State of Illinois
91st General Assembly
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Public Act 91-0373

HB1298 Enrolled                                LRB9101556WHpc

    AN ACT to amend the Adoption Act by changing Section 1.

    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 forego 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  forego  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.
    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.
(Source: P.A.  89-235,  eff.  8-4-95;  89-704,  eff.  8-16-97
(changed  from  1-1-98  by P.A. 90-443); 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; revised 10-31-98.)

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