvenile Court
| ||||||
12 | (address): ........................, in person or by | ||||||
13 | mailing a statement
(affidavit) setting forth the | ||||||
14 | following:
| ||||||
15 | 1. That you were not present at the shelter care | ||||||
16 | hearing.
| ||||||
17 | 2. That you did not get adequate notice (explaining | ||||||
18 | how the notice
was inadequate).
| ||||||
19 | 3. Your signature.
| ||||||
20 | 4. Signature must be notarized.
| ||||||
21 | The rehearing should be scheduled within 48 hours of | ||||||
22 | your filing this
affidavit.
| ||||||
23 | At the rehearing, your rights are the same as at the | ||||||
24 | initial shelter care
hearing. The enclosed notice explains | ||||||
25 | those rights.
|
| |||||||
| |||||||
1 | At the Shelter Care Hearing, children have the | ||||||
2 | following rights:
| ||||||
3 | 1. To have a guardian ad litem appointed.
| ||||||
4 | 2. To be declared competent as a witness and to | ||||||
5 | present testimony
concerning:
| ||||||
6 | a. Whether they are abused, neglected or | ||||||
7 | dependent.
| ||||||
8 | b. Whether there is "immediate and urgent | ||||||
9 | necessity" to be
removed from home.
| ||||||
10 | c. Their best interests.
| ||||||
11 | 3. To cross examine witnesses for other parties.
| ||||||
12 | 4. To obtain an explanation of any proceedings and | ||||||
13 | orders of the
court.
| ||||||
14 | (4) If the parent, guardian, legal custodian, responsible | ||||||
15 | relative,
minor age 8 or over, or counsel of the minor did not | ||||||
16 | have actual notice of
or was not present at the shelter care | ||||||
17 | hearing, he or she may file an
affidavit setting forth these | ||||||
18 | facts, and the clerk shall set the matter for
rehearing not | ||||||
19 | later than 48 hours, excluding Sundays and legal holidays,
| ||||||
20 | after the filing of the affidavit. At the rehearing, the court | ||||||
21 | shall
proceed in the same manner as upon the original hearing.
| ||||||
22 | (5) Only when there is reasonable cause to believe that the | ||||||
23 | minor
taken into custody is a person described in subsection | ||||||
24 | (3) of Section
5-105 may the minor be
kept or detained in a | ||||||
25 | detention home or county or municipal jail. This
Section shall | ||||||
26 | in no way be construed to limit subsection (6).
|
| |||||||
| |||||||
1 | (6) No minor under 16 years of age may be confined in a | ||||||
2 | jail or place
ordinarily used for the confinement of prisoners | ||||||
3 | in a police station. Minors
under 18 17 years of age must be | ||||||
4 | kept separate from confined adults and may
not at any time be | ||||||
5 | kept in the same cell, room, or yard with adults confined
| ||||||
6 | pursuant to the criminal law.
| ||||||
7 | (7) If the minor is not brought before a judicial officer | ||||||
8 | within the
time period as specified in Section 2-9, the minor | ||||||
9 | must immediately be
released from custody.
| ||||||
10 | (8) If neither the parent, guardian or custodian appears | ||||||
11 | within 24
hours to take custody of a minor released upon | ||||||
12 | request pursuant to
subsection (2) of this Section, then the | ||||||
13 | clerk of the court shall set the
matter for rehearing not later | ||||||
14 | than 7 days after the original order and
shall issue a summons | ||||||
15 | directed to the parent, guardian or custodian to
appear. At the | ||||||
16 | same time the probation department shall prepare a report
on | ||||||
17 | the minor. If a parent, guardian or custodian does not appear | ||||||
18 | at such
rehearing, the judge may enter an order prescribing | ||||||
19 | that the minor be kept
in a suitable place designated by the | ||||||
20 | Department of Children and Family
Services or a licensed child | ||||||
21 | welfare agency.
| ||||||
22 | (9) Notwithstanding any other provision of this
Section any | ||||||
23 | interested party, including the State, the temporary
| ||||||
24 | custodian, an agency providing services to the minor or family | ||||||
25 | under a
service plan pursuant to Section 8.2 of the Abused and | ||||||
26 | Neglected Child
Reporting Act, foster parent, or any of their |
| |||||||
| |||||||
1 | representatives, on notice
to all parties entitled to notice, | ||||||
2 | may file a motion that it is in the best
interests of the minor | ||||||
3 | to modify or vacate a
temporary custody order on any of the | ||||||
4 | following grounds:
| ||||||
5 | (a) It is no longer a matter of immediate and urgent | ||||||
6 | necessity that the
minor remain in shelter care; or
| ||||||
7 | (b) There is a material change in the circumstances of | ||||||
8 | the natural
family from which the minor was removed and the | ||||||
9 | child can be cared for at
home without endangering the | ||||||
10 | child's health or safety; or
| ||||||
11 | (c) A person not a party to the alleged abuse, neglect | ||||||
12 | or dependency,
including a parent, relative or legal | ||||||
13 | guardian, is capable of assuming
temporary custody of the | ||||||
14 | minor; or
| ||||||
15 | (d) Services provided by the Department of Children and | ||||||
16 | Family Services
or a child welfare agency or other service | ||||||
17 | provider have been successful in
eliminating the need for | ||||||
18 | temporary custody and the child can be cared for at
home | ||||||
19 | without endangering the child's health or safety.
| ||||||
20 | In ruling on the motion, the court shall determine whether | ||||||
21 | it is consistent
with the health, safety and best interests of | ||||||
22 | the minor to modify
or vacate a temporary custody order.
| ||||||
23 | The clerk shall set the matter for hearing not later than | ||||||
24 | 14 days after
such motion is filed. In the event that the court | ||||||
25 | modifies or vacates a
temporary custody order but does not | ||||||
26 | vacate its finding of probable cause,
the court may order that |
| |||||||
| |||||||
1 | appropriate services be continued or initiated in
behalf of the | ||||||
2 | minor and his or her family.
| ||||||
3 | (10) When the court finds or has found that there is | ||||||
4 | probable cause to
believe a minor is an abused minor as | ||||||
5 | described in subsection (2) of Section
2-3
and that there is an | ||||||
6 | immediate and urgent necessity for the abused minor to be
| ||||||
7 | placed in shelter care, immediate and urgent necessity shall be | ||||||
8 | presumed for
any other minor residing in the same household as | ||||||
9 | the abused minor provided:
| ||||||
10 | (a) Such other minor is the subject of an abuse or | ||||||
11 | neglect petition
pending before the court; and
| ||||||
12 | (b) A party to the petition is seeking shelter care for | ||||||
13 | such other minor.
| ||||||
14 | Once the presumption of immediate and urgent necessity has | ||||||
15 | been raised, the
burden of demonstrating the lack of immediate | ||||||
16 | and urgent necessity shall be on
any party that is opposing | ||||||
17 | shelter care for the other minor.
| ||||||
18 | The changes made to this Section by this amendatory Act of
| ||||||
19 | the 98th General Assembly apply to a minor who has been
| ||||||
20 | arrested or taken into custody on or after the effective date
| ||||||
21 | of this amendatory Act. | ||||||
22 | (Source: P.A. 97-1076, eff. 8-24-12; 97-1150, eff. 1-25-13.)
| ||||||
23 | (705 ILCS 405/3-12) (from Ch. 37, par. 803-12)
| ||||||
24 | Sec. 3-12. Shelter care hearing. At the appearance of the
| ||||||
25 | minor before the court at the shelter care hearing, all
|
| |||||||
| |||||||
1 | witnesses present shall be examined before the court in | ||||||
2 | relation to any
matter connected with the allegations made in | ||||||
3 | the petition.
| ||||||
4 | (1) If the court finds that there is not probable cause to | ||||||
5 | believe
that the minor is a person requiring authoritative | ||||||
6 | intervention, it shall
release the minor and dismiss the | ||||||
7 | petition.
| ||||||
8 | (2) If the court finds that there is probable cause to | ||||||
9 | believe that the
minor is a person requiring authoritative | ||||||
10 | intervention, the minor, his or
her parent, guardian, custodian | ||||||
11 | and other persons able to give relevant
testimony shall be | ||||||
12 | examined before the court. After such testimony, the
court may | ||||||
13 | enter an order that the minor shall be released upon the | ||||||
14 | request
of a parent, guardian or custodian if the parent, | ||||||
15 | guardian or custodian
appears to take custody. Custodian shall | ||||||
16 | include any agency of the State
which has been given custody or | ||||||
17 | wardship of the child. The Court shall require
documentation by | ||||||
18 | representatives of the Department of Children and Family
| ||||||
19 | Services or the probation department as to the reasonable | ||||||
20 | efforts that were
made to prevent or eliminate the necessity of | ||||||
21 | removal of the minor from his
or her home, and shall consider | ||||||
22 | the testimony of any person as to those
reasonable efforts. If | ||||||
23 | the court finds that it is a
matter of immediate and urgent | ||||||
24 | necessity for the protection of the minor
or of the person or | ||||||
25 | property of another that the minor be
placed in a shelter care | ||||||
26 | facility, or that he or she is likely to flee the
jurisdiction |
| |||||||
| |||||||
1 | of the court, and further finds that reasonable efforts have
| ||||||
2 | been made or good cause has been shown why reasonable efforts | ||||||
3 | cannot
prevent or eliminate the necessity of removal of the | ||||||
4 | minor from his or her
home, the court may prescribe shelter | ||||||
5 | care and order that the minor be kept
in a suitable place | ||||||
6 | designated by the court or in a shelter care facility
| ||||||
7 | designated by the Department of Children and Family Services or | ||||||
8 | a licensed
child welfare agency; otherwise it shall release the | ||||||
9 | minor from custody.
If the court prescribes shelter care, then | ||||||
10 | in placing the minor, the
Department or other agency shall, to | ||||||
11 | the extent
compatible with the court's order, comply with | ||||||
12 | Section 7 of the Children and
Family Services Act. If
the minor | ||||||
13 | is ordered placed in a shelter care facility of the Department | ||||||
14 | of
Children and Family Services or a licensed child welfare | ||||||
15 | agency, the court
shall, upon request of the Department or | ||||||
16 | other agency, appoint the
Department of Children and Family | ||||||
17 | Services Guardianship Administrator or
other appropriate | ||||||
18 | agency executive temporary custodian of the minor and the
court | ||||||
19 | may enter such other orders related to the temporary custody as | ||||||
20 | it
deems fit and proper, including the provision of services to | ||||||
21 | the minor or
his family to ameliorate the causes contributing | ||||||
22 | to the finding of probable
cause or to the finding of the | ||||||
23 | existence of immediate and urgent necessity.
Acceptance of | ||||||
24 | services shall not be considered an admission of any
allegation | ||||||
25 | in a petition made pursuant to this Act, nor may a referral of
| ||||||
26 | services be considered as evidence in any proceeding pursuant |
| |||||||
| |||||||
1 | to this Act,
except where the issue is whether the Department | ||||||
2 | has made reasonable
efforts to reunite the family. In making | ||||||
3 | its findings that reasonable
efforts have been made or that | ||||||
4 | good cause has been shown why reasonable
efforts cannot prevent | ||||||
5 | or eliminate the necessity of removal of the minor
from his or | ||||||
6 | her home, the court shall state in writing its findings
| ||||||
7 | concerning the nature of the services that were offered or the | ||||||
8 | efforts that
were made to prevent removal of the child and the | ||||||
9 | apparent reasons that such
services or efforts could not | ||||||
10 | prevent the need for removal. The parents,
guardian, custodian, | ||||||
11 | temporary custodian and minor shall each be furnished
a copy of | ||||||
12 | such written findings. The temporary custodian shall maintain a
| ||||||
13 | copy of the court order and written findings in the case record | ||||||
14 | for the
child.
| ||||||
15 | The order together with the court's findings of fact and | ||||||
16 | support thereof
shall be entered of record in the court.
| ||||||
17 | Once the court finds that it is a matter of immediate and | ||||||
18 | urgent necessity
for the protection of the minor that the minor | ||||||
19 | be placed in a shelter care
facility, the minor shall not be | ||||||
20 | returned to the parent, custodian or guardian
until the court | ||||||
21 | finds that such placement is no longer necessary for the
| ||||||
22 | protection of the minor.
| ||||||
23 | (3) If prior to the shelter care hearing for a minor | ||||||
24 | described in
Sections 2-3, 2-4, 3-3 and 4-3 the petitioner is | ||||||
25 | unable to serve notice on the
party respondent, the shelter | ||||||
26 | care hearing may proceed ex-parte. A shelter
care order from an |
| |||||||
| |||||||
1 | ex-parte hearing shall be endorsed with the date and
hour of | ||||||
2 | issuance and shall be filed with the clerk's office and entered | ||||||
3 | of
record. The order shall expire after 10 days from the time | ||||||
4 | it is issued
unless before its expiration it is renewed, at a | ||||||
5 | hearing upon appearance
of the party respondent, or upon an | ||||||
6 | affidavit of the moving party as to all
diligent efforts to | ||||||
7 | notify the party respondent by notice as herein
prescribed. The | ||||||
8 | notice prescribed shall be in writing and shall be
personally | ||||||
9 | delivered to the minor or the minor's attorney and to the last
| ||||||
10 | known address of the other person or persons entitled to | ||||||
11 | notice. The
notice shall also state the nature of the | ||||||
12 | allegations, the nature of the
order sought by the State, | ||||||
13 | including whether temporary custody is sought,
and the | ||||||
14 | consequences of failure to appear; and shall explain the right | ||||||
15 | of
the parties and the procedures to vacate or modify a shelter | ||||||
16 | care order as
provided in this Section. The notice for a | ||||||
17 | shelter care hearing shall be
substantially as follows:
| ||||||
18 | NOTICE TO PARENTS AND CHILDREN OF SHELTER CARE HEARING
| ||||||
19 | On ................ at ........., before the Honorable
| ||||||
20 | ................, (address:) ................., the State of | ||||||
21 | Illinois will
present evidence (1) that (name of child or | ||||||
22 | children)
....................... are abused, neglected or | ||||||
23 | dependent for the following reasons:
| ||||||
24 | .............................................................
| ||||||
25 | and (2) that there is "immediate and urgent necessity" to | ||||||
26 | remove the child
or children from the responsible relative.
|
| |||||||
| |||||||
1 | YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN | ||||||
2 | PLACEMENT of the
child or children in foster care until a trial | ||||||
3 | can be held. A trial may
not be held for up to 90 days.
| ||||||
4 | At the shelter care hearing, parents have the following | ||||||
5 | rights:
| ||||||
6 | 1. To ask the court to appoint a lawyer if they cannot | ||||||
7 | afford one.
| ||||||
8 | 2. To ask the court to continue the hearing to allow | ||||||
9 | them time to prepare.
| ||||||
10 | 3. To present evidence concerning:
| ||||||
11 | a. Whether or not the child or children were | ||||||
12 | abused, neglected or dependent.
| ||||||
13 | b. Whether or not there is "immediate and urgent | ||||||
14 | necessity" to remove
the child from home (including: | ||||||
15 | their ability to care for the child,
conditions in the | ||||||
16 | home, alternative means of protecting the child
other | ||||||
17 | than removal).
| ||||||
18 | c. The best interests of the child.
| ||||||
19 | 4. To cross examine the State's witnesses.
| ||||||
20 | The Notice for rehearings shall be substantially as | ||||||
21 | follows:
| ||||||
22 | NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
| ||||||
23 | TO REHEARING ON TEMPORARY CUSTODY
| ||||||
24 | If you were not present at and did not have adequate notice | ||||||
25 | of the
Shelter Care Hearing at which temporary custody of | ||||||
26 | ............... was
awarded to ................, you have the |
| |||||||
| |||||||
1 | right to request a full rehearing
on whether the State should | ||||||
2 | have temporary custody of ................. To
request this | ||||||
3 | rehearing, you must file with the Clerk of the Juvenile Court
| ||||||
4 | (address): ........................, in person or by mailing a | ||||||
5 | statement
(affidavit) setting forth the following:
| ||||||
6 | 1. That you were not present at the shelter care | ||||||
7 | hearing.
| ||||||
8 | 2. That you did not get adequate notice (explaining how | ||||||
9 | the notice
was inadequate).
| ||||||
10 | 3. Your signature.
| ||||||
11 | 4. Signature must be notarized.
| ||||||
12 | The rehearing should be scheduled within one day of your | ||||||
13 | filing this
affidavit.
| ||||||
14 | At the rehearing, your rights are the same as at the | ||||||
15 | initial shelter care
hearing. The enclosed notice explains | ||||||
16 | those rights.
| ||||||
17 | At the Shelter Care Hearing, children have the following | ||||||
18 | rights:
| ||||||
19 | 1. To have a guardian ad litem appointed.
| ||||||
20 | 2. To be declared competent as a witness and to present | ||||||
21 | testimony
concerning:
| ||||||
22 | a. Whether they are abused, neglected or | ||||||
23 | dependent.
| ||||||
24 | b. Whether there is "immediate and urgent | ||||||
25 | necessity" to be
removed from home.
| ||||||
26 | c. Their best interests.
|
| |||||||
| |||||||
1 | 3. To cross examine witnesses for other parties.
| ||||||
2 | 4. To obtain an explanation of any proceedings and | ||||||
3 | orders of the court.
| ||||||
4 | (4) If the parent, guardian, legal custodian, responsible | ||||||
5 | relative, or
counsel of the minor did not have actual notice of | ||||||
6 | or was not present at
the shelter care hearing, he or she may | ||||||
7 | file an affidavit setting forth
these facts, and the clerk | ||||||
8 | shall set the matter for rehearing not later
than 48 hours, | ||||||
9 | excluding Sundays and legal holidays, after the filing of
the | ||||||
10 | affidavit. At the rehearing, the court shall proceed in the | ||||||
11 | same manner
as upon the original hearing.
| ||||||
12 | (5) Only when there is reasonable cause to believe that the | ||||||
13 | minor taken
into custody is a person described in subsection | ||||||
14 | (3) of Section 5-105 may the minor
be kept or
detained in a | ||||||
15 | detention home or county or municipal jail. This Section
shall | ||||||
16 | in no way be construed to limit subsection (6).
| ||||||
17 | (6) No minor under 16 years of age may be confined in a | ||||||
18 | jail or place
ordinarily used for the confinement of prisoners | ||||||
19 | in a police station. Minors
under 18 17 years of age must be | ||||||
20 | kept separate from confined adults and may
not at any time be | ||||||
21 | kept in the same cell, room, or yard with adults confined
| ||||||
22 | pursuant to the criminal law.
| ||||||
23 | (7) If the minor is not brought before a judicial officer | ||||||
24 | within the
time period specified in Section 3-11, the minor | ||||||
25 | must immediately be
released from custody.
| ||||||
26 | (8) If neither the parent, guardian or custodian appears |
| |||||||
| |||||||
1 | within 24
hours to take custody of a minor released upon | ||||||
2 | request pursuant to
subsection (2) of this Section, then the | ||||||
3 | clerk of the court shall set the
matter for rehearing not later | ||||||
4 | than 7 days after the original order and
shall issue a summons | ||||||
5 | directed to the parent, guardian or custodian to
appear. At the | ||||||
6 | same time the probation department shall prepare a report
on | ||||||
7 | the minor. If a parent, guardian or custodian does not appear | ||||||
8 | at such
rehearing, the judge may enter an order prescribing | ||||||
9 | that the minor be kept
in a suitable place designated by the | ||||||
10 | Department of Children and Family
Services or a licensed child | ||||||
11 | welfare agency.
| ||||||
12 | (9) Notwithstanding any other provision of this Section, | ||||||
13 | any interested
party, including the State, the temporary | ||||||
14 | custodian, an agency providing
services to the minor or family | ||||||
15 | under a service plan pursuant to Section
8.2 of the Abused and | ||||||
16 | Neglected Child Reporting Act, foster parent, or any
of their | ||||||
17 | representatives, on notice to all parties entitled to notice, | ||||||
18 | may
file a motion to modify or vacate a temporary custody order | ||||||
19 | on any of the
following grounds:
| ||||||
20 | (a) It is no longer a matter of immediate and urgent | ||||||
21 | necessity that the
minor remain in shelter care; or
| ||||||
22 | (b) There is a material change in the circumstances of | ||||||
23 | the natural
family from which the minor was removed; or
| ||||||
24 | (c) A person, including a parent, relative or legal | ||||||
25 | guardian, is
capable of assuming temporary custody of the | ||||||
26 | minor; or
|
| |||||||
| |||||||
1 | (d) Services provided by the Department of Children and | ||||||
2 | Family Services
or a child welfare agency or other service | ||||||
3 | provider have been successful in
eliminating the need for | ||||||
4 | temporary custody.
| ||||||
5 | The clerk shall set the matter for hearing not later than | ||||||
6 | 14 days after
such motion is filed. In the event that the court | ||||||
7 | modifies or vacates a
temporary custody order but does not | ||||||
8 | vacate its finding of probable cause,
the court may order that | ||||||
9 | appropriate services be continued or initiated in
behalf of the | ||||||
10 | minor and his or her family.
| ||||||
11 | The changes made to this Section by this amendatory Act of
| ||||||
12 | the 98th General Assembly apply to a minor who has been
| ||||||
13 | arrested or taken into custody on or after the effective date
| ||||||
14 | of this amendatory Act. | ||||||
15 | (Source: P.A. 90-590, eff. 1-1-99.)
| ||||||
16 | (705 ILCS 405/4-9) (from Ch. 37, par. 804-9)
| ||||||
17 | Sec. 4-9. Shelter care hearing. At the appearance of the
| ||||||
18 | minor before the court at the shelter care hearing, all
| ||||||
19 | witnesses present shall be examined before the court in | ||||||
20 | relation to any
matter connected with the allegations made in | ||||||
21 | the petition.
| ||||||
22 | (1) If the court finds that there is not probable cause to | ||||||
23 | believe that
the minor is addicted, it shall release the minor | ||||||
24 | and dismiss the petition.
| ||||||
25 | (2) If the court finds that there is probable cause to |
| |||||||
| |||||||
1 | believe that the
minor is addicted, the minor, his or
her | ||||||
2 | parent, guardian, custodian and other persons able to give | ||||||
3 | relevant
testimony shall be examined before the court. After | ||||||
4 | such testimony, the
court may enter an order that the minor | ||||||
5 | shall be released
upon the request of a parent, guardian or | ||||||
6 | custodian if the parent, guardian
or custodian appears to take | ||||||
7 | custody
and agrees to abide by a court order
which requires the | ||||||
8 | minor and his or her parent, guardian, or legal custodian
to
| ||||||
9 | complete an evaluation by an entity licensed by the Department | ||||||
10 | of Human
Services, as the successor to
the Department of | ||||||
11 | Alcoholism and Substance Abuse, and complete
any treatment | ||||||
12 | recommendations indicated by the assessment. Custodian shall
| ||||||
13 | include any agency
of the State which has been given custody or | ||||||
14 | wardship of the child.
| ||||||
15 | The Court shall require
documentation by representatives | ||||||
16 | of the Department of Children and Family
Services or the | ||||||
17 | probation department as to the reasonable efforts that were
| ||||||
18 | made to prevent or eliminate the necessity of removal of the | ||||||
19 | minor from his
or her home, and shall consider the testimony of | ||||||
20 | any person as to those
reasonable efforts. If the court finds | ||||||
21 | that it is a
matter of immediate and urgent necessity for the | ||||||
22 | protection of the minor
or of the person or property of another | ||||||
23 | that the minor be or
placed in a shelter care facility or that | ||||||
24 | he or she is likely to flee the
jurisdiction of the court, and | ||||||
25 | further, finds that reasonable efforts
have been made or good | ||||||
26 | cause has been shown why reasonable efforts cannot
prevent or |
| |||||||
| |||||||
1 | eliminate the necessity of removal of the minor from his or her
| ||||||
2 | home, the court may prescribe shelter care
and order that the | ||||||
3 | minor be kept in a suitable place designated by the
court or in | ||||||
4 | a shelter care facility designated by the Department of
| ||||||
5 | Children and Family Services or a licensed child welfare | ||||||
6 | agency, or
in a facility or program licensed by the Department | ||||||
7 | of Human
Services for shelter and treatment services;
otherwise | ||||||
8 | it shall release the minor from custody. If the court | ||||||
9 | prescribes
shelter care, then in placing the minor, the | ||||||
10 | Department or other agency shall,
to the extent compatible with | ||||||
11 | the court's order, comply with Section 7 of the
Children and | ||||||
12 | Family Services Act. If the minor is ordered placed in a | ||||||
13 | shelter
care facility of the Department of Children and Family | ||||||
14 | Services or a licensed
child welfare agency, or in
a facility | ||||||
15 | or program licensed by the Department of Human
Services for
| ||||||
16 | shelter and treatment
services, the court shall, upon request | ||||||
17 | of the appropriate
Department or other agency, appoint the | ||||||
18 | Department of Children and Family
Services Guardianship | ||||||
19 | Administrator or other appropriate agency executive
temporary | ||||||
20 | custodian of the minor and the court may enter such other | ||||||
21 | orders
related to the temporary custody as it deems fit and | ||||||
22 | proper, including
the provision of services to the minor or his | ||||||
23 | family to ameliorate the
causes contributing to the finding of | ||||||
24 | probable cause or to the finding of
the existence of immediate | ||||||
25 | and urgent necessity. Acceptance of services
shall not be | ||||||
26 | considered an admission of any allegation in a petition made
|
| |||||||
| |||||||
1 | pursuant to this Act, nor may a referral of services be | ||||||
2 | considered as
evidence in any proceeding pursuant to this Act, | ||||||
3 | except where the issue is
whether the Department has made | ||||||
4 | reasonable efforts to reunite the family.
In making its | ||||||
5 | findings that reasonable efforts have been made or that good
| ||||||
6 | cause has been shown why reasonable efforts cannot prevent or | ||||||
7 | eliminate the
necessity of removal of the minor from his or her | ||||||
8 | home, the court shall
state in writing its findings concerning | ||||||
9 | the nature of the services that
were offered or the efforts | ||||||
10 | that were made to prevent removal of the child
and the apparent | ||||||
11 | reasons that such
services or efforts could not prevent the | ||||||
12 | need for removal. The parents,
guardian, custodian, temporary | ||||||
13 | custodian and minor shall each be furnished
a copy of such | ||||||
14 | written findings. The temporary custodian shall maintain a
copy | ||||||
15 | of the court order and written findings in the case record for | ||||||
16 | the
child. The order together with the court's findings of fact | ||||||
17 | in support
thereof shall be entered of record in the court.
| ||||||
18 | Once the court finds that it is a matter of immediate and | ||||||
19 | urgent necessity
for the protection of the minor that the minor | ||||||
20 | be placed in a shelter care
facility, the minor shall not be | ||||||
21 | returned to the parent, custodian or guardian
until the court | ||||||
22 | finds that such placement is no longer necessary for the
| ||||||
23 | protection of the minor.
| ||||||
24 | (3) If neither the parent, guardian, legal custodian, | ||||||
25 | responsible
relative nor counsel of the minor has had actual | ||||||
26 | notice of or is present
at the shelter care hearing, he or she |
| |||||||
| |||||||
1 | may file his or her
affidavit setting forth these facts, and | ||||||
2 | the clerk shall set the matter for
rehearing not later than 24 | ||||||
3 | hours, excluding Sundays and legal holidays,
after the filing | ||||||
4 | of the affidavit. At the rehearing, the court shall
proceed in | ||||||
5 | the same manner as upon the original hearing.
| ||||||
6 | (4) If the minor is not brought before a judicial officer | ||||||
7 | within the
time period as specified in Section 4-8, the minor | ||||||
8 | must immediately be
released from custody.
| ||||||
9 | (5) Only when there is reasonable cause to believe that the | ||||||
10 | minor taken
into custody is a person described in subsection | ||||||
11 | (3) of Section 5-105 may the minor be kept or
detained in a | ||||||
12 | detention home or county or municipal jail. This Section
shall | ||||||
13 | in no way be construed to limit subsection (6).
| ||||||
14 | (6) No minor under 16 years of age may be confined in a | ||||||
15 | jail or place
ordinarily used for the confinement of prisoners | ||||||
16 | in a police station.
Minors under 18 17 years of age must be | ||||||
17 | kept separate from confined adults and
may not at any time be | ||||||
18 | kept in the same cell, room or yard with adults
confined | ||||||
19 | pursuant to the criminal law.
| ||||||
20 | (7) If neither the parent, guardian or custodian appears | ||||||
21 | within 24
hours to take custody of a minor released upon | ||||||
22 | request pursuant to
subsection (2) of this Section, then the | ||||||
23 | clerk of the court shall set the
matter for rehearing not later | ||||||
24 | than 7 days after the original order and
shall issue a summons | ||||||
25 | directed to the parent, guardian or custodian to
appear. At the | ||||||
26 | same time the probation department shall prepare a report
on |
| |||||||
| |||||||
1 | the minor. If a parent, guardian or custodian does not appear | ||||||
2 | at such
rehearing, the judge may enter an order prescribing | ||||||
3 | that the minor be kept
in a suitable place designated by the | ||||||
4 | Department of Children and Family
Services or a licensed child | ||||||
5 | welfare agency.
| ||||||
6 | (8) Any interested party, including the State, the | ||||||
7 | temporary
custodian, an agency providing services to the minor | ||||||
8 | or family under a
service plan pursuant to Section 8.2 of the | ||||||
9 | Abused and Neglected Child
Reporting Act, foster parent, or any | ||||||
10 | of their representatives, may file a
motion to modify or vacate | ||||||
11 | a temporary custody order on any of the following
grounds:
| ||||||
12 | (a) It is no longer a matter of immediate and urgent | ||||||
13 | necessity that the
minor remain in shelter care; or
| ||||||
14 | (b) There is a material change in the circumstances of | ||||||
15 | the natural
family from which the minor was removed; or
| ||||||
16 | (c) A person, including a parent, relative or legal | ||||||
17 | guardian, is capable
of assuming temporary custody of the | ||||||
18 | minor; or
| ||||||
19 | (d) Services provided by the Department of Children and | ||||||
20 | Family Services
or a child welfare agency or other service | ||||||
21 | provider have been successful in
eliminating the need for | ||||||
22 | temporary custody.
| ||||||
23 | The clerk shall set the matter for hearing not later than | ||||||
24 | 14 days after
such motion is filed. In the event that the court | ||||||
25 | modifies or vacates a
temporary custody order but does not | ||||||
26 | vacate its finding of probable cause,
the court may order that |
| |||||||
| |||||||
1 | appropriate services be continued or initiated in
behalf of the | ||||||
2 | minor and his or her family.
| ||||||
3 | The changes made to this Section by this amendatory Act of
| ||||||
4 | the 98th General Assembly apply to a minor who has been
| ||||||
5 | arrested or taken into custody on or after the effective date
| ||||||
6 | of this amendatory Act. | ||||||
7 | (Source: P.A. 89-422; 89-507, eff. 7-1-97; 90-590, eff. | ||||||
8 | 1-1-99.)"; and
| ||||||
9 | by inserting after the last line of Sec. 5-120 of Section 5 the | ||||||
10 | following:
| ||||||
11 | "(705 ILCS 405/5-130)
| ||||||
12 | Sec. 5-130. Excluded jurisdiction.
| ||||||
13 | (1) (a) The definition of delinquent minor under Section | ||||||
14 | 5-120 of this
Article shall not apply to any minor who at the | ||||||
15 | time of an offense was at
least 15 years of age and who is | ||||||
16 | charged with: (i) first degree murder, (ii) aggravated
criminal | ||||||
17 | sexual assault, (iii) aggravated battery with a firearm as | ||||||
18 | described in Section 12-4.2 or subdivision (e)(1), (e)(2), | ||||||
19 | (e)(3), or (e)(4) of Section 12-3.05
where the minor personally | ||||||
20 | discharged a firearm as defined in Section 2-15.5 of the | ||||||
21 | Criminal Code of 1961 or the Criminal Code of 2012, (iv) armed | ||||||
22 | robbery when the
armed robbery was committed with a firearm, or | ||||||
23 | (v)
aggravated vehicular hijacking
when the hijacking was | ||||||
24 | committed with a firearm.
|
| |||||||
| |||||||
1 | These charges and all other charges arising out of the same | ||||||
2 | incident shall
be prosecuted under the criminal laws of this | ||||||
3 | State.
| ||||||
4 | (b) (i) If before trial or plea an information or | ||||||
5 | indictment is filed that
does not charge an offense specified | ||||||
6 | in paragraph (a) of this subsection
(1) the State's Attorney | ||||||
7 | may proceed on any lesser charge or charges, but
only in | ||||||
8 | Juvenile Court under the provisions of this Article. The | ||||||
9 | State's
Attorney may proceed on a lesser charge if
before trial | ||||||
10 | the minor defendant knowingly and with advice of counsel | ||||||
11 | waives,
in writing, his or her right to have the matter proceed | ||||||
12 | in Juvenile Court.
| ||||||
13 | (ii) If before trial or plea an information or indictment | ||||||
14 | is filed that
includes one or more charges specified in | ||||||
15 | paragraph (a) of this subsection
(1) and
additional charges | ||||||
16 | that are not specified in that paragraph, all of the charges
| ||||||
17 | arising out of the same incident shall be prosecuted under the | ||||||
18 | Criminal Code of
1961 or the Criminal Code of 2012.
| ||||||
19 | (c) (i) If after trial or plea the minor is convicted of | ||||||
20 | any offense
covered by paragraph (a) of this subsection (1), | ||||||
21 | then, in sentencing the minor,
the court shall have available | ||||||
22 | any or all dispositions prescribed for that
offense under | ||||||
23 | Chapter V of the Unified Code of Corrections.
| ||||||
24 | (ii) If after trial or plea the court finds that the minor | ||||||
25 | committed an
offense not covered by paragraph (a) of this | ||||||
26 | subsection (1), that finding shall
not invalidate the verdict |
| |||||||
| |||||||
1 | or the prosecution of the minor under the criminal
laws of the | ||||||
2 | State; however, unless the State requests a hearing for the
| ||||||
3 | purpose of sentencing the minor under Chapter V of the Unified | ||||||
4 | Code of
Corrections, the Court must proceed under Sections | ||||||
5 | 5-705 and 5-710 of this
Article. To request a hearing, the | ||||||
6 | State must file a written motion within 10
days following the | ||||||
7 | entry of a finding or the return of a verdict. Reasonable
| ||||||
8 | notice of the motion shall be given to the minor or his or her | ||||||
9 | counsel.
If the motion is made by the State, the court shall | ||||||
10 | conduct a hearing to
determine if the minor should be sentenced | ||||||
11 | under Chapter V of the Unified Code
of Corrections. In making | ||||||
12 | its determination, the court shall consider among
other | ||||||
13 | matters: (a) whether there is
evidence that the offense was | ||||||
14 | committed in an aggressive and premeditated
manner; (b) the age | ||||||
15 | of the minor; (c) the previous history of the
minor; (d) | ||||||
16 | whether there are facilities particularly available to the | ||||||
17 | Juvenile
Court or the Department of Juvenile Justice for the | ||||||
18 | treatment
and rehabilitation of the minor; (e) whether
the | ||||||
19 | security of the public requires sentencing under Chapter V of | ||||||
20 | the
Unified Code of Corrections; and (f) whether the minor | ||||||
21 | possessed a deadly
weapon when committing the offense. The | ||||||
22 | rules of evidence shall be the same as
if at trial. If after | ||||||
23 | the hearing the court finds that the minor should be
sentenced | ||||||
24 | under Chapter V of the Unified Code of Corrections, then the | ||||||
25 | court
shall sentence the minor accordingly having available to | ||||||
26 | it any or all
dispositions so prescribed.
|
| |||||||
| |||||||
1 | (2) (Blank).
| ||||||
2 | (3) (a) The definition of delinquent minor under Section
| ||||||
3 | 5-120 of this
Article shall not apply to any minor who at the | ||||||
4 | time of the offense was at
least 15 years of age and who is | ||||||
5 | charged with a violation of the provisions of
paragraph (1), | ||||||
6 | (3), (4), or (10) of subsection (a) of Section 24-1 of the
| ||||||
7 | Criminal Code of 1961 or the Criminal Code of 2012 while in | ||||||
8 | school, regardless of the time of day or the
time of year, or | ||||||
9 | on the real property comprising any school, regardless of the
| ||||||
10 | time of day or the time of year. School is defined, for | ||||||
11 | purposes of this
Section as any public or private elementary or | ||||||
12 | secondary school, community
college, college, or university. | ||||||
13 | These charges and all other charges arising
out of the same | ||||||
14 | incident shall be prosecuted under the criminal laws of this
| ||||||
15 | State.
| ||||||
16 | (b) (i) If before trial or plea an information or | ||||||
17 | indictment is filed that
does not charge an offense specified | ||||||
18 | in paragraph (a) of this subsection (3)
the State's Attorney | ||||||
19 | may proceed on any lesser charge or charges, but only in
| ||||||
20 | Juvenile Court under the provisions of this Article. The | ||||||
21 | State's Attorney may
proceed under the criminal laws of this | ||||||
22 | State on a lesser charge if before
trial the minor defendant | ||||||
23 | knowingly and with advice of counsel waives, in
writing, his or | ||||||
24 | her right to have the matter proceed in Juvenile Court.
| ||||||
25 | (ii) If before trial or plea an information or indictment | ||||||
26 | is filed that
includes one or more charges specified in |
| |||||||
| |||||||
1 | paragraph (a) of this subsection (3)
and additional charges | ||||||
2 | that are not specified in that paragraph, all of the
charges | ||||||
3 | arising out of the same incident shall be prosecuted under the | ||||||
4 | criminal
laws of this State.
| ||||||
5 | (c) (i) If after trial or plea the minor is convicted of | ||||||
6 | any offense
covered by paragraph (a) of this subsection (3), | ||||||
7 | then, in sentencing the minor,
the court shall have available | ||||||
8 | any or all dispositions prescribed for that
offense under | ||||||
9 | Chapter V of the Unified Code of Corrections.
| ||||||
10 | (ii) If after trial or plea the court finds that the minor | ||||||
11 | committed an
offense not covered by paragraph (a) of this | ||||||
12 | subsection (3), that finding shall
not invalidate the verdict | ||||||
13 | or the prosecution of the minor under the criminal
laws of the | ||||||
14 | State; however, unless the State requests a hearing for the
| ||||||
15 | purpose of sentencing the minor under Chapter V of the Unified | ||||||
16 | Code of
Corrections, the Court must proceed under Sections | ||||||
17 | 5-705 and 5-710 of this
Article. To request a hearing, the | ||||||
18 | State must file a written motion within 10
days following the | ||||||
19 | entry of a finding or the return of a verdict. Reasonable
| ||||||
20 | notice of the motion shall be given to the minor or his or her | ||||||
21 | counsel. If the
motion is made by the State, the court shall | ||||||
22 | conduct a hearing to determine if
the minor should be sentenced | ||||||
23 | under Chapter V of the Unified Code of
Corrections. In making | ||||||
24 | its determination, the court shall consider
among other | ||||||
25 | matters: (a) whether there is
evidence that the offense was | ||||||
26 | committed in an aggressive and premeditated
manner; (b) the age |
| |||||||
| |||||||
1 | of the minor; (c) the previous history of the
minor; (d) | ||||||
2 | whether there are facilities particularly available to the | ||||||
3 | Juvenile
Court or the Department of Juvenile Justice for the | ||||||
4 | treatment
and rehabilitation of the minor; (e) whether
the | ||||||
5 | security of the public requires sentencing under Chapter V of | ||||||
6 | the
Unified Code of Corrections; and (f) whether the minor | ||||||
7 | possessed a deadly
weapon when committing the offense. The | ||||||
8 | rules of evidence shall be the same as
if at trial. If after | ||||||
9 | the hearing the court finds that the minor should be
sentenced | ||||||
10 | under Chapter V of the Unified Code of Corrections, then the | ||||||
11 | court
shall sentence the minor accordingly having available to | ||||||
12 | it any or all
dispositions so prescribed.
| ||||||
13 | (4) (a) The definition of delinquent minor under Section | ||||||
14 | 5-120 of this
Article
shall not apply to any minor who at the | ||||||
15 | time of an offense was at least 13
years of age and who is | ||||||
16 | charged with first degree murder committed during the
course of | ||||||
17 | either aggravated criminal sexual assault, criminal sexual | ||||||
18 | assault,
or aggravated kidnaping. However, this subsection (4) | ||||||
19 | does not include a minor
charged with first degree murder based | ||||||
20 | exclusively upon the accountability
provisions of the Criminal | ||||||
21 | Code of 1961 or the Criminal Code of 2012.
| ||||||
22 | (b) (i) If before trial or plea an information or | ||||||
23 | indictment is filed that
does not charge first degree murder | ||||||
24 | committed during the course of aggravated
criminal sexual | ||||||
25 | assault, criminal
sexual assault, or aggravated kidnaping, the | ||||||
26 | State's Attorney may proceed on
any lesser charge or charges, |
| |||||||
| |||||||
1 | but only in Juvenile Court under the provisions
of this | ||||||
2 | Article. The State's Attorney may proceed under the criminal | ||||||
3 | laws of
this State
on a lesser charge if before trial the minor | ||||||
4 | defendant knowingly and with
advice of counsel waives, in | ||||||
5 | writing, his or her right to have the matter
proceed in | ||||||
6 | Juvenile Court.
| ||||||
7 | (ii) If before trial or plea an information or
indictment | ||||||
8 | is filed that includes first degree murder committed during the
| ||||||
9 | course of aggravated criminal sexual assault, criminal sexual | ||||||
10 | assault, or
aggravated kidnaping, and additional charges that | ||||||
11 | are not specified in
paragraph (a) of this subsection, all of | ||||||
12 | the charges arising out of the same
incident shall be | ||||||
13 | prosecuted under the criminal laws of this State.
| ||||||
14 | (c) (i) If after trial or plea the minor is convicted of | ||||||
15 | first degree
murder
committed during the course of aggravated | ||||||
16 | criminal sexual assault, criminal
sexual assault, or | ||||||
17 | aggravated kidnaping, in sentencing the minor, the court
shall | ||||||
18 | have available any or all dispositions prescribed for that | ||||||
19 | offense under
Chapter V of the Unified Code of Corrections.
| ||||||
20 | (ii) If the minor was not yet 15
years of age at the time of | ||||||
21 | the offense, and if after trial or plea the court
finds that | ||||||
22 | the minor
committed an offense other than first degree murder | ||||||
23 | committed during
the course of either aggravated criminal | ||||||
24 | sexual assault, criminal sexual
assault, or aggravated | ||||||
25 | kidnapping, the finding shall not invalidate the
verdict or the | ||||||
26 | prosecution of the minor under the criminal laws of the State;
|
| |||||||
| |||||||
1 | however, unless the State requests a hearing for the purpose of | ||||||
2 | sentencing the
minor under
Chapter V of the Unified Code of | ||||||
3 | Corrections, the Court must proceed under
Sections 5-705 and | ||||||
4 | 5-710 of this Article. To request a hearing, the State must
| ||||||
5 | file a written motion within 10 days following the entry of a | ||||||
6 | finding or the
return of a verdict. Reasonable notice of the | ||||||
7 | motion shall be given to the
minor or his or her counsel. If | ||||||
8 | the motion is made by the State, the court
shall conduct a | ||||||
9 | hearing to determine whether the minor should be sentenced
| ||||||
10 | under Chapter V of the
Unified Code of Corrections. In making | ||||||
11 | its determination, the court shall
consider among other | ||||||
12 | matters: (a) whether there is evidence that the offense
was | ||||||
13 | committed in an
aggressive and premeditated manner; (b) the age | ||||||
14 | of the minor; (c) the
previous delinquent history of the minor; | ||||||
15 | (d) whether there are facilities
particularly available to the | ||||||
16 | Juvenile Court or the Department of Juvenile Justice
for the | ||||||
17 | treatment and rehabilitation of the minor; (e) whether the best
| ||||||
18 | interest of the minor and the security of the public require | ||||||
19 | sentencing under
Chapter V of the Unified Code of Corrections; | ||||||
20 | and (f) whether the minor
possessed a deadly weapon when | ||||||
21 | committing the offense. The rules of evidence
shall be the same | ||||||
22 | as if at trial. If after the hearing the court finds that
the | ||||||
23 | minor should be sentenced under Chapter V of the Unified Code | ||||||
24 | of
Corrections, then the court shall sentence the minor | ||||||
25 | accordingly having
available to it any or all dispositions so | ||||||
26 | prescribed.
|
| |||||||
| |||||||
1 | (5) (a) The definition of delinquent minor under Section | ||||||
2 | 5-120 of this
Article
shall not apply to any minor who is | ||||||
3 | charged with a violation of subsection (a)
of Section 31-6 or | ||||||
4 | Section 32-10 of the Criminal Code of 1961 or the Criminal Code | ||||||
5 | of 2012 when the minor is
subject to prosecution under the | ||||||
6 | criminal laws of this State as a result of the
application of | ||||||
7 | the provisions of Section 5-125, or subsection (1) or (2) of
| ||||||
8 | this Section. These charges and all other charges arising out | ||||||
9 | of the same
incident shall be prosecuted under the criminal | ||||||
10 | laws of this State.
| ||||||
11 | (b) (i) If before trial or plea an information or | ||||||
12 | indictment is filed that
does not charge an offense specified | ||||||
13 | in paragraph (a) of this subsection (5),
the State's Attorney | ||||||
14 | may proceed on any lesser charge or charges, but only in
| ||||||
15 | Juvenile Court under the provisions of this Article. The | ||||||
16 | State's Attorney may
proceed under the criminal laws of this | ||||||
17 | State on a lesser charge if before
trial the minor defendant | ||||||
18 | knowingly and with advice of counsel waives, in
writing, his or | ||||||
19 | her right to have the matter proceed in Juvenile Court.
| ||||||
20 | (ii) If before trial
or plea an information or indictment | ||||||
21 | is filed that includes one or more charges
specified in | ||||||
22 | paragraph (a) of this subsection (5) and additional charges | ||||||
23 | that
are not specified in that paragraph, all of
the charges | ||||||
24 | arising out of the same incident shall be prosecuted under the
| ||||||
25 | criminal laws of this State.
| ||||||
26 | (c) (i) If after trial or plea the minor is convicted of |
| |||||||
| |||||||
1 | any offense
covered
by paragraph (a) of this subsection (5), | ||||||
2 | then, in sentencing the minor, the
court shall have available | ||||||
3 | any or all dispositions prescribed for that offense
under | ||||||
4 | Chapter V of the Unified Code of Corrections.
| ||||||
5 | (ii) If after trial or
plea the court finds that the minor | ||||||
6 | committed an offense not covered by
paragraph (a) of
this | ||||||
7 | subsection (5), the conviction shall not invalidate the verdict | ||||||
8 | or the
prosecution of the minor under the criminal laws of this | ||||||
9 | State; however,
unless the State requests a hearing for the
| ||||||
10 | purpose of sentencing the minor under Chapter V of the Unified | ||||||
11 | Code of
Corrections, the Court must proceed under Sections | ||||||
12 | 5-705 and 5-710 of this
Article.
To request a hearing, the | ||||||
13 | State must file a written motion within 10 days
following the | ||||||
14 | entry of a finding or the return of a verdict. Reasonable | ||||||
15 | notice
of the motion shall be given to the minor or his or her | ||||||
16 | counsel. If the motion
is made by the State, the court shall | ||||||
17 | conduct a hearing to determine if whether
the minor should be | ||||||
18 | sentenced under Chapter V of the Unified Code of
Corrections. | ||||||
19 | In making its determination, the court shall consider among | ||||||
20 | other
matters: (a) whether there is evidence that the offense | ||||||
21 | was committed in an
aggressive and premeditated manner; (b) the | ||||||
22 | age of the minor; (c) the previous
delinquent history of the | ||||||
23 | minor; (d) whether there are facilities particularly
available | ||||||
24 | to the Juvenile Court or the Department of Juvenile Justice for | ||||||
25 | the treatment and rehabilitation of the minor; (e) whether
the | ||||||
26 | security of the public requires sentencing under Chapter V of |
| |||||||
| |||||||
1 | the Unified
Code of Corrections; and (f) whether the minor | ||||||
2 | possessed a deadly weapon when
committing the offense. The | ||||||
3 | rules of evidence shall be the same as if at
trial. If after | ||||||
4 | the hearing the court finds that the minor should be sentenced
| ||||||
5 | under Chapter V of the Unified Code of Corrections, then the | ||||||
6 | court shall
sentence the minor accordingly having available to | ||||||
7 | it any or all dispositions
so prescribed.
| ||||||
8 | (6) The definition of delinquent minor under Section 5-120 | ||||||
9 | of this Article
shall not apply to any minor who, pursuant to | ||||||
10 | subsection (1) or (3) or
Section 5-805 or 5-810, has previously | ||||||
11 | been placed under the jurisdiction of
the criminal court and | ||||||
12 | has been convicted of a crime under an adult criminal or
penal | ||||||
13 | statute. Such a minor shall be subject to prosecution under the | ||||||
14 | criminal
laws of this State.
| ||||||
15 | (7) The procedures set out in this Article for the | ||||||
16 | investigation, arrest and
prosecution of juvenile offenders | ||||||
17 | shall not apply to minors who are excluded
from jurisdiction of | ||||||
18 | the Juvenile Court, except that minors under 18 17 years of
age | ||||||
19 | shall be kept separate from confined adults.
| ||||||
20 | (8) Nothing in this Act prohibits or limits the prosecution | ||||||
21 | of any
minor for an offense committed on or after his or her | ||||||
22 | 18th 17th birthday even though
he or she is at the time of the | ||||||
23 | offense a ward of the court.
| ||||||
24 | (9) If an original petition for adjudication of wardship | ||||||
25 | alleges the
commission by a minor 13 years of age or
over of an | ||||||
26 | act that constitutes a crime under the laws of this State,
the |
| |||||||
| |||||||
1 | minor, with the consent of his or her counsel, may, at any time | ||||||
2 | before
commencement of the adjudicatory hearing, file with the | ||||||
3 | court a motion
that criminal prosecution be ordered and that | ||||||
4 | the petition be dismissed
insofar as the act or acts involved | ||||||
5 | in the criminal proceedings are
concerned. If such a motion is | ||||||
6 | filed as herein provided, the court shall
enter its order | ||||||
7 | accordingly.
| ||||||
8 | (10) If, prior to August 12, 2005 (the effective date of | ||||||
9 | Public Act 94-574), a minor is charged with a violation of | ||||||
10 | Section 401 of the Illinois Controlled Substances Act under the | ||||||
11 | criminal laws of this State, other than a minor charged with a | ||||||
12 | Class X felony violation of the
Illinois Controlled
Substances | ||||||
13 | Act or the Methamphetamine Control and Community Protection | ||||||
14 | Act, any party including the minor or the court sua sponte
may, | ||||||
15 | before trial,
move for a hearing for the purpose of trying and | ||||||
16 | sentencing the minor as
a delinquent minor. To request a | ||||||
17 | hearing, the party must file a motion
prior to trial. | ||||||
18 | Reasonable notice of the motion shall be given to all
parties. | ||||||
19 | On its own motion or upon the filing of a motion by one of the
| ||||||
20 | parties including the minor, the court shall conduct a hearing | ||||||
21 | to
determine whether the minor should be tried and sentenced as | ||||||
22 | a
delinquent minor under this Article. In making its | ||||||
23 | determination, the
court shall consider among other matters:
| ||||||
24 | (a) The age of the minor;
| ||||||
25 | (b) Any previous delinquent or criminal history of the | ||||||
26 | minor;
|
| |||||||
| |||||||
1 | (c) Any previous abuse or neglect history of the minor;
| ||||||
2 | (d) Any mental health or educational history of the minor, | ||||||
3 | or both; and
| ||||||
4 | (e) Whether there is probable cause to support the charge, | ||||||
5 | whether
the minor is charged through accountability, and | ||||||
6 | whether there is
evidence the minor possessed a deadly weapon | ||||||
7 | or caused serious
bodily harm during the offense.
| ||||||
8 | Any material that is relevant and reliable shall be | ||||||
9 | admissible at the
hearing. In
all cases, the judge shall enter | ||||||
10 | an order permitting prosecution
under the criminal laws of | ||||||
11 | Illinois unless the judge makes a finding
based on a | ||||||
12 | preponderance of the evidence that the minor would be
amenable | ||||||
13 | to the care, treatment, and training programs available
through | ||||||
14 | the facilities of the juvenile court based on an evaluation of
| ||||||
15 | the factors listed in this subsection (10).
| ||||||
16 | The changes made to this Section by this amendatory Act of
| ||||||
17 | the 98th General Assembly apply to a minor who has been
| ||||||
18 | arrested or taken into custody on or after the effective date
| ||||||
19 | of this amendatory Act. | ||||||
20 | (Source: P.A. 96-1551, eff. 7-1-11; 97-1150, eff. 1-25-13.)".
|