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91_HB1298eng HB1298 Engrossed LRB9101556WHpc 1 AN ACT to amend the Adoption Act by changing Section 1. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Adoption Act is amended by changing 5 Section 1 as follows: 6 (750 ILCS 50/1) (from Ch. 40, par. 1501) 7 Sec. 1. Definitions. When used in this Act, unless the 8 context otherwise requires: 9 A. "Child" means a person under legal age subject to 10 adoption under this Act. 11 B. "Related child" means a child subject to adoption 12 where either or both of the adopting parents stands in any of 13 the following relationships to the child by blood or 14 marriage: parent, grand-parent, brother, sister, step-parent, 15 step-grandparent, step-brother, step-sister, uncle, aunt, 16 great-uncle, great-aunt, or cousin of first degree. A child 17 whose parent has executed a final irrevocable consent to 18 adoption or a final irrevocable surrender for purposes of 19 adoption, or whose parent has had his or her parental rights 20 terminated, is not a related child to that person, unless the 21 consent is determined to be void or is void pursuant to 22 subsection O of Section 10. 23 C. "Agency" for the purpose of this Act means a public 24 child welfare agency or a licensed child welfare agency. 25 D. "Unfit person" means any person whom the court shall 26 find to be unfit to have a child, without regard to the 27 likelihood that the child will be placed for adoption. The 28 grounds of unfitness are any one or more of the following: 29 (a) Abandonment of the child. 30 (a-1) Abandonment of a newborn infant in a 31 hospital. HB1298 Engrossed -2- LRB9101556WHpc 1 (a-2) Abandonment of a newborn infant in any 2 setting where the evidence suggests that the parent 3 intended to relinquish his or her parental rights. 4 (b) Failure to maintain a reasonable degree of 5 interest, concern or responsibility as to the child's 6 welfare. 7 (c) Desertion of the child for more than 3 months 8 next preceding the commencement of the Adoption 9 proceeding. 10 (d) Substantial neglect of the child if continuous 11 or repeated. 12 (d-1) Substantial neglect, if continuous or 13 repeated, of any child residing in the household which 14 resulted in the death of that child. 15 (e) Extreme or repeated cruelty to the child. 16 (f) Two or more findings of physical abuse to any 17 children under Section 4-8 of the Juvenile Court Act or 18 Section 2-21 of the Juvenile Court Act of 1987, the most 19 recent of which was determined by the juvenile court 20 hearing the matter to be supported by clear and 21 convincing evidence; a criminal conviction or a finding 22 of not guilty by reason of insanity resulting from the 23 death of any child by physical child abuse; or a finding 24 of physical child abuse resulting from the death of any 25 child under Section 4-8 of the Juvenile Court Act or 26 Section 2-21 of the Juvenile Court Act of 1987. 27 (g) Failure to protect the child from conditions 28 within his environment injurious to the child's welfare. 29 (h) Other neglect of, or misconduct toward the 30 child; provided that in making a finding of unfitness the 31 court hearing the adoption proceeding shall not be bound 32 by any previous finding, order or judgment affecting or 33 determining the rights of the parents toward the child 34 sought to be adopted in any other proceeding except such HB1298 Engrossed -3- LRB9101556WHpc 1 proceedings terminating parental rights as shall be had 2 under either this Act, the Juvenile Court Act or the 3 Juvenile Court Act of 1987. 4 (i) Depravity. Conviction of any one of the 5 following crimes shall create a presumption that a parent 6 is depraved which can be overcome only by clear and 7 convincing evidence: (1) first degree murder in violation 8 of paragraph 1 or 2 of subsection (a) of Section 9-1 of 9 the Criminal Code of 1961 or conviction of second degree 10 murder in violation of subsection (a) of Section 9-2 of 11 the Criminal Code of 1961 of a parent of the child to be 12 adopted; (2) first degree murder or second degree murder 13 of any child in violation of the Criminal Code of 1961; 14 (3) attempt or conspiracy to commit first degree murder 15 or second degree murder of any child in violation of the 16 Criminal Code of 1961; (4) solicitation to commit murder 17 of any child, solicitation to commit murder of any child 18 for hire, or solicitation to commit second degree murder 19 of any child in violation of the Criminal Code of 1961; 20 or (5) aggravated criminal sexual assault in violation of 21 Section 12-14(b)(1) of the Criminal Code of 1961. 22 There is a rebuttable presumption that a parent is 23 depraved if the parent has been criminally convicted of 24 at least 3 felonies under the laws of this State or any 25 other state, or under federal law, or the criminal laws 26 of any United States territory; and at least one of these 27 convictions took place within 5 years of the filing of 28 the petition or motion seeking termination of parental 29 rights. 30 There is a rebuttable presumption that a parent is 31 depraved if that parent has been criminally convicted of 32 either first or second degree murder of any person as 33 defined in the Criminal Code of 1961 within 10 years of 34 the filing date of the petition or motion to terminate HB1298 Engrossed -4- LRB9101556WHpc 1 parental rights. 2 (j) Open and notorious adultery or fornication. 3 (j-1) (Blank). 4 (k) Habitual drunkenness or addiction to drugs, 5 other than those prescribed by a physician, for at least 6 one year immediately prior to the commencement of the 7 unfitness proceeding. 8 There is a rebuttable presumption that a parent is 9 unfit under this subsection with respect to any child to 10 which that parent gives birth where there is a confirmed 11 test result that at birth the child's blood, urine, or 12 meconium contained any amount of a controlled substance 13 as defined in subsection (f) of Section 102 of the 14 Illinois Controlled Substances Act or metabolites of such 15 substances, the presence of which in the newborn infant 16 was not the result of medical treatment administered to 17 the mother or the newborn infant; and the biological 18 mother of this child is the biological mother of at least 19 one other child who was adjudicated a neglected minor 20 under subsection (c) of Section 2-3 of the Juvenile Court 21 Act of 1987. 22 (l) Failure to demonstrate a reasonable degree of 23 interest, concern or responsibility as to the welfare of 24 a new born child during the first 30 days after its 25 birth. 26 (m) Failure by a parent (i) to make reasonable 27 efforts to correct the conditions that were the basis for 28 the removal of the child from the parent, or (ii) to make 29 reasonable progress toward the return of the child to the 30 parent within 9 months after an adjudication of neglected 31 or abused minor under Section 2-3 of the Juvenile Court 32 Act of 1987 or dependent minor under Section 2-4 of that 33 Act, or (iii) to make reasonable progress toward the 34 return of the child to the parent during any 9-month HB1298 Engrossed -5- LRB9101556WHpc 1 period after the end of the initial 9-month period 2 following the adjudication of neglected or abused minor 3 under Section 2-3 of the Juvenile Court Act of 1987 or 4 dependent minor under Section 2-4 of that Act. If a 5 service plan has been established as required under 6 Section 8.2 of the Abused and Neglected Child Reporting 7 Act to correct the conditions that were the basis for the 8 removal of the child from the parent and if those 9 services were available, then, for purposes of this Act, 10 "failure to make reasonable progress toward the return of 11 the child to the parent" includes (I) the parent's 12 failure to substantially fulfill his or her obligations 13 under the service plan and correct the conditions that 14 brought the child into care within 9 months after the 15 adjudication under Section 2-3 or 2-4 of the Juvenile 16 Court Act of 1987 and (II) the parent's failure to 17 substantially fulfill his or her obligations under the 18 service plan and correct the conditions that brought the 19 child into care during any 9-month period after the end 20 of the initial 9-month period following the adjudication 21 under Section 2-3 or 2-4 of the Juvenile Court Act of 22 1987. 23 (m-1) Pursuant to the Juvenile Court Act of 1987, a 24 child has been in foster care for 15 months out of any 22 25 month period which begins on or after the effective date 26 of this amendatory Act of 1998 unless the child's parent 27 can prove by a preponderance of the evidence that it is 28 more likely than not that it will be in the best 29 interests of the child to be returned to the parent 30 within 6 months of the date on which a petition for 31 termination of parental rights is filed under the 32 Juvenile Court Act of 1987. The 15 month time limit is 33 tolled during any period for which there is a court 34 finding that the appointed custodian or guardian failed HB1298 Engrossed -6- LRB9101556WHpc 1 to make reasonable efforts to reunify the child with his 2 or her family, provided that (i) the finding of no 3 reasonable efforts is made within 60 days of the period 4 when reasonable efforts were not made or (ii) the parent 5 filed a motion requesting a finding of no reasonable 6 efforts within 60 days of the period when reasonable 7 efforts were not made. For purposes of this subdivision 8 (m-1), the date of entering foster care is the earlier 9 of: (i) the date of a judicial finding at an adjudicatory 10 hearing that the child is an abused, neglected, or 11 dependent minor; or (ii) 60 days after the date on which 12 the child is removed from his or her parent, guardian, or 13 legal custodian. 14 (n) Evidence of intent to forgoforegohis or her 15 parental rights, whether or not the child is a ward of 16 the court, (1) as manifested by his or her failure for a 17 period of 12 months: (i) to visit the child, (ii) to 18 communicate with the child or agency, although able to do 19 so and not prevented from doing so by an agency or by 20 court order, or (iii) to maintain contact with or plan 21 for the future of the child, although physically able to 22 do so, or (2) as manifested by the father's failure, 23 where he and the mother of the child were unmarried to 24 each other at the time of the child's birth, (i) to 25 commence legal proceedings to establish his paternity 26 under the Illinois Parentage Act of 1984 or the law of 27 the jurisdiction of the child's birth within 30 days of 28 being informed, pursuant to Section 12a of this Act, that 29 he is the father or the likely father of the child or, 30 after being so informed where the child is not yet born, 31 within 30 days of the child's birth, or (ii) to make a 32 good faith effort to pay a reasonable amount of the 33 expenses related to the birth of the child and to provide 34 a reasonable amount for the financial support of the HB1298 Engrossed -7- LRB9101556WHpc 1 child, the court to consider in its determination all 2 relevant circumstances, including the financial condition 3 of both parents; provided that the ground for termination 4 provided in this subparagraph (n)(2)(ii) shall only be 5 available where the petition is brought by the mother or 6 the husband of the mother. 7 Contact or communication by a parent with his or her 8 child that does not demonstrate affection and concern 9 does not constitute reasonable contact and planning under 10 subdivision (n). In the absence of evidence to the 11 contrary, the ability to visit, communicate, maintain 12 contact, pay expenses and plan for the future shall be 13 presumed. The subjective intent of the parent, whether 14 expressed or otherwise, unsupported by evidence of the 15 foregoing parental acts manifesting that intent, shall 16 not preclude a determination that the parent has intended 17 to forgoforegohis or her parental rights. In making 18 this determination, the court may consider but shall not 19 require a showing of diligent efforts by an authorized 20 agency to encourage the parent to perform the acts 21 specified in subdivision (n). 22 It shall be an affirmative defense to any allegation 23 under paragraph (2) of this subsection that the father's 24 failure was due to circumstances beyond his control or to 25 impediments created by the mother or any other person 26 having legal custody. Proof of that fact need only be by 27 a preponderance of the evidence. 28 (o) Repeated or continuous failure by the parents, 29 although physically and financially able, to provide the 30 child with adequate food, clothing, or shelter. 31 (p) Inability to discharge parental 32 responsibilities supported by competent evidence from a 33 psychiatrist, licensed clinical social worker, or 34 clinical psychologist of mental impairment, mental HB1298 Engrossed -8- LRB9101556WHpc 1 illness or mental retardation as defined in Section 1-116 2 of the Mental Health and Developmental Disabilities Code, 3 or developmental disability as defined in Section 1-106 4 of that Code, and there is sufficient justification to 5 believe that the inability to discharge parental 6 responsibilities shall extend beyond a reasonable time 7 period. However, this subdivision (p) shall not be 8 construed so as to permit a licensed clinical social 9 worker to conduct any medical diagnosis to determine 10 mental illness or mental impairment. 11 (q) The parent has been criminally convicted of 12 aggravated battery, heinous battery, or attempted murder 13 of any child. 14 (r) The child is in the temporary custody or 15 guardianship of the Department of Children and Family 16 Services, the parent is incarcerated as a result of 17 criminal conviction at the time the petition or motion 18 for termination of parental rights is filed, prior to 19 incarceration the parent had little or no contact with 20 the child or provided little or no support for the child, 21 and the parent's incarceration will prevent the parent 22 from discharging his or her parental responsibilities for 23 the child for a period in excess of 2 years after the 24 filing of the petition or motion for termination of 25 parental rights. 26 (s) The child is in the temporary custody or 27 guardianship of the Department of Children and Family 28 Services, the parent is incarcerated at the time the 29 petition or motion for termination of parental rights is 30 filed, the parent has been repeatedly incarcerated as a 31 result of criminal convictions, and the parent's repeated 32 incarceration has prevented the parent from discharging 33 his or her parental responsibilities for the child. 34 (t) A finding that at birth the child's blood, HB1298 Engrossed -9- LRB9101556WHpc 1 urine, or meconium contained any amount of a controlled 2 substance as defined in subsection (f) of Section 102 of 3 the Illinois Controlled Substances Act, or a metabolite 4 of a controlled substance, with the exception of 5 controlled substances or metabolites of such substances, 6 the presence of which in the newborn infant was the 7 result of medical treatment administered to the mother or 8 the newborn infant, and that the biological mother of 9 this child is the biological mother of at least one other 10 child who was adjudicated a neglected minor under 11 subsection (c) of Section 2-3 of the Juvenile Court Act 12 of 1987, after which the biological mother had the 13 opportunity to enroll in and participate in a clinically 14 appropriate substance abuse counseling, treatment, and 15 rehabilitation program. 16 E. "Parent" means the father or mother of a legitimate 17 or illegitimate child. For the purpose of this Act, a person 18 who has executed a final and irrevocable consent to adoption 19 or a final and irrevocable surrender for purposes of 20 adoption, or whose parental rights have been terminated by a 21 court, is not a parent of the child who was the subject of 22 the consent or surrender, unless the consent is void pursuant 23 to subsection O of Section 10. 24 F. A person is available for adoption when the person 25 is: 26 (a) a child who has been surrendered for adoption 27 to an agency and to whose adoption the agency has 28 thereafter consented; 29 (b) a child to whose adoption a person authorized 30 by law, other than his parents, has consented, or to 31 whose adoption no consent is required pursuant to Section 32 8 of this Act; 33 (c) a child who is in the custody of persons who 34 intend to adopt him through placement made by his HB1298 Engrossed -10- LRB9101556WHpc 1 parents; 2 (c-1) a child for whom a parent has signed a 3 specific consent pursuant to subsection O of Section 10; 4 or 5 (d) an adult who meets the conditions set forth in 6 Section 3 of this Act. 7 A person who would otherwise be available for adoption 8 shall not be deemed unavailable for adoption solely by reason 9 of his or her death. 10 G. The singular includes the plural and the plural 11 includes the singular and the "male" includes the "female", 12 as the context of this Act may require. 13 H. "Adoption disruption" occurs when an adoptive 14 placement does not prove successful and it becomes necessary 15 for the child to be removed from placement before the 16 adoption is finalized. 17 I. "Foreign placing agency" is an agency or individual 18 operating in a country or territory outside the United States 19 that is authorized by its country to place children for 20 adoption either directly with families in the United States 21 or through United States based international agencies. 22 J. "Immediate relatives" means the biological parents, 23 the parents of the biological parents and siblings of the 24 biological parents. 25 K. "Intercountry adoption" is a process by which a child 26 from a country other than the United States is adopted. 27 L. "Intercountry Adoption Coordinator" is a staff person 28 of the Department of Children and Family Services appointed 29 by the Director to coordinate the provision of services by 30 the public and private sector to prospective parents of 31 foreign-born children. 32 M. "Interstate Compact on the Placement of Children" is 33 a law enacted by most states for the purpose of establishing 34 uniform procedures for handling the interstate placement of HB1298 Engrossed -11- LRB9101556WHpc 1 children in foster homes, adoptive homes, or other child care 2 facilities. 3 N. "Non-Compact state" means a state that has not 4 enacted the Interstate Compact on the Placement of Children. 5 O. "Preadoption requirements" are any conditions 6 established by the laws or regulations of the Federal 7 Government or of each state that must be met prior to the 8 placement of a child in an adoptive home. 9 P. "Abused child" means a child whose parent or 10 immediate family member, or any person responsible for the 11 child's welfare, or any individual residing in the same home 12 as the child, or a paramour of the child's parent: 13 (a) inflicts, causes to be inflicted, or allows to 14 be inflicted upon the child physical injury, by other 15 than accidental means, that causes death, disfigurement, 16 impairment of physical or emotional health, or loss or 17 impairment of any bodily function; 18 (b) creates a substantial risk of physical injury 19 to the child by other than accidental means which would 20 be likely to cause death, disfigurement, impairment of 21 physical or emotional health, or loss or impairment of 22 any bodily function; 23 (c) commits or allows to be committed any sex 24 offense against the child, as sex offenses are defined in 25 the Criminal Code of 1961 and extending those definitions 26 of sex offenses to include children under 18 years of 27 age; 28 (d) commits or allows to be committed an act or 29 acts of torture upon the child; or 30 (e) inflicts excessive corporal punishment. 31 Q. "Neglected child" means any child whose parent or 32 other person responsible for the child's welfare withholds or 33 denies nourishment or medically indicated treatment including 34 food or care denied solely on the basis of the present or HB1298 Engrossed -12- LRB9101556WHpc 1 anticipated mental or physical impairment as determined by a 2 physician acting alone or in consultation with other 3 physicians or otherwise does not provide the proper or 4 necessary support, education as required by law, or medical 5 or other remedial care recognized under State law as 6 necessary for a child's well-being, or other care necessary 7 for his or her well-being, including adequate food, clothing 8 and shelter; or who is abandoned by his or her parents or 9 other person responsible for the child's welfare. 10 A child shall not be considered neglected or abused for 11 the sole reason that the child's parent or other person 12 responsible for his or her welfare depends upon spiritual 13 means through prayer alone for the treatment or cure of 14 disease or remedial care as provided under Section 4 of the 15 Abused and Neglected Child Reporting Act. 16 R. "Putative father" means a man who may be a child's 17 father, but who (1) is not married to the child's mother on 18 or before the date that the child was or is to be born and 19 (2) has not established paternity of the child in a court 20 proceeding before the filing of a petition for the adoption 21 of the child. The term includes a male who is less than 18 22 years of age. "Putative father" does not mean a man who is 23 the child's father as a result of criminal sexual abuse or 24 assault as defined under Article 12 of the Criminal Code of 25 1961. 26 (Source: P.A. 89-235, eff. 8-4-95; 89-704, eff. 8-16-97 27 (changed from 1-1-98 by P.A. 90-443); 90-13, eff. 6-13-97; 28 90-15, eff. 6-13-97; 90-27, eff. 1-1-98 except subdiv. (D)(m) 29 eff. 6-25-97; 90-28, eff. 1-1-98 except subdiv. (D)(m) eff. 30 6-25-97; 90-443, eff. 8-16-97; 90-608, eff. 6-30-98; 90-655, 31 eff. 7-30-98; revised 10-31-98.)