HB0394 95TH GENERAL ASSEMBLY

LRB095 05280 RLC 25358 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB0394

Introduced 1/26/2007, by Rep. Mary E. Flowers

SYNOPSIS AS INTRODUCED:

705 ILCS 405/2-18	from Ch. 37, par. 802-18
705 ILCS 405/2-34 new

Amends the Juvenile Court Act of 1987. Provides that in unfitness proceedings alleging that a minor is abused, neglected, or dependent, if documents, assessments, and evaluations are directly used to prove an unfitness ground as alleged in the petition or at the best interest portion, relating to parent child bonding, and a party objects to the introduction of the documents into evidence, the author of those documents shall testify, if available, as to the recommendations and findings. Provides that if the author is unavailable, the documents are admissible without such testimony. Provides that the court shall determine the proper weight accorded to the documents. Provides that a supplemental petition to reinstate parentage may be filed regarding any minor who is presently a ward of the court under the Abused, Neglected, or Dependent Minors Article of the Act. Establishes procedures for filing such supplemental petition. Effective August 1, 2007.

A BILL FOR

AN ACT concerning courts.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Juvenile Court Act of 1987 is amended by changing Section 2-18 and by adding Section 2-34 as follows:

(705 ILCS 405/2-18) (from Ch. 37, par. 802-18)

Sec. 2-18. 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 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.

(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-5) In unfitness proceedings under Section 2-29 of this Act, if documents, assessments, and evaluations are directly used to prove an unfitness ground as alleged in the petition, and a party objects to the introduction of the documents into evidence, the author of those documents shall testify, if available, as to the recommendations and findings. If the author is unavailable, the documents are admissible without such testimony. The court shall determine the proper weight accorded to the documents.

(a-10) In unfitness proceedings under Section 2-29 of this Act, if documents, assessments, or evaluations are used at the best interest portion, relating to parent child bonding, and a party objects to the introduction of the documents into evidence, the author of those documents shall testify, if available, as to the recommendations and findings. If the author is unavailable, the documents are admissible without such testimony. The court shall determine the proper weight accorded to the documents.

(a-15) For purposes of paragraphs (a-5) and (a-10) of this subsection (4), "unavailable" means: the author is absent from the hearing and the party wishing to introduce the document has been unable to procure the author's attendance by process or other reasonable means; or the author persists in refusing to testify concerning the document despite an order of the court to do so; or the author is unable to be present or to testify at the hearing because of health, or then existing physical or mental illness or infirmity, or death.

(a-20) 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 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.

(Source: P.A. 93-884, eff. 1-1-05.)

(705 ILCS 405/2-34 new)

Sec. 2-34. Supplemental petition to reinstate parentage.

(1) A supplemental petition to reinstate parentage may be filed regarding any minor who is presently a ward of the court under this Article II when:

(a) one or more of the following situations exist:

(i) the minor's parent or parents surrendered the minor for adoption to the Department of Children and Family Services; or

(ii) the minor's parent or parents consented to his or her adoption; or

(iii) the minor's parent or parents consented to his or her adoption by a specified person or persons; or

(iv) the guardianship administrator of the Department or a guardian was appointed with the power to consent to adoption after the parents' rights were terminated pursuant to a finding of unfitness pursuant to Section 2-29 of this Act; and

(b) the minor is without a legally recognized parent; and

(c) the court finds that it is in the minor's best interest that parentage be reinstated; if the finding is being made subsequent to a finding of unfitness pursuant to Section 2-29 of this Act having been entered, the court in determining the minor's best interest shall also consider, in addition to the factors set forth in paragraph (4.05) of Section 1-3 of this Act, the specific grounds upon which the unfitness findings were made; and

(d) the court finds that the parent named in the supplemental petition wishes parentage to be reinstated; and

(e) more than 3 years have elapsed since the signing of the consent or surrender, or the entry of the order appointing a guardian with the power to consent to adoption; or where the minor is at least 14 years of age, more than 2 years have elapsed since the signing of the consent or surrender, or the entry of the order appointing a guardian with the power to consent to adoption.

(2) The supplemental petition may be filed by the Department, the minor's guardian ad litem, the State's Attorney, any party, or by the individual seeking reinstatement of parentage. Unless excused by the court for good cause shown, the petitioner shall give notice of the time and place of the hearing on the supplemental petition, in person or by mail, to the parties to the juvenile court proceeding and the person whose parentage would be restored if the petition were granted. Notice shall be provided at least 14 days in advance of the hearing date.

(3) Upon the entry of an order granting a supplemental petition to reinstate parentage, parentage of the parent named in the order shall be reinstated, any previous order appointing a guardian with the power to consent to adoption shall be void and with respect to the parent named in the order, any consent shall be void.

(4) If the case is post-disposition, the court, upon the entry of an order granting a supplemental petition to reinstate parentage, shall schedule the matter for a permanency hearing pursuant to Section 2-28 of this Act within 45 days.

(5) Custody of the minor shall not be restored to the parent, except by order of court pursuant to subsection (4) of Section 2-28 of this Act.

Section 99. Effective date. This Act takes effect August 1, 2007.