Bill Text: IL HB4964 | 2021-2022 | 102nd General Assembly | Engrossed
Bill Title: Amends the Abused, Neglected or Dependent Minors Article of the Juvenile Court Act of 1987. Restricts a court from making a finding of probable cause to believe that a minor is abused or neglected based only on a parent disclosing that the parent is the victim of domestic violence and the parent is seeking or accessing services for domestic violence.
Spectrum: Moderate Partisan Bill (Democrat 8-2)
Status: (Engrossed - Dead) 2023-01-03 - Placed on Calendar Order of 3rd Reading January 4, 2023 [HB4964 Detail]
Download: Illinois-2021-HB4964-Engrossed.html
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1 | AN ACT concerning courts.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Juvenile Court Act of 1987 is amended by | ||||||
5 | changing Sections 2-3 and 2-10 as follows:
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6 | (705 ILCS 405/2-3) (from Ch. 37, par. 802-3) | ||||||
7 | Sec. 2-3. Neglected or abused minor. | ||||||
8 | (1) Those who are neglected include: | ||||||
9 | (a) any minor under 18 years of age or a minor 18 years | ||||||
10 | of age or older for whom the court has made a finding of | ||||||
11 | probable cause to believe that the minor is abused, | ||||||
12 | neglected, or dependent under subsection (1) of Section | ||||||
13 | 2-10 prior to the minor's 18th birthday who is not | ||||||
14 | receiving
the proper or necessary support, education as
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15 | required by law, or medical or other remedial care | ||||||
16 | recognized under
State law as necessary for a minor's | ||||||
17 | well-being, or other care necessary
for his or her | ||||||
18 | well-being, including adequate food, clothing and shelter,
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19 | or who is abandoned by his or her parent or parents or | ||||||
20 | other person or persons responsible for
the minor's | ||||||
21 | welfare, except that a minor shall not be considered | ||||||
22 | neglected
for the sole reason that the minor's parent or | ||||||
23 | parents or other person or persons responsible for the
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1 | minor's welfare have left the minor in the care of an adult | ||||||
2 | relative for any
period of time, who the parent or parents | ||||||
3 | or other person responsible for the minor's welfare know | ||||||
4 | is both a mentally capable adult relative and physically | ||||||
5 | capable adult relative, as defined by this Act; or | ||||||
6 | (b) any minor under 18 years of age or a minor 18 years | ||||||
7 | of age or older for whom the court has made a finding of | ||||||
8 | probable cause to believe that the minor is abused, | ||||||
9 | neglected, or dependent under subsection (1) of Section | ||||||
10 | 2-10 prior to the minor's 18th birthday whose environment | ||||||
11 | is injurious
to his or her welfare; or | ||||||
12 | (c) any newborn infant whose blood, urine, or meconium
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13 | contains any amount of a
controlled substance as defined | ||||||
14 | in subsection (f) of Section 102 of the
Illinois | ||||||
15 | Controlled Substances Act, as now or hereafter amended, or | ||||||
16 | a
metabolite of a controlled substance, with the exception | ||||||
17 | of controlled
substances or metabolites of such | ||||||
18 | substances, the presence of which in the
newborn infant is | ||||||
19 | the result of medical treatment administered to the
mother | ||||||
20 | or the newborn infant; or | ||||||
21 | (d) any minor under the age of 14 years whose parent or | ||||||
22 | other person
responsible for the minor's welfare leaves | ||||||
23 | the minor without
supervision for an unreasonable period | ||||||
24 | of time without regard for the mental or
physical health, | ||||||
25 | safety, or welfare of that minor; or | ||||||
26 | (e) any minor who has been provided with interim |
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1 | crisis intervention
services under Section 3-5 of this Act | ||||||
2 | and whose parent, guardian, or custodian
refuses to permit | ||||||
3 | the minor to return home unless the minor is an immediate | ||||||
4 | physical danger to himself, herself, or others living in | ||||||
5 | the home.
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6 | Whether the minor was left without regard for the mental | ||||||
7 | or physical health,
safety, or welfare of that minor or the | ||||||
8 | period of time was unreasonable shall
be determined by | ||||||
9 | considering the following factors, including but not limited
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10 | to: | ||||||
11 | (1) the age of the minor; | ||||||
12 | (2) the number of minors left at the location; | ||||||
13 | (3) special needs of the minor, including whether the | ||||||
14 | minor is a person with a physical or mental disability, or | ||||||
15 | otherwise in need of ongoing prescribed medical
treatment | ||||||
16 | such as periodic doses of insulin or other medications; | ||||||
17 | (4) the duration of time in which the minor was left | ||||||
18 | without supervision; | ||||||
19 | (5) the condition and location of the place where the | ||||||
20 | minor was left
without supervision; | ||||||
21 | (6) the time of day or night when the minor was left | ||||||
22 | without supervision; | ||||||
23 | (7) the weather conditions, including whether the | ||||||
24 | minor was left in a
location with adequate protection from | ||||||
25 | the natural elements such as adequate
heat or light; | ||||||
26 | (8) the location of the parent or guardian at the time |
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1 | the minor was left
without supervision, the physical | ||||||
2 | distance the minor was from the parent or
guardian at the | ||||||
3 | time the minor was without supervision; | ||||||
4 | (9) whether the minor's movement was restricted, or | ||||||
5 | the minor was
otherwise locked within a room or other | ||||||
6 | structure; | ||||||
7 | (10) whether the minor was given a phone number of a | ||||||
8 | person or location to
call in the event of an emergency and | ||||||
9 | whether the minor was capable of making
an emergency call; | ||||||
10 | (11) whether there was food and other provision left | ||||||
11 | for the minor; | ||||||
12 | (12) whether any of the conduct is attributable to | ||||||
13 | economic hardship or
illness and the parent, guardian or | ||||||
14 | other person having physical custody or
control of the | ||||||
15 | child made a good faith effort to provide for the health | ||||||
16 | and
safety of the minor; | ||||||
17 | (13) the age and physical and mental capabilities of | ||||||
18 | the person or persons
who provided supervision for the | ||||||
19 | minor; | ||||||
20 | (14) whether the minor was left under the supervision | ||||||
21 | of another person; | ||||||
22 | (15) any other factor that would endanger the health | ||||||
23 | and safety of that
particular minor. | ||||||
24 | A minor shall not be considered neglected for the sole | ||||||
25 | reason that the
minor has been relinquished in accordance with | ||||||
26 | the Abandoned Newborn Infant
Protection Act. |
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1 | (2) Those who are abused include any minor under 18 years | ||||||
2 | of age or a minor 18 years of age or older for whom the court | ||||||
3 | has made a finding of probable cause to believe that the minor | ||||||
4 | is abused, neglected, or dependent under subsection (1) of | ||||||
5 | Section 2-10 prior to the minor's 18th birthday whose
parent | ||||||
6 | or immediate family member, or any person responsible
for the | ||||||
7 | minor's welfare, or any person who is in the same family or | ||||||
8 | household
as the minor, or any individual residing in the same | ||||||
9 | home as the minor, or
a paramour of the minor's parent: | ||||||
10 | (i) inflicts, causes to be inflicted, or allows to be | ||||||
11 | inflicted upon
such minor physical injury, by other than | ||||||
12 | accidental means, which causes death,
disfigurement, | ||||||
13 | impairment of physical or emotional health, or loss or
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14 | impairment of any bodily function; | ||||||
15 | (ii) creates a substantial risk of physical injury to | ||||||
16 | such minor by
other than accidental means which would be | ||||||
17 | likely to cause death,
disfigurement, impairment of | ||||||
18 | emotional health, or loss or impairment of any
bodily | ||||||
19 | function; | ||||||
20 | (iii) commits or allows to be committed any sex | ||||||
21 | offense against such
minor, as such sex offenses are | ||||||
22 | defined in the Criminal Code of 1961 or the Criminal Code | ||||||
23 | of 2012, or in the Wrongs to Children Act, and extending | ||||||
24 | those definitions of sex offenses to include minors
under | ||||||
25 | 18 years of age; | ||||||
26 | (iv) commits or allows to be committed an act or acts |
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1 | of torture upon
such minor; | ||||||
2 | (v) inflicts excessive corporal punishment; | ||||||
3 | (vi) commits or allows to be committed the offense of | ||||||
4 | involuntary servitude, involuntary sexual servitude of a | ||||||
5 | minor, or trafficking in persons as defined in Section | ||||||
6 | 10-9 of the Criminal Code of 1961 or the Criminal Code of | ||||||
7 | 2012, upon such minor; or | ||||||
8 | (vii) allows, encourages or requires a minor to commit | ||||||
9 | any act of prostitution, as defined in the Criminal Code | ||||||
10 | of 1961 or the Criminal Code of 2012, and extending those | ||||||
11 | definitions to include minors under 18 years of age. | ||||||
12 | A minor shall not be considered abused for the sole reason | ||||||
13 | that the minor
has been relinquished in accordance with the | ||||||
14 | Abandoned Newborn Infant
Protection Act. | ||||||
15 | (3) This Section does not apply to a minor who would be | ||||||
16 | included
herein solely for the purpose of qualifying for | ||||||
17 | financial assistance for
himself, his parents, guardian or | ||||||
18 | custodian. | ||||||
19 | (4) The changes made by this amendatory Act of the 101st | ||||||
20 | General Assembly apply to a case that is pending on or after | ||||||
21 | the effective date of this amendatory Act of the 101st General | ||||||
22 | Assembly. | ||||||
23 | (5) A court shall not make a finding of probable cause that | ||||||
24 | a minor is abused or neglected under this Section based only on | ||||||
25 | a parent, guardian, or custodian disclosing that the parent, | ||||||
26 | guardian, or custodian is (i) the victim of domestic violence, |
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1 | as defined by the Illinois Domestic Violence Act of 1986, (ii) | ||||||
2 | seeking or accessing services for domestic violence, and (iii) | ||||||
3 | not living in the same home as the perpetrator of the domestic | ||||||
4 | violence. | ||||||
5 | (Source: P.A. 101-79, eff. 7-12-19.)
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6 | (705 ILCS 405/2-10) (from Ch. 37, par. 802-10)
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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.
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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.
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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
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21 | Family Services shall give testimony concerning indicated | ||||||
22 | reports of abuse
and neglect, of which they are aware through | ||||||
23 | the central registry,
involving the minor's parent, guardian | ||||||
24 | or custodian. After such
testimony, the court may, consistent | ||||||
25 | with
the health,
safety and best interests of the minor,
enter |
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1 | an order that the minor shall be released
upon the request of | ||||||
2 | parent, guardian or custodian if the parent, guardian
or | ||||||
3 | custodian appears to take custody. If it is determined that a | ||||||
4 | parent's, guardian's, or custodian's compliance with critical | ||||||
5 | services mitigates the necessity for removal of the minor from | ||||||
6 | his or her home, the court may enter an Order of Protection | ||||||
7 | setting forth reasonable conditions of behavior that a parent, | ||||||
8 | guardian, or custodian must observe for a specified period of | ||||||
9 | time, not to exceed 12 months, without a violation; provided, | ||||||
10 | however, that the 12-month period shall begin anew after any | ||||||
11 | violation. "Custodian" includes the Department of Children and | ||||||
12 | Family Services, if it has been given custody of the child, or | ||||||
13 | any other agency of the State which has been given custody or | ||||||
14 | wardship of the child. If it is
consistent with the health, | ||||||
15 | safety and best interests of the
minor, the
court may also | ||||||
16 | prescribe shelter care and
order that the minor be kept in a | ||||||
17 | suitable place designated by the court or in
a shelter care | ||||||
18 | facility designated by the Department of Children and Family
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19 | Services or a licensed child welfare
agency; however, on and | ||||||
20 | after January 1, 2015 (the effective date of Public Act | ||||||
21 | 98-803) and before January 1, 2017, a minor charged with a
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22 | criminal offense under the Criminal Code of 1961 or the | ||||||
23 | Criminal Code of 2012 or adjudicated delinquent
shall not be | ||||||
24 | placed in the custody of or committed to the Department of
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25 | Children and Family Services by any court, except a minor less | ||||||
26 | than 16
years of age and committed to the Department of |
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1 | Children and Family Services
under Section 5-710 of this Act | ||||||
2 | or a minor for whom an independent
basis of
abuse, neglect, or | ||||||
3 | dependency exists; and on and after January 1, 2017, a minor | ||||||
4 | charged with a
criminal offense under the Criminal Code of | ||||||
5 | 1961 or the Criminal Code of 2012 or adjudicated delinquent
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6 | shall not be placed in the custody of or committed to the | ||||||
7 | Department of
Children and Family Services by any court, | ||||||
8 | except a minor less than 15 years of age and committed to the | ||||||
9 | Department of Children and Family Services
under Section 5-710 | ||||||
10 | of this Act or a minor for whom an independent
basis of
abuse, | ||||||
11 | neglect, or dependency exists.
An independent basis exists | ||||||
12 | when the allegations or adjudication of abuse, neglect, or | ||||||
13 | dependency do not arise from the same facts, incident, or | ||||||
14 | circumstances which give rise to a charge or adjudication of | ||||||
15 | delinquency.
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16 | Notwithstanding any other provision of this Section, the | ||||||
17 | court may not enter an order to place the minor in shelter | ||||||
18 | care, commit the minor to the Department of Children and | ||||||
19 | Family Services, or otherwise remove the minor from the | ||||||
20 | minor's home based on only a disclosure by the minor's parent, | ||||||
21 | guardian, or custodian that the minor's parent, guardian, or | ||||||
22 | custodian is (i) a victim of domestic violence, as defined by | ||||||
23 | the Illinois Domestic Violence Act of 1986, (ii) seeking or | ||||||
24 | accessing services for domestic violence, and (iii) not living | ||||||
25 | in the same home as the perpetrator of the domestic violence. | ||||||
26 | In placing the minor, the Department or other
agency |
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1 | shall, to the extent
compatible with the court's order, comply | ||||||
2 | with Section 7 of the Children and
Family Services Act.
In | ||||||
3 | determining
the health, safety and best interests of the minor | ||||||
4 | to prescribe shelter
care, the court must
find that it is a | ||||||
5 | matter of immediate and urgent necessity for the safety
and | ||||||
6 | protection
of the minor or of the person or property of another | ||||||
7 | that the minor be placed
in a shelter care facility or that he | ||||||
8 | or she is likely to flee the jurisdiction
of the court, and | ||||||
9 | must further find that reasonable efforts have been made or
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10 | that, consistent with the health, safety and best interests of
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11 | the minor, no efforts reasonably can be made to
prevent or | ||||||
12 | eliminate the necessity of removal of the minor from his or her
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13 | home. The court shall require documentation from the | ||||||
14 | Department of Children and
Family Services as to the | ||||||
15 | reasonable efforts that were made to prevent or
eliminate the | ||||||
16 | necessity of removal of the minor from his or her home or the
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17 | reasons why no efforts reasonably could be made to prevent or | ||||||
18 | eliminate the
necessity of removal. When a minor is placed in | ||||||
19 | the home of a relative, the
Department of Children and Family | ||||||
20 | Services shall complete a preliminary
background review of the | ||||||
21 | members of the minor's custodian's household in
accordance | ||||||
22 | with Section 4.3 of the Child Care Act of 1969 within 90 days | ||||||
23 | of
that placement. If the minor is ordered placed in a shelter | ||||||
24 | care facility of
the Department of Children and
Family | ||||||
25 | Services or a licensed child welfare agency, the court shall, | ||||||
26 | upon
request of the appropriate Department or other agency, |
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1 | appoint the
Department of Children and Family Services | ||||||
2 | Guardianship Administrator or
other appropriate agency | ||||||
3 | executive temporary custodian of the minor and the
court may | ||||||
4 | enter such other orders related to the temporary custody as it
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5 | deems fit and proper, including the provision of services to | ||||||
6 | the minor or
his family to ameliorate the causes contributing | ||||||
7 | to the finding of probable
cause or to the finding of the | ||||||
8 | existence of immediate and urgent necessity. | ||||||
9 | Where the Department of Children and Family Services | ||||||
10 | Guardianship Administrator is appointed as the executive | ||||||
11 | temporary custodian, the Department of Children and Family | ||||||
12 | Services shall file with the court and serve on the parties a | ||||||
13 | parent-child visiting plan, within 10 days, excluding weekends | ||||||
14 | and holidays, after the appointment. The parent-child visiting | ||||||
15 | plan shall set out the time and place of visits, the frequency | ||||||
16 | of visits, the length of visits, who shall be present at the | ||||||
17 | visits, and where appropriate, the minor's opportunities to | ||||||
18 | have telephone and mail communication with the parents. | ||||||
19 | Where the Department of Children and Family Services | ||||||
20 | Guardianship Administrator is
appointed as the executive | ||||||
21 | temporary custodian, and when the child has siblings in care,
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22 | the Department of Children and Family Services shall file with | ||||||
23 | the court and serve on the
parties a sibling placement and | ||||||
24 | contact plan within 10 days, excluding weekends and
holidays, | ||||||
25 | after the appointment. The sibling placement and contact plan | ||||||
26 | shall set forth
whether the siblings are placed together, and |
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1 | if they are not placed together, what, if any,
efforts are | ||||||
2 | being made to place them together. If the Department has | ||||||
3 | determined that it is
not in a child's best interest to be | ||||||
4 | placed with a sibling, the Department shall document in
the | ||||||
5 | sibling placement and contact plan the basis for its | ||||||
6 | determination. For siblings placed
separately, the sibling | ||||||
7 | placement and contact plan shall set the time and place for | ||||||
8 | visits,
the frequency of the visits, the length of visits, who | ||||||
9 | shall be present for the visits, and
where appropriate, the | ||||||
10 | child's opportunities to have contact with their siblings in | ||||||
11 | addition to
in person contact. If the Department determines it | ||||||
12 | is not in the best interest of a sibling to
have contact with a | ||||||
13 | sibling, the Department shall document in the sibling | ||||||
14 | placement and
contact plan the basis for its determination. | ||||||
15 | The sibling placement and contact plan shall
specify a date | ||||||
16 | for development of the Sibling Contact Support Plan, under | ||||||
17 | subsection (f) of Section 7.4 of the Children and Family | ||||||
18 | Services Act, and shall remain in effect until the Sibling | ||||||
19 | Contact Support Plan is developed. | ||||||
20 | For good cause, the court may waive the requirement to | ||||||
21 | file the parent-child visiting plan or the sibling placement | ||||||
22 | and contact plan, or extend the time for filing either plan. | ||||||
23 | Any party may, by motion, request the court to review the | ||||||
24 | parent-child visiting plan to determine whether it is | ||||||
25 | reasonably calculated to expeditiously facilitate the | ||||||
26 | achievement of the permanency goal. A party may, by motion, |
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1 | request the court to review the parent-child visiting plan or | ||||||
2 | the sibling placement and contact plan to determine whether it | ||||||
3 | is consistent with the minor's best interest. The court may | ||||||
4 | refer the parties to mediation where available. The frequency, | ||||||
5 | duration, and locations of visitation shall be measured by the | ||||||
6 | needs of the child and family, and not by the convenience of | ||||||
7 | Department personnel. Child development principles shall be | ||||||
8 | considered by the court in its analysis of how frequent | ||||||
9 | visitation should be, how long it should last, where it should | ||||||
10 | take place, and who should be present. If upon motion of the | ||||||
11 | party to review either plan and after receiving evidence, the | ||||||
12 | court determines that the parent-child visiting plan is not | ||||||
13 | reasonably calculated to expeditiously facilitate the | ||||||
14 | achievement of the permanency goal or that the restrictions | ||||||
15 | placed on parent-child contact or sibling placement or contact | ||||||
16 | are contrary to the child's best interests, the court shall | ||||||
17 | put in writing the factual basis supporting the determination | ||||||
18 | and enter specific findings based on the evidence. The court | ||||||
19 | shall enter an order for the Department to implement changes | ||||||
20 | to the parent-child visiting plan or sibling placement or | ||||||
21 | contact plan, consistent with the court's findings. At any | ||||||
22 | stage of proceeding, any party may by motion request the court | ||||||
23 | to enter any orders necessary to implement the parent-child | ||||||
24 | visiting plan, sibling placement or contact plan or | ||||||
25 | subsequently developed Sibling Contact Support Plan. Nothing | ||||||
26 | under this subsection (2) shall restrict the court from |
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1 | granting discretionary authority to the Department to increase | ||||||
2 | opportunities for additional parent-child contacts or sibling | ||||||
3 | contacts, without further court orders. Nothing in this | ||||||
4 | subsection (2) shall restrict the Department from immediately | ||||||
5 | restricting or terminating parent-child contact or sibling | ||||||
6 | contacts, without either amending the parent-child visiting | ||||||
7 | plan or the sibling contact plan or obtaining a court order, | ||||||
8 | where the Department or its assigns reasonably believe there | ||||||
9 | is an immediate need to protect the child's health, safety, | ||||||
10 | and welfare. Such restrictions or terminations must be based | ||||||
11 | on available facts to the Department and its assigns when | ||||||
12 | viewed in light of the surrounding circumstances and shall | ||||||
13 | only occur on an individual case-by-case basis. The Department | ||||||
14 | shall file with the court and serve on the parties any | ||||||
15 | amendments to the plan within 10 days, excluding weekends and | ||||||
16 | holidays, of the change of the visitation. | ||||||
17 | Acceptance of services shall not be considered an | ||||||
18 | admission of any
allegation in a petition made pursuant to | ||||||
19 | this Act, nor may a referral of
services be considered as | ||||||
20 | evidence in any proceeding pursuant to this Act,
except where | ||||||
21 | the issue is whether the Department has made reasonable
| ||||||
22 | efforts to reunite the family. In making its findings that it | ||||||
23 | is
consistent with the health, safety and best
interests of | ||||||
24 | the minor to prescribe shelter care, the court shall state in
| ||||||
25 | writing (i) the factual basis supporting its findings | ||||||
26 | concerning the
immediate and urgent necessity for the |
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| |||||||
1 | protection of the minor or of the person
or property of another | ||||||
2 | and (ii) the factual basis supporting its findings that
| ||||||
3 | reasonable efforts were made to prevent or eliminate the | ||||||
4 | removal of the minor
from his or her home or that no efforts | ||||||
5 | reasonably could be made to prevent or
eliminate the removal | ||||||
6 | of the minor from his or her home. The
parents, guardian, | ||||||
7 | custodian, temporary custodian and minor shall each be
| ||||||
8 | furnished a copy of such written findings. The temporary | ||||||
9 | custodian shall
maintain a copy of the court order and written | ||||||
10 | findings in the case record
for the child. The order together | ||||||
11 | with the court's findings of fact in
support thereof shall be | ||||||
12 | 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 | ||||||
15 | minor be placed in a shelter care
facility, the minor shall not | ||||||
16 | be returned to the parent, custodian or guardian
until the | ||||||
17 | court 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. The court shall ensure, |
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| |||||||
1 | by inquiring in open court of each parent, guardian, custodian | ||||||
2 | or responsible relative, that the parent, guardian, custodian | ||||||
3 | or responsible relative has had the opportunity to provide the | ||||||
4 | Department with all known names, addresses, and telephone | ||||||
5 | numbers of each of the minor's living maternal and paternal | ||||||
6 | adult relatives, including, but not limited to, grandparents, | ||||||
7 | aunts, uncles, and siblings. The court shall advise the | ||||||
8 | parents, guardian, custodian or responsible relative to inform | ||||||
9 | the Department if additional information regarding the minor's | ||||||
10 | adult relatives becomes available.
| ||||||
11 | (3) If prior to the shelter care hearing for a minor | ||||||
12 | described in Sections
2-3, 2-4, 3-3 and 4-3 the moving party is | ||||||
13 | unable to serve notice on the
party respondent, the shelter | ||||||
14 | care hearing may proceed ex parte. A shelter
care order from an | ||||||
15 | ex parte hearing shall be endorsed with the date and
hour of | ||||||
16 | issuance and shall be filed with the clerk's office and | ||||||
17 | entered of
record. The order shall expire after 10 days from | ||||||
18 | the time it is issued
unless before its expiration it is | ||||||
19 | renewed, at a hearing upon appearance
of the party respondent, | ||||||
20 | or upon an affidavit of the moving party as to all
diligent | ||||||
21 | efforts to notify the party respondent by notice as herein
| ||||||
22 | prescribed. The notice prescribed shall be in writing and | ||||||
23 | shall be
personally delivered to the minor or the minor's | ||||||
24 | attorney and to the last
known address of the other person or | ||||||
25 | persons entitled to notice. The
notice shall also state the | ||||||
26 | nature of the allegations, the nature of the
order sought by |
| |||||||
| |||||||
1 | the State, including whether temporary custody is sought,
and | ||||||
2 | the consequences of failure to appear and shall contain a | ||||||
3 | notice
that the parties will not be entitled to further | ||||||
4 | written notices or publication
notices of proceedings in this | ||||||
5 | case, including the filing of an amended
petition or a motion | ||||||
6 | to terminate parental rights, except as required by
Supreme | ||||||
7 | Court Rule 11; and shall explain the
right of
the parties and | ||||||
8 | the procedures to vacate or modify a shelter care order as
| ||||||
9 | provided in this Section. The notice for a shelter care | ||||||
10 | hearing shall be
substantially as follows:
| ||||||
11 | NOTICE TO PARENTS AND CHILDREN
| ||||||
12 | OF SHELTER CARE HEARING
| ||||||
13 | On ................ at ........., before the Honorable | ||||||
14 | ................,
(address:) ................., the State | ||||||
15 | of Illinois will present evidence
(1) that (name of child | ||||||
16 | or children) ....................... are abused,
neglected | ||||||
17 | or dependent for the following reasons:
| ||||||
18 | ..............................................
and (2) | ||||||
19 | whether there is "immediate and urgent necessity" to | ||||||
20 | remove the child
or children from the responsible | ||||||
21 | relative.
| ||||||
22 | YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN | ||||||
23 | PLACEMENT of the
child or children in foster care until a | ||||||
24 | trial can be held. A trial may
not be held for up to 90 | ||||||
25 | days. You will not be entitled to further notices
of | ||||||
26 | proceedings in this case, including the filing of an |
| |||||||
| |||||||
1 | amended petition or a
motion to terminate parental rights.
| ||||||
2 | At the shelter care hearing, parents have the | ||||||
3 | following rights:
| ||||||
4 | 1. To ask the court to appoint a lawyer if they | ||||||
5 | cannot afford one.
| ||||||
6 | 2. To ask the court to continue the hearing to | ||||||
7 | allow them time to
prepare.
| ||||||
8 | 3. To present evidence concerning:
| ||||||
9 | a. Whether or not the child or children were | ||||||
10 | abused, neglected
or dependent.
| ||||||
11 | b. Whether or not there is "immediate and | ||||||
12 | urgent necessity" to remove
the child from home | ||||||
13 | (including: their ability to care for the child,
| ||||||
14 | conditions in the home, alternative means of | ||||||
15 | protecting the child other
than removal).
| ||||||
16 | c. The best interests of the child.
| ||||||
17 | 4. To cross examine the State's witnesses.
| ||||||
18 | The Notice for rehearings shall be substantially as | ||||||
19 | follows:
| ||||||
20 | NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
| ||||||
21 | TO REHEARING ON TEMPORARY CUSTODY
| ||||||
22 | If you were not present at and did not have adequate | ||||||
23 | notice of the
Shelter Care Hearing at which temporary | ||||||
24 | custody of ............... was
awarded to | ||||||
25 | ................, you have the right to request a full |
| |||||||
| |||||||
1 | rehearing
on whether the State should have temporary | ||||||
2 | custody of ................. To
request this rehearing, | ||||||
3 | you must file with the Clerk of the Juvenile Court
| ||||||
4 | (address): ........................, in person or by | ||||||
5 | mailing a statement
(affidavit) setting forth the | ||||||
6 | following:
| ||||||
7 | 1. That you were not present at the shelter care | ||||||
8 | hearing.
| ||||||
9 | 2. That you did not get adequate notice | ||||||
10 | (explaining how the notice
was inadequate).
| ||||||
11 | 3. Your signature.
| ||||||
12 | 4. Signature must be notarized.
| ||||||
13 | The rehearing should be scheduled within 48 hours of | ||||||
14 | your filing this
affidavit.
| ||||||
15 | At the rehearing, your rights are the same as at the | ||||||
16 | initial shelter care
hearing. The enclosed notice explains | ||||||
17 | those rights.
| ||||||
18 | At the Shelter Care Hearing, children have the | ||||||
19 | following rights:
| ||||||
20 | 1. To have a guardian ad litem appointed.
| ||||||
21 | 2. To be declared competent as a witness and to | ||||||
22 | present testimony
concerning:
| ||||||
23 | a. Whether they are abused, neglected or | ||||||
24 | dependent.
| ||||||
25 | b. Whether there is "immediate and urgent | ||||||
26 | necessity" to be
removed from home.
|
| |||||||
| |||||||
1 | c. Their best interests.
| ||||||
2 | 3. To cross examine witnesses for other parties.
| ||||||
3 | 4. To obtain an explanation of any proceedings and | ||||||
4 | orders of the
court.
| ||||||
5 | (4) If the parent, guardian, legal custodian, responsible | ||||||
6 | relative,
minor age 8 or over, or counsel of the minor did not | ||||||
7 | have actual notice of
or was not present at the shelter care | ||||||
8 | hearing, he or she may file an
affidavit setting forth these | ||||||
9 | facts, and the clerk shall set the matter for
rehearing not | ||||||
10 | later than 48 hours, excluding Sundays and legal holidays,
| ||||||
11 | after the filing of the affidavit. At the rehearing, the court | ||||||
12 | shall
proceed in the same manner as upon the original hearing.
| ||||||
13 | (5) Only when there is reasonable cause to believe that | ||||||
14 | the minor
taken into custody is a person described in | ||||||
15 | subsection (3) of Section
5-105 may the minor be
kept or | ||||||
16 | detained in a detention home or county or municipal jail. This
| ||||||
17 | Section shall in no way be construed to limit subsection (6).
| ||||||
18 | (6) No minor under 16 years of age may be confined in a | ||||||
19 | jail or place
ordinarily used for the confinement of prisoners | ||||||
20 | in a police station. Minors
under 18 years of age must be kept | ||||||
21 | separate from confined adults and may
not at any time be kept | ||||||
22 | in the same cell, room, or yard with adults confined
pursuant | ||||||
23 | to the criminal law.
| ||||||
24 | (7) If the minor is not brought before a judicial officer | ||||||
25 | within the
time period as specified in Section 2-9, the minor | ||||||
26 | must immediately be
released from custody.
|
| |||||||
| |||||||
1 | (8) If neither the parent, guardian or custodian appears | ||||||
2 | within 24
hours to take custody of a minor released upon | ||||||
3 | request pursuant to
subsection (2) of this Section, then the | ||||||
4 | clerk of the court shall set the
matter for rehearing not later | ||||||
5 | than 7 days after the original order and
shall issue a summons | ||||||
6 | directed to the parent, guardian or custodian to
appear. At | ||||||
7 | the same time the probation department shall prepare a report
| ||||||
8 | on the minor. If a parent, guardian or custodian does not | ||||||
9 | appear at such
rehearing, the judge may enter an order | ||||||
10 | prescribing that the minor be kept
in a suitable place | ||||||
11 | designated by the Department of Children and Family
Services | ||||||
12 | or a licensed child welfare agency.
| ||||||
13 | (9) Notwithstanding any other provision of this
Section | ||||||
14 | any interested party, including the State, the temporary
| ||||||
15 | custodian, an agency providing services to the minor or family | ||||||
16 | under a
service plan pursuant to Section 8.2 of the Abused and | ||||||
17 | Neglected Child
Reporting Act, foster parent, or any of their | ||||||
18 | representatives, on notice
to all parties entitled to notice, | ||||||
19 | may file a motion that it is in the best
interests of the minor | ||||||
20 | to modify or vacate a
temporary custody order on any of the | ||||||
21 | following grounds:
| ||||||
22 | (a) It is no longer a matter of immediate and urgent | ||||||
23 | necessity that the
minor remain in shelter care; or
| ||||||
24 | (b) There is a material change in the circumstances of | ||||||
25 | the natural
family from which the minor was removed and | ||||||
26 | the child can be cared for at
home without endangering the |
| |||||||
| |||||||
1 | child's health or safety; or
| ||||||
2 | (c) A person not a party to the alleged abuse, neglect | ||||||
3 | or dependency,
including a parent, relative or legal | ||||||
4 | guardian, is capable of assuming
temporary custody of the | ||||||
5 | minor; or
| ||||||
6 | (d) Services provided by the Department of Children | ||||||
7 | and Family Services
or a child welfare agency or other | ||||||
8 | service provider have been successful in
eliminating the | ||||||
9 | need for temporary custody and the child can be cared for | ||||||
10 | at
home without endangering the child's health or safety.
| ||||||
11 | In ruling on the motion, the court shall determine whether | ||||||
12 | it is consistent
with the health, safety and best interests of | ||||||
13 | the minor to modify
or vacate a temporary custody order. If the
| ||||||
14 | minor is being restored to the custody of a parent, legal | ||||||
15 | custodian, or guardian who lives
outside of Illinois, and an | ||||||
16 | Interstate Compact has been requested and refused, the court | ||||||
17 | may order the
Department of Children and Family Services to | ||||||
18 | arrange for an assessment of the minor's
proposed living | ||||||
19 | arrangement and for ongoing monitoring of the health, safety, | ||||||
20 | and best
interest of the minor and compliance with any order of | ||||||
21 | protective supervision entered in
accordance with Section 2-20 | ||||||
22 | or 2-25.
| ||||||
23 | The clerk shall set the matter for hearing not later than | ||||||
24 | 14 days after
such motion is filed. In the event that the court | ||||||
25 | modifies or vacates a
temporary custody order but does not | ||||||
26 | vacate its finding of probable cause,
the court may order that |
| |||||||
| |||||||
1 | appropriate services be continued or initiated in
behalf of | ||||||
2 | the minor and his or her family.
| ||||||
3 | (10) When the court finds or has found that there is | ||||||
4 | probable cause to
believe a minor is an abused minor as | ||||||
5 | described in subsection (2) of Section
2-3
and that there is an | ||||||
6 | immediate and urgent necessity for the abused minor to be
| ||||||
7 | placed in shelter care, immediate and urgent necessity shall | ||||||
8 | be presumed for
any other minor residing in the same household | ||||||
9 | as the abused minor provided:
| ||||||
10 | (a) Such other minor is the subject of an abuse or | ||||||
11 | neglect petition
pending before the court; and
| ||||||
12 | (b) A party to the petition is seeking shelter care | ||||||
13 | for such other minor.
| ||||||
14 | Once the presumption of immediate and urgent necessity has | ||||||
15 | been raised, the
burden of demonstrating the lack of immediate | ||||||
16 | and urgent necessity shall be on
any party that is opposing | ||||||
17 | shelter care for the other minor.
| ||||||
18 | (11) The changes made to this Section by Public Act 98-61 | ||||||
19 | apply to a minor who has been
arrested or taken into custody on | ||||||
20 | or after January 1, 2014 (the effective date
of Public Act | ||||||
21 | 98-61). | ||||||
22 | (12) After the court has placed a minor in the care of a | ||||||
23 | temporary custodian pursuant to this Section, any party may | ||||||
24 | file a motion requesting the court to grant the temporary | ||||||
25 | custodian the authority to serve as a surrogate decision maker | ||||||
26 | for the minor under the Health Care Surrogate Act for purposes |
| |||||||
| |||||||
1 | of making decisions pursuant to paragraph (1) of subsection | ||||||
2 | (b) of Section 20 of the Health Care Surrogate Act. The court | ||||||
3 | may grant the motion if it determines by clear and convincing | ||||||
4 | evidence that it is in the best interests of the minor to grant | ||||||
5 | the temporary custodian such authority. In making its | ||||||
6 | determination, the court shall weigh the following factors in | ||||||
7 | addition to considering the best interests factors listed in | ||||||
8 | subsection (4.05) of Section 1-3 of this Act: | ||||||
9 | (a) the efforts to identify and locate the respondents | ||||||
10 | and adult family members of the minor and the results of | ||||||
11 | those efforts; | ||||||
12 | (b) the efforts to engage the respondents and adult | ||||||
13 | family members of the minor in decision making on behalf | ||||||
14 | of the minor; | ||||||
15 | (c) the length of time the efforts in paragraphs (a) | ||||||
16 | and (b) have been ongoing; | ||||||
17 | (d) the relationship between the respondents and adult | ||||||
18 | family members and the minor; | ||||||
19 | (e) medical testimony regarding the extent to which | ||||||
20 | the minor is suffering and the impact of a delay in | ||||||
21 | decision-making on the minor; and | ||||||
22 | (f) any other factor the court deems relevant. | ||||||
23 | If the Department of Children and Family Services is the | ||||||
24 | temporary custodian of the minor, in addition to the | ||||||
25 | requirements of paragraph (1) of subsection (b) of Section 20 | ||||||
26 | of the Health Care Surrogate Act, the Department shall follow |
| |||||||
| |||||||
1 | its rules and procedures in exercising authority granted under | ||||||
2 | this subsection. | ||||||
3 | (Source: P.A. 102-489, eff. 8-20-21; 102-502, eff. 1-1-22; | ||||||
4 | revised 10-14-21.)
|