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 9  AN ACT concerning adoption; relating to consent; temporary orders and
10    custody; relinquishment; amending K.S.A. 59-2114, 59-2124, 59-2131,
11    59-2134 and 59-2136 and repealing the existing sections; also repealing
12    K.S.A. 59-2123.
13
14  Be it enacted by the Legislature of the State of Kansas:
15    Section 1.  K.S.A. 59-2114 is hereby amended to read as follows: 59-
16  2114. (a) Consent shall be in writing and shall be acknowledged before a
17  judge of a court of record or before an officer authorized by law to take
18  acknowledgments. If consent is acknowledged before a judge of a court
19  of record, it shall be the duty of the court to advise the consenting person
20  of the consequences of the consent. A consent is final when executed,
21  unless the consenting party, prior to final decree of adoption, alleges and
22  proves by clear and convincing evidence that the consent was not freely
23  and voluntarily given. The burden of proving the consent was not freely
24  and voluntarily given shall rest with the consenting party.
25    (b)  Consent in all cases, including the biological father's consent, shall
26  have been executed not more than six months prior to the date the pe-
27  tition for adoption is filed.
28    Sec. 2.  K.S.A. 59-2124 is hereby amended to read as follows: 59-
29  2124. (a) Any parent or parents or person in loco parentis may relinquish
30  a child to an agency, and if the agency accepts the relinquishment in
31  writing, the agency shall stand in loco parentis to the child and shall have
32  and possess over the child all rights of a parent or legal guardian, including
33  the power to place the child for adoption and give consent thereto.
34    (b)  All relinquishments to an agency under K.S.A. 59-2111 through
35  59-2143, and amendments thereto, shall be in writing, in substantial con-
36  formity with the form for relinquishment contained in the appendix of
37  forms following K.S.A. 59-2143, and amendments thereto, and shall be
38  executed by: (1) Both parents of the child; (2) one parent, if the other
39  parent is deceased or the other parent's relinquishment is found unnec-
40  essary under K.S.A. 59-2136, and amendments thereto; or (3) a person
41  in loco parentis.
42    (c)  The relinquishment shall be in writing and shall be acknowledged
43  before a judge of a court of record or before an officer authorized by law
SB 271
                                     

 1  to take acknowledgments. If the relinquishment is acknowledged before
 2  a judge of a court of record, it shall be the duty of the court to advise the
 3  relinquishing person of the consequences of the relinquishment.
 4    (d)  Except as otherwise provided, in all cases where a parent or per-
 5  son in loco parentis has relinquished a child to the agency pursuant to
 6  K.S.A. 59-2111 through 59-2143, and amendments thereto, all the rights
 7  of the parent or person in loco parentis shall be terminated, including the
 8  right to receive notice in a subsequent adoption proceeding involving the
 9  child. If a parent has relinquished a child to the agency pursuant to K.S.A.
10  59-2111 through 59-2143, and amendments thereto, based on a belief
11  that the child's other parent would relinquish the child to the agency, and
12  such and the other parent does not relinquish such child to the agency,
13  or such parent's rights are not terminated under K.S.A. 59-2136 and
14  amendments thereto, the rights of such parent who has relinquished a
15  child to the agency shall not be terminated. Upon such relinquishment,
16  all the rights of birth parents to such child, including their right to inherit
17  from or through such child, shall cease.
18    (e)  A parent's relinquishment of a child shall not terminate the right
19  of the child to inherit from or through such parent.
20    Sec. 3.  K.S.A. 59-2131 is hereby amended to read as follows: 59-
21  2131. Pending the hearing in an independent or agency adoption, the
22  court may make an appropriate order for the care and custody of the
23  child. If the court makes an order for placement in a home not licensed
24  to provide such care, then the home shall first be assessed by a person or
25  agency authorized to make assessments under subsection (a) or (f) of
26  K.S.A. 59-2132 and amendments thereto. In the absence of a preplace-
27  ment assessment, the court may make an order for placement in a home
28  not licensed to provide for the care and custody of the child following an
29  evidentiary hearing which shall include testimony by the petitioners. Such
30  hearing shall be heard and determined by the court as expeditiously as
31  possible. A temporary order shall stay any paternity action until the court
32  grants or denies the adoption petition.
33    Sec. 4.  K.S.A. 59-2134 is hereby amended to read as follows: 59-
34  2134. (a) Upon the hearing of the petition, the court shall consider the
35  assessment and all evidence, including evidence relating to determination
36  of whether or not the court should exercise its jurisdiction as provided in
37  K.S.A. 59-2127 and amendments thereto offered by any interested party.
38  If the adoption is granted, the court shall make a final decree of adoption.
39  The court shall meet with a nonresident adoptive parent or parents when
40  the petition is filed and not require an appearance at the hearing absent
41  special circumstances. The child and petitioners shall remain subject to
42  the court's jurisdiction until the entry of the final decree of adoption.
43    (b)  If the adoption is denied, the court shall enter appropriate orders.
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 1  Such orders may include an order giving temporary custody of the child
 2  to another person or agency for a period not to exceed 30 days pending
 3  termination of the instant case or a new case being filed. as follows:  (1)
 4  Where the child was not in the physical custody of the prospective adop-
 5  tive parent or parents for 60 days before the challenge to the adoption
 6  was filed, custody may be given to another person or agency for a period
 7  not to exceed 30 days pending termination of the instant case or a new
 8  case is filed; or
 9    (2)  where the child was in the custody of the prospective parent or
10  parents for 60 days before the challenge to the adoption was filed or in
11  the event of an appeal from an order terminating parental rights, custody
12  shall remain with the prospective adoptive parents unless the person chal-
13  lenging the adoption establishes by clear and convincing evidence that
14  changing custody or allowing reasonable rights of visitation are in the
15  child's best interest.
16    (c)  The costs of the adoption proceedings shall be paid by the peti-
17  tioner or as assessed by the court, except that the petitioner shall not be
18  assessed the costs or fees of a party objecting to the adoption.
19    Sec. 5.  K.S.A. 59-2136 is hereby amended to read as follows: 59-
20  2136. (a) The provisions of this section shall apply where a relinquishment
21  or consent to an adoption has not been obtained from a parent and K.S.A.
22  59-2124 and 59-2129, and amendments thereto, state that the necessity
23  of a parent's relinquishment or consent can be determined under this
24  section.
25    (b)  Insofar as practicable, the provisions of this section applicable to
26  the father also shall apply to the mother and those applicable to the
27  mother also shall apply to the father.
28    (c)  In stepparent adoptions under subsection (d), the court may ap-
29  point an attorney to represent any father who is unknown or whose
30  whereabouts are unknown. In all other cases, the court shall appoint an
31  attorney to represent any father who is unknown or whose whereabouts
32  are unknown. If no person is identified as the father or a possible father,
33  the court shall order publication notice of the hearing in such manner as
34  the court deems appropriate.
35    (d)  In a stepparent adoption, if a mother consents to the adoption of
36  a child who has a presumed father under subsection (a)(1), (2) or (3) of
37  K.S.A. 38-1114 and amendments thereto, or who has a father as to whom
38  the child is a legitimate child under prior law of this state or under the
39  law of another jurisdiction, the consent of such father must be given to
40  the adoption unless such father has failed or refused to assume the duties
41  of a parent for two consecutive years next preceding the filing of the
42  petition for adoption or, is incapable of giving such consent or is unfit as
43  a parent. In determining whether a father's consent is required under
SB 271
                                     

 1  this subsection, the court may disregard incidental visitations, contacts,
 2  communications or contributions. In determining whether the father has
 3  failed or refused to assume the duties of a parent for two consecutive
 4  years next preceding the filing of the petition for adoption, there shall be
 5  a rebuttable presumption that if the father, after having knowledge of the
 6  child's birth, has knowingly failed to provide a substantial portion of the
 7  child support as required by judicial decree, when financially able to do
 8  so, for a period of two years next preceding the filing of the petition for
 9  adoption, then such father has failed or refused to assume the duties of
10  a parent.
11    (e)  Except as provided in subsection (d), if a mother desires to relin-
12  quish or consents to the adoption of such mother's child, a petition shall
13  be filed in the district court to terminate the parental rights of the father,
14  unless the father's relationship to the child has been previously termi-
15  nated or determined not to exist by a court. The petition may be filed by
16  the mother, the petitioner for adoption, the person or agency having
17  custody of the child or the agency to which the child has been or is to be
18  relinquished. Where appropriate, the request to terminate parental rights
19  may be contained in a petition for adoption. If the request to terminate
20  parental rights is not filed in connection with an adoption proceeding,
21  venue shall be in the county in which the child, the mother or the pre-
22  sumed or alleged father resides or is found. In an effort to identify the
23  father, the court shall determine by deposition, affidavit or hearing, the
24  following:
25    (1)  Whether there is a presumed father under K.S.A. 38-1114 and
26  amendments thereto;
27    (2)  whether there is a father whose relationship to the child has been
28  determined by a court;
29    (3)  whether there is a father as to whom the child is a legitimate child
30  under prior law of this state or under the law of another jurisdiction;
31    (4)  whether the mother was cohabitating with a man at the time of
32  conception or birth of the child;
33    (5)  whether the mother has received support payments or promises
34  of support with respect to the child or in connection with such mother's
35  pregnancy; and
36    (6)  whether any man has formally or informally acknowledged or de-
37  clared such man's possible paternity of the child.
38  If the father is identified to the satisfaction of the court, or if more than
39  one man is identified as a possible father, each shall be given notice of
40  the proceeding in accordance with subsection (f).
41    (f)  Notice of the proceeding shall be given to every person identified
42  as the father or a possible father by personal service, certified mail return
43  receipt requested or in any other manner the court may direct. Proof of
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 1  notice shall be filed with the court before the petition or request is heard.
 2    (g)  If, after the inquiry, the court is unable to identify the father or
 3  any possible father and no person has appeared claiming to be the father
 4  and claiming custodial rights, the court shall enter an order terminating
 5  the unknown father's parental rights with reference to the child without
 6  regard to subsection (h). If any person identified as the father or possible
 7  father of the child fails to appear or, if appearing, fails to claim custodial
 8  rights, such person's parental rights with reference to the child shall be
 9  terminated without regard to subsection (h).
10    (h)  When a father or alleged father appears and asserts parental
11  rights, the court shall determine parentage, if necessary pursuant to the
12  Kansas parentage act. If a father desires but is financially unable to em-
13  ploy an attorney, the court shall appoint an attorney for the father. There-
14  after, the court may order that parental rights be terminated, upon a
15  finding by clear and convincing evidence, of any of the following:
16    (1)  The father abandoned or neglected the child after having knowl-
17  edge of the child's birth;
18    (2)  the father is unfit as a parent or incapable of giving consent;
19    (3)  the father has made no reasonable efforts to support or commu-
20  nicate with the child after having knowledge of the child's birth;
21    (4)  the father, after having knowledge of the pregnancy, failed with-
22  out reasonable cause to provide support for the mother during the six
23  months prior to the child's birth;
24    (5)  the father abandoned the mother after having knowledge of the
25  pregnancy;
26    (6)  the birth of the child was the result of rape of the mother; or
27    (7)  the father has failed or refused to assume the duties of a parent
28  for two consecutive years next preceding the filing of the petition.
29    In making a finding under this subsection, the court may disregard
30  incidental visitations, contacts, communications or contributions. In de-
31  termining whether the father has failed or refused to assume the duties
32  of a parent for two consecutive years next preceding the filing of the
33  petition for adoption, there shall be a rebuttable presumption that if the
34  father, after having knowledge of the child's birth, has knowingly failed
35  to provide a substantial portion of the child support as required by judicial
36  decree, when financially able to do so, for a period of two years next
37  preceding the filing of the petition for adoption, then such father has
38  failed or refused to assume the duties of a parent.
39    (i)  A termination of parental rights under this section shall not ter-
40  minate the right of the child to inherit from or through the parent. Upon
41  such termination, all the rights of birth parents to such child, including
42  their right to inherit from or through such child, shall cease.
43    Sec. 6.  K.S.A. 59-2114, 59-2123, 59-2124, 59-2131, 59-2134 and 59-
SB 271
                                     

 1  2136 are hereby repealed.
 2    Sec. 7.  This act shall take effect and be in force from and after its
 3  publication in the statute book.