|
| Public Act 098-0532
|
| SB1686 Enrolled | LRB098 00154 KTG 30155 b |
|
|
AN ACT concerning civil law.
|
Be it enacted by the People of the State of Illinois,
|
represented in the General Assembly:
|
Section 5. The Adoption Act is amended by changing Section |
1 as follows:
|
(750 ILCS 50/1) (from Ch. 40, par. 1501)
|
Sec. 1. Definitions. When used in this Act, unless the |
context
otherwise requires:
|
A. "Child" means a person under legal age subject to |
adoption under
this Act.
|
B. "Related child" means a child subject to adoption where |
either or both of
the adopting parents stands in any of the |
following relationships to the child
by blood or marriage: |
parent, grand-parent, brother, sister, step-parent,
|
step-grandparent, step-brother, step-sister, uncle, aunt, |
great-uncle,
great-aunt, or cousin of first degree. A child |
whose parent has executed
a final irrevocable consent to |
adoption or a final irrevocable surrender
for purposes of |
adoption, or whose parent has had his or her parental rights
|
terminated, is not a related child to that person, unless the |
consent is
determined to be void or is void pursuant to |
subsection O of Section 10.
|
C. "Agency" for the purpose of this Act means a public |
|
child welfare agency
or a licensed child welfare agency.
|
D. "Unfit person" means any person whom the court shall |
find to be unfit
to have a child, without regard to the |
likelihood that the child will be
placed for adoption. The |
grounds of unfitness are any one or more
of the following, |
except that a person shall not be considered an unfit
person |
for the sole reason that the person has relinquished a child in
|
accordance with the Abandoned Newborn Infant Protection Act:
|
(a) Abandonment of the child.
|
(a-1) Abandonment of a newborn infant in a hospital.
|
(a-2) Abandonment of a newborn infant in any setting |
where the evidence
suggests that the parent intended to |
relinquish his or her parental rights.
|
(b) Failure to maintain a reasonable degree of |
interest, concern or
responsibility as to the child's |
welfare.
|
(c) Desertion of the child for more than 3 months next |
preceding the
commencement of the Adoption proceeding.
|
(d) Substantial neglect
of the
child if continuous or |
repeated.
|
(d-1) Substantial neglect, if continuous or repeated, |
of any child
residing in the household which resulted in |
the death of that child.
|
(e) Extreme or repeated cruelty to the child.
|
(f) There is a rebuttable presumption, which can be |
overcome only by clear and convincing evidence, that a |
|
parent is unfit if:
|
(1) Two or more findings of physical abuse have |
been entered regarding any children under Section 2-21 |
of the Juvenile Court Act
of 1987, the most recent of |
which was determined by the juvenile court
hearing the |
matter to be supported by clear and convincing |
evidence; or |
(2) The parent has been convicted or found not |
guilty by reason of insanity and the conviction or |
finding resulted from the death of any child by |
physical abuse; or
|
(3) There is a finding of physical child abuse |
resulting from the death of any
child under Section |
2-21 of the
Juvenile Court Act of 1987. |
No conviction or finding of delinquency pursuant |
to Article 5 of the Juvenile Court Act of 1987 shall be |
considered a criminal conviction for the purpose of |
applying any presumption under this item (f).
|
(g) Failure to protect the child from conditions within |
his environment
injurious to the child's welfare.
|
(h) Other neglect of, or misconduct toward the child; |
provided that in
making a finding of unfitness the court |
hearing the adoption proceeding
shall not be bound by any |
previous finding, order or judgment affecting
or |
determining the rights of the parents toward the child |
sought to be adopted
in any other proceeding except such |
|
proceedings terminating parental rights
as shall be had |
under either this Act, the Juvenile Court Act or
the |
Juvenile Court Act of 1987.
|
(i) Depravity. Conviction of any one of the following
|
crimes shall create a presumption that a parent is depraved |
which can be
overcome only by clear and convincing |
evidence:
(1) first degree murder in violation of paragraph |
1 or
2 of subsection (a) of Section 9-1 of the Criminal |
Code of 1961 or conviction
of second degree murder in |
violation of subsection (a) of Section 9-2 of the
Criminal |
Code of 1961 of a parent of the child to be adopted; (2)
|
first degree murder or second degree murder of any child in
|
violation of the Criminal Code of 1961; (3)
attempt or |
conspiracy to commit first degree murder or second degree |
murder
of any child in violation of the Criminal Code of |
1961; (4)
solicitation to commit murder of any child, |
solicitation to
commit murder of any child for hire, or |
solicitation to commit second
degree murder of any child in |
violation of the Criminal Code of 1961; (5)
predatory |
criminal sexual assault of a child in violation of
Section |
11-1.40 or 12-14.1 of the Criminal Code of 1961; (6) |
heinous battery of any child in violation of the Criminal |
Code of 1961; or (7) aggravated battery of any child in |
violation of the Criminal Code of 1961.
|
There is a rebuttable presumption that a parent is |
depraved if the parent
has been criminally convicted of at |
|
least 3 felonies under the laws of this
State or any other |
state, or under federal law, or the criminal laws of any
|
United States territory; and at least
one of these
|
convictions took place within 5 years of the filing of the |
petition or motion
seeking termination of parental rights.
|
There is a rebuttable presumption that a parent is |
depraved if that
parent
has
been criminally convicted of |
either first or second degree murder of any person
as |
defined in the Criminal Code of 1961 within 10 years of the |
filing date of
the petition or motion to terminate parental |
rights. |
No conviction or finding of delinquency pursuant to |
Article 5 of the Juvenile Court Act of 1987 shall be |
considered a criminal conviction for the purpose of |
applying any presumption under this item (i).
|
(j) Open and notorious adultery or fornication.
|
(j-1) (Blank).
|
(k) Habitual drunkenness or addiction to drugs, other |
than those
prescribed by a physician, for at least one year |
immediately
prior to the commencement of the unfitness |
proceeding.
|
There is a rebuttable presumption that a parent is |
unfit under this
subsection
with respect to any child to |
which that parent gives birth where there is a
confirmed
|
test result that at birth the child's blood, urine, or |
meconium contained any
amount of a controlled substance as |
|
defined in subsection (f) of Section 102 of
the Illinois |
Controlled Substances Act or metabolites of such |
substances, the
presence of which in the newborn infant was |
not the result of medical treatment
administered to the |
mother or the newborn infant; and the biological mother of
|
this child is the biological mother of at least one other |
child who was
adjudicated a neglected minor under |
subsection (c) of Section 2-3 of the
Juvenile Court Act of |
1987.
|
(l) Failure to demonstrate a reasonable degree of |
interest, concern or
responsibility as to the welfare of a |
new born child during the first 30
days after its birth.
|
(m) Failure by a parent (i) to make reasonable efforts |
to correct the
conditions that were the basis for the |
removal of the child from the
parent during any 9-month |
period following the adjudication of neglected or abused |
minor under Section 2-3 of the Juvenile Court Act of 1987 |
or dependent minor under Section 2-4 of that Act, or (ii) |
to make reasonable progress toward the return of the child
|
to
the parent within 9 months after an adjudication of |
neglected or abused
minor under Section 2-3 of the Juvenile |
Court Act of 1987 or dependent
minor under Section 2-4 of |
that Act, or (iii) to make reasonable progress
toward the |
return of the
child to the parent during any 9-month period |
after the end of the initial
9-month period following the |
adjudication of
neglected or abused minor under Section 2-3 |
|
of the Juvenile Court
Act of 1987 or dependent minor under |
Section 2-4 of that Act.
If a service plan has been |
established as
required under
Section 8.2 of the Abused and |
Neglected Child Reporting Act to correct the
conditions |
that were the basis for the removal of the child from the |
parent
and if those services were available,
then, for |
purposes of this Act, "failure to make reasonable progress |
toward the
return of the child to the parent" includes (I) |
the parent's failure to
substantially fulfill his or her |
obligations under the
service plan and correct the |
conditions that brought the child into care
within 9 months |
after the adjudication under Section 2-3 or 2-4
of the |
Juvenile Court Act of 1987
and (II) the parent's failure to |
substantially fulfill his or her obligations
under
the |
service plan and correct the conditions that brought the |
child into care
during any 9-month period after the end of |
the initial 9-month period
following the adjudication |
under Section 2-3 or 2-4 of the Juvenile Court
Act of 1987. |
Notwithstanding any other provision, when a petition or |
motion seeks to terminate parental rights on the basis of |
item (ii) (iii) of this subsection (m), the petitioner |
shall file with the court and serve on the parties a |
pleading that specifies the 9-month period or periods |
relied on. The pleading shall be filed and served on the |
parties no later than 3 weeks before the date set by the |
court for closure of discovery, and the allegations in the |
|
pleading shall be treated as incorporated into the petition |
or motion. Failure of a respondent to file a written denial |
of the allegations in the pleading shall not be treated as |
an admission that the allegations are true.
|
(m-1) Pursuant to the Juvenile Court Act of 1987, a |
child
has been in foster care for 15 months out of any 22 |
month period which begins
on or after the effective date of |
this amendatory Act of 1998 unless the
child's parent can |
prove
by a preponderance of the evidence that it is more |
likely than not that it will
be in the best interests of |
the child to be returned to the parent within 6
months of |
the date on which a petition for termination of parental |
rights is
filed under the Juvenile Court Act of 1987. The |
15 month time limit is tolled
during
any period for which |
there is a court finding that the appointed custodian or
|
guardian failed to make reasonable efforts to reunify the |
child with his or her
family, provided that (i) the finding |
of no reasonable efforts is made within
60 days of the |
period when reasonable efforts were not made or (ii) the |
parent
filed a motion requesting a finding of no reasonable |
efforts within 60 days of
the period when reasonable |
efforts were not made. For purposes of this
subdivision |
(m-1), the date of entering foster care is the earlier of: |
(i) the
date of
a judicial finding at an adjudicatory |
hearing that the child is an abused,
neglected, or |
dependent minor; or (ii) 60 days after the date on which |
|
the
child is removed from his or her parent, guardian, or |
legal custodian.
|
(n) Evidence of intent to forgo his or her parental |
rights,
whether or
not the child is a ward of the court, |
(1) as manifested
by his or her failure for a period of 12 |
months: (i) to visit the child,
(ii) to communicate with |
the child or agency, although able to do so and
not |
prevented from doing so by an agency or by court order, or |
(iii) to
maintain contact with or plan for the future of |
the child, although physically
able to do so, or (2) as |
manifested by the father's failure, where he
and the mother |
of the child were unmarried to each other at the time of |
the
child's birth, (i) to commence legal proceedings to |
establish his paternity
under the Illinois Parentage Act of |
1984 or the law of the jurisdiction of
the child's birth |
within 30 days of being informed, pursuant to Section 12a
|
of this Act, that he is the father or the likely father of |
the child or,
after being so informed where the child is |
not yet born, within 30 days of
the child's birth, or (ii) |
to make a good faith effort to pay a reasonable
amount of |
the expenses related to the birth of the child and to |
provide a
reasonable amount for the financial support of |
the child, the court to
consider in its determination all |
relevant circumstances, including the
financial condition |
of both parents; provided that the ground for
termination |
provided in this subparagraph (n)(2)(ii) shall only be
|
|
available where the petition is brought by the mother or |
the husband of
the mother.
|
Contact or communication by a parent with his or her |
child that does not
demonstrate affection and concern does |
not constitute reasonable contact
and planning under |
subdivision (n). In the absence of evidence to the
|
contrary, the ability to visit, communicate, maintain |
contact, pay
expenses and plan for the future shall be |
presumed. The subjective intent
of the parent, whether |
expressed or otherwise, unsupported by evidence of
the |
foregoing parental acts manifesting that intent, shall not |
preclude a
determination that the parent has intended to |
forgo his or her
parental
rights. In making this |
determination, the court may consider but shall not
require |
a showing of diligent efforts by an authorized agency to |
encourage
the parent to perform the acts specified in |
subdivision (n).
|
It shall be an affirmative defense to any allegation |
under paragraph
(2) of this subsection that the father's |
failure was due to circumstances
beyond his control or to |
impediments created by the mother or any other
person |
having legal custody. Proof of that fact need only be by a
|
preponderance of the evidence.
|
(o) Repeated or continuous failure by the parents, |
although physically
and financially able, to provide the |
child with adequate food, clothing,
or shelter.
|
|
(p) Inability to discharge parental responsibilities |
supported by
competent evidence from a psychiatrist, |
licensed clinical social
worker, or clinical psychologist |
of mental
impairment, mental illness or an intellectual |
disability as defined in Section
1-116 of the Mental Health |
and Developmental Disabilities Code, or
developmental |
disability as defined in Section 1-106 of that Code, and
|
there is sufficient justification to believe that the |
inability to
discharge parental responsibilities shall |
extend beyond a reasonable
time period. However, this |
subdivision (p) shall not be construed so as to
permit a |
licensed clinical social worker to conduct any medical |
diagnosis to
determine mental illness or mental |
impairment.
|
(q) (Blank).
|
(r) The child is in the temporary custody or |
guardianship of the
Department of Children and Family |
Services, the parent is incarcerated as a
result of |
criminal conviction at the time the petition or motion for
|
termination of parental rights is filed, prior to |
incarceration the parent had
little or no contact with the |
child or provided little or no support for the
child, and |
the parent's incarceration will prevent the parent from |
discharging
his or her parental responsibilities for the |
child for a period in excess of 2
years after the filing of |
the petition or motion for termination of parental
rights.
|
|
(s) The child is in the temporary custody or |
guardianship of the
Department of Children and Family |
Services, the parent is incarcerated at the
time the |
petition or motion for termination of parental rights is |
filed, the
parent has been repeatedly incarcerated as a |
result of criminal convictions,
and the parent's repeated |
incarceration has prevented the parent from
discharging |
his or her parental responsibilities for the child.
|
(t) A finding that at birth the child's blood,
urine, |
or meconium contained 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 such substances, the presence of which
in |
the newborn infant was the result of medical treatment |
administered to the
mother or the newborn infant, and that |
the biological mother of this child is
the biological |
mother of at least one other child who was adjudicated a
|
neglected minor under subsection (c) of Section 2-3 of the |
Juvenile Court Act
of 1987, after which the biological |
mother had the opportunity to enroll in
and participate in |
a clinically appropriate substance abuse
counseling, |
treatment, and rehabilitation program.
|
E. "Parent" means the father or mother of a lawful child of |
the parties or child born out of wedlock. For the purpose of |
this Act, a person who has executed a final and
irrevocable |
|
consent to adoption or a final and irrevocable surrender for
|
purposes of adoption, or whose parental rights have been |
terminated by a
court, is not a parent of the child who was the |
subject of the consent or
surrender, unless the consent is void |
pursuant to subsection O of Section 10.
|
F. A person is available for adoption when the person is:
|
(a) a child who has been surrendered for adoption to an |
agency and to
whose adoption the agency has thereafter |
consented;
|
(b) a child to whose adoption a person authorized by |
law, other than his
parents, has consented, or to whose |
adoption no consent is required pursuant
to Section 8 of |
this Act;
|
(c) a child who is in the custody of persons who intend |
to adopt him
through placement made by his parents;
|
(c-1) a child for whom a parent has signed a specific |
consent pursuant
to subsection O of Section 10;
|
(d) an adult who meets the conditions set forth in |
Section 3 of this
Act; or
|
(e) a child who has been relinquished as defined in |
Section 10 of the
Abandoned Newborn Infant Protection Act.
|
A person who would otherwise be available for adoption |
shall not be
deemed unavailable for adoption solely by reason |
of his or her death.
|
G. The singular includes the plural and the plural includes
|
the singular and the "male" includes the "female", as the |
|
context of this
Act may require.
|
H. "Adoption disruption" occurs when an adoptive placement |
does not
prove successful and it becomes necessary for the |
child to be removed from
placement before the adoption is |
finalized.
|
I. "Foreign placing agency" is an agency or individual |
operating in a
country or territory outside the United States |
that is authorized by its
country to place children for |
adoption either directly with families in the
United States or |
through United States based international agencies.
|
J. "Immediate relatives" means the biological parents, the |
parents of
the biological parents and siblings of the |
biological parents.
|
K. "Intercountry adoption" is a process by which a child |
from a country
other than the United States is adopted.
|
L. "Intercountry Adoption Coordinator" is a staff person of |
the
Department of Children and Family Services appointed by the |
Director to
coordinate the provision of services by the public |
and private sector to
prospective parents of foreign-born |
children.
|
M. "Interstate Compact on the Placement of Children" is a |
law enacted by
most states for the purpose of establishing |
uniform procedures for handling
the interstate placement of |
children in foster homes, adoptive homes, or
other child care |
facilities.
|
N. "Non-Compact state" means a state that has not enacted |
|
the
Interstate Compact on the Placement of Children.
|
O. "Preadoption requirements" are any conditions |
established by the laws
or regulations of the Federal |
Government or of each state that must be met
prior to the |
placement of a child in an adoptive home.
|
P. "Abused child" means a child whose parent or immediate |
family member,
or any person responsible for the child's |
welfare, or any individual
residing in the same home as the |
child, or a paramour of the child's parent:
|
(a) inflicts, causes to be inflicted, or allows to be |
inflicted upon
the child physical injury, by other than |
accidental means, that causes
death, disfigurement, |
impairment of physical or emotional health, or loss
or |
impairment of any bodily function;
|
(b) creates a substantial risk of physical injury to |
the child by
other than accidental means which would be |
likely to cause death,
disfigurement, impairment of |
physical or emotional health, or loss or
impairment of any |
bodily function;
|
(c) commits or allows to be committed any sex offense |
against the child,
as sex offenses are defined in the |
Criminal Code of 1961
and extending those definitions of |
sex offenses to include children under
18 years of age;
|
(d) commits or allows to be committed an act or acts of |
torture upon
the child; or
|
(e) inflicts excessive corporal punishment.
|
|
Q. "Neglected child" means any child whose parent or other |
person
responsible for the child's welfare withholds or denies |
nourishment or
medically indicated treatment including food or |
care denied solely on the
basis of the present or anticipated |
mental or physical impairment as determined
by a physician |
acting alone or in consultation with other physicians or
|
otherwise does not provide the proper or necessary support, |
education
as required by law, or medical or other remedial care |
recognized under State
law as necessary for a child'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 parents or other person responsible for |
the child's
welfare.
|
A child shall not be considered neglected or abused for the
|
sole reason that the child's parent or other person responsible |
for his
or her welfare depends upon spiritual means through |
prayer alone for the
treatment or cure of disease or remedial |
care as provided under Section 4
of the Abused and Neglected |
Child Reporting Act.
A child shall not be considered neglected |
or abused for the sole reason that
the child's parent or other |
person responsible for the child's welfare failed
to vaccinate, |
delayed vaccination, or refused vaccination for the child
due |
to a waiver on religious or medical grounds as permitted by |
law.
|
R. "Putative father" means a man who may be a child's |
father, but who (1) is
not married to the child's mother on or |
|
before the date that the child was or
is to be born and (2) has |
not established paternity of the child in a court
proceeding |
before the filing of a petition for the adoption of the child. |
The
term includes a male who is less than 18 years of age. |
"Putative father" does
not mean a man who is the child's father |
as a result of criminal sexual abuse
or assault as defined |
under Article 12 of the Criminal Code of 1961.
|
S. "Standby adoption" means an adoption in which a parent
|
consents to custody and termination of parental rights to |
become
effective upon the occurrence of a future event, which |
is either the death of
the
parent or the request of the parent
|
for the entry of a final judgment of adoption.
|
T. (Blank).
|
(Source: P.A. 96-1551, eff. 7-1-11; 97-227, eff. 1-1-12; |
revised 9-15-11.)
|
