Illinois General Assembly - Full Text of Public Act 094-0563
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Public Act 094-0563


 

Public Act 0563 94TH GENERAL ASSEMBLY



 


 
Public Act 094-0563
 
HB1870 Enrolled LRB094 02867 DRJ 32868 b

    AN ACT concerning civil law.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Adoption Act is amended by changing Section
1 as follows:
 
    (750 ILCS 50/1)  (from Ch. 40, par. 1501)
    Sec. 1. Definitions. When used in this Act, unless the
context otherwise requires:
    A. "Child" means a person under legal age subject to
adoption under this Act.
    B. "Related child" means a child subject to adoption where
either or both of the adopting parents stands in any of the
following relationships to the child by blood or marriage:
parent, grand-parent, brother, sister, step-parent,
step-grandparent, step-brother, step-sister, uncle, aunt,
great-uncle, great-aunt, or cousin of first degree. A child
whose parent has executed a final irrevocable consent to
adoption or a final irrevocable surrender for purposes of
adoption, or whose parent has had his or her parental rights
terminated, is not a related child to that person, unless the
consent is determined to be void or is void pursuant to
subsection O of Section 10.
    C. "Agency" for the purpose of this Act means a public
child welfare agency or a licensed child welfare agency.
    D. "Unfit person" means any person whom the court shall
find to be unfit to have a child, without regard to the
likelihood that the child will be placed for adoption. The
grounds of unfitness are any one or more of the following,
except that a person shall not be considered an unfit person
for the sole reason that the person has relinquished a child in
accordance with the Abandoned Newborn Infant Protection Act:
        (a) Abandonment of the child.
        (a-1) Abandonment of a newborn infant in a hospital.
        (a-2) Abandonment of a newborn infant in any setting
    where the evidence suggests that the parent intended to
    relinquish his or her parental rights.
        (b) Failure to maintain a reasonable degree of
    interest, concern or responsibility as to the child's
    welfare.
        (c) Desertion of the child for more than 3 months next
    preceding the commencement of the Adoption proceeding.
        (d) Substantial neglect of the child if continuous or
    repeated.
        (d-1) Substantial neglect, if continuous or repeated,
    of any child residing in the household which resulted in
    the death of that child.
        (e) Extreme or repeated cruelty to the child.
        (f) 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
    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
    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.)

Effective Date: 1/1/2006