Public Act 099-0625
 
SB2512 EnrolledLRB099 15281 RLC 43281 b

    AN ACT concerning courts.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Juvenile Court Act of 1987 is amended by
changing Section 2-10 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, on and after January
1, 2015 (the effective date of Public Act 98-803) this
amendatory Act of the 98th General Assembly and before January
1, 2017, a minor charged with a criminal offense under the
Criminal Code of 1961 or the Criminal Code of 2012 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 16 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; and
on and after January 1, 2017, a minor charged with a criminal
offense under the Criminal Code of 1961 or the Criminal Code of
2012 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 15 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. An
independent basis exists when the allegations or adjudication
of abuse, neglect, or dependency do not arise from the same
facts, incident, or circumstances which give rise to a charge
or adjudication of delinquency.
    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.
    Where the Department of Children and Family Services
Guardianship Administrator is appointed as the executive
temporary custodian, and when the child has siblings in care,
the Department of Children and Family Services shall file with
the court and serve on the parties a sibling placement and
contact plan within 10 days, excluding weekends and holidays,
after the appointment. The sibling placement and contact plan
shall set forth whether the siblings are placed together, and
if they are not placed together, what, if any, efforts are
being made to place them together. If the Department has
determined that it is not in a child's best interest to be
placed with a sibling, the Department shall document in the
sibling placement and contact plan the basis for its
determination. For siblings placed separately, the sibling
placement and contact plan shall set the time and place for
visits, the frequency of the visits, the length of visits, who
shall be present for the visits, and where appropriate, the
child's opportunities to have contact with their siblings in
addition to in person contact. If the Department determines it
is not in the best interest of a sibling to have contact with a
sibling, the Department shall document in the sibling placement
and contact plan the basis for its determination. The sibling
placement and contact plan shall specify a date for development
of the Sibling Contact Support Plan, under subsection (f) of
Section 7.4 of the Children and Family Services Act, and shall
remain in effect until the Sibling Contact Support Plan is
developed.
     For good cause, the court may waive the requirement to
file the parent-child visiting plan or the sibling placement
and contact plan, or extend the time for filing either 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. A party may, by motion,
request the court to review the parent-child visiting plan or
the sibling placement and contact plan to determine whether it
is consistent with the minor's best interest. The court may
refer the parties to mediation where available. 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 either 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 or sibling placement or 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 or sibling placement or contact
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, sibling placement or contact plan or subsequently
developed Sibling Contact Support 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 or sibling
contacts, without further court orders. Nothing in this
subsection (2) shall restrict the Department from immediately
restricting or terminating parent-child contact or sibling
contacts, without either amending the parent-child visiting
plan or the sibling contact plan or obtaining a court order,
where the Department or its assigns reasonably believe that
continuation of the contact, as set out in the 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 plan within 10 days, excluding weekends
and holidays, of the change of the visitation.
    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. The court shall ensure,
by inquiring in open court of each parent, guardian, custodian
or responsible relative, that the parent, guardian, custodian
or responsible relative has had the opportunity to provide the
Department with all known names, addresses, and telephone
numbers of each of the minor's living maternal and paternal
adult relatives, including, but not limited to, grandparents,
aunts, uncles, and siblings. The court shall advise the
parents, guardian, custodian or responsible relative to inform
the Department if additional information regarding the minor's
adult relatives becomes available.
    (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 ex-parte. A shelter care
order from an ex parte 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 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 18 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.
    (11) The changes made to this Section by Public Act 98-61
apply to a minor who has been arrested or taken into custody on
or after January 1, 2014 (the effective date of Public Act
98-61).
(Source: P.A. 97-1076, eff. 8-24-12; 97-1150, eff. 1-25-13;
98-61, eff. 1-1-14; 98-756, eff. 7-16-14; 98-803, eff. 1-1-15;
revised 10-16-15.)

Effective Date: 1/1/2017