Issues Involving Abuse, Neglect, and Dependency Lawyer Manual

Abuse-neglect-dependency

Applicable Statutes

• Abused and Neglected Child Reporting Act,  325 ILCS 5/1 et seq,
• Articles I and II of the Juvenile Court Act of 1987, 705 ILCS 405/1-1 et seq,
• Uniform Child Custody Jurisdiction and Enforcement Act, 750 ILCS 36/101 et seq,
• Children and Family Services Act (created DCFS), 20 ILCS 505/1 et seq,
• Adoption Act, 750 ILCS 50/1 et seq, and
• Indian Child Welfare Act, 25 U.S.C. §1901 et seq.

Investigation of reports of child abuse or neglect under the Abused and Neglected Child Report Act (ANCRA)

ANCRA has its definitions of “Abused child” and “Neglected child.” 325 ILCS 5/3. An investigation is triggered by a call to the statewide abuse hotline, 1-800-25-ABUSE. Social workers, doctors, teachers, and any occupation that works with children are "mandated reporters," and are required to call the hotline if they have “reasonable cause to believe that a child may be abused or neglected.” Mandated reporters are immune from tort liability for calling the hotline unless the conduct is willful and wanton. See SB3833 for the full list of who is considered a mandated reporter in Illinois. SB3833 goes into effect on January 1st, 2023. DCFS Department of Child Protection investigates the hotline call. It has 60 days to complete the investigation unless extended for good cause.

Practice tip: The parents or caretaker of a minor should be advised that anything they say to DCFS may be used against them in court in any abuse/neglect/dependency proceeding and in any criminal proceeding that may result from a related police investigation. Refusal to cooperate with DCFS investigation is not, by itself, legally sufficient to “indicate” a report or for DCFS to take protective custody of the minor, but may increase the practical risk of both.

At the conclusion of the investigation, the report will be classified as either:

• "Indicated" – “credible evidence” supports the allegation,
• "Unfounded" – the evidence does not support the allegation, or
• "Undetermined" – evidence is inconclusive.

Indicated reports remain on the central register maintained by DCFS for 5-50 years, depending on the seriousness of the allegations, and are a barrier to employment involving children.

An indicated parent or caretaker has the right to an administrative appeal hearing at which DCFS must prove the allegations in the report by a preponderance of the evidence. An appeal must be requested by the parent or caretaker within 60 days of receiving written notice of the report. The hearing must be held, and a decision must be made by the Director of DCFS, within 90 days of the appeal request. Judicial review of the Director’s decision is according to the Administrative Review Law. If the appeal is successful, the report is expunged from the central register.

Practice tip: DCFS is required to provide a copy of the file which contains the written record of the investigation to the indicated parent for the hearing, but requesting it specifically in writing with the appeal request may speed the process. Attorneys and guardian ad litems may also request both indicated and unfounded reports.

Child care workers alleged to have abused or neglected a minor are entitled to a conference with DCFS before the conclusion of the investigation, and an expedited appeal hearing process, in which the decision must be made within 35 days of the appeal request.

An indicated report does not necessarily mean that DCFS will take protective custody of the minor and seek to put the minor in the foster care system. It maintains discretion to offer “intact” services to the family or to take no further action. In any case, in, which DCFS does wish to put the minor in the foster care system, i,t must request the local county state’s attorney to file a petition under the Juvenile Court Act in the Circuit Court.

Actions pursuant to Article II of the Juvenile Court Act of 1987 definitions

Neglect

705 ILCS 405/2-3(1)

Those who are neglected include:

• Any minor under 18 years of age who is not receiving the proper or necessary support, education as required by law, or medical or other remedial care recognized under State law as necessary for a minor's well-being, or other care necessary for his or her well-being, including adequate food, clothing and shelter, or who is abandoned by his or her parent or parents or other person or persons responsible for the minor's welfare, except that a minor shall not be considered neglected for the sole reason that the minor's parent or parents or other person or persons responsible for the minor's welfare have left the minor in the care of an adult relative for any period of time, who the parent or parents or other person responsible for the minor's welfare know is both a mentally capable adult relative and physically capable adult relative, as defined by this Act,
• Any minor under 18 years of age whose environment is injurious to his or her welfare,
• Any newborn infant whose blood, urine, or meconium contains any amount of a controlled substance as defined in subsection (f) of Section 102 of the Illinois Controlled Substances Act, as now or hereafter amended, or a metabolite of a controlled substance, with the exception of controlled substances or metabolites of such substances, the presence of which in the newborn infant is the result of medical treatment administered to the mother or the newborn infant,
• Any minor under the age of 14 years whose parent or other person responsible for the minor's welfare leaves the minor without supervision for an unreasonable period of time without regard for the mental or physical health, safety, or welfare of that minor, or
• Any minor who has been provided with interim crisis intervention services under Section 3-5 of this Act and whose parent, guardian, or custodian refuses to permit the minor to return home unless the minor is an immediate physical danger to himself, herself, or others living in the home.

Whether the minor was left without regard for the mental or physical health, safety, or welfare of that minor or the period of time was unreasonable shall be determined by considering the following factors, including but not limited to:

• The age of the minor,
• The number of minors left at the location,
• Special needs of the minor, including whether the minor is physically or mentally handicapped, or otherwise in need of ongoing prescribed medical treatment such as periodic doses of insulin or other medications,
• The duration of time in which the minor was left without supervision,
• The condition and location of the place where the minor was left without supervision,
• The time of day or night when the minor was left without supervision,
• The weather conditions, including whether the minor was left in a location with adequate protection from the natural elements such as adequate heat or light,
• The location of the parent or guardian at the time the minor was left without supervision, the physical distance the minor was from the parent or guardian at the time the minor was without supervision,
• Whether the minor's movement was restricted, or the minor was otherwise locked within a room or other structure,
• Whether the minor was given a phone number of a person or location to call in the event of an emergency and whether the minor was capable of making an emergency call,
• Whether there was food and other provision left for the minor,
• Whether any of the conduct is attributable to economic hardship or illness and the parent, guardian or other person having physical custody or control of the child made a good faith effort to provide for the health and safety of the minor,
• The age and physical and mental capabilities of the person or persons who provided supervision for the minor,
• Whether the minor was left under the supervision of another person, and
• Any other factor that would endanger the health and safety of that particular minor.

A minor shall not be considered neglected for the sole reason that the minor has a by the Abandoned Newborn Infant Protection Act.

Abuse

705 ILCS 405/2-3(2)

Those who are abused include any minor under 18 years of age whose parent or immediate family member, or any person responsible for the minor's welfare, or any person who is in the same family or household as the minor, or any individual residing in the same home as the minor, or a paramour of the minor's parent:

• Inflicts, causes to be inflicted, or allows to be inflicted upon such minor physical injury, by other than accidental means, which causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function,
• Creates a substantial risk of physical injury to such minor by other than accidental means which would be likely to cause death, disfigurement, impairment of emotional health, or loss or impairment of any bodily function,
• Commits or allows to be committed any sex offense against such minor, as such sex offenses are defined in the Criminal Code of 1961, or the Criminal Code of 2012, or in the Wrongs to Children Act, and extending those definitions of sex offenses to include minors under 18 years of age,
• Commits or allows to be committed an act or acts of torture upon such minor;
• Inflicts excessive corporal punishment,
• Commits or allows to be committed the offense of involuntary servitude, involuntary sexual servitude of a minor, or trafficking in persons for forced labor or services defined in Section 10-9 of the Criminal Code of 1961, upon such minor, or
• Allows, encourages or requires a minor to commit any act of prostitution, as defined in the Criminal Code of 1961, and extending those definitions to include minors under 18 years of age.

Dependent

705 ILCS 405/2-4 (1)

Those who are dependent include any minor under 18 years of age:

• Who is without a parent, guardian or legal custodian,
• Who is without proper care because of the physical or mental disability of his parent, guardian or custodian,
• Who is without proper medical or other remedial care recognized under State law or other care necessary for his or her well being through no fault, neglect or lack of concern by his parents, guardian or custodian, provided that no order may be made terminating parental rights, nor may a minor be removed from the custody of his or her parents for longer than 6 months, pursuant to an adjudication as a dependent minor under this subdivision (c), unless it is found to be in his or her best interest by the court or the case automatically closes as provided under Section 2-31 of this Act, or
• Who has a parent, guardian or legal custodian who with good cause wishes to be relieved of all residual parental rights and responsibilities, guardianship or custody, and who desires the appointment of a guardian of the person with power to consent to the adoption of the minor under Section 2-29.

This section does not apply to a minor who would be included herein solely for qualifying for financial assistance for himself, his parent or parents, guardian or custodian or to a minor solely because his or her parent or parents or guardian has left the minor for any period of time in the care of an adult relative, who the parent or parents or guardian know is both a mentally capable adult relative and physically capable adult relative, as defined by this Act.