705 ILCS 405/2-28

Current through Public Act 103-1052

Section 705 ILCS 405/2-28 - Court review

(1) The court may require any legal custodian or guardian of the person appointed under this Act to report periodically to the court or may cite the legal custodian or guardian into court and require the legal custodian, guardian, or the legal custodian's or guardian's agency to make a full and accurate report of the doings of the legal custodian, guardian, or agency on behalf of the minor. The custodian or guardian, within 10 days after such citation, or earlier if the court determines it to be necessary to protect the health, safety, or welfare of the minor, shall make the report, either in writing verified by affidavit or orally under oath in open court, or otherwise as the court directs. Upon the hearing of the report the court may remove the custodian or guardian and appoint another in the custodian's or guardian's stead or restore the minor to the custody of the minor's parents or former guardian or custodian. However, custody of the minor shall not be restored to any parent, guardian, or legal custodian in any case in which the minor is found to be neglected or abused under Section 2-3 or dependent under Section 2-4 of this Act, unless the minor can be cared for at home without endangering the minor's health or safety and it is in the best interests of the minor, and if such neglect, abuse, or dependency is found by the court under paragraph (1) of Section 2-21 of this Act to have come about due to the acts or omissions or both of such parent, guardian, or legal custodian, until such time as an investigation is made as provided in paragraph (5) and a hearing is held on the issue of the fitness of such parent, guardian, or legal custodian to care for the minor and the court enters an order that such parent, guardian, or legal custodian is fit to care for the minor.

(1.5) The public agency that is the custodian or guardian of the minor shall file a written report with the court no later than 15 days after a minor in the agency's care remains:

(1) in a shelter placement beyond 30 days;

(2) in a psychiatric hospital past the time when the minor is clinically ready for discharge or beyond medical necessity for the minor's health; or

(3) in a detention center or Department of Juvenile Justice facility solely because the public agency cannot find an appropriate placement for the minor.

The report shall explain the steps the agency is taking to ensure the minor is placed appropriately, how the minor's needs are being met in the minor's shelter placement, and if a future placement has been identified by the Department, why the anticipated placement is appropriate for the needs of the minor and the anticipated placement date.

(1.6) Within 30 days after placing a child in its care in a qualified residential treatment program, as defined by the federal Social Security Act, the Department of Children and Family Services shall prepare a written report for filing with the court and send copies of the report to all parties. Within 20 days of the filing of the report, or as soon thereafter as the court's schedule allows but not more than 60 days from the date of placement, the court shall hold a hearing to consider the Department's report and determine whether placement of the child in a qualified residential treatment program provides the most effective and appropriate level of care for the child in the least restrictive environment and if the placement is consistent with the short-term and long-term goals for the child, as specified in the permanency plan for the child. The court shall approve or disapprove the placement. If applicable, the requirements of Sections 2-27.1 and 2-27.2 must also be met. The Department's written report and the court's written determination shall be included in and made part of the case plan for the child. If the child remains placed in a qualified residential treatment program, the Department shall submit evidence at each status and permanency hearing:

(1) demonstrating that on-going assessment of the strengths and needs of the child continues to support the determination that the child's needs cannot be met through placement in a foster family home, that the placement provides the most effective and appropriate level of care for the child in the least restrictive, appropriate environment, and that the placement is consistent with the short-term and long-term permanency goal for the child, as specified in the permanency plan for the child;

(2) documenting the specific treatment or service needs that should be met for the child in the placement and the length of time the child is expected to need the treatment or services; and

(3) the efforts made by the agency to prepare the child to return home or to be placed with a fit and willing relative, a legal guardian, or an adoptive parent, or in a foster family home.

(2) The first permanency hearing shall be conducted by the judge. Subsequent permanency hearings may be heard by a judge or by hearing officers appointed or approved by the court in the manner set forth in Section 2-28.1 of this Act. The initial hearing shall be held (a) within 12 months from the date temporary custody was taken, regardless of whether an adjudication or dispositional hearing has been completed within that time frame, (b) if the parental rights of both parents have been terminated in accordance with the procedure described in subsection (5) of Section 2-21, within 30 days of the order for termination of parental rights and appointment of a guardian with power to consent to adoption, or (c) in accordance with subsection (2) of Section 2-13.1. Subsequent permanency hearings shall be held every 6 months or more frequently if necessary in the court's determination following the initial permanency hearing, in accordance with the standards set forth in this Section, until the court determines that the plan and goal have been achieved. Once the plan and goal have been achieved, if the minor remains in substitute care, the case shall be reviewed at least every 6 months thereafter, subject to the provisions of this Section, unless the minor is placed in the guardianship of a suitable relative or other person and the court determines that further monitoring by the court does not further the health, safety, or best interest of the child and that this is a stable permanent placement. The permanency hearings must occur within the time frames set forth in this subsection and may not be delayed in anticipation of a report from any source or due to the agency's failure to timely file its written report (this written report means the one required under the next paragraph and does not mean the service plan also referred to in that paragraph).

The public agency that is the custodian or guardian of the minor, or another agency responsible for the minor's care, shall ensure that all parties to the permanency hearings are provided a copy of the most recent service plan prepared within the prior 6 months at least 14 days in advance of the hearing. If not contained in the agency's service plan, the agency shall also include a report setting forth (i) any special physical, psychological, educational, medical, emotional, or other needs of the minor or the minor's family that are relevant to a permanency or placement determination and (ii) for any minor age 16 or over, a written description of the programs and services that will enable the minor to prepare for independent living. If not contained in the agency's service plan, the agency's report shall specify if a minor is placed in a licensed child care facility under a corrective plan by the Department due to concerns impacting the minor's safety and well-being. The report shall explain the steps the Department is taking to ensure the safety and well-being of the minor and that the minor's needs are met in the facility. The agency's written report must detail what progress or lack of progress the parent has made in correcting the conditions requiring the child to be in care; whether the child can be returned home without jeopardizing the child's health, safety, and welfare, and, if not, what permanency goal is recommended to be in the best interests of the child, and why the other permanency goals are not appropriate. The caseworker must appear and testify at the permanency hearing. If a permanency hearing has not previously been scheduled by the court, the moving party shall move for the setting of a permanency hearing and the entry of an order within the time frames set forth in this subsection.

At the permanency hearing, the court shall determine the future status of the child. The court shall set one of the following permanency goals:

(A) The minor will be returned home by a specific date within 5 months.

(B) The minor will be in short-term care with a continued goal to return home within a period not to exceed one year, where the progress of the parent or parents is substantial giving particular consideration to the age and individual needs of the minor.

(B-1) The minor will be in short-term care with a continued goal to return home pending a status hearing. When the court finds that a parent has not made reasonable efforts or reasonable progress to date, the court shall identify what actions the parent and the Department must take in order to justify a finding of reasonable efforts or reasonable progress and shall set a status hearing to be held not earlier than 9 months from the date of adjudication nor later than 11 months from the date of adjudication during which the parent's progress will again be reviewed.

(C) The minor will be in substitute care pending court determination on termination of parental rights.

(D) Adoption, provided that parental rights have been terminated or relinquished.

(E) The guardianship of the minor will be transferred to an individual or couple on a permanent basis provided that goals (A) through (D) have been deemed inappropriate and not in the child's best interests. The court shall confirm that the Department has discussed adoption, if appropriate, and guardianship with the caregiver prior to changing a goal to guardianship.

(F) The minor over age 15 will be in substitute care pending independence. In selecting this permanency goal, the Department of Children and Family Services may provide services to enable reunification and to strengthen the minor's connections with family, fictive kin, and other responsible adults, provided the services are in the minor's best interest. The services shall be documented in the service plan.

(G) The minor will be in substitute care because the minor cannot be provided for in a home environment due to developmental disabilities or mental illness or because the minor is a danger to self or others, provided that goals (A) through (D) have been deemed inappropriate and not in the child's best interests.

In selecting any permanency goal, the court shall indicate in writing the reasons the goal was selected and why the preceding goals were deemed inappropriate and not in the child's best interest. Where the court has selected a permanency goal other than (A), (B), or (B-1), the Department of Children and Family Services shall not provide further reunification services, except as provided in paragraph (F) of this subsection (2), but shall provide services consistent with the goal selected.

(H) Notwithstanding any other provision in this Section, the court may select the goal of continuing foster care as a permanency goal if:

(1) The Department of Children and Family Services has custody and guardianship of the minor;

(2) The court has deemed all other permanency goals inappropriate based on the child's best interest;

(3) The court has found compelling reasons, based on written documentation reviewed by the court, to place the minor in continuing foster care. Compelling reasons include:

(a) the child does not wish to be adopted or to be placed in the guardianship of the minor's relative or foster care placement;

(b) the child exhibits an extreme level of need such that the removal of the child from the minor's placement would be detrimental to the child; or

(c) the child who is the subject of the permanency hearing has existing close and strong bonds with a sibling, and achievement of another permanency goal would substantially interfere with the subject child's sibling relationship, taking into consideration the nature and extent of the relationship, and whether ongoing contact is in the subject child's best interest, including long-term emotional interest, as compared with the legal and emotional benefit of permanence;

(4) The child has lived with the relative or foster parent for at least one year; and

(5) The relative or foster parent currently caring for the child is willing and capable of providing the child with a stable and permanent environment.

The court shall set a permanency goal that is in the best interest of the child. In determining that goal, the court shall consult with the minor in an age-appropriate manner regarding the proposed permanency or transition plan for the minor. The court's determination shall include the following factors:

(1) Age of the child.

(2) Options available for permanence, including both out-of-state and in-state placement options.

(3) Current placement of the child and the intent of the family regarding adoption.

(4) Emotional, physical, and mental status or condition of the child.

(5) Types of services previously offered and whether or not the services were successful and, if not successful, the reasons the services failed.

(6) Availability of services currently needed and whether the services exist.

(7) Status of siblings of the minor.

The court shall consider (i) the permanency goal contained in the service plan, (ii) the appropriateness of the services contained in the plan and whether those services have been provided, (iii) whether reasonable efforts have been made by all the parties to the service plan to achieve the goal, and (iv) whether the plan and goal have been achieved. All evidence relevant to determining these questions, including oral and written reports, may be admitted and may be relied on to the extent of their probative value.

The court shall make findings as to whether, in violation of Section 8.2 of the Abused and Neglected Child Reporting Act, any portion of the service plan compels a child or parent to engage in any activity or refrain from any activity that is not reasonably related to remedying a condition or conditions that gave rise or which could give rise to any finding of child abuse or neglect. The services contained in the service plan shall include services reasonably related to remedy the conditions that gave rise to removal of the child from the home of the child's parents, guardian, or legal custodian or that the court has found must be remedied prior to returning the child home. Any tasks the court requires of the parents, guardian, or legal custodian or child prior to returning the child home must be reasonably related to remedying a condition or conditions that gave rise to or which could give rise to any finding of child abuse or neglect.

If the permanency goal is to return home, the court shall make findings that identify any problems that are causing continued placement of the children away from the home and identify what outcomes would be considered a resolution to these problems. The court shall explain to the parents that these findings are based on the information that the court has at that time and may be revised, should additional evidence be presented to the court.

The court shall review the Sibling Contact Support Plan developed or modified under subsection (f) of Section 7.4 of the Children and Family Services Act, if applicable. If the Department has not convened a meeting to develop or modify a Sibling Contact Support Plan, or if the court finds that the existing Plan is not in the child's best interest, the court may enter an order requiring the Department to develop, modify, or implement a Sibling Contact Support Plan, or order mediation.

If the goal has been achieved, the court shall enter orders that are necessary to conform the minor's legal custody and status to those findings.

If, after receiving evidence, the court determines that the services contained in the plan are not reasonably calculated to facilitate achievement of the permanency goal, the court shall put in writing the factual basis supporting the determination and enter specific findings based on the evidence. The court also shall enter an order for the Department to develop and implement a new service plan or to implement changes to the current service plan consistent with the court's findings. The new service plan shall be filed with the court and served on all parties within 45 days of the date of the order. The court shall continue the matter until the new service plan is filed. Except as authorized by subsection (2.5) of this Section and as otherwise specifically authorized by law, the court is not empowered under this Section to order specific placements, specific services, or specific service providers to be included in the service plan.

A guardian or custodian appointed by the court pursuant to this Act shall file updated case plans with the court every 6 months.

Rights of wards of the court under this Act are enforceable against any public agency by complaints for relief by mandamus filed in any proceedings brought under this Act.

(2.5) If, after reviewing the evidence, including evidence from the Department, the court determines that the minor's current or planned placement is not necessary or appropriate to facilitate achievement of the permanency goal, the court shall put in writing the factual basis supporting its determination and enter specific findings based on the evidence. If the court finds that the minor's current or planned placement is not necessary or appropriate, the court may enter an order directing the Department to implement a recommendation by the minor's treating clinician or a clinician contracted by the Department to evaluate the minor or a recommendation made by the Department. If the Department places a minor in a placement under an order entered under this subsection (2.5), the Department has the authority to remove the minor from that placement when a change in circumstances necessitates the removal to protect the minor's health, safety, and best interest. If the Department determines removal is necessary, the Department shall notify the parties of the planned placement change in writing no later than 10 days prior to the implementation of its determination unless remaining in the placement poses an imminent risk of harm to the minor, in which case the Department shall notify the parties of the placement change in writing immediately following the implementation of its decision. The Department shall notify others of the decision to change the minor's placement as required by Department rule.

(3) Following the permanency hearing, the court shall enter a written order that includes the determinations required under subsection (2) of this Section and sets forth the following:

(a) The future status of the minor, including the permanency goal, and any order necessary to conform the minor's legal custody and status to such determination; or

(b) If the permanency goal of the minor cannot be achieved immediately, the specific reasons for continuing the minor in the care of the Department of Children and Family Services or other agency for short-term placement, and the following determinations:

(i) (Blank).

(ii) Whether the services required by the court and by any service plan prepared within the prior 6 months have been provided and (A) if so, whether the services were reasonably calculated to facilitate the achievement of the permanency goal or (B) if not provided, why the services were not provided.

(iii) Whether the minor's current or planned placement is necessary, and appropriate to the plan and goal, recognizing the right of minors to the least restrictive (most family-like) setting available and in close proximity to the parents' home consistent with the health, safety, best interest, and special needs of the minor and, if the minor is placed out-of-state, whether the out-of-state placement continues to be appropriate and consistent with the health, safety, and best interest of the minor.

(iv) (Blank).

(v) (Blank).

(4) The minor or any person interested in the minor may apply to the court for a change in custody of the minor and the appointment of a new custodian or guardian of the person or for the restoration of the minor to the custody of the minor's parents or former guardian or custodian.

When return home is not selected as the permanency goal:

(a) The Department, the minor, or the current foster parent or relative caregiver seeking private guardianship may file a motion for private guardianship of the minor. Appointment of a guardian under this Section requires approval of the court.

(b) The State's Attorney may file a motion to terminate parental rights of any parent who has failed to make reasonable efforts to correct the conditions which led to the removal of the child or reasonable progress toward the return of the child, as defined in subdivision (D)(m) of Section 1 of the Adoption Act or for whom any other unfitness ground for terminating parental rights as defined in subdivision (D) of Section 1 of the Adoption Act exists.

When parental rights have been terminated for a minimum of 3 years and the child who is the subject of the permanency hearing is 13 years old or older and is not currently placed in a placement likely to achieve permanency, the Department of Children and Family Services shall make reasonable efforts to locate parents whose rights have been terminated, except when the Court determines that those efforts would be futile or inconsistent with the subject child's best interests. The Department of Children and Family Services shall assess the appropriateness of the parent whose rights have been terminated, and shall, as appropriate, foster and support connections between the parent whose rights have been terminated and the youth. The Department of Children and Family Services shall document its determinations and efforts to foster connections in the child's case plan.

Custody of the minor shall not be restored to any parent, guardian, or legal custodian in any case in which the minor is found to be neglected or abused under Section 2-3 or dependent under Section 2-4 of this Act, unless the minor can be cared for at home without endangering the minor's health or safety and it is in the best interest of the minor, and if such neglect, abuse, or dependency is found by the court under paragraph (1) of Section 2-21 of this Act to have come about due to the acts or omissions or both of such parent, guardian, or legal custodian, until such time as an investigation is made as provided in paragraph (5) and a hearing is held on the issue of the health, safety, and best interest of the minor and the fitness of such parent, guardian, or legal custodian to care for the minor and the court enters an order that such parent, guardian, or legal custodian is fit to care for the minor. If a motion is filed to modify or vacate a private guardianship order and return the child to a parent, guardian, or legal custodian, the court may order the Department of Children and Family Services to assess the minor's current and proposed living arrangements and to provide ongoing monitoring of the health, safety, and best interest of the minor during the pendency of the motion to assist the court in making that determination. In the event that the minor has attained 18 years of age and the guardian or custodian petitions the court for an order terminating the minor's guardianship or custody, guardianship or custody shall terminate automatically 30 days after the receipt of the petition unless the court orders otherwise. No legal custodian or guardian of the person may be removed without the legal custodian's or guardian's consent until given notice and an opportunity to be heard by the court.

When the court orders a child restored to the custody of the parent or parents, the court shall order the parent or parents to cooperate with the Department of Children and Family Services and comply with the terms of an after-care plan, or risk the loss of custody of the child and possible termination of their parental rights. The court may also enter an order of protective supervision in accordance with Section 2-24.

If the minor is being restored to the custody of a parent, legal custodian, or guardian who lives outside of Illinois, and an Interstate Compact has been requested and refused, the court may order the Department of Children and Family Services to arrange for an assessment of the minor's proposed living arrangement and for ongoing monitoring of the health, safety, and best interest of the minor and compliance with any order of protective supervision entered in accordance with Section 2-24.

(5) Whenever a parent, guardian, or legal custodian files a motion for restoration of custody of the minor, and the minor was adjudicated neglected, abused, or dependent as a result of physical abuse, the court shall cause to be made an investigation as to whether the movant has ever been charged with or convicted of any criminal offense which would indicate the likelihood of any further physical abuse to the minor. Evidence of such criminal convictions shall be taken into account in determining whether the minor can be cared for at home without endangering the minor's health or safety and fitness of the parent, guardian, or legal custodian.

(a) Any agency of this State or any subdivision thereof shall cooperate with the agent of the court in providing any information sought in the investigation.

(b) The information derived from the investigation and any conclusions or recommendations derived from the information shall be provided to the parent, guardian, or legal custodian seeking restoration of custody prior to the hearing on fitness and the movant shall have an opportunity at the hearing to refute the information or contest its significance.

(c) All information obtained from any investigation shall be confidential as provided in Section 5-150 of this Act.

705 ILCS 405/2-28

Amended by P.A. 103-0605,§ 555, eff. 7/1/2024.

Amended by P.A. 103-0171,§ 5, eff. 1/1/2024.

Amended by P.A. 103-0154,§ 675, eff. 6/30/2023.

Amended by P.A. 103-0022,§ 65, eff. 8/8/2023.

Amended by P.A. 102-0813,§ 595, eff. 5/13/2022.

Amended by P.A. 102-0489,§ 5, eff. 8/20/2021.

Amended by P.A. 102-0193,§ 5, eff. 7/30/2021.

Amended by P.A. 101-0063,§ 10, eff. 10/1/2019.

Amended by P.A. 100-0978,§ 10, eff. 8/19/2018.

Amended by P.A. 100-0863,§ 560, eff. 8/14/2018.

Amended by P.A. 100-0229,§ 5, eff. 1/1/2018.

Amended by P.A. 100-0136,§ 5, eff. 8/18/2017.

Amended by P.A. 100-0045,§ 5, eff. 8/11/2017.

Amended by P.A. 098-0756,§ 690, eff. 7/16/2014.

Amended by P.A. 097-1076,§ 10, eff. 8/24/2012.

Amended by P.A. 097-0425,§ 5, eff. 8/16/2011.

Amended by P.A. 096-1375,§ 5, eff. 7/29/2010.

Amended by P.A. 096-0600,§ 15, eff. 8/21/2009.

Amended by P.A. 095-0876,§ 310, eff. 8/21/2008.

Amended by P.A. 095-0182,§ 5, eff. 8/14/2007.

Amended by P.A. 095-0010,§ 10, eff. 6/30/2007.

P.A. 90-27, eff. 1-1-98; 90-28, eff. 1-1-98; 90-87, eff. 9-1-97; 90-590, eff. 1-1-99; 90-608, eff. 6-30-98; 90-655, eff. 7-30-98; 91-357, eff. 7-29-99; 92-320, eff. 1-1-02.