SB3138 93RD GENERAL ASSEMBLY

LRB093 17939 LCB 43622 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
SB3138

Introduced 2/6/2004, by John J. Cullerton

SYNOPSIS AS INTRODUCED:

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

Amends the Adoption Act. Provide that the purpose of notice 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 (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 by the Act, then the person shall not be entitled to participate in the proceedings or to receive any further notice of the proceedings. 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.

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 and 8 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 of this Act, then the person shall not be entitled to participate in the proceedings or to receive 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 . ; 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.)