Relief available for Abused, Neglected, or Dependent Children Lawyer Manual

Temporary protective custody "PC"

.325 ILCS 5/3 (ANCRA)

705 ILCS 405/2-5 through 2-9 (Juvenile Court Act)

Both ANCRA and the Juvenile Court Act authorize DCFS, a physician, or a law enforcement officer to take physical custody of a minor without a court order and over the objection of a parent or caretaker if there is reason to believe that the minor cannot be cared for at home or in the custody of the person responsible for the minor's welfare without endangering the minor's health or safety, and there is insufficient time to seek a court order.

Within 48 hours of taking protective custody– not including weekends or holidays – the minor must be brought before a judicial officer for a temporary custody hearing or released to the parents or caretaker.

Temporary Custody Hearing (“TC”)

705 ILCS 405/2-10

Upon filing a petition to adjudicate the minor abused, neglected, or dependent pursuant to Section 2-13 of the Juvenile Court Act, the State’s Attorney may move the court to grant temporary custody of the minor to DCFS or a third party. This requires a three-part showing:

• Probable cause that the minor is abused, neglected or dependent;
• Immediate and urgent necessity to remove the child from the parents for the minor’s protection; and
• Reasonable efforts have been made to prevent having to remove the child.

The Circuit Court has jurisdiction to make custody determinations regarding the minor under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). 750 ILCS 36/101 et seq.

DCFS can also restrict or terminate a child’s contact with parents or siblings before a hearing. They can do this when they believe there is an immediate need to protect the child’s health, safety, and welfare.

Adjudication

705 ILCS 405/2-21

Proceedings on the petition to adjudicate the minor abused, neglected or dependent are civil in nature. If you practice in Cook County, you should note that Cook County local rules and orders restrict pre-adjudication discovery. Indigent parties must be appointed counsel. 705 ILCS 405/1-5(1). The minor must be appointed counsel and/or a guardian ad litem. In Cook County, the guardian ad litem must be an attorney. Id. Hearing/trial on the petition to adjudicate the minor abused, neglected, or dependent must commence within 90 days of service of process on the parents or caretaker, unless waived. 705 ILCS 405/2-14(b).

Certain special rules of evidence apply. There is no right to a jury trial. 705 ILCS 405/2-18(1). If the parent or caretaker prevails at adjudication, the minor is returned and the case is dismissed. If the State prevails, the case proceeds to a dispositional hearing (Note: an adjudication order, by itself, is not final and therefore appealable).

Dispositional hearing

705 ILCS 405/2-22; 705 ILCS 405/2-23

A dispositional hearing must be held within 30 days of the conclusion of the adjudication hearing. The court determines if it is in the best interest of the minor that the minor be made a ward of the court:

• If the court makes the minor a ward of the court and finds the parents fit, it may restore custody of the minor to them, subject to conditions;
• If the court makes the minor a ward of the court and determines that parents are unfit, unwilling or unable to care for the minor, it may place the minor in the guardianship of a relative, other person, or DCFS (Note-a finding that a parent is “unfit” in this context is not necessarily the same as a finding that a parent is an “unfit parent” in a termination of parental rights proceeding. See below).

Upon entry of a dispositional order, the case, including the adjudication findings, may be appealed.

Court Review

705 ILCS 405/2-28

The court may require any legal custodian or appointed guardian to report periodically to it. The report should say what the custodian or guardian has done for the minor.

Effective January 1, 2018, different rules apply if the custodian or guardian is a public agency. Within 15 days, the public agency must file a report with the court if a minor remains in a:

• Shelter placement beyond 30 days
• Psychiatric hospital past the time they are clinically ready for discharge; or
• Detention center solely because the public agency cannot find an appropriate placement for the minor.

In this report, the public agency has to explain what it is doing to place the minor. Additionally, it must show that the minor's needs are being met in the current situation. The public agency must state whether concerns about the minor's safety or well-being exist. If there are concerns, the agency should state steps it is taking to address them.

Permanency hearing

705 ILCS 405/2-28

When DCFS is made guardian at the dispositional hearing, the court must review the case every six months and enter a “permanency goal.” The hierarchical list of available permanency goals is found at 705 ILCS 405/2-28(2). If a parent is involved in the case, the initial goal is usually to return the minor home to the parent. DCFS develops a service plan based on the permanency goal set by the court. The court cannot order DCFS to provide a specific service, but may find that the services are not reasonably calculated to achieve the permanency goal and order DCFS to amend the service plan. For federal funding purposes, every 12 months the Court must enter a finding that DCFS has made “reasonable efforts” to achieve the permanency goal set by the court. Any person interested in the minor may apply to the court for a change in custody or guardian. 705 ILCS 405-2-28(4).

Service appeals

If the parent, minor or foster parent disagrees with tasks or services in the service plan or feels they are insufficient, an administrative appeal process and judicial review is available. See generally 89 Ill. Adm. Code 337.10 et seq.

Return home

The parent or caretaker may apply to the court at any time for a new dispositional hearing, and for findings that the parent or caretaker is fit, willing, and able to care for the minor and should be returned home.

In practical terms, this typically occurs upon satisfactory completion of the service plan.

Termination and restoration of parental rights

750 ILCS 50/1 (D)

The State may choose to file a petition to terminate the parents’ rights and free the minor for adoption. 705 ILCS 405/2-28(4)(b).

Any ground of parental unfitness in the Adoption Act may be alleged. Most commonly seen are grounds that the parent has failed to make reasonable efforts to correct the conditions that brought the minor into the DCFS system or reasonable progress toward return home. A parent must make reasonable efforts and reasonable progress in each nine-month period following adjudication or risk termination of their rights. Failure to substantially fulfill the obligations under the service plan is considered faa ilure to make reasonable efforts. 750 ILCS 50/1.D(m).
Hearing on the petition to terminate parental rights is bifurcated. Parental unfitness must be proved by clear and convincing evidence. 705 ILCS 405/2-29(2). If the Court finds the parent to be unfit, the case proceeds to hearing on whether it is in the minor’s best interest to be freed for adoption. At the “best interest” phase, the burden of proof is preponderance of the evidence. There is no right to a jury trial in either phase.

The order terminating parental rights and authorizing the guardian to consent to the minor’s adoption is immediately appealable. Supreme Court Rule 663. The order is automatically stayed pending appeal, but there is no right to visitation pending appeal. Supreme Court Rule 305(e). All such appeals are subject to the accelerated disposition schedule found in Supreme Court Rule 311.

Since 2009, a parent’s rights may be restored in limited circumstances, and a motion to reinstate parental rights may only be filed by DCFS or the minor themselves. See 705 ILCS 405/2-34 and 750 ILCS 50/14.5 for the criteria.

Case closure and reopening

705 ILCS 405/2-31; 705 ILCS 405/2-33

Upon a finding by the court that it is no longer in the minor’s or public’s best interest for the minor’s wardship to continue, the court may close the case and order all proceedings under the Juvenile Court Act discharged. If the minor has been placed in the guardianship or legal custody of a third-party instead of being returned to the parents, the guardianship or legal custody arrangement may be extended beyond the order closing the case.

If the court does not close the case before a minor turns 19, wardship terminates by operation of law on the minor’s 19th birthday. However, if the court finds it to be in the best interest of the minor and the public, the minor’s wardship may be extended to age 21.

A closed case may be reopened pbeforea minor turning 18 when it was closed with the establishment of a guardianship over the minor pursuant to the Probate Act of 1975 and is in the minor’s best interest. 705 ILCS 405/2-33(1).

For former wards whose case was closed subsequent to the former ward’s 18th birthday, or emancipated minors under 18, a closed case may be reopened when it is in the former ward’s best interest. 705 ILCS 405/2-33(2).

Rights of foster parents

705 ILCS 405/1-5(2)

A current or former foster parent always has the right to be heard by the court, but does not thereby become a full party.

A current foster parent has the right to adequate notice of any proceeding where the custody or status of the minor may be changed.

If the permanency goal is other than return home to a parent, the foster parent may apply to court for private guardianship of the minor. 705 ILCS 405/2-28(4)(a).

The minor’s current foster parent, or former foster parent if the minor was with the former foster parent for more than one year, may intervene and seek custody of the minor when any motion is filed seeking to restore custody of the minor to a parent or caretaker found to have abused or neglected the minor. 705 ILCS 405/1-5(2)(b).

If the minor’s placement with the current foster parent is being terminated, and the minor has been placed with the foster parent for more than one year, the foster parent is entitled to intervene. 705 ILCS 405/1-5(2)(c).

The court may grant standing to any foster parent if it is in the best interest of the minor. 705 ILCS 405/1-5(2)(d).

Foster parents may also utilize the service appeal process. See generally 89 Ill. Adm. Code 337.10 et seq.