STATUTORY/JUDICIAL STANDARDS
The minor who is the subject of the proceeding and his parents, guardian, legal
custodian or responsible relative who are parties respondent have the right to be present,
to be heard, to present evidence material to the proceedings, to cross-examine witnesses,
to examine pertinent court files and records and also, although proceedings under this Act
are not intended to be adversary in character, the right to be represented by counsel. 705
ILCS 405/1-5(1) Supreme Court Rule 906 sets forth minimum requirements for attorneys
representing children. See also ABA Model Rule 1.1 and Illinois Rule of Professional
Conduct 1.1 & 1.3
Though not appointed guardian or legal custodian or otherwise made a party to
the proceeding, any current or previously appointed foster parent or relative caregiver, or
representative of an agency or association interested in the minor has the right to be heard
by the court, but does not thereby become a party to the proceeding. 705 ILCS 405/1-5(2)
(a) In addition to the foregoing right to be heard by the court, any current foster parent or
relative caregiver of a minor and the agency designated by the court or the Department of
Children and Family Services (hereinafter “DCFS”) as custodian of the minor who is
alleged to be or has been adjudicated an abused or neglected minor under Section 2-3 or a
dependent minor under Section 2-4 of this Act has the right to and shall be given
adequate notice of hearings. 705 ILCS 405/1-5(2)(a)
II.
SHELTER CARE HEARING [705 ILCS 405/2-10]
A.Burden of Proof:
At a shelter-care hearing, the trial court determines whether there is probable
cause to believe that a minor is abused, neglected, or dependent. 705 ILCS 405/2-10(1),
(2) A shelter-care hearing is similar to both a probable-cause hearing and a temporary-
detention hearing under section 5-501(2) of the Juvenile Court Act (hereinafter “JCA”).
705 ILCS 405/5-501(2); see, e.g., In re L.M., 189 Ill. App. 3d 392, 395, 545 N.E.2d 319,
322 (1989) (Referring to the shelter-care hearing as a "probable[-]cause hearing") At the
shelter-care hearing, the trial court determines whether there is probable cause to believe
that a minor is abused, neglected, or dependent. 705 ILCS 405/2-10(1), (2); In re Jacien
B., 341 Ill. App. 3d 876, 793 N.E.2d 1009 (2nd Dist. 2003) After a minor has been
removed, the party seeking to modify or vacate the temporary custody order must prove
one or more of the following:
(a) It is no longer a matter of immediate and urgent necessity that the minor
remain in shelter care; or
(b) There is a material change in the circumstances of the natural family from
which the minor was removed and the child can be cared for at home without
endangering the child's health or safety; or
(c) A person not a party to the alleged abuse, neglect or dependency, including a
parent, relative or legal guardian, is capable of assuming temporary custody of the
minor; or
(d) Services provided by the Department of Children and Family Services or a
child welfare agency or other service provider have been successful in eliminating
the need for temporary custody and the child can be cared for at home without
endangering the child's health or safety. 705 ILCS 405/2-10(9)
The ICWA addresses the temporary removal of children as follows:
“Nothing in this subchapter shall be construed to prevent the emergency removal
of an Indian child who is a resident of or is domiciled on a reservation, but
temporarily located off the reservation, from his parent or Indian custodian or the
emergency placement of such child in a foster home or institution, under
applicable State law, in order to prevent imminent physical damage or harm to the
child. The State authority, official, or agency involved shall insure that the
emergency removal or placement terminates immediately when such removal or
placement is no longer necessary to prevent imminent physical damage or harm
to the child and shall expeditiously initiate a child custody proceeding subject to
the provisions of this subchapter, transfer the child to the jurisdiction of the
appropriate Indian tribe, or restore the child to the parent or Indian custodian, as
may be appropriate.” 25 USC §1922
State court proceedings that do not comply with the ICWA may be invalidated
by a court of competent jurisdiction. 25 USC §1914
B. Rule(s) of Evidence :
The rules of evidence in the nature of civil proceedings in Illinois are applicable
to proceedings under the JCA. 705 ILCS 405/2-18(1) Because the court is not making a
finding of abuse or neglect at a temporary custody hearing, §2-18(4)(c) of the JCA does
not apply to a minor’s out-of-court statement in the temporary custody hearing. In re I.H.,
238 Ill. 2d 430, 939 N.E.2d 375 (2010) However, other provisions of §2-18 may apply
where the language of the statute is not tied to a finding of neglect or abuse or refers to
“any hearing” under the Act (see e.g., §§2-18(2); 2-18(3); 2-18(5), and 2-18(6)). In re
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I.H., 238 Ill. 2d 430, 939 N.E.2d 375 (2010) Section 2-18 of the JCA was enacted into
law in 1981. 705 ILCS 405/2-18(4)(a) formerly 37 Ill. Rev Stat. Ch. 704-6; Public Act
82-223; HB 477. Section 2-18 provides as follows:
“Evidence.
(1) At the adjudicatory hearing, the court shall first consider only the question
whether the minor is abused, neglected or dependent. The standard of proof and
the rules of evidence in the nature of civil proceedings in this State are applicable
to proceedings under this Article. If the petition also seeks the appointment of a
guardian of the person with power to consent to adoption of the minor under
Section 2-29, the court may also consider legally admissible evidence at the
adjudicatory hearing that one or more grounds of unfitness exists under
subdivision D of Section 1 of the Adoption Act.
(2) In any hearing under this Act, the following shall constitute prima facie
evidence of abuse or neglect, as the case may be:
(a) Proof that a minor has a medical diagnosis of battered child syndrome is prima
facie evidence of abuse;
(b) Proof that a minor has a medical diagnosis of failure to thrive syndrome is
prima facie evidence of neglect;
(c) Proof that a minor has a medical diagnosis of fetal alcohol syndrome is prima
facie evidence of neglect;
(d) Proof that a minor has a medical diagnosis at birth of withdrawal symptoms
from narcotics or barbiturates is prima facie evidence of neglect;
(e) proof of injuries sustained by a minor or of the condition of a minor of such a
nature as would ordinarily not be sustained or exist except by reason of the acts or
omissions of the parent, custodian or guardian of such minor shall be prima facie
evidence of abuse or neglect, as the case may be;
(f) proof that a parent, custodian or guardian of a minor repeatedly used a drug, to
the extent that it has or would ordinarily have the effect of producing in the user a
substantial state of stupor, unconsciousness, intoxication, hallucination,
disorientation or incompetence, or a substantial impairment of judgment, or a
substantial manifestation of irrationality, shall be prima facie evidence of neglect;
(g) Proof that a parent, custodian, or guardian of a minor repeatedly used a
controlled substance, as defined in subsection (f) of Section 102 of the Illinois
Controlled Substances Act, in the presence of the minor or a sibling of the minor
is prima facie evidence of neglect. "Repeated use", for the purpose of this
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subsection, means more than one use of a controlled substance as defined in
subsection (f) of Section 102 of the Illinois Controlled Substances Act;
(h) proof that a newborn infant's 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, or a metabolite of a controlled substance, with the
exception of controlled substances or metabolites of those substances, the
presence of which is the result of medical treatment administered to the mother or
the newborn, is prime facie evidence of neglect;
(i) Proof that a minor was present in a structure or vehicle in which the minor's
parent, custodian, or guardian was involved in the manufacture of
methamphetamine constitutes prima facie evidence of abuse and neglect;
(j) proof that a parent, custodian, or guardian of a minor allows, encourages, or
requires a minor to perform, offer, or agree to perform any act of sexual
penetration as defined in Section 12-12 of the Criminal Code of 1961 for any
money, property, token, object, or article or anything of value, or any touching or
fondling of the sex organs of one person by another person, for any money,
property, token, object, or article or anything of value, for the purpose of sexual
arousal or gratification, constitutes prima facie evidence of abuse and neglect;
(k) Proof that a parent, custodian, or guardian of a minor commits or allows to be
or trafficking in persons for forced labor or services defined in Section 10-9 of the
Criminal Code of 1961, upon such minor, constitutes prima facie evidence of
abuse and neglect.
(3) In any hearing under this Act, proof of the abuse, neglect or dependency of
one minor shall be admissible evidence on the issue of the abuse, neglect or
dependency of any other minor for whom the respondent is responsible.
(4) (a) Any writing, record, photograph or x-ray of any hospital or public or
private agency, whether in the form of an entry in a book or otherwise, made as a
memorandum or record of any condition, act, transaction, occurrence or event
relating to a minor in an abuse, neglect or dependency proceeding, shall be
admissible in evidence as proof of that condition, act, transaction, occurrence or
event, if the court finds that the document was made in the regular course of the
business of the hospital or agency and that it was in the regular course of such
business to make it, at the time of the act, transaction, occurrence or event, or
within a reasonable time thereafter. A certification by the head or responsible
employee of the hospital or agency that the writing, record, photograph or x-ray is
the full and complete record of the condition, act, transaction, occurrence or event
and that it satisfies the conditions of this paragraph shall be prima facie evidence
of the facts contained in such certification. A certification by someone other than
the head of the hospital or agency shall be accompanied by a photocopy of a
delegation of authority signed by both the head of the hospital or agency and by
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such other employee. All other circumstances of the making of the memorandum,
record, photograph or x-ray, including lack of personal knowledge of the maker,
may be proved to affect the weight to be accorded such evidence, but shall not
affect its admissibility.
(b) Any indicated report filed pursuant to the Abused and Neglected Child
Reporting Act shall be admissible in evidence.
(c) Previous statements made by the minor relating to any allegations of abuse or
neglect shall be admissible in evidence. However, no such statement, if
uncorroborated and not subject to cross-examination shall be sufficient in itself to
support a finding of abuse or neglect.
(d) There shall be a rebuttable presumption that a minor is competent to testify in
abuse or neglect proceedings. The court shall determine how much weight to give
to the minor's testimony, and may allow the minor to testify in chambers with
only the court, the court reporter and attorneys for the parties present.
(e) The privileged character of communication between any professional person
and patient or client, except privilege between attorney and client, shall not apply
to proceedings subject to this Article.
(f) Proof of the impairment of emotional health or impairment of mental or
emotional condition as a result of the failure of the respondent to exercise a
minimum degree of care toward a minor may include competent opinion or expert
testimony, and may include proof that such impairment lessened during a period
when the minor was in the care, custody or supervision of a person or agency
other than the respondent.
(5) In any hearing under this Act alleging neglect for failure to provide education
as required by law under subsection (1) of Section 2-3, proof that a minor under
13 years of age who is subject to compulsory school attendance under the School
Code is a chronic truant as defined under the School Code shall be prima facie
evidence of neglect by the parent or guardian in any hearing under this Act and
proof that a minor who is 13 years of age or older who is subject to compulsory
school attendance under the School Code is a chronic truant shall raise a
rebuttable presumption of neglect by the parent or guardian. This subsection (5)
shall not apply in counties with 2,000,000 or more inhabitants.
(6) In any hearing under this Act, the court may take judicial notice of prior
sworn testimony or evidence admitted in prior proceedings involving the same
minor if (a) the parties were either represented by counsel at such prior
proceedings or the right to counsel was knowingly waived and (b) the taking of
judicial notice would not result in admitting hearsay evidence at a hearing where
it would otherwise be prohibited.”
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Illinois Supreme Court Rule 236 provides for the admission of business records
into evidence as follows:
“(a) Any writing or record, whether in the form of any entry in a book or
otherwise, made a memorandum or record of any act, transaction, occurrence, or
event, shall be admissible as evidence of the act, transaction, occurrence, or event,
if made in the regular course of business, and if it was the regular course of the
business to make such an act, transaction, occurrence, or event, or within a
reasonable time thereafter. All other circumstances of the making of the writing or
record, including lack of personal knowledge by the entrant or maker, may be
shown to affect its weight, but shall not affect admissibility. The term “business,”
as used in this rule, includes business, profession, occupation, and calling of every
kind. . .”
Illinois Rule of Evidence 803(4) defines statements for purposes of medical
diagnosis or treatment as follows:
“(A) Statements made for purposes of medical treatment, or medical diagnosis in
contemplation of treatment, and describing medical history, or past or present
symptoms, pain, or sensation, or the inception or general character of the cause or
external source thereof insofar as reasonably pertinent to diagnosis or treatment
but, subject to Rule 703, not including statements made to a health care provider
consulted solely for the purpose of preparing for litigation or obtaining testimony
for trial, or (B) . . .” (emphasis added) compare Ill. Sup. Ct. Rule 215 (d)(4)
C. Admissible Evidence :
If the court finds probable cause, it must hear evidence and determine whether it
is consistent with the health, safety, and best interests of the minor that the minor be
released to his parent or placed in shelter care. 705 ILCS 405/2-10(2) If the minor is to be
placed in shelter care, the court must find it a matter of immediate and urgent necessity
that the minor be placed in a shelter-care facility and find that either reasonable efforts
have been made or no reasonable efforts can be made to prevent or eliminate the
necessity of removal of the minor from his home. 705 ILCS 405/2-10(2) Essentially, at a
shelter-care hearing, the court determines whether a minor requires temporary placement
outside the home. See, e.g., In re W.B., 213 Ill. App. 3d 274, 283, 571 N.E.2d 1120, 1126
(1991) see also In re Austin D., 358 Ill. App. 3d 794, 831 N.E.2d 1206 (4th Dist. 2005)
Among the rights of parents at a shelter care hearing is the right to present evidence
concerning: (1) whether a child is abused, neglected, or dependent; (2) whether there is
immediate and urgent necessity to remove a child from the home, including evidence of
the parents' ability to care for the child, conditions in the home, and alternative means of
protecting the child other than removal; and (3) the best interests of the child. See 705
ILCS 405/2-10(3)
D. Rehearing:
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At the rehearing, the court is to "proceed in the same manner as upon the original
hearing." 705 ILCS 405/2-10(4) However, nowhere in the Act in general or section 2-10
in particular did the legislature limit the evidence that a court may consider at such a
rehearing to the evidence that existed at the time of the original shelter care hearing. In re
Niki K., 374 Ill. App. 3d 795, 871 N.E.2d 939 (2nd Dist. 2007) A rehearing on the State's
petition is not an effort to modify or vacate the court's prior order. Such a rehearing is a
de novo hearing on the State's petition, held to allow the parents, who were not given
notice of the initial hearing, to exercise their statutory rights. A de novo hearing is "[a]
new hearing of a matter, conducted as if the original hearing had not taken place.” In re
Niki K., 374 Ill. App. 3d 795, 871 N.E.2d 939 (2nd Dist. 2007) citing Cook County Board
of Review v. Property Tax Appeal Board, 339 Ill. App. 3d 529, 537, 791 N.E.2d 8
(2002), quoting Black's Law Dictionary 447 (7th ed.1999).
