Full Text of HB3415 094th General Assembly
HB3415enr 94TH GENERAL ASSEMBLY
|
|
|
HB3415 Enrolled |
|
LRB094 09228 LCB 39462 b |
|
| 1 |
| AN ACT concerning minors.
| 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 Sections 2-10 and 2-10.1 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 Department of Children and
| 21 |
| Family Services shall give testimony concerning indicated | 22 |
| reports of abuse
and neglect, of which they are aware of | 23 |
| through the central registry,
involving the minor's parent, | 24 |
| guardian or custodian. After such
testimony, the court may, | 25 |
| consistent with
the health,
safety and best interests of the | 26 |
| minor,
enter an order that the minor shall be released
upon the | 27 |
| request of parent, guardian or custodian if the parent, | 28 |
| guardian
or custodian appears to take custody. Custodian shall | 29 |
| include any agency of
the State which has been given custody or | 30 |
| wardship of the child. If it is
consistent with the health, | 31 |
| safety and best interests of the
minor, the
court may also | 32 |
| prescribe shelter care and
order that the minor be kept in a |
|
|
|
HB3415 Enrolled |
- 2 - |
LRB094 09228 LCB 39462 b |
|
| 1 |
| suitable place designated by the court or in
a shelter care | 2 |
| facility designated by the Department of Children and Family
| 3 |
| Services or a licensed child welfare
agency; however, a minor | 4 |
| charged with a
criminal offense under the Criminal Code of 1961 | 5 |
| or adjudicated delinquent
shall not be placed in the custody of | 6 |
| or committed to the Department of
Children and Family Services | 7 |
| by any court, except a minor less than 13
years of age and | 8 |
| committed to the Department of Children and Family Services
| 9 |
| under Section 5-710 of this Act or a minor for whom an | 10 |
| independent
basis of
abuse, neglect, or dependency exists, | 11 |
| which must be defined by departmental
rule.
In placing the | 12 |
| minor, the Department or other
agency shall, to the extent
| 13 |
| compatible with the court's order, comply with Section 7 of the | 14 |
| Children and
Family Services Act.
In determining
the health, | 15 |
| safety and best interests of the minor to prescribe shelter
| 16 |
| care, the court must
find that it is a matter of immediate and | 17 |
| urgent necessity for the safety
and protection
of the minor or | 18 |
| of the person or property of another that the minor be placed
| 19 |
| in a shelter care facility or that he or she is likely to flee | 20 |
| the jurisdiction
of the court, and must further find that | 21 |
| reasonable efforts have been made or
that, consistent with the | 22 |
| health, safety and best interests of
the minor, no efforts | 23 |
| reasonably can be made to
prevent or eliminate the necessity of | 24 |
| removal of the minor from his or her
home. The court shall | 25 |
| require documentation from the Department of Children and
| 26 |
| Family Services as to the reasonable efforts that were made to | 27 |
| prevent or
eliminate the necessity of removal of the minor from | 28 |
| his or her home or the
reasons why no efforts reasonably could | 29 |
| be made to prevent or eliminate the
necessity of removal. When | 30 |
| a minor is placed in the home of a relative, the
Department of | 31 |
| Children and Family Services shall complete a preliminary
| 32 |
| background review of the members of the minor's custodian's | 33 |
| household in
accordance with Section 4.3 of the Child Care Act | 34 |
| of 1969 within 90 days of
that placement. If the minor is | 35 |
| ordered placed in a shelter care facility of
the Department of | 36 |
| Children and
Family Services or a licensed child welfare |
|
|
|
HB3415 Enrolled |
- 3 - |
LRB094 09228 LCB 39462 b |
|
| 1 |
| agency, the court shall, upon
request of the appropriate | 2 |
| Department or other agency, appoint the
Department of Children | 3 |
| and Family Services Guardianship Administrator or
other | 4 |
| appropriate agency executive temporary custodian of the minor | 5 |
| and the
court may enter such other orders related to the | 6 |
| temporary custody as it
deems fit and proper, including the | 7 |
| provision of services to the minor or
his family to ameliorate | 8 |
| the causes contributing to the finding of probable
cause or to | 9 |
| the finding of the existence of immediate and urgent necessity.
| 10 |
| Where the Department of Children and Family Services | 11 |
| Guardianship Administrator is appointed as the executive | 12 |
| temporary custodian, the Department of Children and Family | 13 |
| Services shall file with the court and serve on the parties a | 14 |
| parent-child visiting plan, within 10 days, excluding weekends | 15 |
| and holidays, after the appointment. The parent-child visiting | 16 |
| plan shall set out the time and place of visits, the frequency | 17 |
| of visits, the length of visits, who shall be present at the | 18 |
| visits, and where appropriate, the minor's opportunities to | 19 |
| have telephone and mail communication with the parents. For | 20 |
| good cause, the court may waive the requirement to file the | 21 |
| parent-child visiting plan or extend the time for filing the | 22 |
| parent-child visiting plan. Any party may, by motion, request | 23 |
| the court to review the parent-child visiting plan to determine | 24 |
| whether it is reasonably calculated to expeditiously | 25 |
| facilitate the achievement of the permanency goal and is | 26 |
| consistent with the minor's best interest. The frequency, | 27 |
| duration, and locations of visitation shall be measured by the | 28 |
| needs of the child and family, and not by the convenience of | 29 |
| Department personnel. Child development principles shall be | 30 |
| considered by the court in its analysis of how frequent | 31 |
| visitation should be, how long it should last, where it should | 32 |
| take place, and who should be present. If upon motion of the | 33 |
| party to review the plan and after receiving evidence, the | 34 |
| court determines that the parent-child visiting plan is not | 35 |
| reasonably calculated to expeditiously facilitate the | 36 |
| achievement of the permanency goal or that the restrictions |
|
|
|
HB3415 Enrolled |
- 4 - |
LRB094 09228 LCB 39462 b |
|
| 1 |
| placed on parent-child contact are contrary to the child's best | 2 |
| interests, the court shall put in writing the factual basis | 3 |
| supporting the determination and enter specific findings based | 4 |
| on the evidence. The court shall enter an order for the | 5 |
| Department to implement changes to the parent-child visiting | 6 |
| plan, consistent with the court's findings. At any stage of | 7 |
| proceeding, any party may by motion request the court to enter | 8 |
| any orders necessary to implement the parent-child visiting | 9 |
| plan. Nothing under this subsection (2) shall restrict the | 10 |
| court from granting discretionary authority to the Department | 11 |
| to increase opportunities for additional parent-child | 12 |
| contacts, without further court orders. Nothing in this | 13 |
| subsection (2) shall restrict the Department from immediately | 14 |
| restricting or terminating parent-child contact, without | 15 |
| either amending the parent-child visiting plan or obtaining a | 16 |
| court order, where the Department or its assigns reasonably | 17 |
| believe that continuation of parent-child contact, as set out | 18 |
| in the parent-child visiting plan, would be contrary to the | 19 |
| child's health, safety, and welfare. The Department shall file | 20 |
| with the court and serve on the parties any amendments to the | 21 |
| visitation plan within 10 days, excluding weekends and | 22 |
| holidays, of the change of the visitation. Any party may, by | 23 |
| motion, request the court to review the parent-child visiting | 24 |
| plan to determine whether the parent-child visiting plan is | 25 |
| reasonably calculated to expeditiously facilitate the | 26 |
| achievement of the permanency goal, and is consistent with the | 27 |
| minor's health, safety, and best interest.
| 28 |
| Acceptance of services shall not be considered an admission | 29 |
| of any
allegation in a petition made pursuant to this Act, nor | 30 |
| may a referral of
services be considered as evidence in any | 31 |
| proceeding pursuant to this Act,
except where the issue is | 32 |
| whether the Department has made reasonable
efforts to reunite | 33 |
| the family. In making its findings that it is
consistent with | 34 |
| the health, safety and best
interests of the minor to prescribe | 35 |
| shelter care, the court shall state in
writing (i) the factual | 36 |
| basis supporting its findings concerning the
immediate and |
|
|
|
HB3415 Enrolled |
- 5 - |
LRB094 09228 LCB 39462 b |
|
| 1 |
| urgent necessity for the protection of the minor or of the | 2 |
| person
or property of another and (ii) the factual basis | 3 |
| supporting its findings that
reasonable efforts were made to | 4 |
| prevent or eliminate the removal of the minor
from his or her | 5 |
| home or that no efforts reasonably could be made to prevent or
| 6 |
| eliminate the removal of the minor from his or her home. The
| 7 |
| parents, guardian, custodian, temporary custodian and minor | 8 |
| shall each be
furnished a copy of such written findings. The | 9 |
| temporary custodian shall
maintain a copy of the court order | 10 |
| and written findings in the case record
for the child. The | 11 |
| order together with the court's findings of fact in
support | 12 |
| thereof shall be entered of record in the court.
| 13 |
| Once the court finds that it is a matter of immediate and | 14 |
| urgent necessity
for the protection of the minor that the minor | 15 |
| be placed in a shelter care
facility, the minor shall not be | 16 |
| returned to the parent, custodian or guardian
until the court | 17 |
| finds that such placement is no longer necessary for the
| 18 |
| protection of the minor.
| 19 |
| If the child is placed in the temporary custody of the | 20 |
| Department of
Children
and Family
Services for his or her | 21 |
| protection, the court shall admonish the parents,
guardian,
| 22 |
| custodian or responsible relative that the parents must | 23 |
| cooperate with the
Department of Children and Family Services, | 24 |
| comply
with the terms of the service plans, and correct the | 25 |
| conditions which require
the child to be in care, or risk | 26 |
| termination of their parental
rights.
| 27 |
| (3) If prior to the shelter care hearing for a minor | 28 |
| described in Sections
2-3, 2-4, 3-3 and 4-3 the moving party is | 29 |
| unable to serve notice on the
party respondent, the shelter | 30 |
| care hearing may proceed ex-parte. A shelter
care order from an | 31 |
| ex-parte hearing shall be endorsed with the date and
hour of | 32 |
| issuance and shall be filed with the clerk's office and entered | 33 |
| of
record. The order shall expire after 10 days from the time | 34 |
| it is issued
unless before its expiration it is renewed, at a | 35 |
| hearing upon appearance
of the party respondent, or upon an | 36 |
| affidavit of the moving party as to all
diligent efforts to |
|
|
|
HB3415 Enrolled |
- 6 - |
LRB094 09228 LCB 39462 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 |
| that there is "immediate and urgent necessity" to remove | 26 |
| the child
or children from the responsible relative.
| 27 |
| YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN | 28 |
| PLACEMENT of the
child or children in foster care until a | 29 |
| trial can be held. A trial may
not be held for up to 90 | 30 |
| days. You will not be entitled to further notices
of | 31 |
| proceedings in this case, including the filing of an | 32 |
| amended petition or a
motion to terminate parental rights.
| 33 |
| At the shelter care hearing, parents have the following | 34 |
| rights:
| 35 |
| 1. To ask the court to appoint a lawyer if they | 36 |
| cannot afford one.
|
|
|
|
HB3415 Enrolled |
- 7 - |
LRB094 09228 LCB 39462 b |
|
| 1 |
| 2. To ask the court to continue the hearing to | 2 |
| allow them time to
prepare.
| 3 |
| 3. To present evidence concerning:
| 4 |
| a. Whether or not the child or children were | 5 |
| abused, neglected
or dependent.
| 6 |
| b. Whether or not there is "immediate and | 7 |
| urgent necessity" to remove
the child from home | 8 |
| (including: their ability to care for the child,
| 9 |
| conditions in the home, alternative means of | 10 |
| protecting the child other
than removal).
| 11 |
| c. The best interests of the child.
| 12 |
| 4. To cross examine the State's witnesses.
| 13 |
| The Notice for rehearings shall be substantially as | 14 |
| follows:
| 15 |
| NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
| 16 |
| TO REHEARING ON TEMPORARY CUSTODY
| 17 |
| If you were not present at and did not have adequate | 18 |
| notice of the
Shelter Care Hearing at which temporary | 19 |
| custody of ............... was
awarded to | 20 |
| ................, you have the right to request a full | 21 |
| rehearing
on whether the State should have temporary | 22 |
| custody of ................. To
request this rehearing, | 23 |
| you must file with the Clerk of the Juvenile Court
| 24 |
| (address): ........................, in person or by | 25 |
| mailing a statement
(affidavit) setting forth the | 26 |
| following:
| 27 |
| 1. That you were not present at the shelter care | 28 |
| hearing.
| 29 |
| 2. That you did not get adequate notice (explaining | 30 |
| how the notice
was inadequate).
| 31 |
| 3. Your signature.
| 32 |
| 4. Signature must be notarized.
| 33 |
| The rehearing should be scheduled within 48 hours of | 34 |
| your filing this
affidavit.
| 35 |
| At the rehearing, your rights are the same as at the |
|
|
|
HB3415 Enrolled |
- 8 - |
LRB094 09228 LCB 39462 b |
|
| 1 |
| initial shelter care
hearing. The enclosed notice explains | 2 |
| those rights.
| 3 |
| At the Shelter Care Hearing, children have the | 4 |
| following rights:
| 5 |
| 1. To have a guardian ad litem appointed.
| 6 |
| 2. To be declared competent as a witness and to | 7 |
| present testimony
concerning:
| 8 |
| a. Whether they are abused, neglected or | 9 |
| dependent.
| 10 |
| b. Whether there is "immediate and urgent | 11 |
| necessity" to be
removed from home.
| 12 |
| c. Their best interests.
| 13 |
| 3. To cross examine witnesses for other parties.
| 14 |
| 4. To obtain an explanation of any proceedings and | 15 |
| orders of the
court.
| 16 |
| (4) If the parent, guardian, legal custodian, responsible | 17 |
| relative,
minor age 8 or over, or counsel of the minor did not | 18 |
| have actual notice of
or was not present at the shelter care | 19 |
| hearing, he or she may file an
affidavit setting forth these | 20 |
| facts, and the clerk shall set the matter for
rehearing not | 21 |
| later than 48 hours, excluding Sundays and legal holidays,
| 22 |
| after the filing of the affidavit. At the rehearing, the court | 23 |
| shall
proceed in the same manner as upon the original hearing.
| 24 |
| (5) Only when there is reasonable cause to believe that the | 25 |
| minor
taken into custody is a person described in subsection | 26 |
| (3) of Section
5-105 may the minor be
kept or detained in a | 27 |
| detention home or county or municipal jail. This
Section shall | 28 |
| in no way be construed to limit subsection (6).
| 29 |
| (6) No minor under 16 years of age may be confined in a | 30 |
| jail or place
ordinarily used for the confinement of prisoners | 31 |
| in a police station. Minors
under 17 years of age must be kept | 32 |
| separate from confined adults and may
not at any time be kept | 33 |
| in the same cell, room, or yard with adults confined
pursuant | 34 |
| to the criminal law.
| 35 |
| (7) If the minor is not brought before a judicial officer | 36 |
| within the
time period as specified in Section 2-9, the minor |
|
|
|
HB3415 Enrolled |
- 9 - |
LRB094 09228 LCB 39462 b |
|
| 1 |
| must immediately be
released from custody.
| 2 |
| (8) If neither the parent, guardian or custodian appears | 3 |
| within 24
hours to take custody of a minor released upon | 4 |
| request pursuant to
subsection (2) of this Section, then the | 5 |
| clerk of the court shall set the
matter for rehearing not later | 6 |
| than 7 days after the original order and
shall issue a summons | 7 |
| directed to the parent, guardian or custodian to
appear. At the | 8 |
| same time the probation department shall prepare a report
on | 9 |
| the minor. If a parent, guardian or custodian does not appear | 10 |
| at such
rehearing, the judge may enter an order prescribing | 11 |
| that the minor be kept
in a suitable place designated by the | 12 |
| Department of Children and Family
Services or a licensed child | 13 |
| welfare agency.
| 14 |
| (9) Notwithstanding any other provision of this
Section any | 15 |
| interested party, including the State, the temporary
| 16 |
| custodian, an agency providing services to the minor or family | 17 |
| under a
service plan pursuant to Section 8.2 of the Abused and | 18 |
| Neglected Child
Reporting Act, foster parent, or any of their | 19 |
| representatives, on notice
to all parties entitled to notice, | 20 |
| may file a motion that it is in the best
interests of the minor | 21 |
| to modify or vacate a
temporary custody order on any of the | 22 |
| following grounds:
| 23 |
| (a) It is no longer a matter of immediate and urgent | 24 |
| necessity that the
minor remain in shelter care; or
| 25 |
| (b) There is a material change in the circumstances of | 26 |
| the natural
family from which the minor was removed and the | 27 |
| child can be cared for at
home without endangering the | 28 |
| child's health or safety; or
| 29 |
| (c) A person not a party to the alleged abuse, neglect | 30 |
| or dependency,
including a parent, relative or legal | 31 |
| guardian, is capable of assuming
temporary custody of the | 32 |
| minor; or
| 33 |
| (d) Services provided by the Department of Children and | 34 |
| Family Services
or a child welfare agency or other service | 35 |
| provider have been successful in
eliminating the need for | 36 |
| temporary custody and the child can be cared for at
home |
|
|
|
HB3415 Enrolled |
- 10 - |
LRB094 09228 LCB 39462 b |
|
| 1 |
| without endangering the child's health or safety.
| 2 |
| In ruling on the motion, the court shall determine whether | 3 |
| it is consistent
with the health, safety and best interests of | 4 |
| the minor to modify
or vacate a temporary custody order.
| 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 |
| (10) When the court finds or has found that there is | 12 |
| probable cause to
believe a minor is an abused minor as | 13 |
| described in subsection (2) of Section
2-3
and that there is an | 14 |
| immediate and urgent necessity for the abused minor to be
| 15 |
| placed in shelter care, immediate and urgent necessity shall be | 16 |
| presumed for
any other minor residing in the same household as | 17 |
| the abused minor provided:
| 18 |
| (a) Such other minor is the subject of an abuse or | 19 |
| neglect petition
pending before the court; and
| 20 |
| (b) A party to the petition is seeking shelter care for | 21 |
| such other minor.
| 22 |
| Once the presumption of immediate and urgent necessity has | 23 |
| been raised, the
burden of demonstrating the lack of immediate | 24 |
| and urgent necessity shall be on
any party that is opposing | 25 |
| shelter care for the other minor.
| 26 |
| (Source: P.A. 89-21, eff. 7-1-95; 89-422 ; 89-582,
eff. 1-1-97; | 27 |
| 89-626, eff. 8-9-96; 90-28, eff. 1-1-98; 90-87, eff. 9-1-97;
| 28 |
| 90-590, eff. 1-1-99; 90-655, eff. 7-30-98.)
| 29 |
| (705 ILCS 405/2-10.1) (from Ch. 37, par. 802-10.1)
| 30 |
| Sec. 2-10.1. Whenever a minor is placed in shelter care | 31 |
| with the
Department or a licensed child welfare agency in | 32 |
| accordance with Section
2-10, the Department or agency, as | 33 |
| appropriate, shall prepare and file with
the court within 45 | 34 |
| days of placement under Section 2-10 a case plan which
complies | 35 |
| with the federal Adoption Assistance and Child Welfare Act of |
|
|
|
HB3415 Enrolled |
- 11 - |
LRB094 09228 LCB 39462 b |
|
| 1 |
| 1980
and is consistent with the health, safety and best | 2 |
| interests of
the minor.
| 3 |
| For the purposes of this Act, "case plan" and "service | 4 |
| plan" shall have the same meaning.
| 5 |
| (Source: P.A. 90-28, eff. 1-1-98.)
|
|