Kansas Bill # 355

SB 355
SENATE BILL No. 355
By Committee on Ways and Means
3-23
AN ACT concerning the Kansas code for care of children; relating to
permanent guardians; hearings; amending K.S.A. 38-1542 and K.S.A.
1998 Supp. 38-1502, 38-1528, 38-1543, 38-1562, 38-1565 and 38-1583
and repealing the existing sections; also repealing K.S.A. 1998 Supp.
38-1502c.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 1998 Supp. 38-1502 is hereby amended to read as
follows:38-1502. As used in this code, unless the context otherwise
indicates:
(a) "Child in need of care" means a person less than 18 years of age
who:
(1) Is without adequate parental care, control or subsistence and the
condition is not due solely to the lack of financial means of the child's
parents or other custodian;
(2) is without the care or control necessary for the child's physical,
mental or emotional health;
(3) has been physically, mentally or emotionally abused or neglected
or sexually abused;
(4) has been placed for care or adoption in violation of law;
(5) has been abandoned or does not have a known living parent;
(6) is not attending school as required by K.S.A. 72-977 or 72-1111,
and amendments thereto;
(7) except in the case of a violation of K.S.A. 41-727, subsection (j)
of K.S.A. 74-8810 or subsection (m) or (n) of K.S.A. 79-3321, and amend-
ments thereto, or, except as provided in subsection (a)(12) of K.S.A. 21-
4204a and amendments thereto, does an act which, when committed by
a person under 18 years of age, is prohibited by state law, city ordinance
or county resolution but which is not prohibited when done by an adult;
(8) while less than 10 years of age, commits any act which if done by
an adult would constitute the commission of a felony or misdemeanor as
defined by K.S.A. 21-3105 and amendments thereto;
(9) is willfully and voluntarily absent from the child's home without
the consent of the child's parent or other custodian;
(10) is willfully and voluntarily absent at least a second time from a

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court ordered or designated placement, or a placement pursuant to court
order, if the absence is without the consent of the person with whom the
child is placed or, if the child is placed in a facility, without the consent
of the person in charge of such facility or such person's designee;
(11) has been residing in the same residence with a sibling or another
person under 18 years of age, who has been physically, mentally or emo-
tionally abused or neglected, or sexually abused; or
(12) while less than 10 years of age commits the offense defined in
K.S.A. 21-4204a and amendments thereto.
(b) "Physical, mental or emotional abuse or neglect" means the in-
fliction of physical, mental or emotional injury or the causing of a dete-
rioration of a child and may include, but shall not be limited to, failing to
maintain reasonable care and treatment, negligent treatment or maltreat-
ment or exploiting a child to the extent that the child's health or emotional
well-being is endangered. A parent legitimately practicing religious beliefs
who does not provide specified medical treatment for a child because of
religious beliefs shall not for that reason be considered a negligent parent;
however, this exception shall not preclude a court from entering an order
pursuant to subsection (a)(2) of K.S.A. 38-1513 and amendments thereto.
(c) "Sexual abuse" means any act committed with a child which is
described in article 35, chapter 21 of the Kansas Statutes Annotated and
those acts described in K.S.A. 21-3602 or 21-3603, and amendments
thereto, regardless of the age of the child.
(d) "Parent," when used in relation to a child or children, includes a
guardian, conservator and every person who is by law liable to maintain,
care for or support the child.
(e) "Interested party" means the state, the petitioner, the child, any
parent and any person found to be an interested party pursuant to K.S.A.
38-1541 and amendments thereto.
(f) "Law enforcement officer" means any person who by virtue of
office or public employment is vested by law with a duty to maintain
public order or to make arrests for crimes, whether that duty extends to
all crimes or is limited to specific crimes.
(g) "Youth residential facility" means any home, foster home or struc-
ture which provides 24-hour-a-day care for children and which is licensed
pursuant to article 5 of chapter 65 of the Kansas Statutes Annotated.
(h) "Shelter facility" means any public or private facility or home
other than a juvenile detention facility that may be used in accordance
with this code for the purpose of providing either temporary placement
for the care of children in need of care prior to the issuance of a dispos-
itional order or longer term care under a dispositional order.
(i) "Juvenile detention facility" means any secure public or private
facility used for the lawful custody of accused or adjudicated juvenile

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offenders which must not be a jail.
(j) "Adult correction facility" means any public or private facility, se-
cure or nonsecure, which is used for the lawful custody of accused or
convicted adult criminal offenders.
(k) "Secure facility" means a facility which is operated or structured
so as to ensure that all entrances and exits from the facility are under the
exclusive control of the staff of the facility, whether or not the person
being detained has freedom of movement within the perimeters of the
facility, or which relies on locked rooms and buildings, fences or physical
restraint in order to control behavior of its residents. No secure facility
shall be in a city or county jail.
(l) "Ward of the court" means a child over whom the court has ac-
quired jurisdiction by the filing of a petition pursuant to this code and
who continues subject to that jurisdiction until the petition is dismissed
or the child is discharged as provided in K.S.A. 38-1503 and amendments
thereto.
(m) "Custody," whether temporary, protective or legal, means the
status created by court order or statute which vests in a custodian,
whether an individual or an agency, the right to physical possession of
the child and the right to determine placement of the child, subject to
restrictions placed by the court.
(n) "Placement" means the designation by the individual or agency
having custody of where and with whom the child will live.
(o) "Secretary" means the secretary of social and rehabilitation
services.
(p) "Relative" means a person related by blood, marriage or adoption
but, when referring to a relative of a child's parent, does not include the
child's other parent.
(q) "Court-appointed special advocate" means a responsible adult
other than an attorney guardian ad litem who is appointed by the court
to represent the best interests of a child, as provided in K.S.A. 38-1505a
and amendments thereto, in a proceeding pursuant to this code.
(r) "Multidisciplinary team" means a group of persons, appointed by
the court or by the state department of social and rehabilitation services
under K.S.A. 38-1523a and amendments thereto, which has knowledge
of the circumstances of a child in need of care.
(s) "Jail" means:
(1) An adult jail or lockup; or
(2) a facility in the same building or on the same grounds as an adult
jail or lockup, unless the facility meets all applicable standards and licen-
sure requirements under law and there is (A) total separation of the ju-
venile and adult facility spatial areas such that there could be no haphaz-
ard or accidental contact between juvenile and adult residents in the

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respective facilities; (B) total separation in all juvenile and adult program
activities within the facilities, including recreation, education, counseling,
health care, dining, sleeping, and general living activities; and (C) separate
juvenile and adult staff, including management, security staff and direct
care staff such as recreational, educational and counseling.
(t) "Kinship care" means the placement of a child in the home of the
child's relative or in the home of another adult with whom the child or
the child's parent already has a close emotional attachment.
(u) "Juvenile intake and assessment worker" means a responsible
adult authorized to perform intake and assessment services as part of the
intake and assessment system established pursuant to K.S.A. 75-7023, and
amendments thereto.
(v) "Abandon" means to forsake, desert or cease providing care for
the child without making appropriate provisions for substitute care.
(w) "Permanent guardianship" means a judicially created relationship
between child and caretaker which is intended to be permanent and self-
sustaining without ongoing state oversight or intervention. The perma-
nent guardian stands in loco parentis and exercises all the rights and
responsibilities of a parent. When parental rights are not terminated, par-
ents remain responsible for financial support. Upon appointment of a
permanent guardian, the child in need of care proceedings shall be dis-
missed. A permanent guardian may be appointed after termination of
parental rights.
(x) "Aggravated circumstances" means the abandonment, torture,
chronic abuse, sexual abuse or chronic, life threatening neglect of a child.
(y) "Permanency hearing" means a notice and opportunity to be
heard is provided to interested parties, foster parents, preadoptive parents
or relatives providing care for the child. The court, after consideration of
the evidence, shall determine whether progress toward the case plan goal
is adequate or reintegration is a viable alternative, or if the case should
be referred to the county or district attorney for filing of a petition to
terminate parental rights or to appoint a permanent guardian.
(z) "Extended out of home placement" means a child has been in the
custody of the secretary and placed with neither parent for 15 of the most
recent 22 months beginning 60 days after the date at which a child in the
custody of the secretary was removed from the home.
(aa) "Educational institution" means all schools at the elementary and
secondary levels.
(bb) "Educator" means any administrator, teacher or other profes-
sional or paraprofessional employee of an educational institution who has
exposure to a pupil specified in subsection (a)(1) through (5) of K.S.A. 72-
89b03 and amendments thereto.
Sec. 2. K.S.A. 1998 Supp. 38-1528 is hereby amended to read as

5
follows:38-1528. (a) To the extent possible, when any law enforcement
officer takes into custody a child under the age of 18 years, without a
court order, the child shall forthwith be delivered to the custody of the
child's parent or other custodian unless there are reasonable grounds to
believe that such action would not be in the best interests of the child.
Except as provided in subsection (b), if the child is not delivered to the
custody of the child's parent or other custodian, the child shall forthwith
be delivered to a facility or person designated by the secretary or to a
court designated shelter facility, court services officer, juvenile intake and
assessment worker, licensed attendant care center or other person. If,
after delivery of the child to a shelter facility, the person in charge of the
shelter facility at that time and the law enforcement officer determine
that the child will not remain in the shelter facility, the law enforcement
officer shall deliver the child to a juvenile detention facility or other secure
facility, designated by the court, where the child shall be detained for not
more than 24 hours, excluding Saturdays, Sundays and legal holidays. It
shall be the duty of the law enforcement officer to furnish to the county
or district attorney, without unnecessary delay, all the information in the
possession of the officer pertaining to the child, the child's parents or
other persons interested in or likely to be interested in the child and all
other facts and circumstances which caused the child to be taken into
custody.
(b) When any law enforcement officer takes into custody any child as
provided in subsection (c) of K.S.A. 38-1527 and amendments thereto,
proceedings shall be initiated in accordance with the provisions of the
interstate compact on juveniles, K.S.A. 38-1001 et seq. and amendments
thereto. Any child taken into custody pursuant to the interstate compact
on juveniles may be detained in a juvenile detention facility or other
secure facility.
(c) Whenever a child under the age of 18 years is taken into custody
by a law enforcement officer without a court order and is thereafter
placed in the custody of a shelter facility, court services officer, juvenile
intake and assessment worker, licensed attendant care center or other
person as authorized by this code, the facility or person shall have physical
custody and provide care and supervision for the child upon written ap-
plication of the law enforcement officer. The application shall state:
(1) The name and address of the child, if known;
(2) the names and addresses of the child's parents or nearest relatives
and persons with whom the child has been residing, if known; and
(3) the officer's belief that the child is a child in need of care and that
there are reasonable grounds to believe that the circumstances or con-
dition of the child is such that, unless the child is placed in the immediate
custody of the shelter facility or other person, it would be harmful to the

6
child.
(d) A copy of the application shall be furnished by the facility or
person receiving the child to the county or district attorney without un-
necessary delay.
(e) The shelter facility or other person designated by the court who
has custody of the child pursuant to this section shall discharge the child
not later than 48 72 hours following admission, excluding Saturdays, Sun-
days and legal holidays, unless a court has entered an order pertaining to
temporary custody or release.
(f) In absence of a court order to the contrary, the county or district
attorney or the placing law enforcement agency shall have the authority
to direct at any time the release of the child.
(g) When any law enforcement officer takes into custody any child as
provided in subsection (d) of K.S.A. 38-1527, and amendments thereto,
the child shall forthwith be delivered to the school in which the child is
enrolled, any location designated by the school in which the child is en-
rolled to address truancy issues or the child's parent or other custodian.
Sec. 3. K.S.A. 38-1542 is hereby amended to read as follows:38-
1542. (a) The court upon verified application may issue ex parte an order
directing that a child be held in protective custody and, if the child has
not been taken into custody, an order directing that the child be taken
into custody. The application shall state:
(1) The applicant's belief that the child is a child in need of care and
is likely to sustain harm if not immediately afforded protective custody;
and
(2) the specific facts which are relied upon to support the belief.
(b) (1) The order of protective custody may be issued only after the
court has determined there is probable cause to believe the allegations
in the application are true. The order shall remain in effect until the
temporary custody hearing provided for in K.S.A. 38-1543 and amend-
ments thereto, unless earlier rescinded by the court.
(2) Prior to July 1, 1993, No child shall be held in protective custody
for more than 72 hours, excluding Saturdays, Sundays and legal holidays,
unless within the 72-hour period a determination is made as to the ne-
cessity for temporary custody in a temporary custody hearing. Nothing in
this subsection (b)(2) shall be construed to mean that the child must
remain in protective custody for 72 hours.
(3) On and after July 1, 1993, no child shall be held in protective
custody for more than 48 hours, excluding Saturdays, Sundays and legal
holidays, unless within the 48-hour period a determination is made as to
the necessity for temporary custody in a temporary custody hearing.
Nothing in this subsection (b)(3) shall be construed to mean that the child
must remain in protective custody for 48 hours.

7
(c) Whenever the court determines the necessity for an order of pro-
tective custody, the court may place the child in the protective custody
of: (1) A parent or other person having custody of the child and may enter
a restraining order pursuant to subsection (d); (2) a person, other than
the parent or other person having custody, who shall not be required to
be licensed under article 5 of chapter 65 of the Kansas Statutes Anno-
tated; (3) a youth residential facility; or (4) the secretary. When the child
is placed in the protective custody of the secretary, the secretary shall
have the discretionary authority to place the child with a parent or to
make other suitable placement for the child. When circumstances re-
quire, a child in protective custody may be placed in a juvenile detention
facility or other secure facility pursuant to an order of protective custody
for not to exceed 24 hours, excluding Saturdays, Sundays and legal
holidays.
(d) The order of protective custody shall be served on the child's
parents and any other person having legal custody of the child. The order
shall prohibit all parties from removing the child from the court's juris-
diction without the court's permission.
(e) If the court issues an order of protective custody, the court may
also enter an order restraining any alleged perpetrator of physical, sexual,
mental or emotional abuse of the child from residing in the child's home;
visiting, contacting, harassing or intimidating the child; or attempting to
visit, contact, harass or intimidate the child. Such restraining order shall
be served on any alleged perpetrator to whom the order is directed.
(f) The court shall not enter an order removing a child from the
custody of a parent pursuant to this section unless the court first finds
from evidence presented by the petitioner that reasonable efforts have
been made to prevent or eliminate the need for removal of the child or
that an emergency exists which threatens the safety of the child and re-
quires the immediate removal of the child. Such findings shall be included
in any order entered by the court.
Sec. 4. K.S.A. 1998 Supp. 38-1543 is hereby amended to read as
follows:38-1543. (a) Upon notice and hearing, the court may issue an
order directing who shall have temporary custody and may modify the
order during the pendency of the proceedings as will best serve the child's
welfare.
(b) A hearing hereunder pursuant to this section shall be held within
48 72 hours, excluding Saturdays, Sundays and legal holidays, following a
child having been taken into protective custody.
(c) Whenever it is determined that a temporary custody hearing is
required, the court shall immediately set the time and place for the hear-
ing. Notice of a temporary custody hearing shall be in substantially the
following form:

8
(Name of Court)
(Caption of Case)
NOTICE OF TEMPORARY CUSTODY HEARING
TO:
(Names)(Relationship)(Addresses)
On , , 19, at o'clock m. the court will
(day)(date)
conduct a hearing at to determine if the above named child
or children should be in the temporary custody of some person or agency other than the
parent or other person having legal custody prior to the hearing on the petition filed in the
above captioned case. The court may order one or both parents to pay child support.
, an attorney, has been appointed as guardian ad litem for the child
or children. Each parent or other legal custodian has the right to appear and be heard
personally, either with or without an attorney. An attorney will be appointed for a parent
who can show that the parent is not financially able to hire one.
Date , 19
Clerk of the District Court
by
(Seal)
REPORT OF SERVICE
I certify that I have delivered a true copy of the above notice to the persons above named
in the manner and at the times indicated below:
NameLocation of ServiceManner of ServiceDateTime
(other than above)
Date Returned , 19
(Signature)
(Title)
(d) Notice of the temporary custody hearing shall be given at least
24 hours prior to the hearing. The court may continue the hearing to
afford the 24 hours prior notice or, with the consent of the party, proceed
with the hearing at the designated time. If an order of temporary custody
is entered and the parent or other person having custody of the child has
not been notified of the hearing, did not appear or waive appearance and
requests a rehearing, the court shall rehear the matter without unnec-
essary delay.
(e) Oral notice may be used for giving notice of a temporary custody
hearing where there is insufficient time to give written notice. Oral notice

9
is completed upon filing a certificate of oral notice in substantially the
following form:
(Name of Court)
(Caption of Case)
CERTIFICATE OF ORAL NOTICE OF TEMPORARY CUSTODY HEARING
I gave oral notice that the court will conduct a hearing at o'clock m. on
, 19, to the persons listed, in the manner and at the times indicated
below:
NameRelationshipDateTimeMethod of Communication
(in person or telephone)
I advised each of the above persons that:
(1) The hearing is to determine if the above child or children should be in the temporary
custody of a person or agency other than a parent;
(2) the court will appoint an attorney to serve as guardian ad litem for the child or
children named above;
(3) each parent or legal custodian has the right to appear and be heard personally either
with or without an attorney;
(4) an attorney will be appointed for a parent who can show that the parent is not
financially able to hire an attorney; and
(5) the court may order one or both parents to pay child support.
(Signature)
(Name Printed)
(Title)
(f) The court may enter an order of temporary custody after deter-
mining that: (1) The child is dangerous to self or to others; (2) the child
is not likely to be available within the jurisdiction of the court for future
proceedings; or (3) the health or welfare of the child may be endangered
without further care.
(g) Whenever the court determines the necessity for an order of tem-
porary custody the court may place the child in the temporary custody
of: (1) A parent or other person having custody of the child and may enter
a restraining order pursuant to subsection (h); (2) a person, other than
the parent or other person having custody, who shall not be required to
be licensed under article 5 of chapter 65 of the Kansas Statutes Anno-
tated; (3) a youth residential facility; or (4) the secretary. When the child
is placed in the temporary custody of the secretary, the secretary shall
have the discretionary authority to place the child with a parent or to

10
make other suitable placement for the child. When circumstances re-
quire, a child may be placed in a juvenile detention facility or other secure
facility, but the total amount of time that the child may be held in such
facility under this section and K.S.A. 38-1542 and amendments thereto
shall not exceed 24 hours, excluding Saturdays, Sundays and legal holi-
days. The order of temporary custody shall remain in effect until modified
or rescinded by the court or a disposition order is entered but not ex-
ceeding 60 days, unless good cause is shown and stated on the record.
(h) If the court issues an order of temporary custody, the court may
enter an order restraining any alleged perpetrator of physical, sexual,
mental or emotional abuse of the child from residing in the child's home;
visiting, contacting, harassing or intimidating the child; or attempting to
visit, contact, harass or intimidate the child.
(i) The court shall not enter an order removing a child from the cus-
tody of a parent pursuant to this section unless the court first finds from
evidence presented by the petitioner that reasonable efforts have been
made to prevent or eliminate the need for removal of the child or that
an emergency exists which threatens the safety of the child and requires
the immediate removal of the child. Such findings shall be included in
any order entered by the court.
Sec. 5. K.S.A. 1998 Supp. 38-1562 is hereby amended to read as
follows:38-1562. (a) At any time after a child has been adjudicated to be
a child in need of care and prior to disposition, the judge shall permit any
interested parties, and any persons required to be notified pursuant to
subsection (b), to be heard as to proposals for appropriate disposition of
the case.
(b) Before entering an order placing the child in the custody of a
person other than the child's parent, the court shall require notice of the
time and place of the hearing to be given to all the child's grandparents
at their last known addresses or, if no grandparent is living or if no living
grandparent's address is known, to the closest relative of each of the
child's parents whose address is known, and to the foster parent, prea-
doptive parent or relative providing care. Such notice shall be given by
restricted mail not less than 10 business days before the hearing and shall
state that the person receiving the notice shall have an opportunity to be
heard at the hearing. The provisions of this subsection shall not require
additional notice to any person otherwise receiving notice of the hearing
pursuant to K.S.A. 38-1536 and amendments thereto. Individuals receiv-
ing notice pursuant to this subsection shall not be made a party to the
action solely on the basis of this notice and opportunity to be heard.
(c) Prior to entering an order of disposition, the court shall give con-
sideration to the child's physical, mental and emotional condition; the
child's need for assistance; the manner in which the parent participated

11
in the abuse, neglect or abandonment of the child; any relevant infor-
mation from the intake and assessment process; and the evidence re-
ceived at the dispositional hearing. In determining when reunification is
a viable alternative, the court shall specifically consider whether the par-
ent has been found by a court to have: (1) Committed murder in the first
degree, K.S.A. 21-3401 and amendments thereto, murder in the second
degree, K.S.A. 21-3402 and amendments thereto, capital murder, K.S.A.
21-3439 and amendments thereto, voluntary manslaughter, K.S.A. 21-
3403 and amendments thereto or violated a law of another state which
prohibits such murder or manslaughter of a child; (2) aided or abetted,
attempted, conspired or solicited to commit such murder or voluntary
manslaughter of a child as provided in subsection (c)(1); (3) committed a
felony battery that resulted in bodily injury to the child or another child;
(4) subjected the child or another child to aggravated circumstances as
defined in subsection (x) of K.S.A. 38-1502 and amendments thereto; (5)
parental rights of the parent to another child have been terminated in-
voluntarily; or (6) the child has been in extended out of home placement
as defined in subsection (z) of K.S.A. 38-1502 and amendments thereto.
If reintegration is not a viable alternative, the court shall consider whether
a compelling reason has been documented in the case plan to find neither
adoption nor permanent guardianship are in the best interests of the
child, the child is in a stable placement with a relative, or services set out
in the case plan necessary for the safe return of the child have been made
available to the parent with whom reintegration is planned. If reintegra-
tion is not a viable alternative and either adoption or permanent guardi-
anship might be in the best interests of the child, the county or district
attorney or the county or district attorney's designee shall file a motion
to terminate parental rights or permanent guardianship within 30 days
and the court shall set a hearing on such motion within 90 days of the
filing of such motion. No such hearing is required when the parents vol-
untarily relinquish parental rights or agree to appointment of a perma-
nent guardian.
Sec. 6. K.S.A. 1998 Supp. 38-1565 is hereby amended to read as
follows:38-1565. (a) If a child is placed outside the child's home and no
plan is made a part of the record of the dispositional hearing, a written
plan shall be prepared which provides for reintegration of the child into
the child's family or, if reintegration is not a viable alternative, for other
placement of the child. Reintegration may not be a viable alternative
when the: (1) Parent has been found by a court to have committed murder
in the first degree, K.S.A. 21-3401 and amendments thereto, murder in
the second degree, K.S.A. 21-3402 and amendments thereto, capital mur-
der, K.S.A. 21-3439 and amendments thereto, voluntary manslaughter,
K.S.A. 21-3403 and amendments thereto or violated a law of another state

12
which prohibits such murder or manslaughter of a child; (2) parent aided
or abetted, attempted, conspired or solicited to commit such murder or
voluntary manslaughter of a child as provided in subsection (a)(1); (3)
parent committed a felony battery that resulted in bodily injury to the
child or another child; (4) parent has subjected the child or another child
to aggravated circumstances as defined in subsection (x) of K.S.A. 38-
1502, and amendments thereto; (5) parental rights of the parent to an-
other child have been terminated involuntarily; or (6) the child has been
in extended out of home placement as defined in subsection (z) of K.S.A.
38-1502 and amendments thereto. If the goal is reintegration into the
family, the plan shall include measurable objectives and time schedules
for reintegration. The plan shall be submitted to the court not later than
30 days after the dispositional order is entered. If the child is placed in
the custody of the secretary, the plan shall be prepared and submitted by
the secretary. If the child is placed in the custody of a facility or person
other than the secretary, the plan shall be prepared and submitted by a
court services officer.
(b) A court services officer or, if the child is in the secretary's custody,
the secretary shall submit to the court, at least every six months, a written
report of the progress being made toward the goals of the plan submitted
pursuant to subsection (a). If the child is placed in foster care, the foster
parent or parents shall submit to the court, at least every six months, a
report in regard to the child's adjustment, progress and condition. The
department of social and rehabilitation services shall notify the foster
parent or parents of the foster parent's or parent's duty to submit such
report, on a form provided by the department of social and rehabilitation
services, at least two weeks prior to the date when the report is due, and
the name of the judge and the address of the court to which the report
is to be submitted. Such report shall be confidential and shall only be
reviewed by the court and the child's guardian ad litem. The court shall
review the progress being made toward the goals of the plan and the
foster parent report and, if the court determines that progress is inade-
quate or that the plan is no longer viable, the court shall hold a hearing
pursuant to subsection (c). If the secretary has custody of the child, such
hearing shall be held no more than 12 months after the child is placed
outside the child's home and at least every 12 months thereafter. For
children in the custody of the secretary prior to July 1, 1998, within 30
days of receiving a request from the secretary, a permanency hearing shall
be held. If the goal of the plan submitted pursuant to subsection (a) is
reintegration into the family and the court determines after 12 months
from the time such plan is first submitted that progress is inadequate, the
court shall hold a hearing pursuant to subsection (c). Nothing in this
subsection shall be interpreted to prohibit termination of parental rights

13
prior to the expiration of 12 months.
(c) Whenever a hearing is required under subsection (b), the court
shall notify all interested parties and the foster parents, preadoptive par-
ents or relatives providing care for the child and hold a hearing. Individ-
uals receiving notice pursuant to this subsection shall not be made a party
to the action solely on the basis of this notice and opportunity to be heard.
After providing the interested parties, foster parents, preadoptive parents
or relatives providing care for the child an opportunity to be heard, the
court shall determine whether the child's needs are being adequately met
and whether reintegration continues to be a viable alternative. If the court
finds reintegration is no longer a viable alternative, the court shall con-
sider whether the child is in a stable placement with a relative, services
set out in the case plan necessary for the safe return of the child have
been made available to the parent with whom reintegration is planned or
compelling reasons are documented in the case plan to support a finding
that neither adoption nor permanent guardianship are in the child's best
interest. If reintegration is not a viable alternative and either adoption or
permanent guardianship might be in the best interests of the child, the
county or district attorney or the county or district attorney's designee
shall file a motion to terminate parental rights or for permanent guardi-
anship within 30 days and the court shall set a hearing on such motion
within 90 days of the filing of such motion. When the court finds rein-
tegration continues to be a viable alternative, the court may rescind any
of its prior dispositional orders and enter any dispositional order author-
ized by this code or may order that a new plan for the reintegration be
prepared and submitted to the court. No such hearing is required when
the parents voluntarily relinquish parental rights or agree to appointment
of a permanent guardian.
Sec. 7. K.S.A. 1998 Supp. 38-1583 is hereby amended to read as
follows:38-1583. (a) When the child has been adjudicated to be a child
in need of care, the court may terminate parental rights when the court
finds by clear and convincing evidence that the parent is unfit by reason
of conduct or condition which renders the parent unable to care properly
for a child and the conduct or condition is unlikely to change in the
foreseeable future.
(b) In making a determination hereunder the court shall consider,
but is not limited to, the following, if applicable:
(1) Emotional illness, mental illness, mental deficiency or physical
disability of the parent, of such duration or nature as to render the parent
unlikely to care for the ongoing physical, mental and emotional needs of
the child;
(2) conduct toward a child of a physically, emotionally or sexually
cruel or abusive nature;

14
(3) excessive use of intoxicating liquors or narcotic or dangerous
drugs;
(4) physical, mental or emotional neglect of the child;
(5) conviction of a felony and imprisonment;
(6) unexplained injury or death of another child or stepchild of the
parent;
(7) reasonable efforts by appropriate public or private child caring
agencies have been unable to rehabilitate the family; and
(8) lack of effort on the part of the parent to adjust the parent's cir-
cumstances, conduct or conditions to meet the needs of the child.
(c) In addition to the foregoing, when a child is not in the physical
custody of a parent, the court, in proceedings concerning the termination
of parental rights, shall also consider, but is not limited to the following:
(1) Failure to assure care of the child in the parental home when able
to do so;
(2) failure to maintain regular visitation, contact or communication
with the child or with the custodian of the child;
(3) failure to carry out a reasonable plan approved by the court di-
rected toward the integration of the child into the parental home; and
(4) failure to pay a reasonable portion of the cost of substitute physical
care and maintenance based on ability to pay.
In making the above determination, the court may disregard incidental
visitations, contacts, communications or contributions.
(d) The rights of the parents may be terminated as provided in this
section if the court finds that the parents have abandoned the child or
the child was left under such circumstances that the identity of the par-
ents is unknown and cannot be ascertained, despite diligent searching,
and the parents have not come forward to claim the child within three
months after the child is found.
(e) The existence of any one of the above standing alone may, but
does not necessarily, establish grounds for termination of parental rights.
The determination shall be based on an evaluation of all factors which
are applicable. In considering any of the above factors for terminating the
rights of a parent, the court shall give primary consideration to the phys-
ical, mental or emotional condition and needs of the child. If presented
to the court and subject to the provisions of K.S.A. 60-419, and amend-
ments thereto, the court shall consider as evidence testimony from a
person licensed to practice medicine and surgery, a licensed psychologist
or a licensed social worker expressing an opinion relating to the physical,
mental or emotional condition and needs of the child. The court shall
consider any such testimony only if the licensed professional providing
such testimony is subject to cross-examination.
(f) A termination of parental rights under the Kansas code for care

15
of children shall not terminate the right of the child to inherit from or
through the parent. Upon such termination, all the rights of birth parents
to such child, including their right to inherit from or through such child,
shall cease.
(g) If, after finding the parent unfit, the court determines a compel-
ling reason why it is not in the best interests of the child to terminate
parental rights or upon agreement of the parents, the court may award
permanent guardianship to an individual providing care for the child, a
relative or other person with whom the child has a close emotional at-
tachment. Prior to awarding permanent guardianship, the court shall re-
ceive and consider an assessment as provided in K.S.A. 59-2132 and
amendments thereto of any potential permanent guardian. Upon appoint-
ment of a permanent guardian, the court shall enter an order discharging
the child from the court's jurisdiction.
(h) If a parent is convicted of an offense as provided in subsection
(7) of K.S.A. 38-1585 and amendments thereto or is adjudicated a juvenile
offender because of an act which if committed by an adult would be an
offense as provided in subsection (7) of K.S.A. 38-1585 and amendments
thereto, and if the victim was the other parent of a child, the court may
disregard such convicted or adjudicated parent's opinions or wishes in
regard to the placement of such child.
New Sec. 8. (a) A permanent guardian may be appointed after a find-
ing of unfitness pursuant to K.S.A. 38-1583 and amendments thereto or
with the consent and agreement of the parents.
(b) Upon appointment of the permanent guardian, the child in need
of care proceeding shall be dismissed.
Sec. 9. K.S.A. 38-1542 and K.S.A. 1998 Supp. 38-1502, 38-1502c, 38-
1528, 38-1543, 38-1562, 38-1565 and 38-1583 are hereby repealed.
Sec. 10. This act shall take effect and be in force from and after its
publication in the statute book.