HB3079 99TH GENERAL ASSEMBLY

LRB099 08115 HEP 28264 b

99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB3079

Introduced , by Rep. Keith P. Sommer

SYNOPSIS AS INTRODUCED:

750 ILCS 50/2	from Ch. 40, par. 1502
750 ILCS 50/4.1	from Ch. 40, par. 1506
750 ILCS 50/5	from Ch. 40, par. 1507
750 ILCS 50/13	from Ch. 40, par. 1516

Amends the Adoption Act. Provides for the re-adoption and confirmation of the foreign adoption decree of a child adopted in a foreign country. Provides documentation and procedural requirements. Adds provisions governing adoption by married parents, parents who subsequently divorce and re-marry, and parents who have entered into a civil union. Makes corresponding changes.

A BILL FOR

AN ACT concerning civil law.

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 2, 4.1, 5, and 13 as follows:

(750 ILCS 50/2) (from Ch. 40, par. 1502)

Sec. 2. Who may adopt a child.

A. Any of the following persons, who is under no legal disability (except the minority specified in sub-paragraph (b)) and who has resided in the State of Illinois continuously for a period of at least 6 months immediately preceding the commencement of an adoption proceeding, or any member of the armed forces of the United States who has been domiciled in the State of Illinois for 90 days, may institute such proceeding:

(a) A reputable person of legal age and of either sex, provided that if such person is married or in a civil union and has not been living separate and apart from his or her spouse or civil union partner for 12 months or longer, his or her spouse or civil union partner shall be a party to the adoption proceeding, including a spouse or civil union partner husband or wife desiring to adopt a child of the other spouse or civil union partner, in all of which cases the adoption shall be by both spouses or civil union partners jointly;

(b) A minor, by leave of court upon good cause shown.

Notwithstanding sub-paragraph (a) of this subsection, a spouse or civil union partner is not required to join in a petition for adoption to re-adopt a child after an intercountry adoption if the spouse or civil union partner did not previously adopt the child as set forth in subsections (c) and (e) of Section 4.1 of this Act.

B. The residence requirement specified in paragraph A of this Section shall not apply to:

(a) an adoption of a related child or child previously adopted in a foreign country by the petitioner; or

(b) an adoption of a child placed by an agency.

(Source: P.A. 98-804, eff. 1-1-15.)

(750 ILCS 50/4.1) (from Ch. 40, par. 1506)

Sec. 4.1. Adoption between multiple jurisdictions.

(a) The Department of Children and Family Services shall promulgate rules regarding the approval and regulation of agencies providing, in this State, adoption services, as defined in Section 2.24 of the Child Care Act of 1969, which shall include, but not be limited to, a requirement that any agency shall be licensed in this State as a child welfare agency as defined in Section 2.08 of the Child Care Act of 1969. Any out-of-state agency, if not licensed in this State as a child welfare agency, must obtain the approval of the Department in order to act as a sending agency, as defined in Section 1 of the Interstate Compact on Placement of Children Act, seeking to place a child into this State through a placement subject to the Interstate Compact on the Placement of Children. An out-of-state agency, if not licensed in this State as a child welfare agency, is prohibited from providing in this State adoption services, as defined by Section 2.24 of the Child Care Act of 1969; shall comply with Section 12C-70 of the Criminal Code of 2012; and shall provide all of the following to the Department:

(1) A copy of the agency's current license or other form of authorization from the approving authority in the agency's state. If no license or authorization is issued, the agency must provide a reference statement, from the approving authority, stating that the agency is authorized to place children in foster care or adoption or both in its jurisdiction.

(2) A description of the program, including home studies, placements, and supervisions, that the child placing agency conducts within its geographical area, and, if applicable, adoptive placements and the finalization of adoptions. The child placing agency must accept continued responsibility for placement planning and replacement if the placement fails.

(3) Notification to the Department of any significant child placing agency changes after approval.

(4) Any other information the Department may require.

The rules shall also provide that any agency that places children for adoption in this State may not, in any policy or practice relating to the placement of children for adoption, discriminate against any child or prospective adoptive parent on the basis of race.

(a-5) (Blank).

(b) Interstate Adoptions.

(1) All interstate adoption placements under this Act shall comply with the Child Care Act of 1969 and the Interstate Compact on the Placement of Children. The placement of children with relatives by the Department of Children and Family Services shall also comply with subsection (b) of Section 7 of the Children and Family Services Act.

(2) If an adoption is finalized prior to bringing or sending a child to this State, compliance with the Interstate Compact on the Placement of Children is not required.

(c) Intercountry Adoptions.

(1) The adoption of a child, if the child is a habitual resident of a country other than the United States and the petitioner is a habitual resident of the United States, or, if the child is a habitual resident of the United States and the petitioner is a habitual resident of a country other than the United States, shall comply with the Intercountry Adoption Act of 2000, as amended, and the Immigration and Nationality Act, as amended.

(2) The Department of Children and Family Services shall maintain the office of Intercountry Adoption Coordinator in order to maintain and protect the rights of prospective adoptive parents and children participating in an intercountry adoption and shall develop ongoing programs of support and services to such prospective adoptive parents and children.

(3) In the case of an intercountry adoption of a child by an Illinois resident, the Department shall promulgate rules concerning preadoption requirements, which shall include, but not be limited to, requirements relating to home studies conducted by licensed child welfare agencies and requirements relating to supporting documentation concerning the prospective adoptive parent's suitability to adopt a child.

(4) The Intercountry Adoption Coordinator shall determine whether all preadoption requirements have been met by a prospective adoptive parent. The Intercountry Adoption Coordinator shall also determine whether the prospective adoptive parent is suitable as the adoptive parent. In determining suitability to adopt, the Intercountry Adoption coordinator shall give considerable weight to the home study, but is not bound by it. Even if the home study is favorable, the Intercountry Adoption Coordinator must issue a denial letter if, on the basis of all the information provided, the Intercountry Adoption Coordinator finds, for a specific and articulable reason, that the prospective adoptive parent has failed to establish that he or she is suitable as the adoptive parent.

(5) The Intercountry Adoption Coordinator shall issue an endorsement letter, indicating that all preadoption requirements have been met, or a denial letter, indicating the specific preadoption requirements that have not been met, no later than 21 days from receipt of the home study from the child welfare agency. If, upon receipt of the home study, the Intercountry Adoption Coordinator determines that more information is required before any determination can be made with respect to compliance with the preadoption requirements, the Intercountry Adoption Coordinator shall, within 7 days of receipt of the home study, provide notice describing the additional information, via facsimile or through electronic communication, to the licensed child welfare agency and the adoptive parent. Within 21 days of receipt of the additional information, the Intercountry Adoption Coordinator shall provide the child welfare agency with an endorsement letter or a denial letter. The Intercountry Adoption Coordinator shall mail a copy of the endorsement letter or denial letter to the prospective adoptive parent at the same time that the Intercountry Adoption Coordinator provides the letter to the child welfare agency.

(6) If the Intercountry Adoption Coordinator issues a denial letter, a prospective adoptive parent shall have the right to a review. The Intercountry Adoption Coordinator shall include in its denial letter notification advising the prospective adoptive parent of the right to seek a review, by the Director of the Department, of the determination, if requested in writing within 30 days of receipt of the denial letter. Failure to submit such a request within 30 days waives the prospective parent's right to a review.

(i) The review by the Director shall include, but is not limited to, a review of documentation submitted by the prospective adoptive parent and, if requested by the prospective adoptive parent, a telephone conference or a mutually convenient in-person meeting with the Director, or the Director's designated representative, to allow the prospective adoptive parent to present the facts and circumstances supporting the request for the endorsement letter.

(ii) The Director shall issue a decision within 30 days of receipt of the request for review.

(iii) If the Director concurs with the original denial letter of the Intercountry Adoption Coordinator, the Director's decision shall be considered a final decision and the prospective adoptive parent shall have all rights and remedies to which he or she is entitled under applicable law, including a mandamus action under Article XIV of the Code of Civil Procedure and an action under the federal Civil Rights Act, 42 U.S.C. 1983.

(7) In the case of an intercountry adoption finalized in another country, where a complete and valid Order of Adoption is issued from that country to an Illinois resident, as determined by the United States Department of State, this State shall not impose any additional preadoption requirements.

(8) The Department of Children and Family Services shall provide a report to the General Assembly, on an annual basis for the preceding year, beginning on September 1 of each year after the effective date of this amendatory Act of the 98th General Assembly. The report shall provide non-identifying statistical data on the endorsement and denial letters and the requests for review of denial letters and shall contain, but not limited to, the following:

(i) the number of endorsement letters issued by the Intercountry Adoption Coordinator;

(ii) the number of denial letters issued by the Intercountry Adoption Coordinator;

(iii) the number of requests for review of denial letters;

(iv) the number of denial letter reviews which resulted in a reversal by the Director and an endorsement letter being issued; and

(v) the basis of each denial letter and the basis of each reversal of the denial letter in a particular case.

(d) (Blank).

(e) Re-adoption after an intercountry adoption.

(1) Any time after a minor child has been adopted in a foreign country and has immigrated to the United States, the adoptive parent or parents of the child may petition the court for a judgment of adoption to re-adopt the child and confirm the foreign adoption decree.

(2) The petitioner must submit to the court one or more of the following to verify the foreign adoption:

(i) an immigrant visa for the child issued by United States Citizenship and Immigration Services of the U.S. Department of Homeland Security that was valid at the time of the child's immigration;

(ii) a decree, judgment, certificate of adoption, adoption registration, or equivalent court order, entered or issued by a court of competent jurisdiction or administrative body outside the United States, establishing the relationship of parent and child by adoption; or

(iii) such other evidence deemed satisfactory by the court.

(3) The child's immigrant visa shall be prima facie proof that the adoption was established in accordance with the laws of the foreign jurisdiction and met United States requirements for immigration.

(4) If the petitioner submits documentation that satisfies the requirements of paragraph (2), the court shall not appoint a guardian ad litem for the minor who is the subject of the proceeding, shall not require any further termination of parental rights of the child's biological parents, nor shall it require any home study, investigation, post-placement visit, or background check of the petitioner.

(5) The petition may include a request for change of the child's name and any other request for specific relief that is in the best interests of the child. The relief may include a request for a revised birth date for the child if supported by evidence from a medical or dental professional attesting to the appropriate age of the child or other collateral evidence.

(6) Two adoptive parents who adopted a minor child together in a foreign country while married to one another may file a petition for adoption to re-adopt the child jointly, regardless of whether their marriage has been dissolved. If either parent whose marriage was dissolved has subsequently remarried or entered into a civil union with another person, the new spouse or civil union partner shall not join in the petition to re-adopt the child, unless the new spouse or civil union partner is seeking to adopt the child. If either adoptive parent does not join in the petition, he or she must be joined as a party defendant. The defendant parent's failure to participate in the re-adoption proceeding shall not affect the existing parental rights or obligations of the parent as they relate to the minor child, and the parent's name shall be placed on any subsequent birth record issued for the child as a result of the re-adoption proceeding.

(7) An adoptive parent who adopted a minor child in a foreign country as an unmarried person may file a petition for adoption to re-adopt the child as a sole petitioner, even if the adoptive parent has subsequently married or entered into a civil union.

(8) If one of the adoptive parents who adopted a minor child dies prior to a re-adoption proceeding, the deceased parent's name shall be placed on any subsequent birth record issued for the child as a result of the re-adoption proceeding.

(Source: P.A. 98-455, eff. 1-1-14.)

(750 ILCS 50/5) (from Ch. 40, par. 1507)

Sec. 5. Petition, contents, verification, filing.

A. A proceeding to adopt a child, other than a related child, shall be commenced by the filing of a petition within 30 days after such child has become available for adoption, provided that such petition may be filed at a later date by leave of court upon a showing that the failure to file such petition within such 30 day period was not due to the petitioners' culpable negligence or their wilful disregard of the provisions of this Section. In the case of a child born outside the United States or a territory thereof, if the prospective adoptive parents of such child have been appointed guardians of such child by a court of competent jurisdiction in a country other than the United States or a territory thereof, such parents shall file a petition as provided in this Section within 30 days after entry of the child into the United States. A petition to adopt an adult or a related child may be filed at any time. A petition for adoption may include more than one person sought to be adopted.

B. A petition to adopt a child other than a related child shall state:

(a) The full names of the petitioners and, if minors, their respective ages;

(b) The place of residence of the petitioners and the length of residence of each in the State of Illinois immediately preceding the filing of the petition;

(c) When the petitioners acquired, or intend to acquire, custody of the child, and the name and address of the persons or agency from whom the child was or will be received;

(d) The name, the place and date of birth if known, and the sex of the child sought to be adopted;

(e) The relationship, if any, of the child to each petitioner;

(f) The names, if known, and the place of residence, if known, of the parents; and whether such parents are minors, or otherwise under any legal disability. The names and addresses of the parents shall be omitted and they shall not be made parties defendant to the petition if (1) the rights of the parents have been terminated by a court of competent jurisdiction, or (2) the child has been surrendered to an agency, or (3) the parent or parents have been served with the notice provided in Section 12a of this Act and said parent or parents have filed a disclaimer of paternity as therein provided or have failed to file such declaration of paternity or a request for notice as provided in said Section, or (4) the parent is a putative father or legal father of the child who has waived his parental rights by signing a waiver as provided in subsection S of Section 10;

(g) If it is alleged that the child has no living parent, then the name of the guardian, if any, of such child and the court which appointed such guardian;

(h) If it is alleged that the child has no living parent and that no guardian of such child is known to petitioners, then the name of a near relative, if known, shall be set forth, or an allegation that no near relative is known and on due inquiry cannot be ascertained by petitioners;

(i) The name to be given the child or adult;

(j) That the person or agency, having authority to consent under Section 8 of this Act, has consented, or has indicated willingness to consent, to the adoption of the child by the petitioners, or that the person having authority to consent is an unfit person and the ground therefor, or that no consent is required under paragraph (f) of Section 8 of this Act;

(k) Whatever orders, judgments or decrees have heretofore been entered by any court affecting (1) adoption or custody of the child, or (2) the adoptive, custodial or parental rights of either petitioner, including the prior denial of any petition for adoption pertaining to such child, or to the petitioners, or either of them.

C. A petition to adopt a related child shall include the information specified in sub-paragraphs (a), (b), (d), (e), (f), (i) and (k) of paragraph B and a petition to adopt an adult shall contain the information required by sub-paragraphs (a), (b) and (i) of paragraph B in addition to the name, place, date of birth and sex of such adult.

D. The petition shall be verified by the petitioners.

E. Upon the filing of the petition the petitioners shall furnish the Clerk of the Court in which the petition is pending such information not contained in such petition as shall be necessary to enable the Clerk of such Court to complete a certificate of adoption as hereinafter provided.

F. A petition for standby adoption shall conform to the requirements of this Act with respect to petition contents, verification, and filing. The petition for standby adoption shall also state the facts concerning the consent of the child's parent to the standby adoption. A petition for standby adoption shall include the information in paragraph B if the petitioner seeks to adopt a child other than a related child. A petition for standby adoption shall include the information in paragraph C if the petitioner seeks to adopt a related child or adult.

G. A petition for adoption to re-adopt a child after an intercountry adoption shall include the information specified in sub-paragraphs (a), (b), (c), (d), (e), (i) and (k) of paragraph B.

(Source: P.A. 97-493, eff. 8-22-11.)

(750 ILCS 50/13) (from Ch. 40, par. 1516)

Sec. 13. Interim order. As soon as practicable after the filing of a petition for adoption the court shall hold a hearing for the following purposes:

A. In other than an adoption of a related child or an adoption through an agency, or of an adult:

(a) To determine the validity of the consent, provided that the execution of a consent pursuant to this Act shall be prima facie evidence of its validity, and provided that the validity of a consent shall not be affected by the omission therefrom of the names of the petitioners or adopting parents at the time the consent is executed or acknowledged, and further provided that the execution of a consent prior to the filing of a petition for adoption shall not affect its validity.

(b) To determine whether there is available suitable temporary custodial care for a child sought to be adopted.

B. In all cases except standby adoptions and re-adoptions:

(a) The court shall appoint some licensed attorney other than the State's attorney acting in his or her official capacity as guardian ad litem to represent a child sought to be adopted. Such guardian ad litem shall have power to consent to the adoption of the child, if such consent is required.

(b) The court shall appoint a guardian ad litem for all named minors or defendants who are persons under legal disability, if any.

(c) If the petition alleges a person to be unfit pursuant to the provisions of subparagraph (p) of paragraph D of Section 1 of this Act, such person shall be represented by counsel. If such person is indigent or an appearance has not been entered on his behalf at the time the matter is set for hearing, the court shall appoint as counsel for him either the Guardianship and Advocacy Commission, the public defender, or, only if no attorney from the Guardianship and Advocacy Commission or the public defender is available, an attorney licensed to practice law in this State.

(d) If it is proved to the satisfaction of the court, after such investigation as the court deems necessary, that termination of parental rights and temporary commitment of the child to an agency or to a person deemed competent by the court, including petitioners, will be for the welfare of the child, the court may order the child to be so committed and may terminate the parental rights of the parents and declare the child a ward of the court or, if it is not so proved, the court may enter such other order as it shall deem necessary and advisable.

(e) Before an interim custody order is granted under this Section, service of summons shall be had upon the parent or parents whose rights have not been terminated, except as provided in subsection (f). Reasonable notice and opportunity to be heard shall be given to the parent or parents after service of summons when the address of the parent or parents is available. The party seeking an interim custody order shall make all reasonable efforts to locate the parent or parents of the child or children they are seeking to adopt and to notify the parent or parents of the party's request for an interim custody order pursuant to this Section.

(f) An interim custody order may be granted without notice upon presentation to the court of a written petition, accompanied by an affidavit, stating that there is an immediate danger to the child and that irreparable harm will result to the child if notice is given to the parent or parents or legal guardian. Upon making a finding that there is an immediate danger to the child if service of process is had upon and notice of hearing is given to the parent or parents or legal guardian prior to the entry of an order granting temporary custody to someone other than a parent or legal guardian, the court may enter an order of temporary custody which shall expire not more than 10 days after its entry. Every ex parte custody order granted without notice shall state the injury which the court sought to avoid by granting the order, the irreparable injury that would have occurred had notice been given, and the reason the order was granted without notice. The matter shall be set down for full hearing before the expiration of the ex parte order and will be heard after service of summons is had upon and notice of hearing is given to the parent or parents or legal guardian. At the hearing the burden of proof shall be upon the party seeking to extend the interim custody order to show that the order was properly granted without notice and that custody should remain with the party seeking to adopt during the pendency of the adoption proceeding. If the interim custody order is extended, the reasons for granting the extension shall be stated in the order.

C. In the case of a child born outside the United States or a territory thereof, if the petitioners have previously been appointed guardians of such child by a court of competent jurisdiction in a country other than the United States or a territory thereof, the court may order that the petitioners continue as guardians of such child.

D. In standby adoption cases:

(a) The court shall appoint a licensed attorney other than the State's Attorney acting in his or her official capacity as guardian ad litem to represent a child sought to be adopted. The guardian ad litem shall have power to consent to the adoption of the child, if consent is required.

(b) The court shall appoint a guardian ad litem for all named minors or defendants who are persons under legal disability, if any.

(c) The court lacks jurisdiction to proceed on the petition for standby adoption if the child has a living parent, adoptive parent, or adjudicated parent whose rights have not been terminated and whose whereabouts are known, unless the parent consents to the standby adoption or, after receiving notice of the hearing on the standby adoption petition, fails to object to the appointment of a standby adoptive parent at the hearing on the petition.

(d) The court shall investigate as needed for the welfare of the child and shall determine whether the petitioner or petitioners shall be permitted to adopt.

(Source: P.A. 90-14, eff. 7-1-97; 90-349, eff. 1-1-98; 91-572, eff. 1-1-00.)