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Public Act 094-0563
Public Act 0563 94TH GENERAL ASSEMBLY
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Public Act 094-0563
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| HB1870 Enrolled |
LRB094 02867 DRJ 32868 b |
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| 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.
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| (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) Two or more findings of physical abuse to any | children under Section
4-8 of the Juvenile Court Act or | 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; a
criminal conviction or a finding of not guilty | by reason of insanity
resulting from the death of any child | by physical child
abuse; or a finding of physical child | abuse resulting from the death of any
child under Section | 4-8 of the Juvenile Court Act or Section 2-21 of the
| Juvenile Court Act of 1987.
| (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; or (5)
aggravated | criminal sexual assault in violation of
Section | 12-14(b)(1) 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.
| (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
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| 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 mental retardation | 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) The parent has been criminally convicted of | aggravated battery,
heinous battery, or attempted murder | of any child.
| (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
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| 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 legitimate or | illegitimate
child. 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. 92-16, eff. 6-28-01; 92-375, eff. 1-1-02; 92-408, | eff. 8-17-01; 92-432, eff. 8-17-01; 92-651, eff. 7-11-02; | 93-732, eff. 1-1-05.)
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Effective Date: 1/1/2006
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