Full Text of HB3371 99th General Assembly
HB3371eng 99TH GENERAL ASSEMBLY |
| | HB3371 Engrossed | | LRB099 09198 RLC 29401 b |
|
| 1 | | AN ACT concerning courts.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Juvenile Court Act of 1987 is amended by | 5 | | changing Section 2-10 as follows:
| 6 | | (705 ILCS 405/2-10) (from Ch. 37, par. 802-10)
| 7 | | Sec. 2-10. Temporary custody hearing. At the appearance of | 8 | | the
minor before the court at the temporary custody hearing, | 9 | | all
witnesses present shall be examined before the court in | 10 | | relation to any
matter connected with the allegations made in | 11 | | the petition.
| 12 | | (1) If the court finds that there is not probable cause to | 13 | | believe
that the minor is abused, neglected or dependent it | 14 | | shall release
the minor and dismiss the petition.
| 15 | | (2) If the court finds that there is probable cause to | 16 | | believe that
the minor is abused, neglected or dependent, the | 17 | | court shall state in writing
the factual basis supporting its | 18 | | finding and the minor, his or her parent,
guardian, custodian | 19 | | and other persons able to give relevant testimony
shall be | 20 | | examined before the court. The court shall require the parents, | 21 | | guardians, custodian, or other responsible relative to | 22 | | provide, if known, the names, addresses, and telephone numbers | 23 | | for each of the minor's living maternal and paternal |
| | | HB3371 Engrossed | - 2 - | LRB099 09198 RLC 29401 b |
|
| 1 | | grandparents, maternal and paternal aunts, uncles, adult | 2 | | siblings, and other adult relatives. The Department of Children | 3 | | and
Family Services shall give testimony concerning indicated | 4 | | reports of abuse
and neglect, of which they are aware of | 5 | | through the central registry,
involving the minor's parent, | 6 | | guardian or custodian. After such
testimony, the court may, | 7 | | consistent with
the health,
safety and best interests of the | 8 | | minor,
enter an order that the minor shall be released
upon the | 9 | | request of parent, guardian or custodian if the parent, | 10 | | guardian
or custodian appears to take custody. If it is | 11 | | determined that a parent's, guardian's, or custodian's | 12 | | compliance with critical services mitigates the necessity for | 13 | | removal of the minor from his or her home, the court may enter | 14 | | an Order of Protection setting forth reasonable conditions of | 15 | | behavior that a parent, guardian, or custodian must observe for | 16 | | a specified period of time, not to exceed 12 months, without a | 17 | | violation; provided, however, that the 12-month period shall | 18 | | begin anew after any violation. Custodian shall include any | 19 | | agency of
the State which has been given custody or wardship of | 20 | | the child. If it is
consistent with the health, safety and best | 21 | | interests of the
minor, the
court may also prescribe shelter | 22 | | care and
order that the minor be kept in a suitable place | 23 | | designated by the court or in
a shelter care facility | 24 | | designated by the Department of Children and Family
Services or | 25 | | a licensed child welfare
agency; however, on and after the | 26 | | effective date of this amendatory Act of the 98th General |
| | | HB3371 Engrossed | - 3 - | LRB099 09198 RLC 29401 b |
|
| 1 | | Assembly and before January 1, 2017, a minor charged with a
| 2 | | criminal offense under the Criminal Code of 1961 or the | 3 | | Criminal Code of 2012 or adjudicated delinquent
shall not be | 4 | | placed in the custody of or committed to the Department of
| 5 | | Children and Family Services by any court, except a minor less | 6 | | than 16
years of age and committed to the Department of | 7 | | Children and Family Services
under Section 5-710 of this Act or | 8 | | a minor for whom an independent
basis of
abuse, neglect, or | 9 | | dependency exists; and on and after January 1, 2017, a minor | 10 | | charged with a
criminal offense under the Criminal Code of 1961 | 11 | | or the Criminal Code of 2012 or adjudicated delinquent
shall | 12 | | not be placed in the custody of or committed to the Department | 13 | | of
Children and Family Services by any court, except a minor | 14 | | less than 15 years of age and committed to the Department of | 15 | | Children and Family Services
under Section 5-710 of this Act or | 16 | | a minor for whom an independent
basis of
abuse, neglect, or | 17 | | dependency exists.
An independent basis exists when the | 18 | | allegations or adjudication of abuse, neglect, or dependency do | 19 | | not arise from the same facts, incident, or circumstances which | 20 | | give rise to a charge or adjudication of delinquency.
| 21 | | In placing the minor, the Department or other
agency shall, | 22 | | to the extent
compatible with the court's order, comply with | 23 | | Section 7 of the Children and
Family Services Act.
In | 24 | | determining
the health, safety and best interests of the minor | 25 | | to prescribe shelter
care, the court must
find that it is a | 26 | | matter of immediate and urgent necessity for the safety
and |
| | | HB3371 Engrossed | - 4 - | LRB099 09198 RLC 29401 b |
|
| 1 | | protection
of the minor or of the person or property of another | 2 | | that the minor be placed
in a shelter care facility or that he | 3 | | or she is likely to flee the jurisdiction
of the court, and | 4 | | must further find that reasonable efforts have been made or
| 5 | | that, consistent with the health, safety and best interests of
| 6 | | the minor, no efforts reasonably can be made to
prevent or | 7 | | eliminate the necessity of removal of the minor from his or her
| 8 | | home. The court shall require documentation from the Department | 9 | | of Children and
Family Services as to the reasonable efforts | 10 | | that were made to prevent or
eliminate the necessity of removal | 11 | | of the minor from his or her home or the
reasons why no efforts | 12 | | reasonably could be made to prevent or eliminate the
necessity | 13 | | of removal. When a minor is placed in the home of a relative, | 14 | | the
Department of Children and Family Services shall complete a | 15 | | preliminary
background review of the members of the minor's | 16 | | custodian's household in
accordance with Section 4.3 of the | 17 | | Child Care Act of 1969 within 90 days of
that placement. If the | 18 | | minor is ordered placed in a shelter care facility of
the | 19 | | Department of Children and
Family Services or a licensed child | 20 | | welfare agency, the court shall, upon
request of the | 21 | | appropriate Department or other agency, appoint the
Department | 22 | | of Children and Family Services Guardianship Administrator or
| 23 | | other appropriate agency executive temporary custodian of the | 24 | | minor and the
court may enter such other orders related to the | 25 | | temporary custody as it
deems fit and proper, including the | 26 | | provision of services to the minor or
his family to ameliorate |
| | | HB3371 Engrossed | - 5 - | LRB099 09198 RLC 29401 b |
|
| 1 | | the causes contributing to the finding of probable
cause or to | 2 | | the finding of the existence of immediate and urgent necessity.
| 3 | | Where the Department of Children and Family Services | 4 | | Guardianship Administrator is appointed as the executive | 5 | | temporary custodian, the Department of Children and Family | 6 | | Services shall file with the court and serve on the parties a | 7 | | parent-child visiting plan, within 10 days, excluding weekends | 8 | | and holidays, after the appointment. The parent-child visiting | 9 | | plan shall set out the time and place of visits, the frequency | 10 | | of visits, the length of visits, who shall be present at the | 11 | | visits, and where appropriate, the minor's opportunities to | 12 | | have telephone and mail communication with the parents. | 13 | | Where the Department of Children and Family Services | 14 | | Guardianship Administrator is
appointed as the executive | 15 | | temporary custodian, and when the child has siblings in care,
| 16 | | the Department of Children and Family Services shall file with | 17 | | the court and serve on the
parties a sibling placement and | 18 | | contact plan within 10 days, excluding weekends and
holidays, | 19 | | after the appointment. The sibling placement and contact plan | 20 | | shall set forth
whether the siblings are placed together, and | 21 | | if they are not placed together, what, if any,
efforts are | 22 | | being made to place them together. If the Department has | 23 | | determined that it is
not in a child's best interest to be | 24 | | placed with a sibling, the Department shall document in
the | 25 | | sibling placement and contact plan the basis for its | 26 | | determination. For siblings placed
separately, the sibling |
| | | HB3371 Engrossed | - 6 - | LRB099 09198 RLC 29401 b |
|
| 1 | | placement and contact plan shall set the time and place for | 2 | | visits,
the frequency of the visits, the length of visits, who | 3 | | shall be present for the visits, and
where appropriate, the | 4 | | child's opportunities to have contact with their siblings in | 5 | | addition to
in person contact. If the Department determines it | 6 | | is not in the best interest of a sibling to
have contact with a | 7 | | sibling, the Department shall document in the sibling placement | 8 | | and
contact plan the basis for its determination. The sibling | 9 | | placement and contact plan shall
specify a date for development | 10 | | of the Sibling Contact Support Plan, under subsection (f) of | 11 | | Section 7.4 of the Children and Family Services Act, and shall | 12 | | remain in effect until the Sibling Contact Support Plan is | 13 | | developed. | 14 | | For good cause, the court may waive the requirement to | 15 | | file the parent-child visiting plan or the sibling placement | 16 | | and contact plan, or extend the time for filing either plan. | 17 | | Any party may, by motion, request the court to review the | 18 | | parent-child visiting plan to determine whether it is | 19 | | reasonably calculated to expeditiously facilitate the | 20 | | achievement of the permanency goal. A party may, by motion, | 21 | | request the court to review the parent-child visiting plan or | 22 | | the sibling placement and contact plan to determine whether it | 23 | | is consistent with the minor's best interest. The court may | 24 | | refer the parties to mediation where available. The frequency, | 25 | | duration, and locations of visitation shall be measured by the | 26 | | needs of the child and family, and not by the convenience of |
| | | HB3371 Engrossed | - 7 - | LRB099 09198 RLC 29401 b |
|
| 1 | | Department personnel. Child development principles shall be | 2 | | considered by the court in its analysis of how frequent | 3 | | visitation should be, how long it should last, where it should | 4 | | take place, and who should be present. If upon motion of the | 5 | | party to review either plan and after receiving evidence, the | 6 | | court determines that the parent-child visiting plan is not | 7 | | reasonably calculated to expeditiously facilitate the | 8 | | achievement of the permanency goal or that the restrictions | 9 | | placed on parent-child contact or sibling placement or contact | 10 | | are contrary to the child's best interests, the court shall put | 11 | | in writing the factual basis supporting the determination and | 12 | | enter specific findings based on the evidence. The court shall | 13 | | enter an order for the Department to implement changes to the | 14 | | parent-child visiting plan or sibling placement or contact | 15 | | plan, consistent with the court's findings. At any stage of | 16 | | proceeding, any party may by motion request the court to enter | 17 | | any orders necessary to implement the parent-child visiting | 18 | | plan, sibling placement or contact plan or subsequently | 19 | | developed Sibling Contact Support Plan. Nothing under this | 20 | | subsection (2) shall restrict the court from granting | 21 | | discretionary authority to the Department to increase | 22 | | opportunities for additional parent-child contacts or sibling | 23 | | contacts, without further court orders. Nothing in this | 24 | | subsection (2) shall restrict the Department from immediately | 25 | | restricting or terminating parent-child contact or sibling | 26 | | contacts, without either amending the parent-child visiting |
| | | HB3371 Engrossed | - 8 - | LRB099 09198 RLC 29401 b |
|
| 1 | | plan or the sibling contact plan or obtaining a court order, | 2 | | where the Department or its assigns reasonably believe that | 3 | | continuation of the contact, as set out in the plan, would be | 4 | | contrary to the child's health, safety, and welfare. The | 5 | | Department shall file with the court and serve on the parties | 6 | | any amendments to the plan within 10 days, excluding weekends | 7 | | and holidays, of the change of the visitation.
| 8 | | Acceptance of services shall not be considered an admission | 9 | | of any
allegation in a petition made pursuant to this Act, nor | 10 | | may a referral of
services be considered as evidence in any | 11 | | proceeding pursuant to this Act,
except where the issue is | 12 | | whether the Department has made reasonable
efforts to reunite | 13 | | the family. In making its findings that it is
consistent with | 14 | | the health, safety and best
interests of the minor to prescribe | 15 | | shelter care, the court shall state in
writing (i) the factual | 16 | | basis supporting its findings concerning the
immediate and | 17 | | urgent necessity for the protection of the minor or of the | 18 | | person
or property of another and (ii) the factual basis | 19 | | supporting its findings that
reasonable efforts were made to | 20 | | prevent or eliminate the removal of the minor
from his or her | 21 | | home or that no efforts reasonably could be made to prevent or
| 22 | | eliminate the removal of the minor from his or her home. The
| 23 | | parents, guardian, custodian, temporary custodian and minor | 24 | | shall each be
furnished a copy of such written findings. The | 25 | | temporary custodian shall
maintain a copy of the court order | 26 | | and written findings in the case record
for the child. The |
| | | HB3371 Engrossed | - 9 - | LRB099 09198 RLC 29401 b |
|
| 1 | | order together with the court's findings of fact in
support | 2 | | thereof shall be entered of record in the court.
| 3 | | Once the court finds that it is a matter of immediate and | 4 | | urgent necessity
for the protection of the minor that the minor | 5 | | be placed in a shelter care
facility, the minor shall not be | 6 | | returned to the parent, custodian or guardian
until the court | 7 | | finds that such placement is no longer necessary for the
| 8 | | protection of the minor.
| 9 | | If the child is placed in the temporary custody of the | 10 | | Department of
Children
and Family
Services for his or her | 11 | | protection, the court shall admonish the parents,
guardian,
| 12 | | custodian or responsible relative that the parents must | 13 | | cooperate with the
Department of Children and Family Services, | 14 | | comply
with the terms of the service plans, and correct the | 15 | | conditions which require
the child to be in care, or risk | 16 | | termination of their parental
rights.
| 17 | | (3) If prior to the shelter care hearing for a minor | 18 | | described in Sections
2-3, 2-4, 3-3 and 4-3 the moving party is | 19 | | unable to serve notice on the
party respondent, the shelter | 20 | | care hearing may proceed ex-parte. A shelter
care order from an | 21 | | ex-parte hearing shall be endorsed with the date and
hour of | 22 | | issuance and shall be filed with the clerk's office and entered | 23 | | of
record. The order shall expire after 10 days from the time | 24 | | it is issued
unless before its expiration it is renewed, at a | 25 | | hearing upon appearance
of the party respondent, or upon an | 26 | | affidavit of the moving party as to all
diligent efforts to |
| | | HB3371 Engrossed | - 10 - | LRB099 09198 RLC 29401 b |
|
| 1 | | notify the party respondent by notice as herein
prescribed. The | 2 | | notice prescribed shall be in writing and shall be
personally | 3 | | delivered to the minor or the minor's attorney and to the last
| 4 | | known address of the other person or persons entitled to | 5 | | notice. The
notice shall also state the nature of the | 6 | | allegations, the nature of the
order sought by the State, | 7 | | including whether temporary custody is sought,
and the | 8 | | consequences of failure to appear and shall contain a notice
| 9 | | that the parties will not be entitled to further written | 10 | | notices or publication
notices of proceedings in this case, | 11 | | including the filing of an amended
petition or a motion to | 12 | | terminate parental rights, except as required by
Supreme Court | 13 | | Rule 11; and shall explain the
right of
the parties and the | 14 | | procedures to vacate or modify a shelter care order as
provided | 15 | | in this Section. The notice for a shelter care hearing shall be
| 16 | | substantially as follows:
| 17 | | NOTICE TO PARENTS AND CHILDREN
| 18 | | OF SHELTER CARE HEARING
| 19 | | On ................ at ........., before the Honorable | 20 | | ................,
(address:) ................., the State | 21 | | of Illinois will present evidence
(1) that (name of child | 22 | | or children) ....................... are abused,
neglected | 23 | | or dependent for the following reasons:
| 24 | | ..............................................
and (2) | 25 | | whether there is "immediate and urgent necessity" to remove | 26 | | the child
or children from the responsible relative.
|
| | | HB3371 Engrossed | - 11 - | LRB099 09198 RLC 29401 b |
|
| 1 | | YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN | 2 | | PLACEMENT of the
child or children in foster care until a | 3 | | trial can be held. A trial may
not be held for up to 90 | 4 | | days. You will not be entitled to further notices
of | 5 | | proceedings in this case, including the filing of an | 6 | | amended petition or a
motion to terminate parental rights.
| 7 | | At the shelter care hearing, parents have the following | 8 | | rights:
| 9 | | 1. To ask the court to appoint a lawyer if they | 10 | | cannot afford one.
| 11 | | 2. To ask the court to continue the hearing to | 12 | | allow them time to
prepare.
| 13 | | 3. To present evidence concerning:
| 14 | | a. Whether or not the child or children were | 15 | | abused, neglected
or dependent.
| 16 | | b. Whether or not there is "immediate and | 17 | | urgent necessity" to remove
the child from home | 18 | | (including: their ability to care for the child,
| 19 | | conditions in the home, alternative means of | 20 | | protecting the child other
than removal).
| 21 | | c. The best interests of the child.
| 22 | | 4. To cross examine the State's witnesses.
| 23 | | The Notice for rehearings shall be substantially as | 24 | | follows:
| 25 | | NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
|
| | | HB3371 Engrossed | - 12 - | LRB099 09198 RLC 29401 b |
|
| 1 | | TO REHEARING ON TEMPORARY CUSTODY
| 2 | | If you were not present at and did not have adequate | 3 | | notice of the
Shelter Care Hearing at which temporary | 4 | | custody of ............... was
awarded to | 5 | | ................, you have the right to request a full | 6 | | rehearing
on whether the State should have temporary | 7 | | custody of ................. To
request this rehearing, | 8 | | you must file with the Clerk of the Juvenile Court
| 9 | | (address): ........................, in person or by | 10 | | mailing a statement
(affidavit) setting forth the | 11 | | following:
| 12 | | 1. That you were not present at the shelter care | 13 | | hearing.
| 14 | | 2. That you did not get adequate notice (explaining | 15 | | how the notice
was inadequate).
| 16 | | 3. Your signature.
| 17 | | 4. Signature must be notarized.
| 18 | | The rehearing should be scheduled within 48 hours of | 19 | | your filing this
affidavit.
| 20 | | At the rehearing, your rights are the same as at the | 21 | | initial shelter care
hearing. The enclosed notice explains | 22 | | those rights.
| 23 | | At the Shelter Care Hearing, children have the | 24 | | following rights:
| 25 | | 1. To have a guardian ad litem appointed.
| 26 | | 2. To be declared competent as a witness and to |
| | | HB3371 Engrossed | - 13 - | LRB099 09198 RLC 29401 b |
|
| 1 | | present testimony
concerning:
| 2 | | a. Whether they are abused, neglected or | 3 | | dependent.
| 4 | | b. Whether there is "immediate and urgent | 5 | | necessity" to be
removed from home.
| 6 | | c. Their best interests.
| 7 | | 3. To cross examine witnesses for other parties.
| 8 | | 4. To obtain an explanation of any proceedings and | 9 | | orders of the
court.
| 10 | | (4) If the parent, guardian, legal custodian, responsible | 11 | | relative,
minor age 8 or over, or counsel of the minor did not | 12 | | have actual notice of
or was not present at the shelter care | 13 | | hearing, he or she may file an
affidavit setting forth these | 14 | | facts, and the clerk shall set the matter for
rehearing not | 15 | | later than 48 hours, excluding Sundays and legal holidays,
| 16 | | after the filing of the affidavit. At the rehearing, the court | 17 | | shall
proceed in the same manner as upon the original hearing.
| 18 | | (5) Only when there is reasonable cause to believe that the | 19 | | minor
taken into custody is a person described in subsection | 20 | | (3) of Section
5-105 may the minor be
kept or detained in a | 21 | | detention home or county or municipal jail. This
Section shall | 22 | | in no way be construed to limit subsection (6).
| 23 | | (6) No minor under 16 years of age may be confined in a | 24 | | jail or place
ordinarily used for the confinement of prisoners | 25 | | in a police station. Minors
under 18 years of age must be kept | 26 | | separate from confined adults and may
not at any time be kept |
| | | HB3371 Engrossed | - 14 - | LRB099 09198 RLC 29401 b |
|
| 1 | | in the same cell, room, or yard with adults confined
pursuant | 2 | | to the criminal law.
| 3 | | (7) If the minor is not brought before a judicial officer | 4 | | within the
time period as specified in Section 2-9, the minor | 5 | | must immediately be
released from custody.
| 6 | | (8) If neither the parent, guardian or custodian appears | 7 | | within 24
hours to take custody of a minor released upon | 8 | | request pursuant to
subsection (2) of this Section, then the | 9 | | clerk of the court shall set the
matter for rehearing not later | 10 | | than 7 days after the original order and
shall issue a summons | 11 | | directed to the parent, guardian or custodian to
appear. At the | 12 | | same time the probation department shall prepare a report
on | 13 | | the minor. If a parent, guardian or custodian does not appear | 14 | | at such
rehearing, the judge may enter an order prescribing | 15 | | that the minor be kept
in a suitable place designated by the | 16 | | Department of Children and Family
Services or a licensed child | 17 | | welfare agency.
| 18 | | (9) Notwithstanding any other provision of this
Section any | 19 | | interested party, including the State, the temporary
| 20 | | custodian, an agency providing services to the minor or family | 21 | | under a
service plan pursuant to Section 8.2 of the Abused and | 22 | | Neglected Child
Reporting Act, foster parent, or any of their | 23 | | representatives, on notice
to all parties entitled to notice, | 24 | | may file a motion that it is in the best
interests of the minor | 25 | | to modify or vacate a
temporary custody order on any of the | 26 | | following grounds:
|
| | | HB3371 Engrossed | - 15 - | LRB099 09198 RLC 29401 b |
|
| 1 | | (a) It is no longer a matter of immediate and urgent | 2 | | necessity that the
minor remain in shelter care; or
| 3 | | (b) There is a material change in the circumstances of | 4 | | the natural
family from which the minor was removed and the | 5 | | child can be cared for at
home without endangering the | 6 | | child's health or safety; or
| 7 | | (c) A person not a party to the alleged abuse, neglect | 8 | | or dependency,
including a parent, relative or legal | 9 | | guardian, is capable of assuming
temporary custody of the | 10 | | minor; or
| 11 | | (d) Services provided by the Department of Children and | 12 | | Family Services
or a child welfare agency or other service | 13 | | provider have been successful in
eliminating the need for | 14 | | temporary custody and the child can be cared for at
home | 15 | | without endangering the child's health or safety.
| 16 | | In ruling on the motion, the court shall determine whether | 17 | | it is consistent
with the health, safety and best interests of | 18 | | the minor to modify
or vacate a temporary custody order.
| 19 | | The clerk shall set the matter for hearing not later than | 20 | | 14 days after
such motion is filed. In the event that the court | 21 | | modifies or vacates a
temporary custody order but does not | 22 | | vacate its finding of probable cause,
the court may order that | 23 | | appropriate services be continued or initiated in
behalf of the | 24 | | minor and his or her family.
| 25 | | (10) When the court finds or has found that there is | 26 | | probable cause to
believe a minor is an abused minor as |
| | | HB3371 Engrossed | - 16 - | LRB099 09198 RLC 29401 b |
|
| 1 | | described in subsection (2) of Section
2-3
and that there is an | 2 | | immediate and urgent necessity for the abused minor to be
| 3 | | placed in shelter care, immediate and urgent necessity shall be | 4 | | presumed for
any other minor residing in the same household as | 5 | | the abused minor provided:
| 6 | | (a) Such other minor is the subject of an abuse or | 7 | | neglect petition
pending before the court; and
| 8 | | (b) A party to the petition is seeking shelter care for | 9 | | such other minor.
| 10 | | Once the presumption of immediate and urgent necessity has | 11 | | been raised, the
burden of demonstrating the lack of immediate | 12 | | and urgent necessity shall be on
any party that is opposing | 13 | | shelter care for the other minor.
| 14 | | (11) The changes made to this Section by Public Act 98-61 | 15 | | apply to a minor who has been
arrested or taken into custody on | 16 | | or after January 1, 2014 (the effective date
of Public Act | 17 | | 98-61). | 18 | | (Source: P.A. 97-1076, eff. 8-24-12; 97-1150, eff. 1-25-13; | 19 | | 98-61, eff. 1-1-14; 98-756, eff. 7-16-14; 98-803, eff. 1-1-15 .)
|
|