Public Act 094-0939
 		





SB2738 Enrolled
LRB094 19043 AJO 54538 b






    AN ACT concerning adoption.

 
    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) There is a rebuttable presumption, which can be 
    overcome only by clear and convincing evidence, that a 
    parent is unfit if:

            (1) Two or more findings of physical abuse have 
        been entered regarding
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; or
            (2) The parent has been convicted or found not 
        guilty by reason of insanity and the conviction or 
        finding resulted from the death of any child by 
        physical abuse
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

            (3) There is
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.
            No conviction or finding of delinquency pursuant 
        to Article 5 of the Juvenile Court Act of 1987 shall be 
        considered a criminal conviction for the purpose of 
        applying any presumption under this item (f).


        (g) Failure to protect the child from conditions within 
    his environment
injurious to the child's welfare.


        (h) Other neglect of, or misconduct toward the child; 
    provided that in
making a finding of unfitness the court 
    hearing the adoption proceeding
shall not be bound by any 
    previous finding, order or judgment affecting
or 
    determining the rights of the parents toward the child 
    sought to be adopted
in any other proceeding except such 
    proceedings terminating parental rights
as shall be had 
    under either this Act, the Juvenile Court Act or
the 
    Juvenile Court Act of 1987.


        (i) Depravity.  Conviction of any one of the following

    crimes shall create a presumption that a parent is depraved 
    which can be
overcome only by clear and convincing 
    evidence:
(1) first degree murder in violation of paragraph 
    1 or
2 of subsection (a) of Section 9-1 of the Criminal 
    Code of 1961 or 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)
predatory

    aggravated criminal sexual assault of a child in violation 
    of
Section 12-14.1
12-14(b)(1) of the Criminal Code of 
    1961; (6) heinous battery of any child in violation of the 
    Criminal Code of 1961; or (7) aggravated battery of any 
    child in violation of the Criminal Code of 1961.


        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.
        No conviction or finding of delinquency pursuant to 
    Article 5 of the Juvenile Court Act of 1987 shall be 
    considered a criminal conviction for the purpose of 
    applying any presumption under this item (i).


        (j) Open and notorious adultery or fornication.


        (j-1) (Blank).


        (k) Habitual drunkenness or addiction to drugs, other 
    than those
prescribed by a physician, for at least one year 
    immediately
prior to the commencement of the unfitness 
    proceeding.


        There is a rebuttable presumption that a parent is 
    unfit under this
subsection
with respect to any child to 
    which that parent gives birth where there is a
confirmed

    test result that at birth the child's blood, urine, or 
    meconium contained any
amount of a controlled substance as 
    defined in subsection (f) of Section 102 of
the Illinois 
    Controlled Substances Act or metabolites of such 
    substances, the
presence of which in the newborn infant was 
    not the result of medical treatment
administered to the 
    mother or the newborn infant; and the biological mother of

    this child is the biological mother of at least one other 
    child who was
adjudicated a neglected minor under 
    subsection (c) of Section 2-3 of the
Juvenile Court Act of 
    1987. 


        (l) Failure to demonstrate a reasonable degree of 
    interest, concern or
responsibility as to the welfare of a 
    new born child during the first 30
days after its birth.


        (m) Failure by a parent (i) to make reasonable efforts 
    to correct the
conditions that were the basis for the 
    removal of the child from the
parent, or (ii) to make 
    reasonable progress toward the return of the child
to
the 
    parent within 9 months after an adjudication of neglected 
    or abused
minor under Section 2-3 of the Juvenile Court Act 
    of 1987 or dependent
minor under Section 2-4 of that Act, 
    or (iii) to make reasonable progress
toward the return of 
    the
child to the parent during any 9-month period after the 
    end of the initial
9-month period following the 
    adjudication of
neglected or abused minor under Section 2-3 
    of the Juvenile Court
Act of 1987 or dependent minor under 
    Section 2-4 of that Act.
If a service plan has been 
    established as
required under
Section 8.2 of the Abused and 
    Neglected Child Reporting Act to correct the
conditions 
    that were the basis for the removal of the child from the 
    parent
and if those services were available,
then, for 
    purposes of this Act, "failure to make reasonable progress 
    toward the
return of the child to the parent" includes (I) 
    the parent's failure to
substantially fulfill his or her 
    obligations under the
service plan and correct the 
    conditions that brought the child into care
within 9 months 
    after the adjudication under Section 2-3 or 2-4
of the 
    Juvenile Court Act of 1987
and (II) the parent's failure to 
    substantially fulfill his or her obligations
under
the 
    service plan and correct the conditions that brought the 
    child into care
during any 9-month period after the end of 
    the initial 9-month period
following the adjudication 
    under Section 2-3 or 2-4 of the Juvenile Court
Act of 1987. 
    Notwithstanding any other provision, when a petition or 
    motion seeks to terminate parental rights on the basis of 
    item (iii) of this subsection (m), the petitioner shall 
    file with the court and serve on the parties a pleading 
    that specifies the 9-month period or periods relied on. The 
    pleading shall be filed and served on the parties no later 
    than 3 weeks before the date set by the court for closure 
    of discovery, and the allegations in the pleading shall be 
    treated as incorporated into the petition or motion. 
    Failure of a respondent to file a written denial of the 
    allegations in the pleading shall not be treated as an 
    admission that the allegations are true.


        (m-1) Pursuant to the Juvenile Court Act of 1987, a 
    child
has been in foster care for 15 months out of any 22 
    month period which begins
on or after the effective date of 
    this amendatory Act of 1998 unless the
child's parent can 
    prove
by a preponderance of the evidence that it is more 
    likely than not that it will
be in the best interests of 
    the child to be returned to the parent within 6
months of 
    the date on which a petition for termination of parental 
    rights is
filed under the Juvenile Court Act of 1987.  The 
    15 month time limit is tolled
during
any period for which 
    there is a court finding that the appointed custodian or

    guardian failed to make reasonable efforts to reunify the 
    child with his or her
family, provided that (i) the finding 
    of no reasonable efforts is made within
60 days of the 
    period when reasonable efforts were not made or (ii) the 
    parent
filed a motion requesting a finding of no reasonable 
    efforts within 60 days of
the period when reasonable 
    efforts were not made.  For purposes of this
subdivision 
    (m-1), the date of entering foster care is the earlier of: 
    (i) the
date of
a judicial finding at an adjudicatory 
    hearing that the child is an abused,
neglected, or 
    dependent minor; or (ii) 60 days after the date on which 
    the
child is removed from his or her parent, guardian, or 
    legal custodian.


        (n) Evidence of intent to forgo his or her parental 
    rights,
whether or
not the child is a ward of the court, 
    (1) as manifested
by his or her failure for a period of 12 
    months: (i) to visit the child,
(ii) to communicate with 
    the child or agency, although able to do so and
not 
    prevented from doing so by an agency or by court order, or 
    (iii) to
maintain contact with or plan for the future of 
    the child, although physically
able to do so, or (2) as 
    manifested by the father's failure, where he
and the mother 
    of the child were unmarried to each other at the time of 
    the
child's birth, (i) to commence legal proceedings to 
    establish his paternity
under the Illinois Parentage Act of 
    1984 or the law of the jurisdiction of
the child's birth 
    within 30 days of being informed, pursuant to Section 12a

    of this Act, that he is the father or the likely father of 
    the child or,
after being so informed where the child is 
    not yet born, within 30 days of
the child's birth, or (ii) 
    to make a good faith effort to pay a reasonable
amount of 
    the expenses related to the birth of the child and to 
    provide a
reasonable amount for the financial support of 
    the child, the court to
consider in its determination all 
    relevant circumstances, including the
financial condition 
    of both parents; provided that the ground for
termination 
    provided in this subparagraph (n)(2)(ii) shall only be

    available where the petition is brought by the mother or 
    the husband of
the mother.


        Contact or communication by a parent with his or her 
    child that does not
demonstrate affection and concern does 
    not constitute reasonable contact
and planning under 
    subdivision (n).  In the absence of evidence to the

    contrary, the ability to visit, communicate, maintain 
    contact, pay
expenses and plan for the future shall be 
    presumed.  The subjective intent
of the parent, whether 
    expressed or otherwise, unsupported by evidence of
the 
    foregoing parental acts manifesting that intent, shall not 
    preclude a
determination that the parent has intended to 
    forgo his or her
parental
rights.  In making this 
    determination, the court may consider but shall not
require 
    a showing of diligent efforts by an authorized agency to 
    encourage
the parent to perform the acts specified in 
    subdivision (n).


        It shall be an affirmative defense to any allegation 
    under paragraph
(2) of this subsection that the father's 
    failure was due to circumstances
beyond his control or to 
    impediments created by the mother or any other
person 
    having legal custody.  Proof of that fact need only be by a

    preponderance of the evidence.


        (o) Repeated or continuous failure by the parents, 
    although physically
and financially able, to provide the 
    child with adequate food, clothing,
or shelter.


        (p) Inability to discharge parental responsibilities 
    supported by
competent evidence from a psychiatrist, 
    licensed clinical social
worker, or clinical psychologist 
    of mental
impairment, mental illness or 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) (Blank).
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 lawful child of 
the parties or child born out of wedlock.  For the purpose of 
this Act, a person who has executed a final and
irrevocable 
consent to adoption or a final and irrevocable surrender for

purposes of adoption, or whose parental rights have been 
terminated by a
court, is not a parent of the child who was the 
subject of the consent or
surrender, unless the consent is void 
pursuant to subsection O of Section 10.

    F. A person is available for adoption when the person is:


        (a) a child who has been surrendered for adoption to an 
    agency and to
whose adoption the agency has thereafter 
    consented;


        (b) a child to whose adoption a person authorized by 
    law, other than his
parents, has consented, or to whose 
    adoption no consent is required pursuant
to Section 8 of 
    this Act;


        (c) a child who is in the custody of persons who intend 
    to adopt him
through placement made by his parents;


        (c-1) a child for whom a parent has signed a specific 
    consent pursuant
to subsection O of Section 10;


        (d) an adult who meets the conditions set forth in 
    Section 3 of this
Act; or


        (e) a child who has been relinquished as defined in 
    Section 10 of the
Abandoned Newborn Infant Protection Act.

    A person who would otherwise be available for adoption 
shall not be
deemed unavailable for adoption solely by reason 
of his or her death.

    G. The singular includes the plural and the plural includes

the singular and the "male" includes the "female", as the 
context of this
Act may require.

    H. "Adoption disruption" occurs when an adoptive placement 
does not
prove successful and it becomes necessary for the 
child to be removed from
placement before the adoption is 
finalized.

    I. "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. 93-732, eff. 1-1-05; 94-229, eff. 1-1-06; 94-563, 
eff. 1-1-06; revised 8-23-05.)