HB0616sam001 95TH GENERAL ASSEMBLY

Sen. James F. Clayborne Jr.

Filed: 4/27/2007

09500HB0616sam001 LRB095 05209 DRJ 34896 a

AMENDMENT TO HOUSE BILL 616

AMENDMENT NO. ______. Amend House Bill 616 on page 11, after line 19, by inserting the following:

"Section 10. The Juvenile Court Act of 1987 is amended by changing Sections 2-10, 2-13, and 2-25 as follows:

(705 ILCS 405/2-10) (from Ch. 37, par. 802-10)

Sec. 2-10. Temporary custody hearing. At the appearance of the minor before the court at the temporary custody hearing, all witnesses present shall be examined before the court in relation to any matter connected with the allegations made in the petition.

(1) If the court finds that there is not probable cause to believe that the minor is abused, neglected or dependent it shall release the minor and dismiss the petition.

(2) If the court finds that there is probable cause to believe that the minor is abused, neglected or dependent, the court shall state in writing the factual basis supporting its finding and the minor, his or her parent, guardian, custodian and other persons able to give relevant testimony shall be examined before the court. The Department of Children and Family Services shall give testimony concerning indicated reports of abuse and neglect, of which they are aware of through the central registry, involving the minor's parent, guardian or custodian. After such testimony, the court may, consistent with the health, safety and best interests of the minor, enter an order that the minor shall be released upon the request of parent, guardian or custodian if the parent, guardian or custodian appears to take custody. If it is determined that a parent's, guardian's, or custodian's compliance with critical services mitigates the necessity for removal of the minor from his or her home, the court may enter an Order of Protection setting forth reasonable conditions of behavior that a parent, guardian, or custodian must observe for a specified period of time, not to exceed 12 months, without a violation; provided, however, that the 12-month period shall begin anew after any violation. Custodian shall include any agency of the State which has been given custody or wardship of the child. If it is consistent with the health, safety and best interests of the minor, the court may also prescribe shelter care and order that the minor be kept in a suitable place designated by the court or in a shelter care facility designated by the Department of Children and Family Services or a licensed child welfare agency; however, a minor charged with a criminal offense under the Criminal Code of 1961 or adjudicated delinquent shall not be placed in the custody of or committed to the Department of Children and Family Services by any court, except a minor less than 13 years of age and committed to the Department of Children and Family Services under Section 5-710 of this Act or a minor for whom an independent basis of abuse, neglect, or dependency exists, which must be defined by departmental rule. In placing the minor, the Department or other agency shall, to the extent compatible with the court's order, comply with Section 7 of the Children and Family Services Act. In determining the health, safety and best interests of the minor to prescribe shelter care, the court must find that it is a matter of immediate and urgent necessity for the safety and protection of the minor or of the person or property of another that the minor be placed in a shelter care facility or that he or she is likely to flee the jurisdiction of the court, and must further find that reasonable efforts have been made or that, consistent with the health, safety and best interests of the minor, no efforts reasonably can be made to prevent or eliminate the necessity of removal of the minor from his or her home. The court shall require documentation from the Department of Children and Family Services as to the reasonable efforts that were made to prevent or eliminate the necessity of removal of the minor from his or her home or the reasons why no efforts reasonably could be made to prevent or eliminate the necessity of removal. When a minor is placed in the home of a relative, the Department of Children and Family Services shall complete a preliminary background review of the members of the minor's custodian's household in accordance with Section 4.3 of the Child Care Act of 1969 within 90 days of that placement. If the minor is ordered placed in a shelter care facility of the Department of Children and Family Services or a licensed child welfare agency, the court shall, upon request of the appropriate Department or other agency, appoint the Department of Children and Family Services Guardianship Administrator or other appropriate agency executive temporary custodian of the minor and the court may enter such other orders related to the temporary custody as it deems fit and proper, including the provision of services to the minor or his family to ameliorate the causes contributing to the finding of probable cause or to the finding of the existence of immediate and urgent necessity.

Where the Department of Children and Family Services Guardianship Administrator is appointed as the executive temporary custodian, the Department of Children and Family Services shall file with the court and serve on the parties a parent-child visiting plan, within 10 days, excluding weekends and holidays, after the appointment. The parent-child visiting plan shall set out the time and place of visits, the frequency of visits, the length of visits, who shall be present at the visits, and where appropriate, the minor's opportunities to have telephone and mail communication with the parents. For good cause, the court may waive the requirement to file the parent-child visiting plan or extend the time for filing the parent-child visiting plan. Any party may, by motion, request the court to review the parent-child visiting plan to determine whether it is reasonably calculated to expeditiously facilitate the achievement of the permanency goal and is consistent with the minor's best interest. The frequency, duration, and locations of visitation shall be measured by the needs of the child and family, and not by the convenience of Department personnel. Child development principles shall be considered by the court in its analysis of how frequent visitation should be, how long it should last, where it should take place, and who should be present. If upon motion of the party to review the plan and after receiving evidence, the court determines that the parent-child visiting plan is not reasonably calculated to expeditiously facilitate the achievement of the permanency goal or that the restrictions placed on parent-child contact are contrary to the child's best interests, the court shall put in writing the factual basis supporting the determination and enter specific findings based on the evidence. The court shall enter an order for the Department to implement changes to the parent-child visiting plan, consistent with the court's findings. At any stage of proceeding, any party may by motion request the court to enter any orders necessary to implement the parent-child visiting plan. Nothing under this subsection (2) shall restrict the court from granting discretionary authority to the Department to increase opportunities for additional parent-child contacts, without further court orders. Nothing in this subsection (2) shall restrict the Department from immediately restricting or terminating parent-child contact, without either amending the parent-child visiting plan or obtaining a court order, where the Department or its assigns reasonably believe that continuation of parent-child contact, as set out in the parent-child visiting plan, would be contrary to the child's health, safety, and welfare. The Department shall file with the court and serve on the parties any amendments to the visitation plan within 10 days, excluding weekends and holidays, of the change of the visitation. Any party may, by motion, request the court to review the parent-child visiting plan to determine whether the parent-child visiting plan is reasonably calculated to expeditiously facilitate the achievement of the permanency goal, and is consistent with the minor's health, safety, and best interest.

Acceptance of services shall not be considered an admission of any allegation in a petition made pursuant to this Act, nor may a referral of services be considered as evidence in any proceeding pursuant to this Act, except where the issue is whether the Department has made reasonable efforts to reunite the family. In making its findings that it is consistent with the health, safety and best interests of the minor to prescribe shelter care, the court shall state in writing (i) the factual basis supporting its findings concerning the immediate and urgent necessity for the protection of the minor or of the person or property of another and (ii) the factual basis supporting its findings that reasonable efforts were made to prevent or eliminate the removal of the minor from his or her home or that no efforts reasonably could be made to prevent or eliminate the removal of the minor from his or her home. The parents, guardian, custodian, temporary custodian and minor shall each be furnished a copy of such written findings. The temporary custodian shall maintain a copy of the court order and written findings in the case record for the child. The order together with the court's findings of fact in support thereof shall be entered of record in the court.

Once the court finds that it is a matter of immediate and urgent necessity for the protection of the minor that the minor be placed in a shelter care facility, the minor shall not be returned to the parent, custodian or guardian until the court finds that such placement is no longer necessary for the protection of the minor.

If the child is placed in the temporary custody of the Department of Children and Family Services for his or her protection, the court shall admonish the parents, guardian, custodian or responsible relative that the parents must cooperate with the Department of Children and Family Services, comply with the terms of the service plans, and correct the conditions which require the child to be in care, or risk termination of their parental rights.

(3) If prior to the shelter care hearing for a minor described in Sections 2-3, 2-4, 3-3 and 4-3 the moving party is unable to serve notice on the party respondent, the shelter care hearing may proceed ex-parte. A shelter care order from an ex-parte hearing shall be endorsed with the date and hour of issuance and shall be filed with the clerk's office and entered of record. The order shall expire after 10 days from the time it is issued unless before its expiration it is renewed, at a hearing upon appearance of the party respondent, or upon an affidavit of the moving party as to all diligent efforts to notify the party respondent by notice as herein prescribed. The notice prescribed shall be in writing and shall be personally delivered to the minor or the minor's attorney and to the last known address of the other person or persons entitled to notice. The notice shall also state the nature of the allegations, the nature of the order sought by the State, including whether temporary custody is sought, and the consequences of failure to appear and shall contain a notice that the parties will not be entitled to further written notices or publication notices of proceedings in this case, including the filing of an amended petition or a motion to terminate parental rights, except as required by Supreme Court Rule 11; and shall explain the right of the parties and the procedures to vacate or modify a shelter care order as provided in this Section. The notice for a shelter care hearing shall be substantially as follows:

NOTICE TO PARENTS AND CHILDREN

OF SHELTER CARE HEARING

On ................ at ........., before the Honorable ................, (address:) ................., the State of Illinois will present evidence (1) that (name of child or children) ....................... are abused, neglected or dependent for the following reasons:

.............................................. and (2) whether that there is "immediate and urgent necessity" to remove the child or children from the responsible relative.

YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN PLACEMENT of the child or children in foster care until a trial can be held. A trial may not be held for up to 90 days. You will not be entitled to further notices of proceedings in this case, including the filing of an amended petition or a motion to terminate parental rights.

At the shelter care hearing, parents have the following rights:

1. To ask the court to appoint a lawyer if they cannot afford one.

2. To ask the court to continue the hearing to allow them time to prepare.

3. To present evidence concerning:

a. Whether or not the child or children were abused, neglected or dependent.

b. Whether or not there is "immediate and urgent necessity" to remove the child from home (including: their ability to care for the child, conditions in the home, alternative means of protecting the child other than removal).

c. The best interests of the child.

4. To cross examine the State's witnesses.

The Notice for rehearings shall be substantially as follows:

NOTICE OF PARENT'S AND CHILDREN'S RIGHTS

TO REHEARING ON TEMPORARY CUSTODY

If you were not present at and did not have adequate notice of the Shelter Care Hearing at which temporary custody of ............... was awarded to ................, you have the right to request a full rehearing on whether the State should have temporary custody of ................. To request this rehearing, you must file with the Clerk of the Juvenile Court (address): ........................, in person or by mailing a statement (affidavit) setting forth the following:

1. That you were not present at the shelter care hearing.

2. That you did not get adequate notice (explaining how the notice was inadequate).

3. Your signature.

4. Signature must be notarized.

The rehearing should be scheduled within 48 hours of your filing this affidavit.

At the rehearing, your rights are the same as at the initial shelter care hearing. The enclosed notice explains those rights.

At the Shelter Care Hearing, children have the following rights:

1. To have a guardian ad litem appointed.

2. To be declared competent as a witness and to present testimony concerning:

a. Whether they are abused, neglected or dependent.

b. Whether there is "immediate and urgent necessity" to be removed from home.

c. Their best interests.

3. To cross examine witnesses for other parties.

4. To obtain an explanation of any proceedings and orders of the court.

(4) If the parent, guardian, legal custodian, responsible relative, minor age 8 or over, or counsel of the minor did not have actual notice of or was not present at the shelter care hearing, he or she may file an affidavit setting forth these facts, and the clerk shall set the matter for rehearing not later than 48 hours, excluding Sundays and legal holidays, after the filing of the affidavit. At the rehearing, the court shall proceed in the same manner as upon the original hearing.

(5) Only when there is reasonable cause to believe that the minor taken into custody is a person described in subsection (3) of Section 5-105 may the minor be kept or detained in a detention home or county or municipal jail. This Section shall in no way be construed to limit subsection (6).

(6) No minor under 16 years of age may be confined in a jail or place ordinarily used for the confinement of prisoners in a police station. Minors under 17 years of age must be kept separate from confined adults and may not at any time be kept in the same cell, room, or yard with adults confined pursuant to the criminal law.

(7) If the minor is not brought before a judicial officer within the time period as specified in Section 2-9, the minor must immediately be released from custody.

(8) If neither the parent, guardian or custodian appears within 24 hours to take custody of a minor released upon request pursuant to subsection (2) of this Section, then the clerk of the court shall set the matter for rehearing not later than 7 days after the original order and shall issue a summons directed to the parent, guardian or custodian to appear. At the same time the probation department shall prepare a report on the minor. If a parent, guardian or custodian does not appear at such rehearing, the judge may enter an order prescribing that the minor be kept in a suitable place designated by the Department of Children and Family Services or a licensed child welfare agency.

(9) Notwithstanding any other provision of this Section any interested party, including the State, the temporary custodian, an agency providing services to the minor or family under a service plan pursuant to Section 8.2 of the Abused and Neglected Child Reporting Act, foster parent, or any of their representatives, on notice to all parties entitled to notice, may file a motion that it is in the best interests of the minor to modify or vacate a temporary custody order on any of the following grounds:

(a) It is no longer a matter of immediate and urgent necessity that the minor remain in shelter care; or

(b) There is a material change in the circumstances of the natural family from which the minor was removed and the child can be cared for at home without endangering the child's health or safety; or

(c) A person not a party to the alleged abuse, neglect or dependency, including a parent, relative or legal guardian, is capable of assuming temporary custody of the minor; or

(d) Services provided by the Department of Children and Family Services or a child welfare agency or other service provider have been successful in eliminating the need for temporary custody and the child can be cared for at home without endangering the child's health or safety.

In ruling on the motion, the court shall determine whether it is consistent with the health, safety and best interests of the minor to modify or vacate a temporary custody order.

The clerk shall set the matter for hearing not later than 14 days after such motion is filed. In the event that the court modifies or vacates a temporary custody order but does not vacate its finding of probable cause, the court may order that appropriate services be continued or initiated in behalf of the minor and his or her family.

(10) When the court finds or has found that there is probable cause to believe a minor is an abused minor as described in subsection (2) of Section 2-3 and that there is an immediate and urgent necessity for the abused minor to be placed in shelter care, immediate and urgent necessity shall be presumed for any other minor residing in the same household as the abused minor provided:

(a) Such other minor is the subject of an abuse or neglect petition pending before the court; and

(b) A party to the petition is seeking shelter care for such other minor.

Once the presumption of immediate and urgent necessity has been raised, the burden of demonstrating the lack of immediate and urgent necessity shall be on any party that is opposing shelter care for the other minor.

(Source: P.A. 94-604, eff. 1-1-06.)

(705 ILCS 405/2-13) (from Ch. 37, par. 802-13)

Sec. 2-13. Petition.

(1) Any adult person, any agency or association by its representative may file, or the court on its own motion, consistent with the health, safety and best interests of the minor may direct the filing through the State's Attorney of a petition in respect of a minor under this Act. The petition and all subsequent court documents shall be entitled "In the interest of ...., a minor".

(2) The petition shall be verified but the statements may be made upon information and belief. It shall allege that the minor is abused, neglected, or dependent, with citations to the appropriate provisions of this Act, and set forth (a) facts sufficient to bring the minor under Section 2-3 or 2-4 and to inform respondents of the cause of action, including, but not limited to, a plain and concise statement of the factual allegations that form the basis for the filing of the petition; (b) the name, age and residence of the minor; (c) the names and residences of his parents; (d) the name and residence of his legal guardian or the person or persons having custody or control of the minor, or of the nearest known relative if no parent or guardian can be found; and (e) if the minor upon whose behalf the petition is brought is sheltered in custody, the date on which such temporary custody was ordered by the court or the date set for a temporary custody hearing. If any of the facts herein required are not known by the petitioner, the petition shall so state.

(3) The petition must allege that it is in the best interests of the minor and of the public that he be adjudged a ward of the court and may pray generally for relief available under this Act. The petition need not specify any proposed disposition following adjudication of wardship. The petition may request that the minor remain in the custody of the parent, guardian, or custodian under an Order of Protection.

(4) If termination of parental rights and appointment of a guardian of the person with power to consent to adoption of the minor under Section 2-29 is sought, the petition shall so state. If the petition includes this request, the prayer for relief shall clearly and obviously state that the parents could permanently lose their rights as a parent at this hearing.

In addition to the foregoing, the petitioner, by motion, may request the termination of parental rights and appointment of a guardian of the person with power to consent to adoption of the minor under Section 2-29 at any time after the entry of a dispositional order under Section 2-22.

(4.5) (a) With respect to any minors committed to its care pursuant to this Act, the Department of Children and Family Services shall request the State's Attorney to file a petition or motion for termination of parental rights and appointment of guardian of the person with power to consent to adoption of the minor under Section 2-29 if:

(i) a minor has been in foster care, as described in subsection (b), for 15 months of the most recent 22 months; or

(ii) a minor under the age of 2 years has been previously determined to be abandoned at an adjudicatory hearing; or

(iii) the parent is criminally convicted of (A) first degree murder or second degree murder of any child, (B) attempt or conspiracy to commit first degree murder or second degree murder of any child, (C) solicitation to commit murder of any child, solicitation to commit murder for hire of any child, or solicitation to commit second degree murder of any child, (D) aggravated battery, aggravated battery of a child, or felony domestic battery, any of which has resulted in serious injury to the minor or a sibling of the minor, (E) aggravated criminal sexual assault in violation of subdivision (b)(1) of Section 12-14 of the Criminal Code of 1961, or (F) an offense in any other state the elements of which are similar and bear a substantial relationship to any of the foregoing offenses

unless:

(i) the child is being cared for by a relative,

(ii) the Department has documented in the case plan a compelling reason for determining that filing such petition would not be in the best interests of the child,

(iii) the court has found within the preceding 12 months that the Department has failed to make reasonable efforts to reunify the child and family, or

(iv) paragraph (c) of this subsection (4.5) provides otherwise.

(b) For purposes of this subsection, the date of entering foster care is defined as the earlier of:

(1) The date of a judicial finding at an adjudicatory hearing that the child is an abused, neglected, or dependent minor; or

(2) 60 days after the date on which the child is removed from his or her parent, guardian, or legal custodian.

(c) With respect to paragraph (a)(i), the following transition rules shall apply:

(1) If the child entered foster care after November 19, 1997 and this amendatory Act of 1998 takes effect before the child has been in foster care for 15 months of the preceding 22 months, then the Department shall comply with the requirements of paragraph (a) of this subsection (4.5) for that child as soon as the child has been in foster care for 15 of the preceding 22 months.

(2) If the child entered foster care after November 19, 1997 and this amendatory Act of 1998 takes effect after the child has been in foster care for 15 of the preceding 22 months, then the Department shall comply with the requirements of paragraph (a) of this subsection (4.5) for that child within 3 months after the end of the next regular session of the General Assembly.

(3) If the child entered foster care prior to November 19, 1997, then the Department shall comply with the requirements of paragraph (a) of this subsection (4.5) for that child in accordance with Department policy or rule.

(d) If the State's Attorney determines that the Department's request for filing of a petition or motion conforms to the requirements set forth in subdivisions (a), (b), and (c) of this subsection (4.5), then the State's Attorney shall file the petition or motion as requested.

(5) The court shall liberally allow the petitioner to amend the petition to set forth a cause of action or to add, amend, or supplement factual allegations that form the basis for a cause of action up until 14 days before the adjudicatory hearing. The petitioner may amend the petition after that date and prior to the adjudicatory hearing if the court grants leave to amend upon a showing of good cause. The court may allow amendment of the petition to conform with the evidence at any time prior to ruling. In all cases in which the court has granted leave to amend based on new evidence or new allegations, the court shall permit the respondent an adequate opportunity to prepare a defense to the amended petition.

(6) At any time before dismissal of the petition or before final closing and discharge under Section 2-31, one or more motions in the best interests of the minor may be filed. The motion shall specify sufficient facts in support of the relief requested.

(Source: P.A. 89-704, eff. 8-16-97 (changed from 1-1-98 by P.A. 90-443); 90-28, eff. 1-1-98; 90-608, eff. 6-30-98.)

(705 ILCS 405/2-25) (from Ch. 37, par. 802-25)

Sec. 2-25. Order of protection.

(1) The court may make an order of protection in assistance of or as a condition of any other order authorized by this Act. The order of protection shall be based on the health, safety and best interests of the minor and may set forth reasonable conditions of behavior to be observed for a specified period. Such an order may require a person:

(a) to stay away from the home or the minor;

(b) to permit a parent to visit the minor at stated periods;

(c) to abstain from offensive conduct against the minor, his parent or any person to whom custody of the minor is awarded;

(d) to give proper attention to the care of the home;

(e) to cooperate in good faith with an agency to which custody of a minor is entrusted by the court or with an agency or association to which the minor is referred by the court;

(f) to prohibit and prevent any contact whatsoever with the respondent minor by a specified individual or individuals who are alleged in either a criminal or juvenile proceeding to have caused injury to a respondent minor or a sibling of a respondent minor;

(g) to refrain from acts of commission or omission that tend to make the home not a proper place for the minor;

(h) to refrain from contacting the minor and the foster parents in any manner that is not specified in writing in the case plan.

(2) The court shall enter an order of protection to prohibit and prevent any contact between a respondent minor or a sibling of a respondent minor and any person named in a petition seeking an order of protection who has been convicted of heinous battery under Section 12-4.1, aggravated battery of a child under Section 12-4.3, criminal sexual assault under Section 12-13, aggravated criminal sexual assault under Section 12-14, predatory criminal sexual assault of a child under Section 12-14.1, criminal sexual abuse under Section 12-15, or aggravated criminal sexual abuse under Section 12-16 of the Criminal Code of 1961, or has been convicted of an offense that resulted in the death of a child, or has violated a previous order of protection under this Section.

(3) When the court issues an order of protection against any person as provided by this Section, the court shall direct a copy of such order to the Sheriff of that county. The Sheriff shall furnish a copy of the order of protection to the Department of State Police within 24 hours of receipt, in the form and manner required by the Department. The Department of State Police shall maintain a complete record and index of such orders of protection and make this data available to all local law enforcement agencies.

(4) After notice and opportunity for hearing afforded to a person subject to an order of protection, the order may be modified or extended for a further specified period or both or may be terminated if the court finds that the health, safety, and best interests of the minor and the public will be served thereby.

(5) An order of protection may be sought at any time during the course of any proceeding conducted pursuant to this Act if such an order is consistent with the health, safety, and best interests of the minor. Any person against whom an order of protection is sought may retain counsel to represent him at a hearing, and has rights to be present at the hearing, to be informed prior to the hearing in writing of the contents of the petition seeking a protective order and of the date, place and time of such hearing, and to cross examine witnesses called by the petitioner and to present witnesses and argument in opposition to the relief sought in the petition.

(6) Diligent efforts shall be made by the petitioner to serve any person or persons against whom any order of protection is sought with written notice of the contents of the petition seeking a protective order and of the date, place and time at which the hearing on the petition is to be held. When a protective order is being sought in conjunction with a temporary custody hearing, if the court finds that the person against whom the protective order is being sought has been notified of the hearing or that diligent efforts have been made to notify such person, the court may conduct a hearing. If a protective order is sought at any time other than in conjunction with a temporary custody hearing, the court may not conduct a hearing on the petition in the absence of the person against whom the order is sought unless the petitioner has notified such person by personal service at least 3 days before the hearing or has sent written notice by first class mail to such person's last known address at least 5 days before the hearing.

(7) A person against whom an order of protection is being sought who is neither a parent, guardian, legal custodian or responsible relative as described in Section 1-5 is not a party or respondent as defined in that Section and shall not be entitled to the rights provided therein. Such person does not have a right to appointed counsel or to be present at any hearing other than the hearing in which the order of protection is being sought or a hearing directly pertaining to that order. Unless the court orders otherwise, such person does not have a right to inspect the court file.

(8) All protective orders entered under this Section shall be in writing. Unless the person against whom the order was obtained was present in court when the order was issued, the sheriff, other law enforcement official or special process server shall promptly serve that order upon that person and file proof of such service, in the manner provided for service of process in civil proceedings. The person against whom the protective order was obtained may seek a modification of the order by filing a written motion to modify the order within 7 days after actual receipt by the person of a copy of the order. Any modification of the order granted by the court must be determined to be consistent with the best interests of the minor.

(9) If a petition is filed charging a violation of a condition contained in the protective order and if the court determines that this violation is of a critical service necessary to the safety and welfare of the minor, the court may proceed to findings and an order for temporary custody.

(Source: P.A. 89-428, eff. 12-13-95; 89-462, eff. 5-29-96; 90-15, eff. 6-13-97; 90-28, eff. 1-1-98; 90-655, eff. 7-30-98.)".