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Public Act 92-0375
SB1305 Enrolled LRB9202843RCcd
AN ACT in relation to minors.
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:
(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) Two or more findings of physical abuse to any
children under Section 4-8 of the Juvenile Court Act or
Section 2-21 of the Juvenile Court Act of 1987, the most
recent of which was determined by the juvenile court
hearing the matter to be supported by clear and
convincing evidence; a criminal conviction or a finding
of not guilty by reason of insanity resulting from the
death of any child by physical child abuse; or a finding
of physical child abuse resulting from the death of any
child under Section 4-8 of the Juvenile Court Act or
Section 2-21 of the Juvenile Court Act of 1987.
(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) aggravated criminal sexual assault in violation of
Section 12-14(b)(1) 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.
(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.
(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) 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 legitimate
or illegitimate child. For the purpose of this Act, a person
who has executed a final and irrevocable consent to adoption
or a final and irrevocable surrender for purposes of
adoption, or whose parental rights have been terminated by a
court, is not a parent of the child who was the subject of
the consent or 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;
or
(d) an adult who meets the conditions set forth in
Section 3 of this 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 the 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
terminally ill 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 terminally ill
parent or the request of the parent for the entry of a final
judgment of adoption.
T. "Terminally ill parent" means a person who has a
medical prognosis by a physician licensed to practice
medicine in all of its branches that the person has an
incurable and irreversible condition which will lead to
death.
(Source: P.A. 90-13, eff. 6-13-97; 90-15, eff. 6-13-97;
90-27, eff. 1-1-98 except subdiv. (D)(m) eff. 6-25-97; 90-28,
eff. 1-1-98 except subdiv. (D)(m) eff. 6-25-97; 90-443, eff.
8-16-97; 90-608, eff. 6-30-98; 90-655, eff. 7-30-98; 91-357,
eff. 7-29-99; 91-373, eff. 1-1-00; 91-572, eff. 1-1-00;
revised 8-31-99.)
Passed in the General Assembly May 22, 2001.
Approved August 15, 2001.
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