Session of 2000
         
HOUSE BILL No. 2916
         
By Representative Gregory
         
2-9
         

  9             AN  ACT concerning children; relating to mental or emotional abuse;
10             amending K.S.A. 38-1521, 38-1523a, 38-1524, 38-1525, and 38-1526
11             and K.S.A. 1999 Supp. 38-1502, 38-1522, 38-1542, 38-1543 and 38-
12             1663 and repealing the existing sections.
13      
14       Be it enacted by the Legislature of the State of Kansas:
15             Section  1. K.S.A. 1999 Supp. 38-1502 is hereby amended to read as
16       follows: 38-1502. As used in this code, unless the context otherwise
17       indicates:
18             (a) "Child in need of care" means a person less than 18 years of age
19       who:
20             (1) Is without adequate parental care, control or subsistence and the
21       condition is not due solely to the lack of financial means of the child's
22       parents or other custodian;
23             (2) is without the care or control necessary for the child's physical,
24       mental or emotional health;
25             (3) has been physically, mentally or emotionally abused or neglected
26       or sexually abused;
27             (4) has been placed for care or adoption in violation of law;
28             (5) has been abandoned or does not have a known living parent;
29             (6) is not attending school as required by K.S.A. 72-977 or 72-1111,
30       and amendments thereto;
31             (7) except in the case of a violation of K.S.A. 41-727, subsection (j)
32       of K.S.A. 74-8810 or subsection (m) or (n) of K.S.A. 79-3321, and amend-
33       ments thereto, or, except as provided in subsection (a)(12) of K.S.A. 21-
34       4204a and amendments thereto, does an act which, when committed by
35       a person under 18 years of age, is prohibited by state law, city ordinance
36       or county resolution but which is not prohibited when done by an adult;
37             (8) while less than 10 years of age, commits any act which if done by
38       an adult would constitute the commission of a felony or misdemeanor as
39       defined by K.S.A. 21-3105 and amendments thereto;
40             (9) is willfully and voluntarily absent from the child's home without
41       the consent of the child's parent or other custodian;
42             (10) is willfully and voluntarily absent at least a second time from a
43       court ordered or designated placement, or a placement pursuant to court


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  1       order, if the absence is without the consent of the person with whom the
  2       child is placed or, if the child is placed in a facility, without the consent
  3       of the person in charge of such facility or such person's designee;
  4             (11) has been residing in the same residence with a sibling or another
  5       person under 18 years of age, who has been physically, mentally or emo-
  6       tionally abused or neglected, or sexually abused; or
  7             (12) while less than 10 years of age commits the offense defined in
  8       K.S.A. 21-4204a and amendments thereto. is a child in need of protection
  9       or a youth in need of community intervention.
10             (b) "Physical, mental or emotional abuse or neglect" means the in-
11       fliction of physical, mental or emotional injury or the causing of a dete-
12       rioration of a child and may include, but shall not be limited to, failing to
13       maintain reasonable care and treatment, negligent treatment or maltreat-
14       ment or exploiting a child to the extent that the child's health or emotional
15       well-being is endangered. A parent legitimately practicing religious beliefs
16       who does not provide specified medical treatment for a child because of
17       religious beliefs shall not for that reason be considered a negligent parent;
18       however, this exception shall not preclude a court from entering an order
19       pursuant to subsection (a)(2) of K.S.A. 38-1513 and amendments thereto.
20             (c) "Sexual abuse" means any act committed with a child which is
21       described in article 35, chapter 21 of the Kansas Statutes Annotated and
22       those acts described in K.S.A. 21-3602 or 21-3603, and amendments
23       thereto, regardless of the age of the child.
24             (d) "Parent," when used in relation to a child or children, includes a
25       guardian, conservator and every person who is by law liable to maintain,
26       care for or support the child.
27             (e) "Interested party" means the state, the petitioner, the child, any
28       parent and any person found to be an interested party pursuant to K.S.A.
29       38-1541 and amendments thereto.
30             (f) "Law enforcement officer" means any person who by virtue of
31       office or public employment is vested by law with a duty to maintain
32       public order or to make arrests for crimes, whether that duty extends to
33       all crimes or is limited to specific crimes.
34             (g) "Youth residential facility" means any home, foster home or struc-
35       ture which provides 24-hour-a-day care for children and which is licensed
36       pursuant to article 5 of chapter 65 of the Kansas Statutes Annotated.
37             (h) "Shelter facility" means any public or private facility or home
38       other than a juvenile detention facility that may be used in accordance
39       with this code for the purpose of providing either temporary placement
40       for the care of children in need of care prior to the issuance of a dispos-
41       itional order or longer term care under a dispositional order.
42             (i) "Juvenile detention facility" means any secure public or private
43       facility used for the lawful custody of accused or adjudicated juvenile


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


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  1       respective facilities; (B) total separation in all juvenile and adult program
  2       activities within the facilities, including recreation, education, counseling,
  3       health care, dining, sleeping, and general living activities; and (C) separate
  4       juvenile and adult staff, including management, security staff and direct
  5       care staff such as recreational, educational and counseling.
  6             (t) "Kinship care" means the placement of a child in the home of the
  7       child's relative or in the home of another adult with whom the child or
  8       the child's parent already has a close emotional attachment.
  9             (u) "Juvenile intake and assessment worker" means a responsible
10       adult authorized to perform intake and assessment services as part of the
11       intake and assessment system established pursuant to K.S.A. 75-7023, and
12       amendments thereto.
13             (v) "Abandon" means to forsake, desert or cease providing care for
14       the child without making appropriate provisions for substitute care.
15             (w) "Permanent guardianship" means a judicially created relationship
16       between child and caretaker which is intended to be permanent and self-
17       sustaining without ongoing state oversight or intervention. The perma-
18       nent guardian stands in loco parentis and exercises all the rights and
19       responsibilities of a parent. Upon appointment of a permanent guardian,
20       the child in need of care proceedings shall be dismissed. A permanent
21       guardian may be appointed after termination of parental rights.
22             (x) "Aggravated circumstances" means the abandonment, torture,
23       chronic abuse, sexual abuse or chronic, life threatening neglect of a child.
24             (y) "Permanency hearing" means a notice and opportunity to be
25       heard is provided to interested parties, foster parents, preadoptive parents
26       or relatives providing care for the child. The court, after consideration of
27       the evidence, shall determine whether progress toward the case plan goal
28       is adequate or reintegration is a viable alternative, or if the case should
29       be referred to the county or district attorney for filing of a petition to
30       terminate parental rights or to appoint a permanent guardian.
31             (z) "Extended out of home placement" means a child has been in the
32       custody of the secretary and placed with neither parent for 15 of the most
33       recent 22 months beginning 60 days after the date at which a child in the
34       custody of the secretary was removed from the home.
35             (aa) "Educational institution" means all schools at the elementary and
36       secondary levels.
37             (bb) "Educator" means any administrator, teacher or other profes-
38       sional or paraprofessional employee of an educational institution who has
39       exposure to a pupil specified in subsection (a) of K.S.A. 1999 Supp. 72-
40       89b03 and amendments thereto.
41             (cc) "Child in need of protection" means a person less than 18 years
42       of age who:
43             (1) Has been physically abused or sexually abused;


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  1             (2) has been placed for care or adoption in violation of law;
  2             (3) has been abandoned or does not have a known living parent; or
  3             (4) has been residing in the same residence with a sibling or another
  4       person under 18 years of age, who has been physically, mentally or emo-
  5       tionally abused or neglected, or sexually abused.
  6             (dd) "Youth in need of community intervention" means a person less
  7       than 18 years of age who:
  8             (1) Has been severely or chronically mentally or emotionally abused;
  9             (2) is without the care or control necessary for the youth's physical,
10       mental or emotional health;
11             (3) is not attending school as required by K.S.A. 72-977 or 72-1111,
12       and amendments thereto;
13             (4) except in the case of a violation of K.S.A. 41-727, subsection (j) of
14       K.S.A. 74-8810 or subsection (m) or (n) of K.S.A. 79-3321, and amend-
15       ments thereto, or, except as provided in subsection (a)(12) of K.S.A. 21-
16       4204a, and amendments thereto, does an act which, when committed by
17       a person under 18 years of age, is prohibited by state law, city ordinance
18       or county resolution but which is not prohibited when done by an adult;
19             (5) while less than 10 years of age, commits any act which if done by
20       an adult would constitute the commission of a felony or misdemeanor as
21       defined by K.S.A. 21-3105, and amendments thereto;
22             (6) is willfully and voluntarily absent from the child's home without
23       the consent of the child's parent or other custodian;
24             (7) is willfully and voluntarily absent from a court ordered or desig-
25       nated placement, or a placement pursuant to a court order, if the absence
26       is without the consent of the person with whom the child is placed or, if
27       the child is placed in a facility, without the consent of the person in charge
28       of such facility or such person's designee; or
29             (8) while less than 10 years of age commits the offense defined in
30       K.S.A. 21-4204a, and amendments thereto.
31             (ee) "Community intervention team" means a group of persons, ap-
32       pointed by the court or by the state department of social and rehabilitation
33       services for the purpose of assessing the needs of a child who is alleged to
34       be a youth in need of community intervention.
35             Sec.  2. K.S.A. 38-1521 is hereby amended to read as follows: 38-
36       1521. It is the policy of this state to provide for the protection of chil-
37       dren who have been subject to physical, mental or emotional abuse or
38       neglect or sexual abuse by encouraging the reporting of suspected child
39       abuse and neglect, insuring the thorough and prompt investigation of
40       these reports and providing preventive and rehabilitative services when
41       appropriate to abused or neglected children and their families so that, if
42       possible, the families can remain together without further threat to the
43       children.


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  1             The secretary, within the limit of appropriations therefor, shall conduct
  2       a continuing publicity and educational program for local staff of the de-
  3       partment of social and rehabilitation services, persons required to report
  4       under this code and other appropriate persons. The program shall include
  5       courses which encourage the reporting of cases of children suspected of
  6       having been injured as a result of physical, mental or emotional abuse or
  7       neglect or sexual abuse. In addition, the courses shall include an analysis
  8       of the powers and duties granted under this code, the methods of diag-
  9       nosing injuries inflicted as a result of abuse, the procedures followed by
10       the department of social and rehabilitation services in carrying out its
11       duties under this code and the role of the courts in this area of the law.
12             Sec.  3. K.S.A. 1999 Supp. 38-1522 is hereby amended to read as
13       follows: 38-1522. (a) When any of the following persons has reason to
14       suspect that a child has been injured as a result of physical, mental or
15       emotional abuse or neglect or sexual abuse, the person shall report the
16       matter promptly as provided in subsection (c) or (e): Persons licensed to
17       practice the healing arts or dentistry; persons licensed to practice optom-
18       etry; persons engaged in postgraduate training programs approved by the
19       state board of healing arts; licensed psychologists; licensed professional
20       or practical nurses examining, attending or treating a child under the age
21       of 18; teachers, school administrators or other employees of a school
22       which the child is attending; chief administrative officers of medical care
23       facilities; registered marriage and family therapists; persons licensed by
24       the secretary of health and environment to provide child care services or
25       the employees of persons so licensed at the place where the child care
26       services are being provided to the child; licensed social workers; firefight-
27       ers; emergency medical services personnel; mediators appointed under
28       K.S.A. 23-602 and amendments thereto; juvenile intake and assessment
29       workers; and law enforcement officers. The report may be made orally
30       and shall be followed by a written report if requested. When the suspicion
31       is the result of medical examination or treatment of a child by a member
32       of the staff of a medical care facility or similar institution, that staff mem-
33       ber shall immediately notify the superintendent, manager or other person
34       in charge of the institution who shall make a written report forthwith.
35       Every written report shall contain, if known, the names and addresses of
36       the child and the child's parents or other persons responsible for the
37       child's care, the child's age, the nature and extent of the child's injury
38       (including any evidence of previous injuries) and any other information
39       that the maker of the report believes might be helpful in establishing the
40       cause of the injuries and the identity of the persons responsible for the
41       injuries.
42             (b) Any other person who has reason to suspect that a child has been
43       injured as a result of physical, mental or emotional abuse or neglect or


7

  1       sexual abuse may report the matter as provided in subsection (c) or (e).
  2             (c) Except as provided by subsection (e), reports made pursuant to
  3       this section shall be made to the state department of social and rehabil-
  4       itation services. When the department is not open for business, the re-
  5       ports shall be made to the appropriate law enforcement agency. On the
  6       next day that the state department of social and rehabilitation services is
  7       open for business, the law enforcement agency shall report to the de-
  8       partment any report received and any investigation initiated pursuant to
  9       subsection (a) of K.S.A. 38-1524 and amendments thereto. The reports
10       may be made orally or, on request of the department, in writing.
11             (d) Any person who is required by this section to report an injury to
12       a child and who knows of the death of a child shall notify immediately
13       the coroner as provided by K.S.A. 22a-242, and amendments thereto.
14             (e) Reports of child abuse or neglect occurring in an institution op-
15       erated by the secretary of social and rehabilitation services or the com-
16       missioner of juvenile justice shall be made to the attorney general. All
17       other reports of child abuse or neglect by persons employed by or of
18       children of persons employed by the state department of social and re-
19       habilitation services or the juvenile justice authority shall be made to the
20       appropriate law enforcement agency.
21             (f) Willful and knowing failure to make a report required by this sec-
22       tion is a class B misdemeanor.
23             (g) Preventing or interfering with, with the intent to prevent, the
24       making of a report required by this section is a class B misdemeanor.
25             Sec.  4. K.S.A. 38-1523a is hereby amended to read as follows: 38-
26       1523a. (a) Upon recommendation of the state department of social and
27       rehabilitation services or the county or district attorney, the court may
28       appoint a multidisciplinary team to assist in gathering information re-
29       garding a child alleged to be a child in need of care by reason of physical,
30       mental or emotional abuse or neglect or sexual abuse. The team may be
31       a standing multidisciplinary team or may be appointed for a specific child.
32             (b) Any person appointed as a member of a multidisciplinary team
33       may decline to serve and shall incur no civil liability as the result of de-
34       clining to serve.
35             (c) This section shall be part of and supplemental to the Kansas code
36       for care of children.
37             (d) The multidisciplinary team may request disclosure of information
38       in regard to a child alleged to be a child in need of care, or a child who
39       has been adjudged to be a child in need of care, by making a written
40       verified application to the district court. Upon a finding by the court there
41       is probable cause to believe the information sought may assist in deter-
42       mining if a child is a child in need of care as defined in K.S.A. 38-1502
43       and amendments thereto, or in assisting a child who has been adjudicated


8

  1       a child in need of care, then the court may issue a subpoena, subpoena
  2       duces tecum or enter an order for the production of the requested doc-
  3       uments, reports or information and directing the document, reports or
  4       information to be delivered to the applicant at a specified time, date and
  5       place. The time and date of delivery shall not be sooner than five days
  6       after the service of the subpoena or order, excluding Saturdays, Sundays
  7       or holidays. The court issuing the subpoena or order shall keep all appli-
  8       cations filed pursuant to this subsection and a copy of the subpoena or
  9       order in a special file maintained for such purpose or in the official court
10       file for the child. Upon receiving service of a subpoena, subpoena duces
11       tecum or an order for production pursuant to this subsection, the party
12       served shall give oral or written notice of service to any person known to
13       have a right to assert a privilege or assert a right of confidentiality in regard
14       to the documents, reports or information sought at least three days before
15       the specified date of delivery.
16             (e) The written verified application shall be in substantially the fol-
17       lowing form:
18      
Name of Court
19       In the Interest of ________ Case No.
20                         Name(s)
21       Date of birth: ____________
22       Each a child under 18 years of age.
23      
WRITTEN APPLICATION FOR DISCLOSURE OF INFORMATION
24       County of __________
25                                  ss
26       State of Kansas
27             The undersigned applicant being first duly sworn alleges and states as follows:
28        1. The applicant is ______________.
29        2. There is an investigation being made into the report of alleged neglect or abuse in
30               regard to the above-named child or children.
31            A petition has been filed alleging the above-named child is a child in need of care or
32                         the child has been adjudicated to be a child in need of care.
33                          3. The following documents, reports and/or information are requested. (List specifi-
34               cally.)
35        4. The reasons for the request are:
36        Further applicant saith not.
37      
________________
38                                                          Applicant
39       Subscribed and sworn to before me
40       this ______ day of ________, 19__ (year).
41      
________________
42                                                          Notary Public
43      


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  1       My commission expires:
  2       ____________
  3             (f) Any parent, child, guardian ad litem, party subpoenaed or subject
  4       to an order of production or person who claims a privilege or right of
  5       confidentiality may request in writing that the court issuing the subpoena
  6       or order for production withdraw the subpoena, subpoena duces tecum
  7       or order for production issued pursuant to subsection (d). The request
  8       shall automatically stay the operation of the subpoena, subpoena duces
  9       tecum or order for production and the documents, reports or information
10       requested shall not be delivered until the issuing court has held a hearing
11       to determine if the documents, reports or information are subject to the
12       claimed privilege or right of confidentiality, and whether it is in the best
13       interests of the child for the subpoena or order to produce to be honored.
14       The request to withdraw shall be filed with the district court issuing the
15       subpoena or order at least 24 hours prior to the specified time and date
16       of delivery, excluding Saturdays, Sundays or holidays, and a copy of the
17       written request must be given to the person subpoenaed or subject to
18       the order for production at least 24 hours prior to the specified time and
19       date of delivery.
20             Sec.  5. K.S.A. 38-1524 is hereby amended to read as follows: 38-
21       1524. (a) When a report to a law enforcement agency indicates that a
22       child may be harmed, the law enforcement agency shall promptly initiate
23       an investigation. If the law enforcement officer reasonably believes the
24       child will be harmed, the officer shall remove the child from the location
25       where the child is found as authorized by K.S.A. 38-1527 and amend-
26       ments thereto.
27             (b) Whenever any person furnishes information to the state depart-
28       ment of social and rehabilitation services that a child appears to be a child
29       in need of care or a youth in need of community intervention, the de-
30       partment shall make a preliminary inquiry to determine whether the in-
31       terests of the child require further action be taken. Whenever practicable,
32       the inquiry shall include a preliminary investigation of the circumstances
33       which were the subject of the information, including the home and en-
34       vironmental situation and the previous history of the child. If reasonable
35       grounds to believe abuse or neglect exist, immediate steps shall be taken
36       to protect the health and welfare of the abused or neglected child as well
37       as that of any other child under the same care who may be harmed by
38       abuse or neglect. After the inquiry, if the department determines it is not
39       possible to provide otherwise those services necessary to protect the in-
40       terests of the child, the department shall recommend to the county or
41       district attorney that a petition be filed.
42             (c) As part of the inquiry for a youth in need of community interven-
43       tion, the department shall request that a community intervention team


10

  1       make an assessment of such child alleged to be a youth in need of com-
  2       munity intervention. The secretary shall consider the assessment of the
  3       community intervention team when assisting such youth and such youth's
  4       family in accessing support services.
  5             Sec.  6. K.S.A. 38-1525 is hereby amended to read as follows: 38-
  6       1525. (a) No employer shall terminate the employment of, prevent or
  7       impair the practice or occupation of or impose any other sanction on any
  8       employee because the employee made an oral or written report to, or
  9       cooperated with an investigation by, a law enforcement agency or the
10       department of social and rehabilitation services relating to injury inflicted
11       upon a child which was suspected by the employee of having resulted
12       from the physical, mental or emotional abuse or neglect or sexual abuse
13       of the child.
14             (b) Violation of this section is a class B misdemeanor.
15             Sec.  7. K.S.A. 38-1526 is hereby amended to read as follows: 38-
16       1526. Anyone participating without malice in the making of an oral or
17       written report to a law enforcement agency or the department of social
18       and rehabilitation services relating to injury inflicted upon a child under
19       18 years of age as a result of physical, mental or emotional abuse or
20       neglect or sexual abuse or in any follow-up activity to or investigation of
21       the report shall have immunity from any civil liability that might otherwise
22       be incurred or imposed. Any such participant shall have the same im-
23       munity with respect to participation in any judicial proceedings resulting
24       from the report.
25             Sec.  8. K.S.A. 1999 Supp. 38-1542 is hereby amended to read as
26       follows: 38-1542. (a) The court upon verified application may issue ex
27       parte an order directing that a child be held in protective custody and, if
28       the child has not been taken into custody, an order directing that the
29       child be taken into custody. The application shall state:
30             (1) The applicant's belief that the child is a child in need of care and
31       is likely to sustain harm if not immediately afforded protective custody;
32       and
33             (2) the specific facts which are relied upon to support the belief.
34             (b)  (1) The order of protective custody may be issued only after the
35       court has determined there is probable cause to believe the allegations
36       in the application are true. The order shall remain in effect until the
37       temporary custody hearing provided for in K.S.A. 38-1543 and amend-
38       ments thereto, unless earlier rescinded by the court.
39             (2)  No child shall be held in protective custody for more than 72
40       hours, excluding Saturdays, Sundays and legal holidays, unless within the
41       72-hour period a determination is made as to the necessity for temporary
42       custody in a temporary custody hearing. Nothing in this subsection (b)(2)
43       shall be construed to mean that the child must remain in protective cus-


11

  1       tody for 72 hours.
  2             (c) Whenever the court determines the necessity for an order of pro-
  3       tective custody, the court may place the child in the protective custody
  4       of: (1) A parent or other person having custody of the child and may enter
  5       a restraining order pursuant to subsection (d); (2) a person, other than
  6       the parent or other person having custody, who shall not be required to
  7       be licensed under article 5 of chapter 65 of the Kansas Statutes Anno-
  8       tated; (3) a youth residential facility; or (4) the secretary. When the child
  9       is placed in the protective custody of the secretary, the secretary shall
10       have the discretionary authority to place the child with a parent or to
11       make other suitable placement for the child. When circumstances re-
12       quire, a child in protective custody may be placed in a juvenile detention
13       facility or other secure facility pursuant to an order of protective custody
14       for not to exceed 24 hours, excluding Saturdays, Sundays and legal holi-
15       days.
16             (d) The order of protective custody shall be served on the child's
17       parents and any other person having legal custody of the child. The order
18       shall prohibit all parties from removing the child from the court's juris-
19       diction without the court's permission.
20             (e) If the court issues an order of protective custody, the court may
21       also enter an order restraining any alleged perpetrator of physical, or
22       sexual, mental or emotional abuse of the child from residing in the child's
23       home; visiting, contacting, harassing or intimidating the child; or attempt-
24       ing to visit, contact, harass or intimidate the child. Such restraining order
25       shall be served on any alleged perpetrator to whom the order is directed.
26             (f) The court shall not enter an order removing a child from the
27       custody of a parent pursuant to this section unless the court first finds
28       from evidence presented by the petitioner that reasonable efforts have
29       been made to prevent or eliminate the need for removal of the child or
30       that an emergency exists which threatens the safety of the child and re-
31       quires the immediate removal of the child. Such findings shall be included
32       in any order entered by the court.
33             Sec.  9. K.S.A. 1999 Supp. 38-1543 is hereby amended to read as
34       follows: 38-1543. (a) Upon notice and hearing, the court may issue an
35       order directing who shall have temporary custody and may modify the
36       order during the pendency of the proceedings as will best serve the child's
37       welfare.
38             (b) A hearing pursuant to this section shall be held within 72 hours,
39       excluding Saturdays, Sundays and legal holidays, following a child having
40       been taken into protective custody.
41             (c) Whenever it is determined that a temporary custody hearing is
42       required, the court shall immediately set the time and place for the hear-
43       ing. Notice of a temporary custody hearing shall be in substantially the


12

  1       following form:
  2      
(Name of Court)
  3       (Caption of Case)
  4      
NOTICE OF TEMPORARY CUSTODY HEARING
  5       TO:
  6             (Names)  (Relationship)                  (Addresses)
  7       ______________ ______________ __________________________
  8       ______________ ______________ __________________________
  9       ______________ ______________ __________________________
10       On __________, __________, 19 __ (year), at __ o'clock __.
11       the court  (day)  (date)
12       will conduct a hearing at ________ to determine if the above named child or children
13       should be in the temporary custody of some person or agency other than the parent or other
14       person having legal custody prior to the hearing on the petition filed in the above captioned
15       case. The court may order one or both parents to pay child support.
16        ________, an attorney, has been appointed as guardian ad litem for the child or
17       children. Each parent or other legal custodian has the right to appear and be heard person-
18       ally, either with or without an attorney. An attorney will be appointed for a parent who can
19       show that the parent is not financially able to hire one.
20       Date ________, 19 __ (year) __ Clerk of the District Court
21         by __________________________
22      
(Seal)   
23      
REPORT OF SERVICE
24             I certify that I have delivered a true copy of the above notice to the persons above named
25       in the manner and at the times indicated below:
26             Name      Location of Service  Manner of Service    Date    Time
27                         (other than above)
28       __________ ______ ______ ______  ______
29       __________ ______ ______ ______  ______
30       __________ ______ ______ ______  ______
31       Date Returned ________, 19 __ (year)
32      
________________
33                                                          (Signature)
34      
________________
35                                                          (Title)
36             (d) Notice of the temporary custody hearing shall be given at least
37       24 hours prior to the hearing. The court may continue the hearing to
38       afford the 24 hours prior notice or, with the consent of the party, proceed
39       with the hearing at the designated time. If an order of temporary custody
40       is entered and the parent or other person having custody of the child has
41       not been notified of the hearing, did not appear or waive appearance and
42       requests a rehearing, the court shall rehear the matter without unnec-
43       essary delay.


13

  1             (e) Oral notice may be used for giving notice of a temporary custody
  2       hearing where there is insufficient time to give written notice. Oral notice
  3       is completed upon filing a certificate of oral notice in substantially the
  4       following form:
  5      
(Name of Court)
  6       (Caption of Case)
  7      
CERTIFICATE OF ORAL NOTICE OF TEMPORARY CUSTODY HEARING
  8             I gave oral notice that the court will conduct a hearing at __ o'clock __m.
  9       on ________, 19 __ (year), to the persons listed, in the manner and at the times
10       indicated below:
11           Name     Relationship  Date   Time    Method of Communication
12                                                            (in person or telephone)
13       __________ ________ ______ ______ __________________________
14       __________ ________ ______ ______ __________________________
15       __________ ________ ______ ______ __________________________
16       I advised each of the above persons that:
17        (1) The hearing is to determine if the above child or children should be in the temporary
18                 custody of a person or agency other than a parent;
19        (2) the court will appoint an attorney to serve as guardian ad litem for the child or
20                 children named above;
21        (3) each parent or legal custodian has the right to appear and be heard personally either
22                 with or without an attorney;
23        (4) ian attorney will be appointed for a parent who can show that the parent is not
24                 financially able to hire an attorney; and
25        (5) the court may order one or both parents to pay child support.
26      
________________
27                                                          (Signature)
28      
________________
29                                                          (Name Printed)
30      
________________
31                                                          (Title)
32             (f) The court may enter an order of temporary custody after deter-
33       mining that: (1) The child is dangerous to self or to others; (2) the child
34       is not likely to be available within the jurisdiction of the court for future
35       proceedings; or (3) the health or welfare of the child may be endangered
36       without further care.
37             (g) Whenever the court determines the necessity for an order of tem-
38       porary custody the court may place the child in the temporary custody
39       of: (1) A parent or other person having custody of the child and may enter
40       a restraining order pursuant to subsection (h); (2) a person, other than
41       the parent or other person having custody, who shall not be required to
42       be licensed under article 5 of chapter 65 of the Kansas Statutes Anno-
43       tated; (3) a youth residential facility; or (4) the secretary. When the child


14

  1       is placed in the temporary custody of the secretary, the secretary shall
  2       have the discretionary authority to place the child with a parent or to
  3       make other suitable placement for the child. When circumstances re-
  4       quire, a child may be placed in a juvenile detention facility or other secure
  5       facility, but the total amount of time that the child may be held in such
  6       facility under this section and K.S.A. 38-1542 and amendments thereto
  7       shall not exceed 24 hours, excluding Saturdays, Sundays and legal holi-
  8       days. The order of temporary custody shall remain in effect until modified
  9       or rescinded by the court or a disposition order is entered but not ex-
10       ceeding 60 days, unless good cause is shown and stated on the record.
11             (h) If the court issues an order of temporary custody, the court may
12       enter an order restraining any alleged perpetrator of physical, or sexual,
13       mental or emotional abuse of the child from residing in the child's home;
14       visiting, contacting, harassing or intimidating the child; or attempting to
15       visit, contact, harass or intimidate the child.
16             (i) The court shall not enter an order removing a child from the cus-
17       tody of a parent pursuant to this section unless the court first finds from
18       evidence presented by the petitioner that reasonable efforts have been
19       made to prevent or eliminate the need for removal of the child or that
20       an emergency exists which threatens the safety of the child and requires
21       the immediate removal of the child. Such findings shall be included in
22       any order entered by the court.
23             Sec.  10. K.S.A. 1999 Supp. 38-1563 is hereby amended to read as
24       follows: 38-1563. (a) After consideration of any evidence offered relat-
25       ing to disposition, the court may retain jurisdiction and place the child in
26       the custody of the child's parent subject to terms and conditions which
27       the court prescribes to assure the proper care and protection of the child,
28       including supervision of the child and the parent by a court services of-
29       ficer, or may order the child and the parent to participate in programs
30       operated by the secretary or another appropriate individual or agency.
31       The terms and conditions may require any special treatment or care which
32       the child needs for the child's physical, mental or emotional health.
33             (b) The duration of any period of supervision or other terms or con-
34       ditions shall be for an initial period of no more than 18 months. The
35       court, at the expiration of that period, upon a hearing and for good cause
36       shown, may make successive extensions of the supervision or other terms
37       or conditions for up to 12 months at a time.
38             (c) The court may order the child and the parents of any child who
39       has been adjudged a child in need of care to attend counseling sessions
40       as the court directs. The expense of the counseling may be assessed as
41       an expense in the case. No mental health center shall charge a greater
42       fee for court-ordered counseling than the center would have charged to
43       the person receiving counseling if the person had requested counseling


15

  1       on the person's own initiative.
  2             (d) If the court finds that placing the child in the custody of a parent
  3       will not assure protection from physical, mental or emotional abuse or
  4       neglect or sexual abuse or will not be in the best interests of the child,
  5       the court shall enter an order awarding custody of the child, until the
  6       further order of the court, to one of the following:
  7             (1) A relative of the child or a person with whom the child has close
  8       emotional ties;
  9             (2) any other suitable person;
10             (3) a shelter facility; or
11             (4) the secretary.
12             In making such a custody order, the court shall give preference, to the
13       extent that the court finds it is in the best interests of the child, first to
14       granting custody to a relative of the child and second to granting custody
15       of the child to a person with whom the child has close emotional ties. If
16       the court has awarded legal custody based on the finding specified by this
17       subsection, the legal custodian shall not return the child to the home of
18       that parent without the written consent of the court.
19             (e) When the custody of the child is awarded to the secretary:
20             (1) The court may recommend to the secretary where the child
21       should be placed.
22             (2) The secretary shall notify the court in writing of any placement
23       of the child or, within 10 days of the order awarding the custody of the
24       child to the secretary, any proposed placement of the child, whichever
25       occurs first.
26             (3) The court may determine if such placement is in the best interests
27       of the child, and if the court determines that such placement is not in the
28       best interests of the child, the court shall notify the secretary who shall
29       then make an alternative placement subject to the procedures established
30       in this paragraph. In determining if such placement is in the best interests
31       of the child, the court, after providing the parties with an opportunity to
32       be heard, shall consider the health and safety needs of the child and the
33       resources available to meet the needs of children in the custody of the
34       secretary.
35             (f) If custody of a child is awarded under this section to a person
36       other than the child's parent, the court may grant any individual reason-
37       able rights to visit the child upon motion of the individual and a finding
38       that the visitation rights would be in the best interests of the child.
39             (g) If the court issues an order of custody pursuant to this section,
40       the court may enter an order restraining any alleged perpetrator of phys-
41       ical, or sexual, mental or emotional abuse of the child from residing in
42       the child's home; visiting, contacting, harassing or intimidating the child;
43       or attempting to visit, contact, harass or intimidate the child.


16

  1             (h) The court shall not enter an order removing a child from the
  2       custody of a parent pursuant to this section unless the court first finds
  3       from evidence presented by the petitioner that reasonable efforts have
  4       been made to prevent or eliminate the need for removal of the child;
  5       reintegration is not a viable alternative; or that an emergency exists which
  6       threatens the safety of the child and requires the immediate removal of
  7       the child. Reintegration may not be a viable alternative when the: (1)
  8       Parent has been found by a court to have committed murder in the first
  9       degree, K.S.A. 21-3401 and amendments thereto, murder in the second
10       degree, K.S.A. 21-3402 and amendments thereto, capital murder, K.S.A.
11       21-3439 and amendments thereto, voluntary manslaughter, K.S.A. 21-
12       3403 and amendments thereto or violated a law of another state which
13       prohibits such murder or manslaughter of a child; (2) parent aided or
14       abetted, attempted, conspired or solicited to commit such murder or vol-
15       untary manslaughter of a child as provided in subsection (h)(1); (3) parent
16       committed a felony battery that resulted in bodily injury to the child or
17       another child; (4) parent has subjected the child or another child to ag-
18       gravated circumstances as defined in subsection (x) of K.S.A. 38-1502,
19       and amendments thereto; (5) parental rights of the parent to another child
20       have been terminated involuntarily or (6) the child has been in extended
21       out of home placement as defined in subsection (z) of K.S.A. 38-1502
22       and amendments thereto. Such findings shall be included in any order
23       entered by the court.
24             (i) In addition to or in lieu of any other order authorized by this
25       section, if a child is adjudged to be a child in need of care by reason of a
26       violation of the uniform controlled substances act (K.S.A. 65-4101 et seq.
27       and amendments thereto) or K.S.A. 41-719, 41-804, 41-2719, 65-4152,
28       65-4153, 65-4154 or 65-4155, and amendments thereto, the court shall
29       order the child to submit to and complete an alcohol and drug evaluation
30       by a community-based alcohol and drug safety action program certified
31       pursuant to K.S.A. 8-1008 and amendments thereto and to pay a fee not
32       to exceed the fee established by that statute for such evaluation. If the
33       court finds that the child and those legally liable for the child's support
34       are indigent, the fee may be waived. In no event shall the fee be assessed
35       against the secretary or the department of social and rehabilitation serv-
36       ices.
37             (j) In addition to any other order authorized by this section, if child
38       support has been requested and the parent or parents have a duty to
39       support the child, the court may order one or both parents to pay child
40       support and, when custody is awarded to the secretary, the court shall
41       order one or both parents to pay child support. The court shall determine,
42       for each parent separately, whether the parent is already subject to an
43       order to pay support for the child. If the parent is not presently ordered


17

  1       to pay support for any child who is a ward of the court and the court has
  2       personal jurisdiction over the parent, the court shall order the parent to
  3       pay child support in an amount determined under K.S.A. 38-1595 and
  4       amendments thereto. Except for good cause shown, the court shall issue
  5       an immediate income withholding order pursuant to K.S.A. 23-4,105 et
  6       seq. and amendments thereto for each parent ordered to pay support
  7       under this subsection, regardless of whether a payor has been identified
  8       for the parent. A parent ordered to pay child support under this subsec-
  9       tion shall be notified, at the hearing or otherwise, that the child support
10       order may be registered pursuant to K.S.A. 38-1597 and amendments
11       thereto. The parent shall also be informed that, after registration, the
12       income withholding order may be served on the parent's employer with-
13       out further notice to the parent and the child support order may be en-
14       forced by any method allowed by law. Failure to provide this notice shall
15       not affect the validity of the child support order.
16             New Sec.  11. There is hereby established in the state treasury the
17       family services and community intervention fund which shall be admin-
18       istered by the secretary of social and rehabilitation services. The secretary
19       of social and rehabilitation services may accept money from any source
20       for the purposes for which money in the family services and community
21       intervention fund may be expended. Upon receipt of such money, the
22       secretary shall remit the entire amount at least monthly to the state trea-
23       surer, who shall deposit it in the state treasury and credit it to the family
24       services and community intervention fund. All moneys in the special fund
25       for family services and community intervention shall be used for the pur-
26       pose of assisting state, county, or local governments or political subdivi-
27       sions thereof; or community agencies; to provide services, intervention
28       and support services to children alleged or adjudged to be a youth in need
29       of community intervention as defined by K.S.A. 38-1502, and amend-
30       ments thereto, especially those youth at risk because of their own actions
31       or behaviors and not due to abuse or neglect by a parent, guardian or
32       other person responsible for their care. The purpose of the family services
33       and community intervention fund shall be to enhance the ability of fam-
34       ilies and children to resolve problems within the family and community
35       that might otherwise result in a child becoming a ward of the court, by
36       the collaboration of governmental and local service providers. All ex-
37       penditures from the family services and community intervention fund
38       shall be made in accordance with appropriation acts upon warrants of the
39       director of accounts and reports issued pursuant to vouchers approved
40       by the secretary or by a person or persons designated by the secretary. 
41       Sec.  12. K.S.A. 38-1521, 38-1523a, 38-1524, 38-1525 and 38-1526
42       and K.S.A. 1999 Supp. 38-1502, 38-1522, 38-1542, 38-1543 and 38-1663
43       are hereby repealed.


18

  1        Sec.  13. This act shall take effect and be in force from and after its
  2       publication in the statute book.