Bill Text: IL SB0192 | 2019-2020 | 101st General Assembly | Introduced


Bill Title: Amends the Juvenile Court Act of 1987. Provides that if the parent, guardian, legal custodian, responsible relative, minor age 8 or over, or counsel of the minor did not have actual notice of and was not present at the shelter care hearing, he or she may file a motion with an affidavit (rather than affidavit) setting forth these facts, and the court shall set the matter for rehearing not later than 48 hours, excluding Sundays and legal holidays, after the filing of the motion. Makes conforming changes. Effective immediately.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2019-03-22 - Rule 3-9(a) / Re-referred to Assignments [SB0192 Detail]

Download: Illinois-2019-SB0192-Introduced.html


101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
SB0192

Introduced 1/30/2019, by Sen. Laura Fine

SYNOPSIS AS INTRODUCED:
705 ILCS 405/2-10 from Ch. 37, par. 802-10

Amends the Juvenile Court Act of 1987. Provides that if the parent, guardian, legal custodian, responsible relative, minor age 8 or over, or counsel of the minor did not have actual notice of and was not present at the shelter care hearing, he or she may file a motion with an affidavit (rather than affidavit) setting forth these facts, and the court shall set the matter for rehearing not later than 48 hours, excluding Sundays and legal holidays, after the filing of the motion. Makes conforming changes. Effective immediately.
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A BILL FOR

SB0192LRB101 08502 SLF 53579 b
1 AN ACT concerning courts.
2 Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4 Section 5. The Juvenile Court Act of 1987 is amended by
5changing 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
8the minor before the court at the temporary custody hearing,
9all witnesses present shall be examined before the court in
10relation to any matter connected with the allegations made in
11the petition.
12 (1) If the court finds that there is not probable cause to
13believe that the minor is abused, neglected or dependent it
14shall release the minor and dismiss the petition.
15 (2) If the court finds that there is probable cause to
16believe that the minor is abused, neglected or dependent, the
17court shall state in writing the factual basis supporting its
18finding and the minor, his or her parent, guardian, custodian
19and other persons able to give relevant testimony shall be
20examined before the court. The Department of Children and
21Family Services shall give testimony concerning indicated
22reports of abuse and neglect, of which they are aware through
23the central registry, involving the minor's parent, guardian or

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1custodian. After such testimony, the court may, consistent with
2the health, safety and best interests of the minor, enter an
3order that the minor shall be released upon the request of
4parent, guardian or custodian if the parent, guardian or
5custodian appears to take custody. If it is determined that a
6parent's, guardian's, or custodian's compliance with critical
7services mitigates the necessity for removal of the minor from
8his or her home, the court may enter an Order of Protection
9setting forth reasonable conditions of behavior that a parent,
10guardian, or custodian must observe for a specified period of
11time, not to exceed 12 months, without a violation; provided,
12however, that the 12-month period shall begin anew after any
13violation. "Custodian" includes the Department of Children and
14Family Services, if it has been given custody of the child, or
15any other agency of the State which has been given custody or
16wardship of the child. If it is consistent with the health,
17safety and best interests of the minor, the court may also
18prescribe shelter care and order that the minor be kept in a
19suitable place designated by the court or in a shelter care
20facility designated by the Department of Children and Family
21Services or a licensed child welfare agency; however, on and
22after January 1, 2015 (the effective date of Public Act 98-803)
23and before January 1, 2017, a minor charged with a criminal
24offense under the Criminal Code of 1961 or the Criminal Code of
252012 or adjudicated delinquent shall not be placed in the
26custody of or committed to the Department of Children and

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1Family Services by any court, except a minor less than 16 years
2of age and committed to the Department of Children and Family
3Services under Section 5-710 of this Act or a minor for whom an
4independent basis of abuse, neglect, or dependency exists; and
5on and after January 1, 2017, a minor charged with a criminal
6offense under the Criminal Code of 1961 or the Criminal Code of
72012 or adjudicated delinquent shall not be placed in the
8custody of or committed to the Department of Children and
9Family Services by any court, except a minor less than 15 years
10of age and committed to the Department of Children and Family
11Services under Section 5-710 of this Act or a minor for whom an
12independent basis of abuse, neglect, or dependency exists. An
13independent basis exists when the allegations or adjudication
14of abuse, neglect, or dependency do not arise from the same
15facts, incident, or circumstances which give rise to a charge
16or adjudication of delinquency.
17 In placing the minor, the Department or other agency shall,
18to the extent compatible with the court's order, comply with
19Section 7 of the Children and Family Services Act. In
20determining the health, safety and best interests of the minor
21to prescribe shelter care, the court must find that it is a
22matter of immediate and urgent necessity for the safety and
23protection of the minor or of the person or property of another
24that the minor be placed in a shelter care facility or that he
25or she is likely to flee the jurisdiction of the court, and
26must further find that reasonable efforts have been made or

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1that, consistent with the health, safety and best interests of
2the minor, no efforts reasonably can be made to prevent or
3eliminate the necessity of removal of the minor from his or her
4home. The court shall require documentation from the Department
5of Children and Family Services as to the reasonable efforts
6that were made to prevent or eliminate the necessity of removal
7of the minor from his or her home or the reasons why no efforts
8reasonably could be made to prevent or eliminate the necessity
9of removal. When a minor is placed in the home of a relative,
10the Department of Children and Family Services shall complete a
11preliminary background review of the members of the minor's
12custodian's household in accordance with Section 4.3 of the
13Child Care Act of 1969 within 90 days of that placement. If the
14minor is ordered placed in a shelter care facility of the
15Department of Children and Family Services or a licensed child
16welfare agency, the court shall, upon request of the
17appropriate Department or other agency, appoint the Department
18of Children and Family Services Guardianship Administrator or
19other appropriate agency executive temporary custodian of the
20minor and the court may enter such other orders related to the
21temporary custody as it deems fit and proper, including the
22provision of services to the minor or his family to ameliorate
23the causes contributing to the finding of probable cause or to
24the finding of the existence of immediate and urgent necessity.
25 Where the Department of Children and Family Services
26Guardianship Administrator is appointed as the executive

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1temporary custodian, the Department of Children and Family
2Services shall file with the court and serve on the parties a
3parent-child visiting plan, within 10 days, excluding weekends
4and holidays, after the appointment. The parent-child visiting
5plan shall set out the time and place of visits, the frequency
6of visits, the length of visits, who shall be present at the
7visits, and where appropriate, the minor's opportunities to
8have telephone and mail communication with the parents.
9 Where the Department of Children and Family Services
10Guardianship Administrator is appointed as the executive
11temporary custodian, and when the child has siblings in care,
12the Department of Children and Family Services shall file with
13the court and serve on the parties a sibling placement and
14contact plan within 10 days, excluding weekends and holidays,
15after the appointment. The sibling placement and contact plan
16shall set forth whether the siblings are placed together, and
17if they are not placed together, what, if any, efforts are
18being made to place them together. If the Department has
19determined that it is not in a child's best interest to be
20placed with a sibling, the Department shall document in the
21sibling placement and contact plan the basis for its
22determination. For siblings placed separately, the sibling
23placement and contact plan shall set the time and place for
24visits, the frequency of the visits, the length of visits, who
25shall be present for the visits, and where appropriate, the
26child's opportunities to have contact with their siblings in

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1addition to in person contact. If the Department determines it
2is not in the best interest of a sibling to have contact with a
3sibling, the Department shall document in the sibling placement
4and contact plan the basis for its determination. The sibling
5placement and contact plan shall specify a date for development
6of the Sibling Contact Support Plan, under subsection (f) of
7Section 7.4 of the Children and Family Services Act, and shall
8remain in effect until the Sibling Contact Support Plan is
9developed.
10 For good cause, the court may waive the requirement to file
11the parent-child visiting plan or the sibling placement and
12contact plan, or extend the time for filing either plan. Any
13party may, by motion, request the court to review the
14parent-child visiting plan to determine whether it is
15reasonably calculated to expeditiously facilitate the
16achievement of the permanency goal. A party may, by motion,
17request the court to review the parent-child visiting plan or
18the sibling placement and contact plan to determine whether it
19is consistent with the minor's best interest. The court may
20refer the parties to mediation where available. The frequency,
21duration, and locations of visitation shall be measured by the
22needs of the child and family, and not by the convenience of
23Department personnel. Child development principles shall be
24considered by the court in its analysis of how frequent
25visitation should be, how long it should last, where it should
26take place, and who should be present. If upon motion of the

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1party to review either plan and after receiving evidence, the
2court determines that the parent-child visiting plan is not
3reasonably calculated to expeditiously facilitate the
4achievement of the permanency goal or that the restrictions
5placed on parent-child contact or sibling placement or contact
6are contrary to the child's best interests, the court shall put
7in writing the factual basis supporting the determination and
8enter specific findings based on the evidence. The court shall
9enter an order for the Department to implement changes to the
10parent-child visiting plan or sibling placement or contact
11plan, consistent with the court's findings. At any stage of
12proceeding, any party may by motion request the court to enter
13any orders necessary to implement the parent-child visiting
14plan, sibling placement or contact plan or subsequently
15developed Sibling Contact Support Plan. Nothing under this
16subsection (2) shall restrict the court from granting
17discretionary authority to the Department to increase
18opportunities for additional parent-child contacts or sibling
19contacts, without further court orders. Nothing in this
20subsection (2) shall restrict the Department from immediately
21restricting or terminating parent-child contact or sibling
22contacts, without either amending the parent-child visiting
23plan or the sibling contact plan or obtaining a court order,
24where the Department or its assigns reasonably believe that
25continuation of the contact, as set out in the plan, would be
26contrary to the child's health, safety, and welfare. The

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1Department shall file with the court and serve on the parties
2any amendments to the plan within 10 days, excluding weekends
3and holidays, of the change of the visitation.
4 Acceptance of services shall not be considered an admission
5of any allegation in a petition made pursuant to this Act, nor
6may a referral of services be considered as evidence in any
7proceeding pursuant to this Act, except where the issue is
8whether the Department has made reasonable efforts to reunite
9the family. In making its findings that it is consistent with
10the health, safety and best interests of the minor to prescribe
11shelter care, the court shall state in writing (i) the factual
12basis supporting its findings concerning the immediate and
13urgent necessity for the protection of the minor or of the
14person or property of another and (ii) the factual basis
15supporting its findings that reasonable efforts were made to
16prevent or eliminate the removal of the minor from his or her
17home or that no efforts reasonably could be made to prevent or
18eliminate the removal of the minor from his or her home. The
19parents, guardian, custodian, temporary custodian and minor
20shall each be furnished a copy of such written findings. The
21temporary custodian shall maintain a copy of the court order
22and written findings in the case record for the child. The
23order together with the court's findings of fact in support
24thereof shall be entered of record in the court.
25 Once the court finds that it is a matter of immediate and
26urgent necessity for the protection of the minor that the minor

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1be placed in a shelter care facility, the minor shall not be
2returned to the parent, custodian or guardian until the court
3finds that such placement is no longer necessary for the
4protection of the minor.
5 If the child is placed in the temporary custody of the
6Department of Children and Family Services for his or her
7protection, the court shall admonish the parents, guardian,
8custodian or responsible relative that the parents must
9cooperate with the Department of Children and Family Services,
10comply with the terms of the service plans, and correct the
11conditions which require the child to be in care, or risk
12termination of their parental rights. The court shall ensure,
13by inquiring in open court of each parent, guardian, custodian
14or responsible relative, that the parent, guardian, custodian
15or responsible relative has had the opportunity to provide the
16Department with all known names, addresses, and telephone
17numbers of each of the minor's living maternal and paternal
18adult relatives, including, but not limited to, grandparents,
19aunts, uncles, and siblings. The court shall advise the
20parents, guardian, custodian or responsible relative to inform
21the Department if additional information regarding the minor's
22adult relatives becomes available.
23 (3) If prior to the shelter care hearing for a minor
24described in Sections 2-3, 2-4, 3-3 and 4-3 the moving party is
25unable to serve notice on the party respondent, the shelter
26care hearing may proceed ex parte. A shelter care order from an

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1ex parte hearing shall be endorsed with the date and hour of
2issuance and shall be filed with the clerk's office and entered
3of record. The order shall expire after 10 days from the time
4it is issued unless before its expiration it is renewed, at a
5hearing upon appearance of the party respondent, or upon an
6affidavit of the moving party as to all diligent efforts to
7notify the party respondent by notice as herein prescribed. The
8notice prescribed shall be in writing and shall be personally
9delivered to the minor or the minor's attorney and to the last
10known address of the other person or persons entitled to
11notice. The notice shall also state the nature of the
12allegations, the nature of the order sought by the State,
13including whether temporary custody is sought, and the
14consequences of failure to appear and shall contain a notice
15that the parties will not be entitled to further written
16notices or publication notices of proceedings in this case,
17including the filing of an amended petition or a motion to
18terminate parental rights, except as required by Supreme Court
19Rule 11; and shall explain the right of the parties and the
20procedures to vacate or modify a shelter care order as provided
21in this Section. The notice for a shelter care hearing shall be
22substantially as follows:
23
NOTICE TO PARENTS AND CHILDREN
24
OF SHELTER CARE HEARING
25 On ................ at ........., before the Honorable
26 ................, (address:) ................., the State

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1 of Illinois will present evidence (1) that (name of child
2 or children) ....................... are abused, neglected
3 or dependent for the following reasons:
4 .............................................. and (2)
5 whether there is "immediate and urgent necessity" to remove
6 the child or children from the responsible relative.
7 YOUR FAILURE TO APPEAR AT THE HEARING MAY RESULT IN
8 PLACEMENT of the child or children in foster care until a
9 trial can be held. A trial may not be held for up to 90
10 days. You will not be entitled to further notices of
11 proceedings in this case, including the filing of an
12 amended petition or a motion to terminate parental rights.
13 At the shelter care hearing, parents have the following
14 rights:
15 1. To ask the court to appoint a lawyer if they
16 cannot afford one.
17 2. To ask the court to continue the hearing to
18 allow them time to prepare.
19 3. To present evidence concerning:
20 a. Whether or not the child or children were
21 abused, neglected or dependent.
22 b. Whether or not there is "immediate and
23 urgent necessity" to remove the child from home
24 (including: their ability to care for the child,
25 conditions in the home, alternative means of
26 protecting the child other than removal).

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1 c. The best interests of the child.
2 4. To cross examine the State's witnesses.
3 The Notice for rehearings shall be substantially as
4follows:
5
NOTICE OF PARENT'S AND CHILDREN'S RIGHTS
6
TO REHEARING ON TEMPORARY CUSTODY
7 If you were not present at and did not have adequate
8 notice of the Shelter Care Hearing at which temporary
9 custody of ............... was awarded to
10 ................, you have the right to request a full
11 rehearing on whether the State should have temporary
12 custody of ................. To request this rehearing,
13 you must file with the Clerk of the Juvenile Court
14 (address): ........................, a motion with an
15 affidavit in person or by mailing a statement (affidavit)
16 setting forth the following:
17 1. That you were not present at the shelter care
18 hearing.
19 2. That you did not get adequate notice (explaining
20 how the notice was inadequate).
21 3. Your signature.
22 4. Signature must be notarized.
23 The rehearing should be scheduled within 48 hours of
24 your filing this motion affidavit.
25 At the rehearing, your rights are the same as at the

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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
17relative, minor age 8 or over, or counsel of the minor did not
18have actual notice of and or was not present at the shelter
19care hearing, he or she may file a motion with an affidavit
20setting forth these facts, and the court clerk shall set the
21matter for rehearing not later than 48 hours, excluding Sundays
22and legal holidays, after the filing of the motion affidavit.
23At the rehearing, the court shall proceed in the same manner as
24upon the original hearing.
25 (5) Only when there is reasonable cause to believe that the
26minor taken into custody is a person described in subsection

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1(3) of Section 5-105 may the minor be kept or detained in a
2detention home or county or municipal jail. This Section shall
3in no way be construed to limit subsection (6).
4 (6) No minor under 16 years of age may be confined in a
5jail or place ordinarily used for the confinement of prisoners
6in a police station. Minors under 18 years of age must be kept
7separate from confined adults and may not at any time be kept
8in the same cell, room, or yard with adults confined pursuant
9to the criminal law.
10 (7) If the minor is not brought before a judicial officer
11within the time period as specified in Section 2-9, the minor
12must immediately be released from custody.
13 (8) If neither the parent, guardian or custodian appears
14within 24 hours to take custody of a minor released upon
15request pursuant to subsection (2) of this Section, then the
16clerk of the court shall set the matter for rehearing not later
17than 7 days after the original order and shall issue a summons
18directed to the parent, guardian or custodian to appear. At the
19same time the probation department shall prepare a report on
20the minor. If a parent, guardian or custodian does not appear
21at such rehearing, the judge may enter an order prescribing
22that the minor be kept in a suitable place designated by the
23Department of Children and Family Services or a licensed child
24welfare agency.
25 (9) Notwithstanding any other provision of this Section any
26interested party, including the State, the temporary

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1custodian, an agency providing services to the minor or family
2under a service plan pursuant to Section 8.2 of the Abused and
3Neglected Child Reporting Act, foster parent, or any of their
4representatives, on notice to all parties entitled to notice,
5may file a motion that it is in the best interests of the minor
6to modify or vacate a temporary custody order on any of the
7following grounds:
8 (a) It is no longer a matter of immediate and urgent
9 necessity that the minor remain in shelter care; or
10 (b) There is a material change in the circumstances of
11 the natural family from which the minor was removed and the
12 child can be cared for at home without endangering the
13 child's health or safety; or
14 (c) A person not a party to the alleged abuse, neglect
15 or dependency, including a parent, relative or legal
16 guardian, is capable of assuming temporary custody of the
17 minor; or
18 (d) Services provided by the Department of Children and
19 Family Services or a child welfare agency or other service
20 provider have been successful in eliminating the need for
21 temporary custody and the child can be cared for at home
22 without endangering the child's health or safety.
23 In ruling on the motion, the court shall determine whether
24it is consistent with the health, safety and best interests of
25the minor to modify or vacate a temporary custody order.
26 The clerk shall set the matter for hearing not later than

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114 days after such motion is filed. In the event that the court
2modifies or vacates a temporary custody order but does not
3vacate its finding of probable cause, the court may order that
4appropriate services be continued or initiated in behalf of the
5minor and his or her family.
6 (10) When the court finds or has found that there is
7probable cause to believe a minor is an abused minor as
8described in subsection (2) of Section 2-3 and that there is an
9immediate and urgent necessity for the abused minor to be
10placed in shelter care, immediate and urgent necessity shall be
11presumed for any other minor residing in the same household as
12the abused minor provided:
13 (a) Such other minor is the subject of an abuse or
14 neglect petition pending before the court; and
15 (b) A party to the petition is seeking shelter care for
16 such other minor.
17 Once the presumption of immediate and urgent necessity has
18been raised, the burden of demonstrating the lack of immediate
19and urgent necessity shall be on any party that is opposing
20shelter care for the other minor.
21 (11) The changes made to this Section by Public Act 98-61
22apply to a minor who has been arrested or taken into custody on
23or after January 1, 2014 (the effective date of Public Act
2498-61).
25 (12) After the court has placed a minor in the care of a
26temporary custodian pursuant to this Section, any party may

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1file a motion requesting the court to grant the temporary
2custodian the authority to serve as a surrogate decision maker
3for the minor under the Health Care Surrogate Act for purposes
4of making decisions pursuant to paragraph (1) of subsection (b)
5of Section 20 of the Health Care Surrogate Act. The court may
6grant the motion if it determines by clear and convincing
7evidence that it is in the best interests of the minor to grant
8the temporary custodian such authority. In making its
9determination, the court shall weigh the following factors in
10addition to considering the best interests factors listed in
11subsection (4.05) of Section 1-3 of this Act:
12 (a) the efforts to identify and locate the respondents
13 and adult family members of the minor and the results of
14 those efforts;
15 (b) the efforts to engage the respondents and adult
16 family members of the minor in decision making on behalf of
17 the minor;
18 (c) the length of time the efforts in paragraphs (a)
19 and (b) have been ongoing;
20 (d) the relationship between the respondents and adult
21 family members and the minor;
22 (e) medical testimony regarding the extent to which the
23 minor is suffering and the impact of a delay in
24 decision-making on the minor; and
25 (f) any other factor the court deems relevant.
26 If the Department of Children and Family Services is the

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1temporary custodian of the minor, in addition to the
2requirements of paragraph (1) of subsection (b) of Section 20
3of the Health Care Surrogate Act, the Department shall follow
4its rules and procedures in exercising authority granted under
5this subsection.
6(Source: P.A. 99-625, eff. 1-1-17; 99-642, eff. 7-28-16;
7100-159, eff. 8-18-17; 100-863, eff. 8-14-18; 100-959, eff.
81-1-19.)
9 Section 99. Effective date. This Act takes effect upon
10becoming law.
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