HB5087 93RD GENERAL ASSEMBLY

LRB093 14559 RLC 40050 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB5087

Introduced 02/05/04, by Mary E. Flowers

SYNOPSIS AS INTRODUCED:

New Act
325 ILCS 5/11.1	from Ch. 23, par. 2061.1
705 ILCS 405/1-8	from Ch. 37, par. 801-8
705 ILCS 405/2-29.5 new
705 ILCS 405/3-30.5 new
705 ILCS 405/4-27.5 new

Creates the Parental Rights Termination Investigation Agency Act and amends the Abused and Neglected Child Reporting Act and the Juvenile Court Act of 1987. Creates the Parental Rights Termination Investigation Agency in the Executive Branch of State Government, to investigate the circumstances of terminations of parental rights if certain criteria are met, including that a person's parental rights were allegedly terminated as a result of negligence by DCFS in investigating or prosecuting the case for termination of the person's parental rights or for a reason or reasons due in substantial part to the person's financial difficulties. Provides that the Agency is entitled to access to records generated under the Abused and Neglected Child Reporting Act and to juvenile court records. Authorizes a person whose parental rights have been terminated under the Juvenile Court Act of 1987 to petition for restoration of those rights, based on the Agency's investigation.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT in relation to parental rights.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as Parental Rights Termination Investigation Agency Act.

Section 5. Definition. In this Act, "Agency" means the Parental Rights Termination Investigation Agency established under Section 10.

Section 10. Agency established. The Parental Rights Termination Investigation Agency is established in the Executive Branch of the State Government. The Agency shall be under the supervision and direction of a Director appointed by the Governor with the advice and consent of the Senate. The Director shall serve at the pleasure of the Governor. The Director is entitled to an annual salary as set by the Governor from time to time or as set by the Compensation Review Board, whichever is greater. If set by the Governor, the Director's annual salary may not exceed 85% of the Governor's annual salary. The Director, in accordance with the Personnel Code, shall employ and direct personnel as necessary to carry out the purposes of this Act.

Section 15. Investigation of cases of termination of parental rights.

(a) A person whose parental rights have been terminated in a proceeding under the Juvenile Court Act of 1987 may request the Agency to investigate the circumstances of that termination of parental rights if all of the following criteria are met:

(1) The person alleges that his or her parental rights were terminated: (A) as a result of negligence by the Department of Children and Family Services in investigating or prosecuting the case for termination of the person's parental rights, in that the Department ignored, or failed to properly investigate, or failed to bring to the court's attention, evidence mitigating against termination of those rights; or (B)(i) for a reason or reasons due in substantial part to the person's financial difficulties, (ii) those financial difficulties no longer exist, and (iii) the court that terminated the person's parental rights made no finding that the person had abused the child or children with respect to whom the parental rights were terminated.

(2) The person wants his or her parental rights restored and wants custody of his or her child or children with respect to whom the parental rights were terminated.

(3) Not more than 3 years have elapsed since the termination of the person's parental rights.

(4) A judgment of adoption has not been entered with respect to the child with respect to whom the person wants his or her parental rights restored, nor is there a petition for adoption pending with respect to the child.

(b) As part of an investigation under this Section, the Agency shall determine whether there is reasonable cause to believe that the person's allegations made in accordance with subdivision (a)(1) of this Section are true. If the Agency determines that there is such reasonable cause, then upon the person's request, the Director shall prepare a statement to be attached to a petition for restoration of parental rights as provided in Section 2-29.5, 3-30.5, or 4-27.5 of the Juvenile Court Act of 1987.

Section 20. Agency's access to information; confidentiality.

(a) For the purpose of conducting investigations authorized under this Act, the Agency is entitled to access to the records described in Section 11 of the Abused and Neglected Child Reporting Act and to the juvenile court records relating to a minor who is or has been the subject of a proceeding under the Juvenile Court Act of 1987.

(b) All records generated from investigations conducted by the Agency under this Act are confidential and may not be disclosed except to a court in connection with a proceeding for the restoration of parental rights under Section 2-29.5, 3-30.5, or 4-27.5 of the Juvenile Court Act of 1987.

Section 90. The Abused and Neglected Child Reporting Act is amended by changing Section 11.1 as follows:

(325 ILCS 5/11.1) (from Ch. 23, par. 2061.1)

Sec. 11.1. Access to records.

(a) A person shall have access to the records described in Section 11 only in furtherance of purposes directly connected with the administration of this Act or the Intergovernmental Missing Child Recovery Act of 1984. Those persons and purposes for access include:

(1) Department staff in the furtherance of their responsibilities under this Act, or for the purpose of completing background investigations on persons or agencies licensed by the Department or with whom the Department contracts for the provision of child welfare services.

(2) A law enforcement agency investigating known or suspected child abuse or neglect, known or suspected involvement with child pornography, known or suspected criminal sexual assault, known or suspected criminal sexual abuse, or any other sexual offense when a child is alleged to be involved.

(3) The Department of State Police when administering the provisions of the Intergovernmental Missing Child Recovery Act of 1984.

(4) A physician who has before him a child whom he reasonably suspects may be abused or neglected.

(5) A person authorized under Section 5 of this Act to place a child in temporary protective custody when such person requires the information in the report or record to determine whether to place the child in temporary protective custody.

(6) A person having the legal responsibility or authorization to care for, treat, or supervise a child or a parent, guardian, or other person responsible for the child's welfare who is the subject of a report.

(7) Except in regard to harmful or detrimental information as provided in Section 7.19, any subject of the report, and if the subject of the report is a minor, his guardian or guardian ad litem.

(8) A court, upon its finding that access to such records may be necessary for the determination of an issue before such court; however, such access shall be limited to in camera inspection, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then pending before it.

(8.1) A probation officer or other authorized representative of a probation or court services department conducting an investigation ordered by a court under the Juvenile Court Act of l987.

(9) A grand jury, upon its determination that access to such records is necessary in the conduct of its official business.

(10) Any person authorized by the Director, in writing, for audit or bona fide research purposes.

(11) Law enforcement agencies, coroners or medical examiners, physicians, courts, school superintendents and child welfare agencies in other states who are responsible for child abuse or neglect investigations or background investigations.

(12) The Department of Professional Regulation, the State Board of Education and school superintendents in Illinois, who may use or disclose information from the records as they deem necessary to conduct investigations or take disciplinary action, as provided by law.

(13) A coroner or medical examiner who has reason to believe that a child has died as the result of abuse or neglect.

(14) The Director of a State-operated facility when an employee of that facility is the perpetrator in an indicated report.

(15) The operator of a licensed child care facility or a facility licensed by the Department of Human Services (as successor to the Department of Alcoholism and Substance Abuse) in which children reside when a current or prospective employee of that facility is the perpetrator in an indicated child abuse or neglect report, pursuant to Section 4.3 of the Child Care Act of 1969.

(16) Members of a multidisciplinary team in the furtherance of its responsibilities under subsection (b) of Section 7.1. All reports concerning child abuse and neglect made available to members of such multidisciplinary teams and all records generated as a result of such reports shall be confidential and shall not be disclosed, except as specifically authorized by this Act or other applicable law. It is a Class A misdemeanor to permit, assist or encourage the unauthorized release of any information contained in such reports or records. Nothing contained in this Section prevents the sharing of reports or records relating or pertaining to the death of a minor under the care of or receiving services from the Department of Children and Family Services and under the jurisdiction of the juvenile court with the juvenile court, the State's Attorney, and the minor's attorney.

(17) The Department of Human Services, as provided in Section 17 of the Disabled Persons Rehabilitation Act.

(18) Any other agency or investigative body, including the Department of Public Health and a local board of health, authorized by State law to conduct an investigation into the quality of care provided to children in hospitals and other State regulated care facilities. The access to and release of information from such records shall be subject to the approval of the Director of the Department or his designee.

(19) The person appointed, under Section 2-17 of the Juvenile Court Act of 1987, as the guardian ad litem of a minor who is the subject of a report or records under this Act.

(20) The Department of Human Services, as provided in Section 10 of the Early Intervention Services System Act, and the operator of a facility providing early intervention services pursuant to that Act, for the purpose of determining whether a current or prospective employee who provides or may provide direct services under that Act is the perpetrator in an indicated report of child abuse or neglect filed under this Act.

(21) The Parental Rights Termination Investigation Agency, established under the Parental Rights Termination Investigation Agency Act, for the purpose of conducting investigations authorized under that Act.

(b) Nothing contained in this Act prevents the sharing or disclosure of information or records relating or pertaining to juveniles subject to the provisions of the Serious Habitual Offender Comprehensive Action Program when that information is used to assist in the early identification and treatment of habitual juvenile offenders.

(c) To the extent that persons or agencies are given access to information pursuant to this Section, those persons or agencies may give this information to and receive this information from each other in order to facilitate an investigation conducted by those persons or agencies.

(Source: P.A. 93-147, eff. 1-1-04.)

Section 95. The Juvenile Court Act of 1987 is amended by changing Section 1-8 and adding Sections 2-29.5, 3-30.5, and 4-27.5 as follows:

(705 ILCS 405/1-8) (from Ch. 37, par. 801-8)

Sec. 1-8. Confidentiality and accessibility of juvenile court records.

(A) Inspection and copying of juvenile court records relating to a minor who is the subject of a proceeding under this Act shall be restricted to the following:

(1) The minor who is the subject of record, his parents, guardian and counsel.

(2) Law enforcement officers and law enforcement agencies when such information is essential to executing an arrest or search warrant or other compulsory process, or to conducting an ongoing investigation or relating to a minor who has been adjudicated delinquent and there has been a previous finding that the act which constitutes the previous offense was committed in furtherance of criminal activities by a criminal street gang.

Before July 1, 1994, for the purposes of this Section, "criminal street gang" means any ongoing organization, association, or group of 3 or more persons, whether formal or informal, having as one of its primary activities the commission of one or more criminal acts and that has a common name or common identifying sign, symbol or specific color apparel displayed, and whose members individually or collectively engage in or have engaged in a pattern of criminal activity.

Beginning July 1, 1994, for purposes of this Section, "criminal street gang" has the meaning ascribed to it in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act.

(3) Judges, hearing officers, prosecutors, probation officers, social workers or other individuals assigned by the court to conduct a pre-adjudication or predisposition investigation, and individuals responsible for supervising or providing temporary or permanent care and custody for minors pursuant to the order of the juvenile court when essential to performing their responsibilities.

(4) Judges, prosecutors and probation officers:

(a) in the course of a trial when institution of criminal proceedings has been permitted or required under Section 5-805; or

(b) when criminal proceedings have been permitted or required under Section 5-805 and a minor is the subject of a proceeding to determine the amount of bail; or

(c) when criminal proceedings have been permitted or required under Section 5-805 and a minor is the subject of a pre-trial investigation, pre-sentence investigation or fitness hearing, or proceedings on an application for probation; or

(d) when a minor becomes 17 years of age or older, and is the subject of criminal proceedings, including a hearing to determine the amount of bail, a pre-trial investigation, a pre-sentence investigation, a fitness hearing, or proceedings on an application for probation.

(5) Adult and Juvenile Prisoner Review Boards.

(6) Authorized military personnel.

(7) Victims, their subrogees and legal representatives; however, such persons shall have access only to the name and address of the minor and information pertaining to the disposition or alternative adjustment plan of the juvenile court.

(8) Persons engaged in bona fide research, with the permission of the presiding judge of the juvenile court and the chief executive of the agency that prepared the particular records; provided that publication of such research results in no disclosure of a minor's identity and protects the confidentiality of the record.

(9) The Secretary of State to whom the Clerk of the Court shall report the disposition of all cases, as required in Section 6-204 of the Illinois Vehicle Code. However, information reported relative to these offenses shall be privileged and available only to the Secretary of State, courts, and police officers.

(10) The administrator of a bonafide substance abuse student assistance program with the permission of the presiding judge of the juvenile court.

(11) Mental health professionals on behalf of the Illinois Department of Corrections or the Department of Human Services or prosecutors who are evaluating, prosecuting, or investigating a potential or actual petition brought under the Sexually Persons Commitment Act relating to a person who is the subject of juvenile court records or the respondent to a petition brought under the Sexually Violent Persons Commitment Act, who is the subject of juvenile court records sought. Any records and any information obtained from those records under this paragraph (11) may be used only in sexually violent persons commitment proceedings.

(12) The Parental Rights Termination Investigation Agency, established under the Parental Rights Termination Investigation Agency Act, for the purpose of conducting investigations authorized under that Act.

(B) A minor who is the victim in a juvenile proceeding shall be provided the same confidentiality regarding disclosure of identity as the minor who is the subject of record.

(C) Except as otherwise provided in this subsection (C), juvenile court records shall not be made available to the general public but may be inspected by representatives of agencies, associations and news media or other properly interested persons by general or special order of the court. The State's Attorney, the minor, his parents, guardian and counsel shall at all times have the right to examine court files and records.

(1) The court shall allow the general public to have access to the name, address, and offense of a minor who is adjudicated a delinquent minor under this Act under either of the following circumstances:

(A) The adjudication of delinquency was based upon the minor's commission of first degree murder, attempt to commit first degree murder, aggravated criminal sexual assault, or criminal sexual assault; or

(B) The court has made a finding that the minor was at least 13 years of age at the time the act was committed and the adjudication of delinquency was based upon the minor's commission of: (i) an act in furtherance of the commission of a felony as a member of or on behalf of a criminal street gang, (ii) an act involving the use of a firearm in the commission of a felony, (iii) an act that would be a Class X felony offense under or the minor's second or subsequent Class 2 or greater felony offense under the Cannabis Control Act if committed by an adult, (iv) an act that would be a second or subsequent offense under Section 402 of the Illinois Controlled Substances Act if committed by an adult, or (v) an act that would be an offense under Section 401 of the Illinois Controlled Substances Act if committed by an adult.

(2) The court shall allow the general public to have access to the name, address, and offense of a minor who is at least 13 years of age at the time the offense is committed and who is convicted, in criminal proceedings permitted or required under Section 5-4, under either of the following circumstances:

(A) The minor has been convicted of first degree murder, attempt to commit first degree murder, aggravated criminal sexual assault, or criminal sexual assault,

(B) The court has made a finding that the minor was at least 13 years of age at the time the offense was committed and the conviction was based upon the minor's commission of: (i) an offense in furtherance of the commission of a felony as a member of or on behalf of a criminal street gang, (ii) an offense involving the use of a firearm in the commission of a felony, (iii) a Class X felony offense under or a second or subsequent Class 2 or greater felony offense under the Cannabis Control Act, (iv) a second or subsequent offense under Section 402 of the Illinois Controlled Substances Act, or (v) an offense under Section 401 of the Illinois Controlled Substances Act.

(D) Pending or following any adjudication of delinquency for any offense defined in Sections 12-13 through 12-16 of the Criminal Code of 1961, the victim of any such offense shall receive the rights set out in Sections 4 and 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act; and the juvenile who is the subject of the adjudication, notwithstanding any other provision of this Act, shall be treated as an adult for the purpose of affording such rights to the victim.

(E) Nothing in this Section shall affect the right of a Civil Service Commission or appointing authority of any state, county or municipality examining the character and fitness of an applicant for employment with a law enforcement agency, correctional institution, or fire department to ascertain whether that applicant was ever adjudicated to be a delinquent minor and, if so, to examine the records of disposition or evidence which were made in proceedings under this Act.

(F) Following any adjudication of delinquency for a crime which would be a felony if committed by an adult, or following any adjudication of delinquency for a violation of Section 24-1, 24-3, 24-3.1, or 24-5 of the Criminal Code of 1961, the State's Attorney shall ascertain whether the minor respondent is enrolled in school and, if so, shall provide a copy of the dispositional order to the principal or chief administrative officer of the school. Access to such juvenile records shall be limited to the principal or chief administrative officer of the school and any guidance counselor designated by him.

(G) Nothing contained in this Act prevents the sharing or disclosure of information or records relating or pertaining to juveniles subject to the provisions of the Serious Habitual Offender Comprehensive Action Program when that information is used to assist in the early identification and treatment of habitual juvenile offenders.

(H) When a Court hearing a proceeding under Article II of this Act becomes aware that an earlier proceeding under Article II had been heard in a different county, that Court shall request, and the Court in which the earlier proceedings were initiated shall transmit, an authenticated copy of the Court record, including all documents, petitions, and orders filed therein and the minute orders, transcript of proceedings, and docket entries of the Court.

(I) The Clerk of the Circuit Court shall report to the Department of State Police, in the form and manner required by the Department of State Police, the final disposition of each minor who has been arrested or taken into custody before his or her 17th birthday for those offenses required to be reported under Section 5 of the Criminal Identification Act. Information reported to the Department under this Section may be maintained with records that the Department files under Section 2.1 of the Criminal Identification Act.

(Source: P.A. 91-357, eff. 7-29-99; 91-368, eff. 1-1-00, 92-415, eff. 8-17-01.)

(705 ILCS 405/2-29.5 new)

Sec. 2-29.5. Restoration of parental rights.

(a) A person whose parental rights with respect to a minor have been terminated by a court under Section 2-29 may file with the court a petition for restoration of those parental rights. The parents of a minor may file a joint petition. The petitioner must attach to the petition a statement signed by the Director of the Parental Rights Termination Investigation Agency or his or her designee and setting forth, in substance, the following:

(1) The Agency has conducted an investigation of the circumstances of the termination of the petitioner's parental rights as authorized under the Parental Rights Termination Investigation Agency Act.

(2) The Agency has determined that there is reasonable cause to believe that: (A) the petitioner's parental rights were terminated as a result of negligence by the Department of Children and Family Services in investigating or prosecuting the case for termination of the petitioner's parental rights, in that the Department ignored, or failed to properly investigate, or failed to bring to the court's attention, evidence mitigating against termination of the petitioner's parental rights; or (B)(i) the petitioner's parental rights were terminated for a reason or reasons due in substantial part to the person's financial difficulties, (ii) those financial difficulties no longer exist, and (iii) the court that terminated the person's parental rights made no finding that the person had abused the child or children with respect to whom the parental rights were terminated.

The Director's statement must also include a summary of the Agency's findings with respect to the investigation.

(b) A petition filed under this Section shall name the guardian of the person of the minor as respondent.

(c) The State shall pay the petitioner's reasonable attorney's fees incurred in maintaining an action under this Section.

(d) The court shall conduct a hearing on the petition, at which the petitioner and the respondent may present oral or written evidence, or both, on the question of whether the petitioner's parental rights should be restored. After hearing the evidence, the court shall grant or deny the petition or take other action, based on the evidence, as it deems appropriate.

(705 ILCS 405/3-30.5 new)

Sec. 3-30.5. Restoration of parental rights.

(a) A person whose parental rights with respect to a minor have been terminated by a court under Section 3-30 may file with the court a petition for restoration of those parental rights. The parents of a minor may file a joint petition. The petitioner must attach to the petition a statement signed by the Director of the Parental Rights Termination Investigation Agency or his or her designee and setting forth, in substance, the following:

(1) The Agency has conducted an investigation of the circumstances of the termination of the petitioner's parental rights as authorized under the Parental Rights Termination Investigation Agency Act.

(2) The Agency has determined that there is reasonable cause to believe that: (A) the petitioner's parental rights were terminated as a result of negligence by the Department of Children and Family Services in investigating or prosecuting the case for termination of the petitioner's parental rights, in that the Department ignored, or failed to properly investigate, or failed to bring to the court's attention, evidence mitigating against termination of the petitioner's parental rights; or (B)(i) the petitioner's parental rights were terminated for a reason or reasons due in substantial part to the person's financial difficulties, (ii) those financial difficulties no longer exist, and (iii) the court that terminated the person's parental rights made no finding that the person had abused the child or children with respect to whom the parental rights were terminated.

The Director's statement must also include a summary of the Agency's findings with respect to the investigation.

(b) A petition filed under this Section shall name the guardian of the person of the minor as respondent.

(c) The State shall pay the petitioner's reasonable attorney's fees incurred in maintaining an action under this Section.

(d) The court shall conduct a hearing on the petition, at which the petitioner and the respondent may present oral or written evidence, or both, on the question of whether the petitioner's parental rights should be restored. After hearing the evidence, the court shall grant or deny the petition or take other action, based on the evidence, as it deems appropriate.

(705 ILCS 405/4-27.5 new)

Sec. 4-27.5.Restoration of parental rights.

(a) A person whose parental rights with respect to a minor have been terminated by a court under Section 4-27 may file with the court a petition for restoration of those parental rights. The parents of a minor may file a joint petition. The petitioner must attach to the petition a statement signed by the Director of the Parental Rights Termination Investigation Agency or his or her designee and setting forth, in substance, the following:

(1) The Agency has conducted an investigation of the circumstances of the termination of the petitioner's parental rights as authorized under the Parental Rights Termination Investigation Agency Act.

(2) The Agency has determined that there is reasonable cause to believe that: (A) the petitioner's parental rights were terminated as a result of negligence by the Department of Children and Family Services in investigating or prosecuting the case for termination of the petitioner's parental rights, in that the Department ignored, or failed to properly investigate, or failed to bring to the court's attention, evidence mitigating against termination of the petitioner's parental rights; or (B)(i) the petitioner's parental rights were terminated for a reason or reasons due in substantial part to the person's financial difficulties, (ii) those financial difficulties no longer exist, and (iii) the court that terminated the person's parental rights made no finding that the person had abused the child or children with respect to whom the parental rights were terminated.

The Director's statement must also include a summary of the Agency's findings with respect to the investigation.

(b) A petition filed under this Section shall name the guardian of the person of the minor as respondent.

(c) The State shall pay the petitioner's reasonable attorney's fees incurred in maintaining an action under this Section.

(d) The court shall conduct a hearing on the petition, at which the petitioner and the respondent may present oral or written evidence, or both, on the question of whether the petitioner's parental rights should be restored. After hearing the evidence, the court shall grant or deny the petition or take other action, based on the evidence, as it deems appropriate.