Full Text of HB2588 94th General Assembly
HB2588ham001 94TH GENERAL ASSEMBLY
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Judiciary I - Civil Law Committee
Filed: 3/9/2005
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| AMENDMENT TO HOUSE BILL 2588
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| AMENDMENT NO. ______. Amend House Bill 2588 by replacing | 3 |
| everything after the enacting clause with the following:
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| "Section 5. The Adoption Act is amended by changing Section | 5 |
| 1 as follows:
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| (750 ILCS 50/1) (from Ch. 40, par. 1501)
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| Sec. 1. Definitions. When used in this Act, unless the | 8 |
| context
otherwise requires:
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| A. "Child" means a person under legal age subject to | 10 |
| adoption under
this Act.
| 11 |
| B. "Related child" means a child subject to adoption where | 12 |
| either or both of
the adopting parents stands in any of the | 13 |
| following relationships to the child
by blood or marriage: | 14 |
| parent, grand-parent, brother, sister, step-parent,
| 15 |
| step-grandparent, step-brother, step-sister, uncle, aunt, | 16 |
| great-uncle,
great-aunt, or cousin of first degree. A child | 17 |
| whose parent has executed
a final irrevocable consent to | 18 |
| adoption or a final irrevocable surrender
for purposes of | 19 |
| adoption, or whose parent has had his or her parental rights
| 20 |
| terminated, is not a related child to that person, unless the | 21 |
| consent is
determined to be void or is void pursuant to | 22 |
| subsection O of Section 10.
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| C. "Agency" for the purpose of this Act means a public | 24 |
| child welfare agency
or a licensed child welfare agency.
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| D. "Unfit person" means any person whom the court shall | 2 |
| find to be unfit
to have a child, without regard to the | 3 |
| likelihood that the child will be
placed for adoption. The | 4 |
| grounds of unfitness are any one or more
of the following, | 5 |
| except that a person shall not be considered an unfit
person | 6 |
| for the sole reason that the person has relinquished a child in
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| accordance with the Abandoned Newborn Infant Protection Act:
| 8 |
| (a) Abandonment of the child.
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| (a-1) Abandonment of a newborn infant in a hospital.
| 10 |
| (a-2) Abandonment of a newborn infant in any setting | 11 |
| where the evidence
suggests that the parent intended to | 12 |
| relinquish his or her parental rights.
| 13 |
| (b) Failure to maintain a reasonable degree of | 14 |
| interest, concern or
responsibility as to the child's | 15 |
| welfare.
| 16 |
| (c) Desertion of the child for more than 3 months next | 17 |
| preceding the
commencement of the Adoption proceeding.
| 18 |
| (d) Substantial neglect
of the
child if continuous or | 19 |
| repeated.
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| (d-1) Substantial neglect, if continuous or repeated, | 21 |
| of any child
residing in the household which resulted in | 22 |
| the death of that child.
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| (e) Extreme or repeated cruelty to the child.
| 24 |
| (f) Two or more findings of physical abuse to any | 25 |
| children under Section
4-8 of the Juvenile Court Act or | 26 |
| Section 2-21 of the Juvenile Court Act
of 1987, the most | 27 |
| recent of which was determined by the juvenile court
| 28 |
| hearing the matter to be supported by clear and convincing | 29 |
| evidence; a
criminal conviction or a finding of not guilty | 30 |
| by reason of insanity
resulting from the death of any child | 31 |
| by physical child
abuse; or a finding of physical child | 32 |
| abuse resulting from the death of any
child under Section | 33 |
| 4-8 of the Juvenile Court Act or Section 2-21 of the
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| Juvenile Court Act of 1987.
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| (g) Failure to protect the child from conditions within | 2 |
| his environment
injurious to the child's welfare.
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| (h) Other neglect of, or misconduct toward the child; | 4 |
| provided that in
making a finding of unfitness the court | 5 |
| hearing the adoption proceeding
shall not be bound by any | 6 |
| previous finding, order or judgment affecting
or | 7 |
| determining the rights of the parents toward the child | 8 |
| sought to be adopted
in any other proceeding except such | 9 |
| proceedings terminating parental rights
as shall be had | 10 |
| under either this Act, the Juvenile Court Act or
the | 11 |
| Juvenile Court Act of 1987.
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| (i) Depravity. Conviction of any one of the following
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| crimes shall create a presumption that a parent is depraved | 14 |
| which can be
overcome only by clear and convincing | 15 |
| evidence:
(1) first degree murder in violation of paragraph | 16 |
| 1 or
2 of subsection (a) of Section 9-1 of the Criminal | 17 |
| Code of 1961 or conviction
of second degree murder in | 18 |
| violation of subsection (a) of Section 9-2 of the
Criminal | 19 |
| Code of 1961 of a parent of the child to be adopted; (2)
| 20 |
| first degree murder or second degree murder of any child in
| 21 |
| violation of the Criminal Code of 1961; (3)
attempt or | 22 |
| conspiracy to commit first degree murder or second degree | 23 |
| murder
of any child in violation of the Criminal Code of | 24 |
| 1961; (4)
solicitation to commit murder of any child, | 25 |
| solicitation to
commit murder of any child for hire, or | 26 |
| solicitation to commit second
degree murder of any child in | 27 |
| violation of the Criminal Code of 1961; or (5)
aggravated | 28 |
| criminal sexual assault in violation of
Section | 29 |
| 12-14(b)(1) of the Criminal Code of 1961.
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| There is a rebuttable presumption that a parent is | 31 |
| depraved if the parent
has been criminally convicted of at | 32 |
| least 3 forcible felonies as defined in Section 2-8 of the | 33 |
| Criminal Code of 1961 under the laws of this
State or any | 34 |
| other state, or under federal law, or the criminal laws of |
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| any
United States territory; and at least
one of these
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| convictions took place within 5 years of the filing of the | 3 |
| petition or motion
seeking termination of parental rights. | 4 |
| In determining whether a parent is depraved, the court | 5 |
| shall consider the parent's criminal conviction record | 6 |
| including, but not limited to, the conviction of any felony | 7 |
| that cannot be classified as forcible.
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| There is a rebuttable presumption that a parent is | 9 |
| depraved if that
parent
has
been criminally convicted of | 10 |
| either first or second degree murder of any person
as | 11 |
| defined in the Criminal Code of 1961 within 10 years of the | 12 |
| filing date of
the petition or motion to terminate parental | 13 |
| rights.
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| (j) Open and notorious adultery or fornication.
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| (j-1) (Blank).
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| (k) Habitual drunkenness or addiction to drugs, other | 17 |
| than those
prescribed by a physician, for at least one year | 18 |
| immediately
prior to the commencement of the unfitness | 19 |
| proceeding.
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| There is a rebuttable presumption that a parent is | 21 |
| unfit under this
subsection
with respect to any child to | 22 |
| which that parent gives birth where there is a
confirmed
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| test result that at birth the child's blood, urine, or | 24 |
| meconium contained any
amount of a controlled substance as | 25 |
| defined in subsection (f) of Section 102 of
the Illinois | 26 |
| Controlled Substances Act or metabolites of such | 27 |
| substances, the
presence of which in the newborn infant was | 28 |
| not the result of medical treatment
administered to the | 29 |
| mother or the newborn infant; and the biological mother of
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| this child is the biological mother of at least one other | 31 |
| child who was
adjudicated a neglected minor under | 32 |
| subsection (c) of Section 2-3 of the
Juvenile Court Act of | 33 |
| 1987.
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| (l) Failure to demonstrate a reasonable degree of |
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| interest, concern or
responsibility as to the welfare of a | 2 |
| new born child during the first 30
days after its birth.
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| (m) Failure by a parent (i) to make reasonable efforts | 4 |
| to correct the
conditions that were the basis for the | 5 |
| removal of the child from the
parent, or (ii) to make | 6 |
| reasonable progress toward the return of the child
to
the | 7 |
| parent within 9 months after an adjudication of neglected | 8 |
| or abused
minor under Section 2-3 of the Juvenile Court Act | 9 |
| of 1987 or dependent
minor under Section 2-4 of that Act, | 10 |
| or (iii) to make reasonable progress
toward the return of | 11 |
| the
child to the parent during any 9-month period after the | 12 |
| end of the initial
9-month period following the | 13 |
| adjudication of
neglected or abused minor under Section 2-3 | 14 |
| of the Juvenile Court
Act of 1987 or dependent minor under | 15 |
| Section 2-4 of that Act.
If a service plan has been | 16 |
| established as
required under
Section 8.2 of the Abused and | 17 |
| Neglected Child Reporting Act to correct the
conditions | 18 |
| that were the basis for the removal of the child from the | 19 |
| parent
and if those services were available,
then, for | 20 |
| purposes of this Act, "failure to make reasonable progress | 21 |
| toward the
return of the child to the parent" includes (I) | 22 |
| the parent's failure to
substantially fulfill his or her | 23 |
| obligations under the
service plan and correct the | 24 |
| conditions that brought the child into care
within 9 months | 25 |
| after the adjudication under Section 2-3 or 2-4
of the | 26 |
| Juvenile Court Act of 1987
and (II) the parent's failure to | 27 |
| substantially fulfill his or her obligations
under
the | 28 |
| service plan and correct the conditions that brought the | 29 |
| child into care
during any 9-month period after the end of | 30 |
| the initial 9-month period
following the adjudication | 31 |
| under Section 2-3 or 2-4 of the Juvenile Court
Act of 1987. | 32 |
| Notwithstanding any other provision, a petition or motion | 33 |
| seeking to terminate parental rights on the basis of this | 34 |
| subsection (m) shall specify the 9-month period relied upon |
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| by the petitioner.
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| (m-1) Pursuant to the Juvenile Court Act of 1987, a | 3 |
| child
has been in foster care for 15 months out of any 22 | 4 |
| month period which begins
on or after the effective date of | 5 |
| this amendatory Act of 1998 unless the
child's parent can | 6 |
| prove
by a preponderance of the evidence that it is more | 7 |
| likely than not that it will
be in the best interests of | 8 |
| the child to be returned to the parent within 6
months of | 9 |
| the date on which a petition for termination of parental | 10 |
| rights is
filed under the Juvenile Court Act of 1987. The | 11 |
| 15 month time limit is tolled
during
any period for which | 12 |
| there is a court finding that the appointed custodian or
| 13 |
| guardian failed to make reasonable efforts to reunify the | 14 |
| child with his or her
family, provided that (i) the finding | 15 |
| of no reasonable efforts is made within
60 days of the | 16 |
| period when reasonable efforts were not made or (ii) the | 17 |
| parent
filed a motion requesting a finding of no reasonable | 18 |
| efforts within 60 days of
the period when reasonable | 19 |
| efforts were not made. For purposes of this
subdivision | 20 |
| (m-1), the date of entering foster care is the earlier of: | 21 |
| (i) the
date of
a judicial finding at an adjudicatory | 22 |
| hearing that the child is an abused,
neglected, or | 23 |
| dependent minor; or (ii) 60 days after the date on which | 24 |
| the
child is removed from his or her parent, guardian, or | 25 |
| legal custodian.
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| (n) Evidence of intent to forgo his or her parental | 27 |
| rights,
whether or
not the child is a ward of the court, | 28 |
| (1) as manifested
by his or her failure for a period of 12 | 29 |
| months: (i) to visit the child,
(ii) to communicate with | 30 |
| the child or agency, although able to do so and
not | 31 |
| prevented from doing so by an agency or by court order, or | 32 |
| (iii) to
maintain contact with or plan for the future of | 33 |
| the child, although physically
able to do so, or (2) as | 34 |
| manifested by the father's failure, where he
and the mother |
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| of the child were unmarried to each other at the time of | 2 |
| the
child's birth, (i) to commence legal proceedings to | 3 |
| establish his paternity
under the Illinois Parentage Act of | 4 |
| 1984 or the law of the jurisdiction of
the child's birth | 5 |
| within 30 days of being informed, pursuant to Section 12a
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| of this Act, that he is the father or the likely father of | 7 |
| the child or,
after being so informed where the child is | 8 |
| not yet born, within 30 days of
the child's birth, or (ii) | 9 |
| to make a good faith effort to pay a reasonable
amount of | 10 |
| the expenses related to the birth of the child and to | 11 |
| provide a
reasonable amount for the financial support of | 12 |
| the child, the court to
consider in its determination all | 13 |
| relevant circumstances, including the
financial condition | 14 |
| of both parents; provided that the ground for
termination | 15 |
| provided in this subparagraph (n)(2)(ii) shall only be
| 16 |
| available where the petition is brought by the mother or | 17 |
| the husband of
the mother.
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| Contact or communication by a parent with his or her | 19 |
| child that does not
demonstrate affection and concern does | 20 |
| not constitute reasonable contact
and planning under | 21 |
| subdivision (n). In the absence of evidence to the
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| contrary, the ability to visit, communicate, maintain | 23 |
| contact, pay
expenses and plan for the future shall be | 24 |
| presumed. The subjective intent
of the parent, whether | 25 |
| expressed or otherwise, unsupported by evidence of
the | 26 |
| foregoing parental acts manifesting that intent, shall not | 27 |
| preclude a
determination that the parent has intended to | 28 |
| forgo his or her
parental
rights. In making this | 29 |
| determination, the court may consider but shall not
require | 30 |
| a showing of diligent efforts by an authorized agency to | 31 |
| encourage
the parent to perform the acts specified in | 32 |
| subdivision (n).
| 33 |
| It shall be an affirmative defense to any allegation | 34 |
| under paragraph
(2) of this subsection that the father's |
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| failure was due to circumstances
beyond his control or to | 2 |
| impediments created by the mother or any other
person | 3 |
| having legal custody. Proof of that fact need only be by a
| 4 |
| preponderance of the evidence.
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| (o) Repeated or continuous failure by the parents, | 6 |
| although physically
and financially able, to provide the | 7 |
| child with adequate food, clothing,
or shelter.
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| (p) Inability to discharge parental responsibilities | 9 |
| supported by
competent evidence from a psychiatrist, | 10 |
| licensed clinical social
worker, or clinical psychologist | 11 |
| of mental
impairment, mental illness or mental retardation | 12 |
| as defined in Section
1-116 of the Mental Health and | 13 |
| Developmental Disabilities Code, or
developmental | 14 |
| disability as defined in Section 1-106 of that Code, and
| 15 |
| there is sufficient justification to believe that the | 16 |
| inability to
discharge parental responsibilities shall | 17 |
| extend beyond a reasonable
time period. However, this | 18 |
| subdivision (p) shall not be construed so as to
permit a | 19 |
| licensed clinical social worker to conduct any medical | 20 |
| diagnosis to
determine mental illness or mental | 21 |
| impairment.
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| (q) The parent has been criminally convicted of | 23 |
| aggravated battery,
heinous battery, or attempted murder | 24 |
| of any child.
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| (r) The child is in the temporary custody or | 26 |
| guardianship of the
Department of Children and Family | 27 |
| Services, the parent is incarcerated as a
result of | 28 |
| criminal conviction at the time the petition or motion for
| 29 |
| termination of parental rights is filed, prior to | 30 |
| incarceration the parent had
little or no contact with the | 31 |
| child or provided little or no support for the
child, and | 32 |
| the parent's incarceration will prevent the parent from | 33 |
| discharging
his or her parental responsibilities for the | 34 |
| child for a period in excess of 2
years after the filing of |
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| the petition or motion for termination of parental
rights.
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| (s) The child is in the temporary custody or | 3 |
| guardianship of the
Department of Children and Family | 4 |
| Services, the parent is incarcerated at the
time the | 5 |
| petition or motion for termination of parental rights is | 6 |
| filed, the
parent has been repeatedly incarcerated as a | 7 |
| result of criminal convictions,
and the parent's repeated | 8 |
| incarceration has prevented the parent from
discharging | 9 |
| his or her parental responsibilities for the child.
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| (t) A finding that at birth the child's blood,
urine, | 11 |
| or meconium contained any amount of a controlled substance | 12 |
| as
defined in subsection (f) of Section 102 of the Illinois | 13 |
| Controlled Substances
Act, or a metabolite of a controlled | 14 |
| substance, with the exception of
controlled substances or | 15 |
| metabolites of such substances, the presence of which
in | 16 |
| the newborn infant was the result of medical treatment | 17 |
| administered to the
mother or the newborn infant, and that | 18 |
| the biological mother of this child is
the biological | 19 |
| mother of at least one other child who was adjudicated a
| 20 |
| neglected minor under subsection (c) of Section 2-3 of the | 21 |
| Juvenile Court Act
of 1987, after which the biological | 22 |
| mother had the opportunity to enroll in
and participate in | 23 |
| a clinically appropriate substance abuse
counseling, | 24 |
| treatment, and rehabilitation program.
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| E. "Parent" means the father or mother of a legitimate or | 26 |
| illegitimate
child. For the purpose of this Act, a person who | 27 |
| has executed a final and
irrevocable consent to adoption or a | 28 |
| final and irrevocable surrender for
purposes of adoption, or | 29 |
| whose parental rights have been terminated by a
court, is not a | 30 |
| parent of the child who was the subject of the consent or
| 31 |
| surrender, unless the consent is void pursuant to subsection O | 32 |
| of Section 10.
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| F. A person is available for adoption when the person is:
| 34 |
| (a) a child who has been surrendered for adoption to an |
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| agency and to
whose adoption the agency has thereafter | 2 |
| consented;
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| (b) a child to whose adoption a person authorized by | 4 |
| law, other than his
parents, has consented, or to whose | 5 |
| adoption no consent is required pursuant
to Section 8 of | 6 |
| this Act;
| 7 |
| (c) a child who is in the custody of persons who intend | 8 |
| to adopt him
through placement made by his parents;
| 9 |
| (c-1) a child for whom a parent has signed a specific | 10 |
| consent pursuant
to subsection O of Section 10;
| 11 |
| (d) an adult who meets the conditions set forth in | 12 |
| Section 3 of this
Act; or
| 13 |
| (e) a child who has been relinquished as defined in | 14 |
| Section 10 of the
Abandoned Newborn Infant Protection Act.
| 15 |
| A person who would otherwise be available for adoption | 16 |
| shall not be
deemed unavailable for adoption solely by reason | 17 |
| of his or her death.
| 18 |
| G. The singular includes the plural and the plural includes
| 19 |
| the singular and the "male" includes the "female", as the | 20 |
| context of this
Act may require.
| 21 |
| H. "Adoption disruption" occurs when an adoptive placement | 22 |
| does not
prove successful and it becomes necessary for the | 23 |
| child to be removed from
placement before the adoption is | 24 |
| finalized.
| 25 |
| I. "Foreign placing agency" is an agency or individual | 26 |
| operating in a
country or territory outside the United States | 27 |
| that is authorized by its
country to place children for | 28 |
| adoption either directly with families in the
United States or | 29 |
| through United States based international agencies.
| 30 |
| J. "Immediate relatives" means the biological parents, the | 31 |
| parents of
the biological parents and siblings of the | 32 |
| biological parents.
| 33 |
| K. "Intercountry adoption" is a process by which a child | 34 |
| from a country
other than the United States is adopted.
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| L. "Intercountry Adoption Coordinator" is a staff person of | 2 |
| the
Department of Children and Family Services appointed by the | 3 |
| Director to
coordinate the provision of services by the public | 4 |
| and private sector to
prospective parents of foreign-born | 5 |
| children.
| 6 |
| M. "Interstate Compact on the Placement of Children" is a | 7 |
| law enacted by
most states for the purpose of establishing | 8 |
| uniform procedures for handling
the interstate placement of | 9 |
| children in foster homes, adoptive homes, or
other child care | 10 |
| facilities.
| 11 |
| N. "Non-Compact state" means a state that has not enacted | 12 |
| the
Interstate Compact on the Placement of Children.
| 13 |
| O. "Preadoption requirements" are any conditions | 14 |
| established by the laws
or regulations of the Federal | 15 |
| Government or of each state that must be met
prior to the | 16 |
| placement of a child in an adoptive home.
| 17 |
| P. "Abused child" means a child whose parent or immediate | 18 |
| family member,
or any person responsible for the child's | 19 |
| welfare, or any individual
residing in the same home as the | 20 |
| child, or a paramour of the child's parent:
| 21 |
| (a) inflicts, causes to be inflicted, or allows to be | 22 |
| inflicted upon
the child physical injury, by other than | 23 |
| accidental means, that causes
death, disfigurement, | 24 |
| impairment of physical or emotional health, or loss
or | 25 |
| impairment of any bodily function;
| 26 |
| (b) creates a substantial risk of physical injury to | 27 |
| the child by
other than accidental means which would be | 28 |
| likely to cause death,
disfigurement, impairment of | 29 |
| physical or emotional health, or loss or
impairment of any | 30 |
| bodily function;
| 31 |
| (c) commits or allows to be committed any sex offense | 32 |
| against the child,
as sex offenses are defined in the | 33 |
| Criminal Code of 1961
and extending those definitions of | 34 |
| sex offenses to include children under
18 years of age;
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| (d) commits or allows to be committed an act or acts of | 2 |
| torture upon
the child; or
| 3 |
| (e) inflicts excessive corporal punishment.
| 4 |
| Q. "Neglected child" means any child whose parent or other | 5 |
| person
responsible for the child's welfare withholds or denies | 6 |
| nourishment or
medically indicated treatment including food or | 7 |
| care denied solely on the
basis of the present or anticipated | 8 |
| mental or physical impairment as determined
by a physician | 9 |
| acting alone or in consultation with other physicians or
| 10 |
| otherwise does not provide the proper or necessary support, | 11 |
| education
as required by law, or medical or other remedial care | 12 |
| recognized under State
law as necessary for a child's | 13 |
| well-being, or other care necessary for his
or her well-being, | 14 |
| including adequate food, clothing and shelter; or who
is | 15 |
| abandoned by his or her parents or other person responsible for | 16 |
| the child's
welfare.
| 17 |
| A child shall not be considered neglected or abused for the
| 18 |
| sole reason that the child's parent or other person responsible | 19 |
| for his
or her welfare depends upon spiritual means through | 20 |
| prayer alone for the
treatment or cure of disease or remedial | 21 |
| care as provided under Section 4
of the Abused and Neglected | 22 |
| Child Reporting Act.
A child shall not be considered neglected | 23 |
| or abused for the sole reason that
the child's parent or other | 24 |
| person responsible for the child's welfare failed
to vaccinate, | 25 |
| delayed vaccination, or refused vaccination for the child
due | 26 |
| to a waiver on religious or medical grounds as permitted by | 27 |
| law.
| 28 |
| R. "Putative father" means a man who may be a child's | 29 |
| father, but who (1) is
not married to the child's mother on or | 30 |
| before the date that the child was or
is to be born and (2) has | 31 |
| not established paternity of the child in a court
proceeding | 32 |
| before the filing of a petition for the adoption of the child. | 33 |
| The
term includes a male who is less than 18 years of age. | 34 |
| "Putative father" does
not mean a man who is the child's father |
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| as a result of criminal sexual abuse
or assault as defined | 2 |
| under Article 12 of the Criminal Code of 1961.
| 3 |
| S. "Standby adoption" means an adoption in which a parent
| 4 |
| consents to custody and termination of parental rights to | 5 |
| become
effective upon the occurrence of a future event, which | 6 |
| is either the death of
the
parent or the request of the parent
| 7 |
| for the entry of a final judgment of adoption.
| 8 |
| T. (Blank).
| 9 |
| (Source: P.A. 92-16, eff. 6-28-01; 92-375, eff. 1-1-02; 92-408, | 10 |
| eff. 8-17-01; 92-432, eff. 8-17-01 ; 92-651, eff. 7-11-02; | 11 |
| 93-732, eff. 1-1-05.)".
|
|