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| Public Act 094-0563 |
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois, | ||||
represented in the General Assembly:
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Section 5. The Adoption Act is amended by changing Section | ||||
1 as follows:
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(750 ILCS 50/1) (from Ch. 40, par. 1501)
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Sec. 1. Definitions. When used in this Act, unless the | ||||
context
otherwise requires:
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A. "Child" means a person under legal age subject to | ||||
adoption under
this Act.
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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,
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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
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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.
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C. "Agency" for the purpose of this Act means a public | ||||
child welfare agency
or a licensed child welfare agency.
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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
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accordance with the Abandoned Newborn Infant Protection Act:
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(a) Abandonment of the child.
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(a-1) Abandonment of a newborn infant in a hospital.
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(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.
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(b) Failure to maintain a reasonable degree of | ||
interest, concern or
responsibility as to the child's | ||
welfare.
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(c) Desertion of the child for more than 3 months next | ||
preceding the
commencement of the Adoption proceeding.
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(d) Substantial neglect
of the
child if continuous or | ||
repeated.
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(d-1) Substantial neglect, if continuous or repeated, | ||
of any child
residing in the household which resulted in | ||
the death of that child.
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(e) Extreme or repeated cruelty to the child.
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(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
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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
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Juvenile Court Act of 1987.
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(g) Failure to protect the child from conditions within | ||
his environment
injurious to the child's welfare.
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(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.
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(i) Depravity. Conviction of any one of the following
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crimes shall create a presumption that a parent is depraved | ||
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)
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first degree murder or second degree murder of any child in
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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.
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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
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United States territory; and at least
one of these
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convictions took place within 5 years of the filing of the | ||
petition or motion
seeking termination of parental rights.
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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.
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(j) Open and notorious adultery or fornication.
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(j-1) (Blank).
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(k) Habitual drunkenness or addiction to drugs, other | ||
than those
prescribed by a physician, for at least one year | ||
immediately
prior to the commencement of the unfitness | ||
proceeding.
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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
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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
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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.
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(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.
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(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.
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(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
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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.
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(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
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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.
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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
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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).
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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
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preponderance of the evidence.
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(o) Repeated or continuous failure by the parents, | ||
although physically
and financially able, to provide the | ||
child with adequate food, clothing,
or shelter.
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(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
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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.
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(q) The parent has been criminally convicted of | ||
aggravated battery,
heinous battery, or attempted murder | ||
of any child.
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(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
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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.
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(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.
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(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.
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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
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surrender, unless the consent is void pursuant to subsection O | ||
of Section 10.
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F. A person is available for adoption when the person is:
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(a) a child who has been surrendered for adoption to an | ||
agency and to
whose adoption the agency has thereafter | ||
consented;
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(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;
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(c) a child who is in the custody of persons who intend | ||
to adopt him
through placement made by his parents;
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(c-1) a child for whom a parent has signed a specific | ||
consent pursuant
to subsection O of Section 10;
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(d) an adult who meets the conditions set forth in | ||
Section 3 of this
Act; or
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(e) a child who has been relinquished as defined in | ||
Section 10 of the
Abandoned Newborn Infant Protection Act.
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A person who would otherwise be available for adoption | ||
shall not be
deemed unavailable for adoption solely by reason | ||
of his or her death.
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G. The singular includes the plural and the plural includes
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the singular and the "male" includes the "female", as the | ||
context of this
Act may require.
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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.
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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.
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J. "Immediate relatives" means the biological parents, the | ||
parents of
the biological parents and siblings of the | ||
biological parents.
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K. "Intercountry adoption" is a process by which a child | ||
from a country
other than the United States is adopted.
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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.
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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.
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N. "Non-Compact state" means a state that has not enacted | ||
the
Interstate Compact on the Placement of Children.
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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.
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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:
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(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;
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(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;
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(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;
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(d) commits or allows to be committed an act or acts of | ||
torture upon
the child; or
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(e) inflicts excessive corporal punishment.
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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
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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.
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A child shall not be considered neglected or abused for the
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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.
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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.
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S. "Standby adoption" means an adoption in which a parent
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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.
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T. (Blank).
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(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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