SB0511 94TH GENERAL ASSEMBLY

LRB094 09016 LCB 39237 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB0511

Introduced 2/17/2005, by Sen. John J. Cullerton

SYNOPSIS AS INTRODUCED:

750 ILCS 50/7	from Ch. 40, par. 1509
750 ILCS 50/8	from Ch. 40, par. 1510
750 ILCS 50/18.3a	from Ch. 40, par. 1522.3a

Amends the Adoption Act. Provides that the sole purpose of notice shall be to enable the person receiving the notice to appear in the adoption proceedings to present evidence to the court relevant to whether the consent or surrender of the person to the adoption is required by the Act (instead of to present evidence to the court relevant to the best interests of the child). Provides that, if the court determines that the consent or surrender of the person is not required, then the person shall not be entitled to participate in the proceedings or to any further notice of the proceedings. Adds to the exceptions to the requirement for consent and surrender: (i) the father of the child who is a family member of the mother of the child and the mother is under the age of 18 at the time of the child's conception; and (ii) the father of the child who is at least 5 years older than the child's mother and the mother was under the age of 17 at the time of child's conception, unless the mother and father voluntarily acknowledge the father's paternity of the child by marrying or by establishing the father's paternity by consent of the parties pursuant to the Illinois Parentage Act of 1984 or pursuant to a substantially similar statute in another state. Defines "family member". Removes from the exceptions to the requirement for consent and surrender a person who has been indicated for child sexual abuse as defined in the Abused and Neglected Child Reporting Act that involved sexual penetration of the mother and a person who was at least 5 years older than the mother and the mother was under the age of 17 at the time of conception of the child to be adopted. Removes any employee of a licensed child welfare agency certified by the agency as qualified to serve as a confidential intermediary from the list of eligible intermediaries.

A BILL FOR

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 Sections 7, 8, and 18.3a as follows:

(750 ILCS 50/7) (from Ch. 40, par. 1509)

Sec. 7. Process.

A. All persons named in the petition for adoption or standby adoption, other than the petitioners and any party who has previously either denied being a parent pursuant to Section 12a of this Act or whose rights have been terminated pursuant to Section 12a of this Act, but including the person sought to be adopted, shall be made parties defendant by name, and if the name or names of any such persons are alleged in the petition to be unknown such persons shall be made parties defendant under the name and style of "All whom it may concern". In all such actions petitioner or his attorney shall file, at the office of the clerk of the court in which the action is pending, an affidavit showing that the defendant resides or has gone out of this State, or on due inquiry cannot be found, or is concealed within this State, so that process cannot be served upon him, and stating the place of residence of the defendant, if known, or that upon diligent inquiry his place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending. If there is no newspaper published in that county, then the publication shall be in a newspaper published in an adjoining county in this State, having a circulation in the county in which such action is pending. In the event there is service on any of the parties by publication, the publication shall contain notice of pendency of the action, the name of the person to be adopted and the name of the parties to be served by publication, and the date on or after which default may be entered against such parties. Neither the name of petitioners nor the name of any party who has either surrendered said child, has given their consent to the adoption of the child, or whose parental rights have been terminated by a court of competent jurisdiction shall be included in the notice of publication. The Clerk shall also, within ten (10) days of the first publication of the notice, send a copy thereof by mail, addressed to each defendant whose place of residence is stated in such affidavit. The certificate of the Clerk that he sent the copies pursuant to this section is evidence that he has done so. Except as provided in this section pertaining to service by publication, all parties defendant shall be notified of the proceedings in the same manner as is now or may hereafter be required in other civil cases or proceedings. Any party defendant who is of age of 14 years or upward may waive service of process by entering an appearance in writing. The form to be used for publication shall be substantially as follows: "ADOPTION NOTICE - STATE OF ILLINOIS, County of ...., ss. - Circuit Court of .... County. In the matter of the Petition for the Adoption of ...., a ..male child. Adoption No. ..... To-- .... (whom it may concern or the named parent) Take notice that a petition was filed in the Circuit Court of .... County, Illinois, for the adoption of a child named ..... Now, therefore, unless you ...., and all whom it may concern, file your answer to the Petition in the action or otherwise file your appearance therein, in the said Circuit Court of ...., County, Room ...., ...., in the City of ...., Illinois, on or before the .... day of ...., a default may be entered against you at any time after that day and a judgment entered in accordance with the prayer of said Petition. Dated, ...., Illinois, .... ...., Clerk. (Name and address of attorney for petitioners.)

B. A minor defendant who has been served in accordance with this Section may be defaulted in the same manner as any other defendant.

C. Notwithstanding any inconsistent provision of this or any other law, and in addition to the notice requirements of any law pertaining to persons other than those specified in this subsection, the persons entitled to notice that a petition has been filed under Section 5 of this Act shall include:

(a) any person adjudicated by a court in this State to be the father of the child;

(b) any person adjudicated by a court of another state or territory of the United States to be the father of the child, when a certified copy of the court order has been filed with the Putative Father Registry under Section 12.1 of this Act;

(c) any person who at the time of the filing of the petition is registered in the Putative Father Registry under Section 12.1 of this Act as the putative father of the child;

(d) any person who is recorded on the child's birth certificate as the child's father;

(e) any person who is openly living with the child or the child's mother at the time the proceeding is initiated and who is holding himself out to be the child's father;

(f) any person who has been identified as the child's father by the mother in a written, sworn statement, including an Affidavit of Identification as specified under Section 11 of this Act;

(g) any person who was married to the child's mother on the date of the child's birth or within 300 days prior to the child's birth.

The sole purpose of notice under this Section shall be to enable the person receiving notice to appear in the adoption proceedings to present evidence to the court relevant to whether the consent or surrender of the person to the adoption is required pursuant to Section 8 of this Act. If the court determines that the consent or surrender of the person is not required pursuant to Section 8, then the person shall not be entitled to participate in the proceedings or to any further notice of the proceedings the best interests of the child.

(Source: P.A. 91-572, eff. 1-1-00.)

(750 ILCS 50/8) (from Ch. 40, par. 1510)

Sec. 8. Consents to adoption and surrenders for purposes of adoption.

(a) Except as hereinafter provided in this Section consents or surrenders shall be required in all cases, unless the person whose consent or surrender would otherwise be required shall be found by the court:

(1) to be an unfit person as defined in Section 1 of this Act, by clear and convincing evidence; or

(2) not to be the biological or adoptive father of the child; or

(3) to have waived his parental rights to the child under Section 12a or 12.1 of this Act; or

(4) to be the parent of an adult sought to be adopted; or

(5) to be the father of the child as a result of criminal sexual abuse or assault as defined under Article 12 of the Criminal Code of 1961, including but not limited to:

(i) the father of the child, who is a family member of the mother of the child, and the mother is under the age of 18 at the time of the child's conception; for purposes of this subsection, a "family member" is a parent, step-parent, grandparent, step-grandparent, sibling; or cousin of the first degree, whether by whole blood, half-blood, or adoption, as well as a person who has resided in the household with the mother continuously for at least one year; or

(ii) the father of the child, who is at least 5 years older than the child's mother, and the mother was under the age of 17 at the time of child's conception, unless the mother and father voluntarily acknowledge the father's paternity of the child by marrying or by establishing the father's paternity by consent of the parties pursuant to the Illinois Parentage Act of 1984 or pursuant to a substantially similar statute in another state.

A criminal conviction of any offense pursuant to Article 12 of the Criminal Code of 1961 is not required. ; or

(6) to have been indicated for child sexual abuse as defined in the Abused and Neglected Child Reporting Act that involved sexual penetration of the mother; or

(7) to be at least 5 years older than the mother and the mother was under the age 17 at the time of conception of the child to be adopted.

(b) Where consents are required in the case of an adoption of a minor child, the consents of the following persons shall be sufficient:

(1) (A) The mother of the minor child; and

(B) The father of the minor child, if the father:

(i) was married to the mother on the date of birth of the child or within 300 days before the birth of the child, except for a husband or former husband who has been found by a court of competent jurisdiction not to be the biological father of the child; or

(ii) is the father of the child under a judgment for adoption, an order of parentage, or an acknowledgment of parentage or paternity pursuant to subsection (a) of Section 5 of the Illinois Parentage Act of 1984; or

(iii) in the case of a child placed with the adopting parents less than 6 months after birth, openly lived with the child, the child's biological mother, or both, and held himself out to be the child's biological father during the first 30 days following the birth of the child; or

(iv) in the case of a child placed with the adopting parents less than 6 months after birth, made 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 before the expiration of 30 days following the birth of the child, provided that the court may consider in its determination all relevant circumstances, including the financial condition of both biological parents; or

(v) in the case of a child placed with the adopting parents more than 6 months after birth, has maintained substantial and continuous or repeated contact with the child as manifested by: (I) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either (II) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or (III) the father's regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child. The subjective intent of the father, whether expressed or otherwise unsupported by evidence of acts specified in this sub-paragraph as manifesting such intent, shall not preclude a determination that the father failed to maintain substantial and continuous or repeated contact with the child; or

(vi) in the case of a child placed with the adopting parents more than six months after birth, openly lived with the child for a period of six months within the one year period immediately preceding the placement of the child for adoption and openly held himself out to be the father of the child; or

(vii) has timely registered with Putative Father Registry, as provided in Section 12.1 of this Act, and prior to the expiration of 30 days from the date of such registration, commenced legal proceedings to establish paternity under the Illinois Parentage Act of 1984 or under the law of the jurisdiction of the child's birth; or

(2) The legal guardian of the person of the child, if there is no surviving parent; or

(3) An agency, if the child has been surrendered for adoption to such agency; or

(4) Any person or agency having legal custody of a child by court order if the parental rights of the parents have been judicially terminated, and the court having jurisdiction of the guardianship of the child has authorized the consent to the adoption; or

(5) The execution and verification of the petition by any petitioner who is also a parent of the child sought to be adopted shall be sufficient evidence of such parent's consent to the adoption.

(c) Where surrenders to an agency are required in the case of a placement for adoption of a minor child by an agency, the surrenders of the following persons shall be sufficient:

(1) (A) The mother of the minor child; and

(B) The father of the minor child, if the father:

(i) was married to the mother on the date of birth of the child or within 300 days before the birth of the child, except for a husband or former husband who has been found by a court of competent jurisdiction not to be the biological father of the child; or

(ii) is the father of the child under a judgment for adoption, an order of parentage, or an acknowledgment of parentage or paternity pursuant to subsection (a) of Section 5 of the Illinois Parentage Act of 1984; or

(iii) in the case of a child placed with the adopting parents less than 6 months after birth, openly lived with the child, the child's biological mother, or both, and held himself out to be the child's biological father during the first 30 days following the birth of a child; or

(iv) in the case of a child placed with the adopting parents less than 6 months after birth, made 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 before the expiration of 30 days following the birth of the child, provided that the court may consider in its determination all relevant circumstances, including the financial condition of both biological parents; or

(v) in the case of a child placed with the adopting parents more than six months after birth, has maintained substantial and continuous or repeated contact with the child as manifested by: (I) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either (II) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child or (III) the father's regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child. The subjective intent of the father, whether expressed or otherwise, unsupported by evidence of acts specified in this sub-paragraph as manifesting such intent, shall not preclude a determination that the father failed to maintain substantial and continuous or repeated contact with the child; or

(vi) in the case of a child placed with the adopting parents more than six months after birth, openly lived with the child for a period of six months within the one year period immediately preceding the placement of the child for adoption and openly held himself out to be the father of the child; or

(vii) has timely registered with the Putative Father Registry, as provided in Section 12.1 of this Act, and prior to the expiration of 30 days from the date of such registration, commenced legal proceedings to establish paternity under the Illinois Parentage Act of 1984, or under the law of the jurisdiction of the child's birth.

(d) In making a determination under subparagraphs (b)(1) and (c)(1), no showing shall be required of diligent efforts by a person or agency to encourage the father to perform the acts specified therein.

(e) In the case of the adoption of an adult, only the consent of such adult shall be required.

(Source: P.A. 93-510, eff. 1-1-04.)

(750 ILCS 50/18.3a) (from Ch. 40, par. 1522.3a)

Sec. 18.3a. Confidential intermediary.

(a) General purposes. Notwithstanding any other provision of this Act, any adopted person 21 years of age or over, any adoptive parent or legal guardian of an adopted person under the age of 21, or any birth parent of an adopted person who is 21 years of age or over may petition the court in any county in the State of Illinois for appointment of a confidential intermediary as provided in this Section for the purpose of exchanging medical information with one or more mutually consenting biological relatives, obtaining identifying information about one or more mutually consenting biological relatives, or arranging contact with one or more mutually consenting biological relatives. Additionally, in cases where an adopted or surrendered person is deceased, an adult child of the adopted or surrendered person may file a petition under this Section and in cases where the birth parent is deceased, an adult birth sibling of the adopted person or of the deceased birth parent may file a petition under this Section for the purpose of exchanging medical information with one or more mutually consenting biological relatives, obtaining identifying information about one or more mutually consenting biological relatives, or arranging contact with one or more mutually consenting biological relatives.

(b) Petition. Upon petition by an adopted person 21 years of age or over, an adoptive parent or legal guardian of an adopted person under the age of 21, or a birth parent of an adopted person who is 21 years of age or over, the court shall appoint a confidential intermediary. Upon petition by an adult child of an adopted person who is deceased or by an adult birth sibling of an adopted person whose birth parent is deceased or by an adult sibling of a birth parent who is deceased, the court may appoint a confidential intermediary if the court finds that the disclosure is of greater benefit than nondisclosure. The petition shall state which biological relative or relatives are being sought and shall indicate if the petitioner wants to do any one or more of the following: exchange medical information with the biological relative or relatives, obtain identifying information from the biological relative or relatives, or to arrange contact with the biological relative.

(c) Order. The order appointing the confidential intermediary shall allow that intermediary to conduct a search for the sought-after relative by accessing those records described in subsection (g) of this Section.

(d) Fees and expenses. The court shall condition the appointment of the confidential intermediary on the petitioner's payment of the intermediary's fees and expenses in advance of the commencement of the work of the confidential intermediary.

(e) Eligibility of intermediary. The court may appoint as confidential intermediary either an employee of the Illinois Department of Children and Family Services designated by the Department to serve as such, or any other person certified by the Department as qualified to serve as a confidential intermediary, or any employee of a licensed child welfare agency certified by the agency as qualified to serve as a confidential intermediary. Certification shall be dependent upon the confidential intermediary completing a course of training including, but not limited to, applicable federal and State privacy laws.

(f) Confidential Intermediary Council. There shall be established under the Department of Children and Family Services a Confidential Intermediary Advisory Council. One member shall be an attorney representing the Attorney General's Office appointed by the Attorney General. One member shall be a currently certified confidential intermediary appointed by the Director of the Department of Children and Family Services. The Director shall also appoint 5 additional members. When making those appointments, the Director shall consider advocates for adopted persons, adoptive parents, birth parents, lawyers who represent clients in private adoptions, lawyers specializing in privacy law, and representatives of agencies involved in adoptions. The Director shall appoint one of the 7 members as the chairperson. An attorney from the Department of Children and Family Services and the person directly responsible for administering the confidential intermediary program shall serve as ex-officio, non-voting advisors to the Council. Council members shall serve at the discretion of the Director and shall receive no compensation other than reasonable expenses approved by the Director. The Council shall meet no less than twice yearly, and shall make recommendations to the Director regarding the development of rules, procedures, and forms that will ensure efficient and effective operation of the confidential intermediary process, including:

(1) Standards for certification for confidential intermediaries.

(2) Oversight of methods used to verify that intermediaries are complying with the appropriate laws.

(3) Training for confidential intermediaries, including training with respect to federal and State privacy laws.

(4) The relationship between confidential intermediaries and the court system, including the development of sample orders defining the scope of the intermediaries' access to information.

(5) Any recent violations of policy or procedures by confidential intermediaries and remedial steps, including decertification, to prevent future violations.

(g) Access. Subject to the limitations of subsection (i) of this Section, the confidential intermediary shall have access to vital records maintained by the Department of Public Health and its local designees for the maintenance of vital records and all records of the court or any adoption agency, public or private, which relate to the adoption or the identity and location of an adopted person, of an adult child of a deceased adopted person, or of a birth parent, birth sibling, or the sibling of a deceased birth parent. The confidential intermediary shall not have access to any personal health information protected by the Standards for Privacy of Individually Identifiable Health Information adopted by the U.S. Department of Health and Human Services under the Health Insurance Portability and Accountability Act of 1996 unless the confidential intermediary has obtained written consent from the person whose information is being sought or, if that person is a minor child, that person's parent or guardian. Confidential intermediaries shall be authorized to inspect confidential relinquishment and adoption records. The confidential intermediary shall not be authorized to access medical records, financial records, credit records, banking records, home studies, attorney file records, or other personal records. In cases where a birth parent is being sought, an adoption agency shall inform the confidential intermediary of any statement filed pursuant to Section 18.3 indicating a desire of the surrendering birth parent to have identifying information shared or to not have identifying information shared. If there was a clear statement of intent by the sought-after birth parent not to have identifying information shared, the confidential intermediary shall discontinue the search and inform the petitioning party of the sought-after relative's intent. Additional information provided to the confidential intermediary by an adoption agency shall be restricted to the full name, date of birth, place of birth, last known address, and last known telephone number of the sought-after relative or, if applicable, of the children or siblings of the sought-after relative.

(h) Adoption agency disclosure of medical information. If the petitioner is an adult adopted person or the adoptive parent of a minor and if the petitioner has signed a written authorization to disclose personal medical information, an adoption agency disclosing information to a confidential intermediary shall disclose available medical information about the adopted person from birth through adoption.

(i) Duties of confidential intermediary in conducting a search. In conducting a search under this Section, the confidential intermediary shall first confirm that there is no Denial of Information Exchange on file with the Illinois Adoption Registry. If the petitioner is an adult child of an adopted person who is deceased, the confidential intermediary shall additionally confirm that the adopted person did not file a Denial of Information Exchange with the Illinois Adoption Registry during his or her life. If the petitioner is an adult birth sibling of an adopted person or an adult sibling of a birth parent who is deceased, the confidential intermediary shall additionally confirm that the birth parent did not file a Denial of Information Exchange with the Registry during his or her life. If the confidential intermediary learns that a sought-after birth parent signed a statement indicating his or her intent not to have identifying information shared, and did not later file an Information Exchange Authorization with the Adoption Registry, the confidential intermediary shall discontinue the search and inform the petitioning party of the birth parent's intent.

In conducting a search under this Section, the confidential intermediary shall attempt to locate the relative or relatives from whom the petitioner has requested information. If the sought-after relative is deceased or cannot be located after a diligent search, the confidential intermediary may contact adult biological relatives of the sought-after relative.

The confidential intermediary shall contact a sought-after relative on behalf of the petitioner in a manner that respects the sought-after relative's privacy and shall inform the sought-after relative of the petitioner's request for medical information, identifying information or contact as stated in the petition. Based upon the terms of the petitioner's request, the confidential intermediary shall contact a sought-after relative on behalf of the petitioner and inform the sought-after relative of the following options:

(1) The sought-after relative may totally reject one or all of the requests for medical information, identifying information or contact. The sought-after relative shall be informed that they can provide a medical questionnaire to be forwarded to the petitioner without releasing any identifying information. The confidential intermediary shall inform the petitioner of the sought-after relative's decision to reject the sharing of information or contact.

(2) The sought-after relative may consent to completing a medical questionnaire only. In this case, the confidential intermediary shall provide the questionnaire and ask the sought-after relative to complete it. The confidential intermediary shall forward the completed questionnaire to the petitioner and inform the petitioner of the sought-after relative's desire to not provide any additional information.

(3) The sought-after relative may communicate with the petitioner without having his or her identity disclosed. In this case, the confidential intermediary shall arrange the desired communication in a manner that protects the identity of the sought-after relative. The confidential intermediary shall inform the petitioner of the sought-after relative's decision to communicate but not disclose his or her identity.

(4) The sought after relative may consent to initiate contact with the petitioner. If both the petitioner and the sought-after relative or relatives are eligible to register with the Illinois Adoption Registry, the confidential intermediary shall provide the necessary application forms and request that the sought-after relative register with the Illinois Adoption Registry. If either the petitioner or the sought-after relative or relatives are ineligible to register with the Illinois Adoption Registry, the confidential intermediary shall obtain written consents from both parties that they wish to disclose their identities to each other and to have contact with each other.

(j) Oath. The confidential intermediary shall sign an oath of confidentiality substantially as follows: "I, .........., being duly sworn, on oath depose and say: As a condition of appointment as a confidential intermediary, I affirm that:

(1) I will not disclose to the petitioner, directly or indirectly, any confidential information except in a manner consistent with the law.

(2) I recognize that violation of this oath subjects me to civil liability and to a potential finding of contempt of court. ................................

SUBSCRIBED AND SWORN to before me, a Notary Public, on (insert date)

................................."

(k) Sanctions.

(1) Any confidential intermediary who improperly discloses confidential information identifying a sought-after relative shall be liable to the sought-after relative for damages and may also be found in contempt of court.

(2) Any person who learns a sought-after relative's identity, directly or indirectly, through the use of procedures provided in this Section and who improperly discloses information identifying the sought-after relative shall be liable to the sought-after relative for actual damages plus minimum punitive damages of $10,000.

(3) The Department shall fine any confidential intermediary who improperly discloses confidential information in violation of item (1) or (2) of this subsection (k) an amount up to $2,000 per improper disclosure. This fine does not affect civil liability under item (2) of this subsection (k). The Department shall deposit all fines and penalties collected under this Section into the Illinois Adoption Registry and Medical Information Fund.

(l) Death of person being sought. Notwithstanding any other provision of this Act, if the confidential intermediary discovers that the person being sought has died, he or she shall report this fact to the court, along with a copy of the death certificate.

(m) Any confidential information obtained by the confidential intermediary during the course of his or her search shall be kept strictly confidential and shall be used for the purpose of arranging contact between the petitioner and the sought-after birth relative. At the time the case is closed, all identifying information shall be returned to the court for inclusion in the impounded adoption file.

(n) If the petitioner is an adopted person 21 years of age or over or the adoptive parent or legal guardian of an adopted person under the age of 21, any non-identifying information, as defined in Section 18.4, that is ascertained during the course of the search may be given in writing to the petitioner before the case is closed.

(o) Except as provided in subsection (k) of this Section, no liability shall accrue to the State, any State agency, any judge, any officer or employee of the court, any certified confidential intermediary, or any agency designated to oversee confidential intermediary services for acts, omissions, or efforts made in good faith within the scope of this Section.

(Source: P.A. 93-189, eff. 1-1-04.)