Public Act 0455 98TH GENERAL ASSEMBLY

HB2809 Enrolled LRB098 10935 HEP 41501 b

Public Act 098-0455

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 Sections 1, 2.1, 4.1, and 6 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 the Criminal Code of 2012 or conviction of second degree murder in violation of subsection (a) of Section 9-2 of the Criminal Code of 1961 or the Criminal Code of 2012 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 or the Criminal Code of 2012; (3) attempt or conspiracy to commit first degree murder or second degree murder of any child in violation of the Criminal Code of 1961 or the Criminal Code of 2012; (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 or the Criminal Code of 2012; (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 or the Criminal Code of 2012; (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 or the Criminal Code of 2012.

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 or the Criminal Code of 2012 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, 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 (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. "Habitual residence" has the meaning ascribed to it in the federal Intercountry Adoption Act of 2000 and regulations promulgated thereunder. "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 by persons who are habitual residents of the United States, or the child is a habitual resident of the United States who is adopted by persons who are habitual residents of a country other than the United States.

L. "Intercountry Adoption Coordinator" means is a staff person of the Department of Children and Family Services appointed by the Director to coordinate the provision of services related to an intercountry adoption. 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 all most states and certain territories 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. (Blank) "Non-Compact state" means a state that has not enacted the Interstate Compact on the Placement of Children.

O. "Preadoption requirements" means any conditions or standards established by the laws or administrative rules of this State are any conditions established by the laws or regulations of the Federal Government or of each state that must be met by a prospective adoptive parent 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 2012 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 11 of the Criminal Code of 2012.

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).

U. "Interstate adoption" means the placement of a minor child with a prospective adoptive parent for the purpose of pursuing an adoption for that child that is subject to the provisions of the Interstate Compact on Placement of Children.

V. "Endorsement letter" means the letter issued by the Department of Children and Family Services to document that a prospective adoptive parent has met preadoption requirements and has been deemed suitable by the Department to adopt a child who is the subject of an intercountry adoption.

W. "Denial letter" means the letter issued by the Department of Children and Family Services to document that a prospective adoptive parent has not met preadoption requirements and has not been deemed suitable by the Department to adopt a child who is the subject of an intercountry adoption.

(Source: P.A. 96-1551, eff. 7-1-11; 97-227, eff. 1-1-12; 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)

(750 ILCS 50/2.1) (from Ch. 40, par. 1503)

Sec. 2.1. This Act shall be construed in concert with the Juvenile Court Act of 1987, the Child Care Act of 1969, and the Interstate Compact on the Placement of Children, and the Intercountry Adoption Act of 2000.

(Source: P.A. 85-1209.)

(750 ILCS 50/4.1) (from Ch. 40, par. 1506)

Sec. 4.1. Adoption between multiple jurisdictions.

(a) The Department of Children and Family Services shall promulgate rules regarding the approval and regulation of agencies providing, in this State, adoption services, as defined in Section 2.24 of the Child Care Act of 1969, which shall include, but not be limited to, a requirement that any agency shall be licensed in this State as a child welfare agency as defined in Section 2.08 of the Child Care Act of 1969. Any out-of-state agency, if not licensed in this State as a child welfare agency, must obtain the approval of the Department in order to act as a sending agency, as defined in Section 1 of the Interstate Compact on Placement of Children Act, seeking to place a child into this State through a placement subject to the Interstate Compact on the Placement of Children. An out-of-state agency, if not licensed in this State as a child welfare agency, is prohibited from providing in this State adoption services, as defined by Section 2.24 of the Child Care Act of 1969; shall comply with Section 12C-70 of the Criminal Code of 2012; and shall provide all of the following to the Department:

(1) A copy of the agency's current license or other form of authorization from the approving authority in the agency's state. If no license or authorization is issued, the agency must provide a reference statement, from the approving authority, stating that the agency is authorized to place children in foster care or adoption or both in its jurisdiction.

(2) A description of the program, including home studies, placements, and supervisions, that the child placing agency conducts within its geographical area, and, if applicable, adoptive placements and the finalization of adoptions. The child placing agency must accept continued responsibility for placement planning and replacement if the placement fails.

(3) Notification to the Department of any significant child placing agency changes after approval.

(4) Any other information the Department may require. Except for children placed with relatives by the Department of Children and Family Services pursuant to subsection (b) of Section 7 of the Children and Family Services Act, placements under this Act shall comply with the Child Care Act of 1969 and the Interstate Compact on the Placement of Children. Placements of children born outside the United States or a territory thereof shall comply with rules promulgated by the United States Department of Immigration and Naturalization.

Rules promulgated by the Department of Children and Family Services shall include but not be limited to the following:

(a) Any agency providing adoption services as defined in Section 2.24 of the Child Care Act of 1969 in this State:

(i) Shall be licensed in this State as a child welfare agency as defined in Section 2.08 of the Child Care Act of 1969; or

(ii) Shall be licensed as a child placement agency in a state which is a party to the Interstate Compact on the Placement of Children and shall be approved by the Department to place children into Illinois in accordance with subsection (a-5) of this Section; or

(iii) Shall be licensed as a child placement agency in a country other than the United States or, if located in such a country but not so licensed, shall provide information such as a license or court document which authorizes that agency to place children for adoption and to establish that such agency has legal authority to place children for adoption; or

(iv) Shall be a child placement agency which is so licensed in a non-compact state and shall be approved by the Department to place children into Illinois in accordance with subsection (a-5) of this Section, if such agency first files with the Department of Children and Family Services a bond with surety in the amount of $5,000 for each such child to ensure that such child shall not become a public charge upon this State. Such bond shall remain in effect until a judgment for adoption is entered with respect to such child pursuant to this Act. The Department of Children and Family Services may accept, in lieu of such bond, a written agreement with such agency which provides that such agency shall be liable for all costs associated with the placement of such child in the event a judgment of adoption is not entered, upon such terms and conditions as the Department deems appropriate.

The rules shall also provide that any agency that places children for adoption in this State may not, in any policy or practice relating to the placement of children for adoption, discriminate against any child or prospective adoptive parent on the basis of race.

(a-5) (Blank). Out-of-state private placing agencies that seek to place children into Illinois for the purpose of foster care or adoption shall provide all of the following to the Department:

(i) A copy of the agency's current license or other form of authorization from the approving authority in the agency's state. If no such license or authorization is issued, the agency must provide a reference statement from the approving authority stating the agency is authorized to place children in foster care or adoption or both in its jurisdiction.

(ii) A description of the program, including home studies, placements, and supervisions that the child placing agency conducts within its geographical area, and, if applicable, adoptive placements and the finalization of adoptions. The child placing agency must accept continued responsibility for placement planning and replacement if the placement fails.

(iii) Notification to the Department of any significant child placing agency changes after approval.

(iv) Any other information the Department may require.

If the adoption is finalized prior to bringing or sending the child to Illinois, Department approval of the out-of-state child placing agency involved is not required under this Section, nor is compliance with the Interstate Compact on the Placement of Children.

(b) Interstate Adoptions.

(1) All interstate adoption placements under this Act shall comply with the Child Care Act of 1969 and the Interstate Compact on the Placement of Children. The placement of children with relatives by the Department of Children and Family Services shall also comply with subsection (b) of Section 7 of the Children and Family Services Act.

(2) If an adoption is finalized prior to bringing or sending a child to this State, compliance with the Interstate Compact on the Placement of Children is not required. As an alternative to requiring the bond provided for in paragraph (a)(iv) of this Section, the Department of Children and Family Services may require the filing of such a bond by the individual or individuals seeking to adopt such a child through placement of such child by a child placement agency located in a state which is not a party to the Interstate Compact on the Placement of Children.

(c) Intercountry Adoptions.

(1) The adoption of a child, if the child is a habitual resident of a country other than the United States and the petitioner is a habitual resident of the United States, or, if the child is a habitual resident of the United States and the petitioner is a habitual resident of a country other than the United States, shall comply with the Intercountry Adoption Act of 2000, as amended, and the Immigration and Nationality Act, as amended.

(2) The Department of Children and Family Services shall maintain the office of Intercountry Adoption Coordinator in order to maintain and protect the rights of prospective adoptive parents and children participating in an intercountry adoption and shall develop ongoing programs of support and services to such prospective adoptive parents and children.

(3) In the case of an intercountry adoption of a child by an Illinois resident, the Department shall promulgate rules concerning preadoption requirements, which shall include, but not be limited to, requirements relating to home studies conducted by licensed child welfare agencies and requirements relating to supporting documentation concerning the prospective adoptive parent's suitability to adopt a child.

(4) The Intercountry Adoption Coordinator shall determine whether all preadoption requirements have been met by a prospective adoptive parent. The Intercountry Adoption Coordinator shall also determine whether the prospective adoptive parent is suitable as the adoptive parent. In determining suitability to adopt, the Intercountry Adoption coordinator shall give considerable weight to the home study, but is not bound by it. Even if the home study is favorable, the Intercountry Adoption Coordinator must issue a denial letter if, on the basis of all the information provided, the Intercountry Adoption Coordinator finds, for a specific and articulable reason, that the prospective adoptive parent has failed to establish that he or she is suitable as the adoptive parent.

(5) The Intercountry Adoption Coordinator shall issue an endorsement letter, indicating that all preadoption requirements have been met, or a denial letter, indicating the specific preadoption requirements that have not been met, no later than 21 days from receipt of the home study from the child welfare agency. If, upon receipt of the home study, the Intercountry Adoption Coordinator determines that more information is required before any determination can be made with respect to compliance with the preadoption requirements, the Intercountry Adoption Coordinator shall, within 7 days of receipt of the home study, provide notice describing the additional information, via facsimile or through electronic communication, to the licensed child welfare agency and the adoptive parent. Within 21 days of receipt of the additional information, the Intercountry Adoption Coordinator shall provide the child welfare agency with an endorsement letter or a denial letter. The Intercountry Adoption Coordinator shall mail a copy of the endorsement letter or denial letter to the prospective adoptive parent at the same time that the Intercountry Adoption Coordinator provides the letter to the child welfare agency.

(6) If the Intercountry Adoption Coordinator issues a denial letter, a prospective adoptive parent shall have the right to a review. The Intercountry Adoption Coordinator shall include in its denial letter notification advising the prospective adoptive parent of the right to seek a review, by the Director of the Department, of the determination, if requested in writing within 30 days of receipt of the denial letter. Failure to submit such a request within 30 days waives the prospective parent's right to a review.

(i) The review by the Director shall include, but is not limited to, a review of documentation submitted by the prospective adoptive parent and, if requested by the prospective adoptive parent, a telephone conference or a mutually convenient in-person meeting with the Director, or the Director's designated representative, to allow the prospective adoptive parent to present the facts and circumstances supporting the request for the endorsement letter.

(ii) The Director shall issue a decision within 30 days of receipt of the request for review.

(iii) If the Director concurs with the original denial letter of the Intercountry Adoption Coordinator, the Director's decision shall be considered a final decision and the prospective adoptive parent shall have all rights and remedies to which he or she is entitled under applicable law, including a mandamus action under Article XIV of the Code of Civil Procedure and an action under the federal Civil Rights Act, 42 U.S.C. 1983.

(7) In the case of an intercountry adoption finalized in another country, where a complete and valid Order of Adoption is issued from that country to an Illinois resident, as determined by the United States Department of State, this State shall not impose any additional preadoption requirements.

(8) The Department of Children and Family Services shall provide a report to the General Assembly, on an annual basis for the preceding year, beginning on September 1 of each year after the effective date of this amendatory Act of the 98th General Assembly. The report shall provide non-identifying statistical data on the endorsement and denial letters and the requests for review of denial letters and shall contain, but not limited to, the following:

(i) the number of endorsement letters issued by the Intercountry Adoption Coordinator;

(ii) the number of denial letters issued by the Intercountry Adoption Coordinator;

(iii) the number of requests for review of denial letters;

(iv) the number of denial letter reviews which resulted in a reversal by the Director and an endorsement letter being issued; and

(v) the basis of each denial letter and the basis of each reversal of the denial letter in a particular case. In the case of any foreign-born child brought to the United States for adoption in this State, the following preadoption requirements shall be met:

(1) Documentation that the child is legally free for adoption prior to entry into the United States shall be submitted.

(2) A medical report on the child, by authorized medical personnel in the country of the child's origin, shall be provided when such personnel are available.

(3) Verification that the adoptive family has been licensed as a foster family home pursuant to the Child Care Act of 1969, as now or hereafter amended, shall be provided.

(4) A valid home study conducted by a licensed child welfare agency that complies with guidelines established by the United States Immigration and Naturalization Service at 8 CFR 204.4(d)(2)(i), as now or hereafter amended, shall be submitted. A home study is considered valid if it contains:

(i) A factual evaluation of the financial, physical, mental and moral capabilities of the prospective parent or parents to rear and educate the child properly.

(ii) A detailed description of the living accommodations where the prospective parent or parents currently reside.

(iii) A detailed description of the living accommodations in the United States where the child will reside, if known.

(iv) A statement or attachment recommending the proposed adoption signed by an official of the child welfare agency which has conducted the home study.

(5) The placing agency located in a non-compact state or a family desiring to adopt through an authorized placement party in a non-compact state or a foreign country shall file with the Department of Children and Family Services a bond with surety in the amount of $5,000 as protection that a foreign-born child accepted for care or supervision not become a public charge upon the State of Illinois.

(6) In lieu of the $5,000 bond, the placement agency may sign a binding agreement with the Department of Children and Family Services to assume full liability for all placements should, for any reason, the adoption be disrupted or not be completed, including financial and planning responsibility until the child is either returned to the country of its origin or placed with a new adoptive family in the United States and that adoption is finalized.

(7) Compliance with the requirements of the Interstate Compact on the Placement of Children, when applicable, shall be demonstrated.

(8) When a child is adopted in a foreign country and a final, complete and valid Order of Adoption is issued in that country, as determined by both the United States Department of State and the United States Department of Justice, this State shall not impose any additional preadoption requirements. The adoptive family, however, must comply with applicable requirements of the United States Department of Immigration and Naturalization as provided in 8 CFR 204.4 (d)(2)(ii), as now or hereafter amended.

(d) (Blank). The Department of Children and Family Services shall maintain the office of Intercountry Adoption Coordinator, shall maintain and protect the rights of families and children participating in adoption of foreign born children, and shall develop ongoing programs of support and services to such families and children. The Intercountry Adoption Coordinator shall determine that all preadoption requirements have been met and report such information to the Department of Immigration and Naturalization.

(Source: P.A. 94-586, eff. 8-15-05.)

(750 ILCS 50/6) (from Ch. 40, par. 1508)

Sec. 6. A. Investigation; all cases. Within 10 days after the filing of a petition for the adoption or standby adoption of a child other than a related child, the court shall appoint a child welfare agency approved by the Department of Children and Family Services, or a person deemed competent by the court, or in Cook County the Court Services Division of the Cook County Department of Public Aid, or the Department of Children and Family Services if the court determines that no child welfare agency is available or that the petitioner is financially unable to pay for the investigation, to investigate accurately, fully and promptly, the allegations contained in the petition; the character, reputation, health and general standing in the community of the petitioners; the religious faith of the petitioners and, if ascertainable, of the child sought to be adopted; and whether the petitioners are proper persons to adopt the child and whether the child is a proper subject of adoption. The investigation required under this Section shall include a fingerprint based criminal background check with a review of fingerprints by the Illinois State Police and Federal Bureau of Investigation. Each petitioner subject to this investigation, shall submit his or her fingerprints to the Department of State Police in the form and manner prescribed by the Department of State Police. These fingerprints shall be checked against the fingerprint records now and hereafter filed in the Department of State Police and Federal Bureau of Investigation criminal history records databases. The Department of State Police shall charge a fee for conducting the criminal history records check, which shall be deposited in the State Police Services Fund and shall not exceed the actual cost of the records check. The criminal background check required by this Section shall include a listing of when, where and by whom the criminal background check was prepared. The criminal background check required by this Section shall not be more than two years old.

Neither a clerk of the circuit court nor a judge may require that a criminal background check or fingerprint review be filed with, or at the same time as, an initial petition for adoption.

B. Investigation; foreign-born child. In the case of a child born outside the United States or a territory thereof, in addition to the investigation required under subsection (A) of this Section, a post-placement investigation shall be conducted in accordance with the requirements of the Child Care Act of 1969, the Interstate Compact on the Placement of Children, and the Intercountry Adoption Act of 2000 regulations of the foreign placing agency and the supervising agency.

The requirements of a post-placement investigation shall be deemed to have been satisfied if a valid final order or judgment of adoption has been entered by a court of competent jurisdiction in a country other than the United States or a territory thereof with respect to such child and the petitioners.

C. Report of investigation. The court shall determine whether the costs of the investigation shall be charged to the petitioners. The information obtained as a result of such investigation shall be presented to the court in a written report. The results of the criminal background check required under subsection (A) shall be provided to the court for its review. The court may, in its discretion, weigh the significance of the results of the criminal background check against the entirety of the background of the petitioners. The Court, in its discretion, may accept the report of the investigation previously made by a licensed child welfare agency, if made within one year prior to the entry of the judgment. Such report shall be treated as confidential and withheld from inspection unless findings adverse to the petitioners or to the child sought to be adopted are contained therein, and in that event the court shall inform the petitioners of the relevant portions pertaining to the adverse findings. In no event shall any facts set forth in the report be considered at the hearing of the proceeding, unless established by competent evidence. The report shall be filed with the record of the proceeding. If the file relating to the proceeding is not impounded, the report shall be impounded by the clerk of the court and shall be made available for inspection only upon order of the court.

D. Related adoption. Such investigation shall not be made when the petition seeks to adopt a related child or an adult unless the court, in its discretion, shall so order. In such an event the court may appoint a person deemed competent by the court.

(Source: P.A. 93-418, eff. 1-1-04.)