As Amended by Senate Committee
Session of 2000
Substitute for SENATE BILL No. 633
By Committee on Ways and Means
3-17
10 AN ACT
concerning children in need of care; amending K.S.A. 38-1503,
11 38-1531, 38-1566,
38-1567, 38-1568 and 75-3329 and K.S.A. 1999
12 Supp. 38-1502,
38-1507, 38-1513, 38-1532, 38-1542, 38-1543, 38-
13 1544, 38-1562,
38-1563, 38-1565, 38-1581, 38-1583, 38-1584, 38-1585,
14
38-1587, and 38-1591 and
60-1610 and repealing the existing sections.
15
16 Be it enacted by the Legislature of the
State of Kansas:
17 New Section
1. There is hereby established in the state treasury the
18 family services and community intervention
fund which shall be admin-
19 istered by the secretary of social and
rehabilitation services. The secretary
20 of social and rehabilitation services may
accept money from any source
21 for the purposes for which money in the
family services and community
22 intervention fund may be expended. Upon
receipt of such money, the
23 secretary shall remit the entire amount at
least monthly to the state trea-
24 surer, who shall deposit it in the state
treasury and credit it to the family
25 services and community intervention fund.
All moneys in the special fund
26 for family services and community
intervention shall be used for the pur-
27 pose of assisting state, county, or local
governments or political subdivi-
28 sions thereof; or community agencies; to
provide services, intervention
29 and support services to children alleged or
adjudged to be a youth child
30 in need of community
services care as defined by K.S.A. 38-1502,
and
31 amendments thereto, especially those youth
at risk because of their own
32 actions or behaviors and not due to abuse
or neglect by a parent, guardian
33 or other person responsible for their care.
The purpose of the family
34 services and community intervention fund
shall be to enhance the ability
35 of families and children to resolve
problems within the family and com-
36 munity that might otherwise result in a
child becoming a ward of the
37 court, by the collaboration of governmental
and local service providers.
38 All expenditures from the family services
and community intervention
39 fund shall be made in accordance with
appropriation acts upon warrants
40 of the director of accounts and reports
issued pursuant to vouchers ap-
41 proved by the secretary or by a person or
persons designated by the
42 secretary.
43 Sec.
2. K.S.A. 1999 Supp. 38-1502 is hereby amended to read as
2
1 follows: 38-1502. As used in this
code, unless the context otherwise
2 indicates:
3 (a) ``Child
in need of care'' means a person less than 18 years of age
4 who: is a
child in need of protection or a youth in need of
community
5 services as defined by
this code.:
6
(1) Is without adequate parental care, control or
subsistence and the
7 condition is not due solely
to the lack of financial means of the child's
8 parents or other
custodian;
9
(2) is without the care or control necessary for the child's
physical,
10 mental or emotional
health;
11 (3) has
been physically, mentally or emotionally abused or
neglected
12 or sexually abused;
13 (4) has
been placed for care or adoption in violation of law;
14 (5) has
been abandoned or does not have a known living parent;
15 (6) is
not attending school as required by K.S.A. 72-977 or
72-1111,
16 and amendments
thereto;
17
(7) except in the case of a violation of K.S.A. 41-727,
subsection (j)
18 of K.S.A. 74-8810 or subsection (m)
or (n) of K.S.A. 79-3321, and amend-
19 ments thereto, or, except as
provided in subsection (a)(12) of K.S.A. 21-
20 4204a and amendments thereto, does
an act which, when committed by
21 a person under 18 years of age, is
prohibited by state law, city ordinance
22 or county resolution but which is
not prohibited when done by an adult;
23 (8) while
less than 10 years of age, commits any act which if done
by
24 an adult would constitute the
commission of a felony or misdemeanor as
25 defined by K.S.A. 21-3105 and
amendments thereto;
26 (9) is
willfully and voluntarily absent from the child's home
without
27 the consent of the child's parent
or other custodian;
28 (10) is
willfully and voluntarily absent at least a second time from
a
29 court ordered or designated
placement, or a placement pursuant to court
30 order, if the absence is without
the consent of the person with whom the
31 child is placed or, if the child is
placed in a facility, without the consent
32 of the person in charge of such
facility or such person's designee;
33 (11) has
been residing in the same residence with a sibling or
another
34 person under 18 years of age, who
has been physically, mentally or emo-
35 tionally abused or neglected, or
sexually abused; or
36
(12) while less than 10 years of age commits the offense
defined in
37 K.S.A. 21-4204a and amendments
thereto.
38
(b) ``Child in need of protection'' means a person
less than 18 years
39 of age who:
40
(1) Has been physically, mentally or emotionally abused or
neglected
41 or sexually
abused;
42
(2) has been placed for care or adoption in violation of
law;
43
(3) has been abandoned or does not have a known living parent;
or
3
1
(4) has been residing in the same residence with a sibling or
another
2 person under 18 years of
age, who has been physically, mentally or emo-
3 tionally abused or
neglected, or sexually abused.
4
(c) ``Youth in need of community services'' means a person
less than
5 18 years of age
who:
6
(1) Is without the care or control necessary for the youth's
physical,
7 mental or emotional
health;
8
(2) is not attending school as required by K.S.A. 72-977 or
72-1111,
9 and amendments
thereto;
10
(3) except in the case of a violation of K.S.A. 41-727,
subsection (j) of
11 K.S.A. 74-8810 or subsection (m)
or (n) of K.S.A. 79-3321, and amend-
12 ments thereto, or, except as
provided in subsection (a)(12) of K.S.A. 21-
13 4204a, and amendments thereto,
does an act which, when committed by
14 a person under 18 years of age,
is prohibited by state law, city ordinance
15 or county resolution but which
is not prohibited when done by an adult;
16
(4) while less than 10 years of age, commits any act which if
done by
17 an adult would constitute the
commission of a felony or misdemeanor as
18 defined by K.S.A. 21-3105, and
amendments thereto;
19 (5) is
willfully and voluntarily absent from the child's home
without
20 the consent of the child's
parent or other custodian;
21 (6) is
willfully and voluntarily absent from a court ordered or
desig-
22 nated placement, or a placement
pursuant to a court order, if the absence
23 is without the consent of the
person with whom the child is placed or, if
24 the child is placed in a
facility, without the consent of the person in
charge
25 of such facility or such
person's designee; or
26
(7) while less than 10 years of age commits the offense
defined in
27 K.S.A. 21-4204a, and amendments
thereto.
28 (1) Is without adequate
parental care, control or subsistence
29 and the condition is not due solely
to the lack of financial means of
30 the child's parents or other
custodian;
31 (2) is
without the care or control necessary for the child's
phys-
32 ical, mental or emotional
health;
33 (3) has
been physically, mentally or emotionally abused or ne-
34 glected or sexually
abused;
35 (4) has
been placed for care or adoption in violation of law;
36 (5) has
been abandoned or does not have a known living parent;
37 (6) is not
attending school as required by K.S.A. 72-977 or 72-
38 1111, and amendments
thereto;
39 (7) except
in the case of a violation of K.S.A. 41-727, subsection
40 (j) of K.S.A. 74-8810 or subsection
(m) or (n) of K.S.A. 79-3321, and
41 amendments thereto, or, except as
provided in subsection (a)(12) of
42 K.S.A. 21-4204a, and amendments
thereto, does an act which, when
43 committed by a person under 18 years
of age, is prohibited by state
4
1 law, city ordinance or county
resolution but which is not prohibited
2 when done by an
adult;
3
(8) while less than 10 years of age, commits any act which
if
4 done by an adult would
constitute the commission of a felony or
5 misdemeanor as defined by
K.S.A. 21-3105, and amendments
6 thereto;
7
(9) is willfully and voluntarily absent from the child's
home
8 without the consent of the
child's parent or other custodian;
9
(10) is willfully and voluntarily absent at least a second
time
10 from a court ordered or designated
placement, or a placement pur-
11 suant to court order, if the absence
is without the consent of the
12 person with whom the child is placed
or, if the child is placed in a
13 facility, without the consent of the
person in charge of such facility
14 or such person's
designee;
15 (11) has
been residing in the same residence with a sibling or
16 another person under 18 years of age,
who has been physically,
17 mentally or emotionally abused or
neglected or sexually abused; or
18 (12) while
less than 10 years of age commits the offense defined
19 in K.S.A. 21-4204a, and amendments
thereto.
20 (b)
(d) (b) ``Physical,
mental or emotional abuse or neglect'' means
21 the infliction of physical, mental or
emotional injury or the causing of a
22 deterioration of a child and may include,
but shall not be limited to, failing
23 to maintain reasonable care and
treatment, negligent treatment or mal-
24 treatment or exploiting a child to the
extent that the child's health or
25 emotional well-being is endangered.
A parent legitimately practicing re-
26 ligious beliefs who does not
provide specified medical treatment for a
27 child because of religious beliefs
shall not for that reason be considered
28 a negligent parent; however, this
exception shall not preclude a court from
29 entering an order pursuant to
subsection (a)(2) of K.S.A. 38-1513 and
30 amendments thereto.
31 (c)
(e) (c) ``Sexual abuse'' means
any act committed with a child
32 which is described in article 35,
chapter 21 of the Kansas Statutes
33 Annotated and those acts described in
K.S.A. 21-3602 or 21-3603,
34 and amendments thereto, regardless of
the age of the child.
35
(d) (f)
(d) ``Parent,'' when used in relation to a child
or children,
36 includes a guardian, conservator and every
person who is by law liable to
37 maintain, care for or support the
child.
38 (e)
(g) (e) ``Interested
party'' means the state, the petitioner, the
39 child, any parent and any person found to
be an interested party pursuant
40 to K.S.A. 38-1541 and amendments
thereto.
41 (f)
(h) (f) ``Law
enforcement officer'' means any person who by virtue
42 of office or public employment is vested by
law with a duty to maintain
43 public order or to make arrests for crimes,
whether that duty extends to
5
1 all crimes or is limited to specific
crimes.
2
(g) (i)
(g) ``Youth residential facility'' means any
home, foster home
3 or structure which provides
24-hour-a-day care for children and which is
4 licensed pursuant to article 5 of
chapter 65 of the Kansas Statutes
5 Annotated.
6
(h) (j)
(h) ``Shelter facility'' means any public or
private facility or
7 home other than a juvenile detention
facility that may be used in accord-
8 ance with this code for the purpose
of providing either temporary place-
9 ment for the care of children in need
of care prior to the issuance of a
10 dispositional order or longer term care
under a dispositional order.
11 (i)
(k) (i) ``Juvenile
detention facility'' means any secure public or
12 private facility used for the lawful
custody of accused or adjudicated ju-
13 venile offenders which must not be a
jail.
14 (j)
(l) (j) ``Adult
correction facility'' means any public or private fa-
15 cility, secure or nonsecure, which is used
for the lawful custody of accused
16 or convicted adult criminal offenders.
17 (k)
(m) (k) ``Secure
facility'' means a facility which is operated or
18 structured so as to ensure that all
entrances and exits from the facility are
19 under the exclusive control of the staff of
the facility, whether or not the
20 person being detained has freedom of
movement within the perimeters
21 of the facility, or which relies on locked
rooms and buildings, fences or
22 physical restraint in order to control
behavior of its residents. No secure
23 facility shall be in a city or county
jail.
24 (l)
(n) (l) ``Ward of the
court'' means a child over whom the court
25 has acquired jurisdiction by the filing of
a petition pursuant to this code
26 and who continues subject to that
jurisdiction until the petition is dis-
27 missed or the child is discharged as
provided in K.S.A. 38-1503 and
28 amendments thereto.
29 (m)
(o) (m) ``Custody,''
whether temporary, protective or legal,
30 means the status created by court order or
statute which vests in a cus-
31 todian, whether an individual or an agency,
the right to physical posses-
32 sion of the child and the right to
determine placement of the child, subject
33 to restrictions placed by the court.
34 (n)
(p) (n) ``Placement''
means the designation by the individual or
35 agency having custody of where and with
whom the child will live.
36 (o)
(q) (o) ``Secretary''
means the secretary of social and rehabilitation
37 services.
38 (p)
(r) (p) ``Relative''
means a person related by blood, marriage or
39 adoption but, when referring to a relative
of a child's parent, does not
40 include the child's other parent.
41 (q)
(s)
(q) ``Court-appointed special advocate'' means a
responsible
42 adult other than an attorney guardian ad
litem who is appointed by the
43 court to represent the best interests of a
child, as provided in K.S.A. 38-
6
1 1505a and amendments thereto, in a
proceeding pursuant to this code.
2
(r) (t)
(r) ``Multidisciplinary team'' means a group of
persons, ap-
3 pointed by the court or by the state
department of social and rehabilita-
4 tion services under K.S.A. 38-1523a
and amendments thereto, which has
5 knowledge of the circumstances of a
child in need of care. A multidisci-
6 plinary team may serve as a
community services team.
7
(s) (u)
(s) ``Jail'' means:
8 (1) An
adult jail or lockup; or
9 (2) a
facility in the same building or on the same grounds as an
adult
10 jail or lockup, unless the facility meets
all applicable standards and licen-
11 sure requirements under law and there is
(A) total separation of the ju-
12 venile and adult facility spatial areas
such that there could be no haphaz-
13 ard or accidental contact between juvenile
and adult residents in the
14 respective facilities; (B) total separation
in all juvenile and adult program
15 activities within the facilities, including
recreation, education, counseling,
16 health care, dining, sleeping, and general
living activities; and (C) separate
17 juvenile and adult staff, including
management, security staff and direct
18 care staff such as recreational,
educational and counseling.
19 (t)
(v) (t) ``Kinship care''
means the placement of a child in the home
20 of the child's relative or in the home of
another adult with whom the
21 child or the child's parent already has a
close emotional attachment.
22 (u)
(w) (u) ``Juvenile
intake and assessment worker'' means a respon-
23 sible adult authorized to perform intake
and assessment services as part
24 of the intake and assessment system
established pursuant to K.S.A. 75-
25 7023, and amendments thereto.
26 (v)
(x) (v) ``Abandon''
means to forsake, desert or cease providing
27 care for the child without making
appropriate provisions for substitute
28 care.
29 (w)
(y) (w) ``Permanent
guardianship'' means a judicially created re-
30 lationship between child and caretaker
which is intended to be permanent
31 and self-sustaining without ongoing state
oversight or intervention by the
32 secretary. The permanent guardian
stands in loco parentis and exercises
33 all the rights and responsibilities of a
parent. Upon appointment of a
34 permanent guardian, the child in
need of care proceedings shall be dis-
35 missed. A permanent
guardian may be appointed after termination of
36 parental rights or without termination
of parental rights, if the parent
37 consents and agrees to the appointment
of a permanent guardian. Upon
38 appointment of a permanent guardian,
the court shall continue to have
39 jurisdiction to review the
placement and appoint successor or replacement
40 guardian or
guardians the child shall be discharged from the
custody
41 of the secretary.
42 (x)
(z) (x) ``Aggravated
circumstances'' means the abandonment, tor-
43 ture, chronic abuse, sexual abuse or
chronic, life threatening neglect of a
7
1 child.
2
(y) (aa)
(y) ``Permanency hearing'' means a notice and
opportunity
3 to be heard is provided to interested
parties, foster parents, preadoptive
4 parents or relatives providing care
for the child. The court, after consid-
5 eration of the evidence, shall
determine whether progress toward the case
6 plan goal is adequate or
reintegration is a viable alternative, or if the case
7 should be referred to the county or
district attorney for filing of a petition
8 to terminate parental rights or to
appoint a permanent guardian.
9
(z) (bb)
(z) ``Extended out of home placement'' means a
child has
10 been in the custody of the secretary and
placed with neither parent for
11 15 of the most recent 22 months beginning
60 days after the date at which
12 a child in the custody of the secretary was
removed from the home.
13 (aa)
(cc) (aa) ``Educational
institution'' means all schools at the ele-
14 mentary and secondary levels.
15 (bb)
(dd) (bb) ``Educator''
means any administrator, teacher or other
16 professional or paraprofessional employee
of an educational institution
17 who has exposure to a pupil specified in
subsection (a) of K.S.A. 1999
18 Supp. 72-89b03 and amendments thereto.
19
(ee) (cc) ``Neglect''
means acts or omissions by a parent, guardian or
20 person responsible for the care of a
child resulting in harm to a child or
21 presenting a likelihood of harm and the
acts or omissions are not due
22 solely to the lack of financial means of
the child's parents or other cus-
23 todian. Neglect may include but shall
not be limited to:
24 (1) Failure to
provide the child with food, clothing or shelter neces-
25 sary to sustain the life or health of
the child;
26 (2) failure to
provide adequate supervision of a child or to remove a
27 child from a situation which requires
judgment or actions beyond the
28 child's level of maturity, physical
condition or mental abilities and that
29 results in bodily injury or a likelihood
of harm to the child; or
30 (3) failure to
use resources available to treat a diagnosed medical con-
31 dition if such treatment will make a
child substantially more comfortable,
32 reduce pain and suffering, correct or
substantially diminish a crippling
33 condition from worsening. A parent
legitimately practicing religious be-
34 liefs who does not provide specified
medical treatment for a child because
35 of religious beliefs shall not for that
reason be considered a negligent
36 parent; however, this exception shall
not preclude a court from entering
37 an order pursuant to subsection (a)(2)
of K.S.A. 38-1513, and amendments
38 thereto.
39
(ff) (dd) ``Community
services team'' means a group of persons, ap-
40 pointed by the court or by the state
department of social and rehabilitation
41 services for the purpose of assessing
the needs of a child who is alleged to
42 be a youth
child in need of community
services care.
43 Sec.
3. K.S.A. 38-1503 is hereby amended to read as follows:
38-
8
1 1503. (a) Proceedings concerning any
child who appears to be a child in
2 need of care shall be governed by
this code, except in those instances
3 when the Indian child welfare act of
1978 (25 U.S.C. § § 1901 et seq.)
4 applies.
5 (b) Subject
to the uniform child custody jurisdiction act, K.S.A. 38-
6 1301 et seq. and amendments
thereto, the district court shall have original
7 jurisdiction to receive and determine
proceedings under this code.
8 (c) When
jurisdiction has been acquired by the court over the person
9 of a child in need of care it may
continue until the child: (1) Has attained
10 the age of 21 years; (2) has been adopted;
or (3) has been discharged by
11 the court. Any child 18 years of age or
over may request, by motion to
12 the court, that the jurisdiction of the
court cease. Subsequently, the court
13 shall enter an order discharging the person
from any further jurisdiction
14 of the court.
15 (d) When it is no
longer appropriate for the court to exercise juris-
16 diction over a child the court, upon its
own motion or the motion of an
17 interested party, shall enter an order
discharging the child. Except upon
18 request of the child, the court shall not
enter an order discharging a child
19 which reaches 18 years of age before
completing the child's high school
20 education until June 1 of the school year
during which the child became
21 18 years of age as long as the child is
still attending high school.
22 (e) Unless the
court finds that substantial injustice would result, the
23 provisions of this code shall govern with
respect to acts or omissions oc-
24 curring prior to the effective date of this
code, and amendments thereto,
25 and with respect to children alleged or
adjudicated to have done or to
26 have been affected by the acts or
omissions, to the same extent as if the
27 acts or omissions had occurred on or after
the effective date of this code,
28 and amendments thereto, and the
children had been alleged or adjudi-
29 cated to be children in need of care.
30 Sec.
4. K.S.A. 1999 Supp. 38-1507 is hereby amended to read as
31 follows: 38-1507. (a) Except as otherwise
provided, in order to protect
32 the privacy of children who are the subject
of a child in need of care
33 record or report, all records and reports
concerning children in need of
34 care, including the juvenile intake and
assessment report, received by the
35 department of social and rehabilitation
services, a law enforcement
36 agency or any juvenile intake and
assessment worker shall be kept con-
37 fidential except: (1) To those persons or
entities with a need for infor-
38 mation that is directly related to
achieving the purposes of this code, or
39 (2) upon an order of a court of competent
jurisdiction pursuant to a
40 determination by the court that disclosure
of the reports and records is
41 in the best interests of the child or are
necessary for the proceedings
42 before the court, or both, and are
otherwise admissible in evidence. Such
43 access shall be limited to in camera
inspection unless the court otherwise
9
1 issues an order specifying the terms
of disclosure.
2 (b) The
provisions of subsection (a) shall not prevent disclosure of
3 information to an educational
institution or to individual educators about
4 a pupil specified in subsection (a)
of K.S.A. 1999 Supp. 72-89b03 and
5 amendments thereto.
6 (c) When a
report is received by the department of social and reha-
7 bilitation services, a law
enforcement agency or any juvenile intake and
8 assessment worker which indicates a
child may be in need of care, the
9 following persons and entities shall
have a free exchange of information
10 between and among them:
11 (1) The
department of social and rehabilitation services;
12 (2) the
commissioner of juvenile justice;
13 (3) the law
enforcement agency receiving such report;
14 (4) members of a
court appointed multidisciplinary team;
15 (5) an entity
mandated by federal law or an agency of any state au-
16 thorized to receive and investigate reports
of a child known or suspected
17 to be in need of care;
18 (6) a military
enclave or Indian tribal organization authorized to re-
19 ceive and investigate reports of a child
known or suspected to be in need
20 of care;
21 (7) a county or
district attorney;
22 (8) a court
services officer who has taken a child into custody pursuant
23 to K.S.A. 38-1527, and amendments
thereto;
24 (9) a guardian ad
litem appointed for a child alleged to be in need of
25 care;
26 (10) an intake
and assessment worker; and
27 (11) any
community corrections program which has the child under
28 court ordered supervision;
29 (12) the
department of health and environment or persons authorized
30 by the department of health and
environment pursuant to K.S.A. 59-512,
31 and amendments thereto, for the purpose
of carrying out responsibilities
32 relating to licensure or registration of
child care providers as required by
33 chapter 65 of article 5 of the Kansas
Statutes Annotated, and amendments
34 thereto; and
35 (13) members
of a duly appointed community services team.
36 (d) The following
persons or entities shall have access to information,
37 records or reports received by the
department of social and rehabilitation
38 services, a law enforcement agency or any
juvenile intake and assessment
39 worker. Access shall be limited to
information reasonably necessary to
40 carry out their lawful responsibilities to
maintain their personal safety and
41 the personal safety of individuals in their
care or to diagnose, treat, care
42 for or protect a child alleged to be in
need of care.
43 (1) A child named
in the report or records.
10
1 (2) A
parent or other person responsible for the welfare of a child,
2 or such person's legal
representative.
3 (3) A
court-appointed special advocate for a child, a citizen review
4 board or other advocate which reports
to the court.
5 (4) A
person licensed to practice the healing arts or mental health
6 profession in order to diagnose, care
for, treat or supervise: (A) A child
7 whom such service provider reasonably
suspects may be in need of care;
8 (B) a member of the child's family;
or (C) a person who allegedly abused
9 or neglected the child.
10 (5) A person or
entity licensed or registered by the secretary of health
11 and environment or approved by the
secretary of social and rehabilitation
12 services to care for, treat or supervise a
child in need of care. In order to
13 assist a child placed for care by the
secretary of social and rehabilitation
14 services in a foster home or child care
facility, the secretary shall provide
15 relevant information to the foster parents
or child care facility prior to
16 placement and as such information becomes
available to the secretary.
17 (6) A coroner or
medical examiner when such person is determining
18 the cause of death of a child.
19 (7) The state
child death review board established under K.S.A. 22a-
20 243, and amendments thereto.
21 (8) A prospective
adoptive parent prior to placing a child in their care.
22 (9) The
department of health and environment or person authorized
23 by the department of health and environment
pursuant to K.S.A. 59-512,
24 and amendments thereto, for the purpose of
carrying out responsibilities
25 relating to licensure or registration of
child care providers as required by
26 chapter 65 of article 5 of the Kansas
Statutes Annotated, and amendments
27 thereto.
28 (10) The state
protection and advocacy agency as provided by sub-
29 section (a)(10) of K.S.A. 65-5603 or
subsection (a)(2)(A) and (B) of K.S.A.
30 74-5515, and amendments thereto.
31 (11) Any
educational institution to the extent necessary to enable the
32 educational institution to provide the
safest possible environment for its
33 pupils and employees.
34 (12) Any educator
to the extent necessary to enable the educator to
35 protect the personal safety of the educator
and the educator's pupils.
36 (13) The
secretary of social and rehabilitation services.
37 (14) A law
enforcement agency.
38 (15) A
juvenile intake and assessment worker.
39 (16) The
commissioner of juvenile justice.
40 (e) Information
from a record or report of a child in need of care
41 shall be available to members of the
standing house or senate committee
42 on judiciary, house committee on
appropriations, senate committee on
43 ways and means, legislative post audit
committee and joint committee on
11
1 children and families, carrying out
such member's or committee's official
2 functions in accordance with K.S.A.
75-4319 and amendments thereto,
3 in a closed or executive meeting.
Except in limited conditions established
4 by 2/3 of the members of such
committee, records and reports received
5 by the committee shall not be further
disclosed. Unauthorized disclosure
6 may subject such member to discipline
or censure from the house of
7 representatives or senate.
8 (f) Nothing
in this section shall be interpreted to prohibit the secre-
9 tary of social and rehabilitation
services from summarizing the outcome
10 of department actions regarding a child
alleged to be a child in need of
11 care to a person having made such
report.
12 (g) Disclosure of
information from reports or records of a child in
13 need of care to the public shall be limited
to confirmation of factual details
14 with respect to how the case was handled
that do not violate the privacy
15 of the child, if living, or the child's
siblings, parents or guardians. Further,
16 confidential information may be released to
the public only with the ex-
17 press written permission of the individuals
involved or their representa-
18 tives or upon order of the court having
jurisdiction upon a finding by the
19 court that public disclosure of information
in the records or reports is
20 necessary for the resolution of an issue
before the court.
21 (h) Nothing in
this section shall be interpreted to prohibit a court of
22 competent jurisdiction from making an order
disclosing the findings or
23 information pursuant to a report of alleged
or suspected child abuse or
24 neglect which has resulted in a child
fatality or near fatality if the court
25 determines such disclosure is necessary to
a legitimate state purpose. In
26 making such order, the court shall give due
consideration to the privacy
27 of the child, if, living, or the child's
siblings, parents or guardians.
28 (i) Information
authorized to be disclosed in subsections (d) through
29 (g) shall not contain information which
identifies a reporter of a child in
30 need of care.
31 (j) Records or
reports authorized to be disclosed in this section shall
32 not be further disclosed, except that the
provisions of this subsection shall
33 not prevent disclosure of information to an
educational institution or to
34 individual educators about a pupil
specified in subsection (a) of K.S.A.
35 1999 Supp. 72-89b03 and amendments
thereto.
36 (k) Anyone who
participates in providing or receiving information
37 without malice under the provisions of this
section shall have immunity
38 from any civil liability that might
otherwise be incurred or imposed. Any
39 such participant shall have the same
immunity with respect to participa-
40 tion in any judicial proceedings resulting
from providing or receiving
41 information.
42 (l) No
individual, association, partnership, corporation or other
entity
43 shall willfully or knowingly disclose,
permit or encourage disclosure of
12
1 the contents of records or reports
concerning a child in need of care
2 received by the department of social
and rehabilitation services, a law
3 enforcement agency or a juvenile
intake and assessment worker except
4 as provided by this code. Violation
of this subsection is a class B
5 misdemeanor.
6 Sec.
5. K.S.A. 1999 Supp. 38-1513 is hereby amended to read as
7 follows: 38-1513. (a) Physical or
mental care and treatment. (1) When a
8 child less than 18 years of age is
alleged to have been physically, mentally
9 or emotionally abused or neglected
or sexually abused, no consent shall
10 be required to medically examine the child
to determine whether there
11 has been sexual abuse
the child has been maltreated.
12 (2) When the
health or condition of a child who is a ward of the court
13 requires it, the court may consent to the
performing and furnishing of
14 hospital, medical, surgical or dental
treatment or procedures, including
15 the release and inspection of medical or
dental records. A child, or parent
16 of any child, who is opposed to certain
medical procedures authorized by
17 this subsection may request an opportunity
for a hearing thereon before
18 the court. Subsequent to the hearing, the
court may limit the performance
19 of matters provided for in this subsection
or may authorize the perform-
20 ance of those matters subject to terms and
conditions the court considers
21 proper.
22 (3) Prior to
adjudication disposition the person having
custody of the
23 child may give consent to the
following:
24 (A) Dental
treatment for the child by a licensed dentist;
25 (B) diagnostic
examinations of the child, including but not limited to
26 the withdrawal of blood or other body
fluids, x-rays and other laboratory
27 examinations;
28 (C) releases and
inspections of the child's medical history records;
29 (D) immunizations
for the child;
30
(E) administration of lawfully prescribed drugs to the child;
and
31 (F) examinations
of the child including, but not limited to, the with-
32 drawal of blood or other body fluids or
tissues, for the purpose of deter-
33 mining the child's parentage.
34 (4) When the
court has granted legal custody of a child in a disposi-
35 tional hearing to any agency, association
or individual, the custodian or
36 an agent designated by the custodian shall
have authority to consent to
37 the performance and furnishing of hospital,
medical, surgical or dental
38 treatment or procedures or mental care or
treatment other than inpatient
39 treatment at a state psychiatric hospital,
including the release and in-
40 spection of medical or hospital records,
subject to terms and conditions
41 the court considers proper.
42 (5) If a child is
already in the custody of the secretary, the
secretary
43 may consent to the mental care and
treatment of the child, without court
13
1 approval, so long as such care and
treatment do not include inpatient
2 treatment at a state psychiatric
hospital.
3 (6) Any
health care provider who in good faith renders hospital, med-
4 ical, surgical, mental or dental care
or treatment to any child after a con-
5 sent has been obtained as authorized
by this section shall not be liable in
6 any civil or criminal action for
failure to obtain consent of a parent.
7 (7) Nothing
in this section shall be construed to mean that any person
8 shall be relieved of legal
responsibility to provide care and support for a
9 child.
10 (b) Mental
care and treatment requiring court action. If it is brought
11 to the court's attention, while the court
is exercising jurisdiction over the
12 person of a child under this code, that the
child may be a mentally ill
13 person as defined in K.S.A. 1999 Supp.
59-2946 and amendments thereto,
14 the court may:
15 (1) Direct or
authorize the county or district attorney or the person
16 supplying the information to file the
petition provided for in K.S.A. 1999
17 Supp. 59-2957 and amendments thereto and
proceed to hear and deter-
18 mine the issues raised by the application
as provided in the care and
19 treatment act for mentally ill persons;
or
20 (2) authorize
that the child seek voluntary admission to a treatment
21 facility as provided in K.S.A. 1999 Supp.
59-2949 and amendments
22 thereto.
23 The application to
determine whether the child is a mentally ill person
24 may be filed in the same proceedings as the
petition alleging the child to
25 be a child in need of care, or may be
brought in separate proceedings. In
26 either event the court may enter an order
staying any further proceedings
27 under this code until all proceedings have
been concluded under the care
28 and treatment act for mentally ill
persons.
29 Sec.
6. K.S.A. 38-1531 is hereby amended to read as follows:
38-
30 1531. (a) Filing of petition. An
action pursuant to this code is commenced
31 by the filing of a petition with the clerk
of the district court.
32 (b) Contents
of petition. (1) The petition shall state, if known:
33 (A) The name,
date of birth and residence address of the child;
34 (B) the name and
residence address of the child's parents;
35 (C) the name and
residence address of any persons having custody
36 or control of the child, or the nearest
known relative if no parent can be
37 found; and
38 (D) plainly and
concisely in the language of the statutory definition,
39 the basis for requesting that the court
assume jurisdiction over the child.
40 (2) The petition
shall also state the specific facts which are relied
41 upon to support the allegation referred to
in the preceding paragraph
42 including any known dates, times and
locations.
43 (3) The
proceedings shall be entitled: ``In the Interest of
________________.''
14
1 (4) The
petition shall contain a request that the court find the child
2 to be a child in need of care.
3 (5) The
petition shall contain a request that the parent or parents be
4 ordered to pay child support. The
request for child support may be omit-
5 ted with respect to a parent already
ordered to pay child support for the
6 child and shall be omitted with
respect to one or both parents upon
7 written request of the secretary.
8 (6) If
the petition requests removal of the child from the child's
home,
9 the petition shall specify the
efforts known to the petitioner to maintain
10 the family unit and prevent the
unnecessary removal of the child from the
11 child's home, or shall specify the facts
supporting that an emergency exists
12 which threatens the safety of the
child.
13 (7) If the
petition requests custody of the child to the secretary,
the
14 petition shall specify the facts
supporting that allowing the child to remain
15 in the home would be contrary to the
welfare of the child or that placement
16 is in the best interests of the
child.
17
(c) Motions. Motions may be made orally or in writing.
The motion
18 shall state with particularity the grounds
for the motion and shall state
19 the relief or order sought.
20 Sec.
7. K.S.A. 1999 Supp. 38-1532 is hereby amended to read as
21 follows: 38-1532. Upon the filing of a
petition under this code the court
22 shall proceed by one of the following
methods:
23 (a) Issue summons
stating the place and time at which the parties are
24 required to appear and answer the
allegations of the petition, which shall
25 be within 30 days of the date the petition
is filed, and deliver the summons
26 with copies of the petition attached to the
sheriff or a person specially
27 appointed to serve it.
28 (b) If the child
has been taken into protective custody under the
29 provisions of K.S.A. 38-1542 and a
temporary custody hearing is held as
30 required by K.S.A. 38-1543, a copy of the
petition shall be served at the
31 hearing on each interested party who is in
attendance at the hearing and
32 a record of service made a part of the
proceedings. The court shall an-
33 nounce the time the parties will be
required to next appear before the
34 court. Process shall be served on any
interested party not at the temporary
35 custody hearing.
36 Upon the written
request of the petitioner or the county or district
37 attorney separate or additional summons
shall be issued to any interested
38 party.
39 The court shall
attempt to notify both parents, if known.
40 (c) If the
petition requests custody to the secretary, the court shall
41 cause a copy of the petition to be
provided to the secretary for the pur-
42 pose of documentation upon
filing. However, the failure of the secretary
43 to receive a copy of the petition shall
not affect the jurisdiction of the court
15
1 or its authority in the
proceeding.
2 Sec.
8. K.S.A. 1999 Supp. 38-1542 is hereby amended to read as
3 follows: 38-1542. (a) The court upon
verified application may issue ex
4 parte an order directing that
a child be held in protective custody and, if
5 the child has not been taken into
custody, an order directing that the
6 child be taken into custody. The
application shall state for each child:
7 (1) The
applicant's belief that the child is a child in need of care
and
8 that allowing the child to remain
in the home is contrary to the welfare
9 of the child or placement is in
the best interest of the child and that the
10 child is likely to sustain harm if
not immediately afforded protective cus-
11 tody; and
12 (2) the
specific facts which are relied upon to support
the belief ap-
13 plication, including efforts known to
the applicant, to maintain the family
14 unit and prevent the unnecessary removal
of the child from the child's
15 home, or the specific facts supporting
that an emergency exists which
16 threatens the safety of the
child.
17 (b) (1) The
order of protective custody may be issued only after the
18 court has determined there is probable
cause to believe the allegations
19 in the application are true. The order
shall remain in effect until the
20 temporary custody hearing provided for in
K.S.A. 38-1543, and amend-
21 ments thereto, unless earlier rescinded by
the court.
22 (2) No child
shall be held in protective custody for more than 72
23 hours, excluding Saturdays, Sundays and
legal holidays, unless within the
24 72-hour period a determination is made as
to the necessity for temporary
25 custody in a temporary custody hearing.
Nothing in this subsection (b)(2)
26 shall be construed to mean that the child
must remain in protective cus-
27 tody for 72 hours.
28 (c) Whenever the
court determines the necessity for an order of pro-
29 tective custody, the court may place the
child in the protective custody
30 of: (1) A parent or other person having
custody of the child and may enter
31 a restraining order pursuant to subsection
(d) (e); (2) a person, other than
32 the parent or other person having custody,
who shall not be required to
33 be licensed under article 5 of chapter 65
of the Kansas Statutes Anno-
34 tated; (3) a youth residential facility;
or or (4) the
secretary the secretary
35 if the child is alleged to be a child in
need of protection care
the court
36 may award custody to the secretary.
However, if the secretary presents
37 the court with a plan to provide
services to a child or family which the
38 court finds will assure the safety of
the child, the court may only place
39 the child in the protective custody of
the secretary until the court finds
40 the services are in place. The court
shall have the authority to require any
41 person or entity agreeing to participate
in the plan to perform as set out
42 in the plan; or (5) if
the child is alleged to be a youth in need of
community
43 services, the court, before
placing the child in the custody of the secretary,
16
1 shall consider written
documentation from the secretary of the services
2 and/or community services
plan offered or delivered to prevent the need
3 for such custody. Only if
the court finds that the services documented by
4 the secretary are
insufficient to protect the safety of the child and
that
5 remaining in the custody
of the parent with such services in place is
6 contrary to the welfare or
that placement is in the best interests of the
7 child, may the court order
custody with the secretary. The secretary need
8 not present a written plan
if the court finds an emergency exists. However,
9 if the secretary presents
the court with a plan to provide services to a
10 child or family which the court
finds will assure the safety of the child,
11 the court may only place the
child in the protective custody of the sec-
12 retary until the court finds the
services are in place. The court shall have
13 the authority to require any
person or entity agreeing to participate in
14 the plan to perform as set out
in the plan. When the child is placed in the
15 protective custody of the secretary, the
secretary shall have the discre-
16 tionary authority to place the child with a
parent or to make other suitable
17 placement for the child. When circumstances
require, a child in protec-
18 tive custody may be placed in a juvenile
detention facility or other secure
19 facility pursuant to an order of protective
custody for not to exceed 24
20 hours, excluding Saturdays, Sundays and
legal holidays.
21 (d) The order of
protective custody shall be served on the child's
22 parents and any other person having legal
custody of the child. The order
23 shall prohibit all parties from removing
the child from the court's juris-
24 diction without the court's permission.
25 (e) If the court
issues an order of protective custody, the court may
26 also enter an order restraining any alleged
perpetrator of physical, sexual,
27 mental or emotional abuse of the child from
residing in the child's home;
28 visiting, contacting, harassing or
intimidating the child , other family mem-
29 ber or witness; or attempting to
visit, contact, harass or intimidate the
30 child, other family member or
witness. Such restraining order shall be
31 served on any alleged perpetrator to whom
the order is directed.
32 (f) The court
shall not enter an order removing a child from the
33 custody of a parent pursuant to this
section unless the court first finds
34 from evidence presented by the petitioner
that reasonable efforts have
35 been made to maintain the family unit
and prevent or eliminate the need
36 for the unnecessary
removal of the child from the child's home or that an
37 emergency exists which threatens the safety
of the child and requires the
38 that remaining in the home is contrary
to the welfare of the child or that
39 immediate removal
placement is in the best interest of the child. Such
40 findings shall be included in any order
entered by the court. If the child
41 is placed in the custody of the
secretary, the court shall provide the sec-
42 retary with a written copy of any orders
entered for the purpose of
43 documenting these orders
upon making the order.
17
1 Sec.
9. K.S.A. 1999 Supp. 38-1543 is hereby amended to read as
2 follows: 38-1543. (a) Upon notice and
hearing, the court may issue an
3 order directing who shall have
temporary custody and may modify the
4 order during the pendency of the
proceedings as will best serve the child's
5 welfare.
6 (b) A
hearing pursuant to this section shall be held within 72 hours,
7 excluding Saturdays, Sundays and
legal holidays, following a child having
8 been taken into protective
custody.
9
(c) Whenever it is determined that a temporary custody hearing
is
10 required, the court shall immediately set
the time and place for the hear-
11 ing. Notice of a temporary custody hearing
shall be in substantially the
12 following form:
13
(Name of Court)
14 (Caption of Case)
15
NOTICE OF TEMPORARY CUSTODY HEARING
16 TO:
| 17 |
(Names)
|
(Relationship)
|
(Addresses)
|
| 18 |
|
|
|
| 19 |
|
|
|
| 20 |
|
|
|
21 , 19__ (year), at
__ o'clock __m. the court
22
(day)
(date)
23 will conduct a hearing at __________ to
determine if the above named child or chil-
24 dren should be in the temporary custody of
some person or agency other than the parent
25 or other person having legal custody prior
to the hearing on the petition filed in the above
26 captioned case. The court may order one or
both parents to pay child support.
27 __________, an
attorney, has been appointed as guardian ad litem for the
child or
28 children. Each parent or other legal
custodian has the right to appear and be heard person-
29 ally, either with or without an attorney.
An attorney will be appointed for a parent who can
30 show that the parent is not financially
able to hire one.
31 Date __________, 19__
(year) Clerk of the District Court
32 by
_______________________________
33
34
REPORT OF SERVICE
35 I certify that I have
delivered a true copy of the above notice to the persons above
named
36 in the manner and at the times indicated
below:
| 37 |
Name
|
Location of Service
|
Manner of Service
|
Date
|
Time
|
| 38 |
|
(other than above)
|
| 39 |
|
|
|
|
|
| 40 |
|
|
|
|
|
| 41 |
|
|
|
|
|
42
43 Date Returned __________,
19__ (year)
18
1
__________________
2
(Signature)
3
__________________
4
(Title)
5 (d) Notice
of the temporary custody hearing shall be given at least
6 24 hours prior to the hearing. The
court may continue the hearing to
7 afford the 24 hours prior notice or,
with the consent of the party, proceed
8 with the hearing at the designated
time. If an order of temporary custody
9 is entered and the parent or other
person having custody of the child has
10 not been notified of the hearing, did not
appear or waive appearance and
11 requests a rehearing, the court shall
rehear the matter without unnec-
12 essary delay.
13 (e) Oral notice
may be used for giving notice of a temporary custody
14 hearing where there is insufficient time to
give written notice. Oral notice
15 is completed upon filing a certificate of
oral notice in substantially the
16 following form:
17
(Name of Court)
18 (Caption of Case)
19
CERTIFICATE OF ORAL NOTICE OF TEMPORARY CUSTODY
HEARING
20 I gave oral notice
that the court will conduct a hearing at ___ o'clock __m. on
______________,
21 19__ (year), to the
persons listed, in the manner and at the times indicated below:
| 22 |
Name
|
Relationship
|
Date
|
Time
|
Method of Communication
|
| 23 |
|
|
|
|
(in person or telephone)
|
| 24 |
|
|
|
|
|
| 25 |
|
|
|
|
|
| 26 |
|
|
|
|
|
27 I advised each of the above persons
that:
28 (1) The hearing
is to determine if the above child or children should be in the
tem-
29
porary custody of a person or agency other than a parent;
30
(2) the court will appoint an attorney to serve as guardian
ad litem for the child or
31
children named above;
32
(3) each parent or legal custodian has the right to appear and
be heard personally
33
either with or without an attorney;
34
(4) an attorney will be appointed for a parent who can show
that the parent is not
35
financially able to hire an attorney; and
36
(5) the court may order one or both parents to pay child
support.
37
__________________
38
(Signature)
39
__________________
40
(Name Printed)
41
__________________
42
(Title)
43 (f) The court may
enter an order of temporary custody after deter-
19
1 mining that: (1) The child is
dangerous to self or to others; (2) the child
2 is not likely to be available within
the jurisdiction of the court for future
3 proceedings; or (3) the health or
welfare of the child may be endangered
4 without further care.
5
(g) Whenever the court determines the necessity for an order
of tem-
6 porary custody the court may place
the child in the temporary custody
7 of: (1) A parent or other person
having custody of the child and may enter
8 a restraining order pursuant to
subsection (h); (2) a person, other than
9 the parent or other person having
custody, who shall not be required to
10 be licensed under article 5 of chapter 65
of the Kansas Statutes Anno-
11 tated; (3) a youth residential facility;
or or (4) the
secretary the secretary
12 if the child is alleged to be a child in
need of protection
care, the court
13 may award custody to the secretary.
However, if the secretary presents
14 the court with a plan to provide
services to a child or family which the
15 court finds will assure the safety of
the child, the court may only place
16 the child in the temporary custody of
the secretary until the court finds
17 the services are in place. The court
shall have the authority to require any
18 person or entity agreeing to participate
in the plan to perform as set out
19 in the plan; or (5) if
the child is alleged to be a youth in need of
community
20 services, the court, before
placing the child in the custody of the secretary,
21 shall consider written
documentation from the secretary of the services
22 and/or community services plan
offered or delivered to prevent the need
23 for such custody. Only if the
court finds that the services documented by
24 the secretary are insufficient
to protect the safety of the child and that
25 remaining in the custody of the
parent with such services in place is
26 contrary to the welfare or that
placement is in the best interests of the
27 child, may the court order
custody with the secretary. However, if the
28 secretary presents the court
with a plan to provide services to a child or
29 family which the court finds
will assure the safety of the child, the court
30 may only place the child in the
temporary custody of the secretary until
31 the court finds the services are
in place. The court shall have the authority
32 to require any person or entity
agreeing to participate in the plan to
33 perform as set out in the plan.
When making a recommendation regarding
34 custody, the secretary shall
present to the court in writing the specific
35 actions taken to prevent or
eliminate the need for custody to the secretary.
36 When the child is placed in the temporary
custody of the secretary, the
37 secretary shall have the discretionary
authority to place the child with a
38 parent or to make other suitable placement
for the child. When circum-
39 stances require, a child may be placed in a
juvenile detention facility or
40 other secure facility, but the total amount
of time that the child may be
41 held in such facility under this section
and K.S.A. 38-1542 and amend-
42 ments thereto shall not exceed 24 hours,
excluding Saturdays, Sundays
43 and legal holidays. The order of temporary
custody shall remain in effect
20
1 until modified or rescinded by the
court or a disposition order is entered
2 but not exceeding 60 days, unless
good cause is shown and stated on the
3 record.
4 (h) If the
court issues an order of temporary custody, the court may
5 enter an order restraining any
alleged perpetrator of physical, sexual,
6 mental or emotional abuse of the
child from residing in the child's home;
7 visiting, contacting, harassing or
intimidating the child; or attempting to
8 visit, contact, harass or intimidate
the child.
9 (i) The
court shall not enter an order removing a child from the cus-
10 tody of a parent pursuant to this section
unless the court first finds from
11 evidence presented by the petitioner that
reasonable efforts have been
12 made to maintain the family unit and
prevent or eliminate the need for
13 the unnecessary removal of the child
from the child's home or that an
14 emergency exists which threatens the safety
of the child and requires the
15 immediate removal that
remaining in the home is contrary to the welfare
16 of the child or that placement is in the
best interest of the child. Such
17 findings shall be included in any order
entered by the court. If the child
18 is placed in the custody of the
secretary, the court shall provide the sec-
19 retary with a written copy of any orders
entered for the purpose of
20 documenting these orders
upon making the order.
21 Sec.
10. K.S.A. 1999 Supp. 38-1544 is hereby amended to read as
22 follows: 38-1544. (a) At any time after
filing a petition, but prior to an
23 adjudication, the court may enter an order
for continuance and informal
24 supervision without an adjudication if no
interested party objects. Upon
25 granting the continuance, the court shall
include in the order any con-
26 ditions with which the interested parties
are expected to comply and
27 provide the parties with a copy of the
order. The conditions may include
28 appropriate dispositional alternatives
authorized by K.S.A. 38-1563 and
29 amendments thereto.
30 (b) An order for
informal supervision may remain in force for a period
31 of up to six months and may be extended,
upon hearing, for an additional
32 six-month period for a total of one
year.
33 (c) The court
after notice and hearing may revoke or modify the order
34 with respect to a party upon a showing that
the party, being subject to
35 the order for informal supervision, has
substantially failed to comply with
36 the terms of the order, or that
modification would be in the best interests
37 of the child. Upon revocation, proceedings
shall resume pursuant to this
38 code.
39 (d) Parties to
the order for informal supervision who successfully
40 complete the terms and period of
supervision shall not again be pro-
41 ceeded against in any court based solely
upon the allegations in the orig-
42 inal petition and the proceedings shall be
dismissed.
43 (e) If the
court issues an order for informal supervision pursuant to
21
1 this section, the court may enter
an order restraining any alleged perpe-
2 trator of physical, sexual, mental
or emotional abuse of the child from
3 residing in the child's home,
visiting, contacting, harassing or intimidating
4 the child, other family member or
witness; or attempting to visit, contact,
5 harass or intimidate the child,
other family member or witness.
6 Sec.
11. K.S.A. 1999 Supp. 38-1562 is hereby amended to read as
7 follows: 38-1562. (a) At any time
after a child has been adjudicated to be
8 a child in need of care and prior to
disposition, the judge shall permit any
9 interested parties, and any persons
required to be notified pursuant to
10 subsection (b), to be heard as to proposals
for appropriate disposition of
11 the case.
12 (b) Before
entering an order placing the child in the custody of a
13 person other than the child's parent, the
court shall require notice of the
14 time and place of the hearing to be given
to all the child's grandparents
15 at their last known addresses or, if no
grandparent is living or if no living
16 grandparent's address is known, to the
closest relative of each of the
17 child's parents whose address is known, and
to the foster parent, prea-
18 doptive parent or relative providing care.
Such notice shall be given by
19 restricted mail not less than 10 business
days before the hearing and shall
20 state that the person receiving the notice
shall have an opportunity to be
21 heard at the hearing. The provisions of
this subsection shall not require
22 additional notice to any person otherwise
receiving notice of the hearing
23 pursuant to K.S.A. 38-1536 and amendments
thereto. Individuals receiv-
24 ing notice pursuant to this subsection
shall not be made a party to the
25 action solely on the basis of this notice
and opportunity to be heard.
26 (c) Prior to
entering an order of disposition, the court shall give con-
27 sideration to the child's physical, mental
and emotional condition; the
28 child's need for assistance; the manner in
which the parent participated
29 in the abuse, neglect or abandonment of the
child; any relevant infor-
30 mation from the intake and assessment
process; and the evidence re-
31 ceived at the dispositional hearing. In
determining when reunification is
32 a viable alternative, the court shall
specifically consider whether the par-
33 ent has been found by a court to have: (1)
Committed murder in the first
34 degree, K.S.A. 21-3401 and amendments
thereto, murder in the second
35 degree, K.S.A. 21-3402 and amendments
thereto, capital murder, K.S.A.
36 21-3439 and amendments thereto, voluntary
manslaughter, K.S.A. 21-
37 3403 and amendments thereto or violated a
law of another state which
38 prohibits such murder or manslaughter of a
child; (2) aided or abetted,
39 attempted, conspired or solicited to commit
such murder or voluntary
40 manslaughter of a child as provided in
subsection (c)(1); (3) committed a
41 felony battery that resulted in bodily
injury to the child or another child;
42 (4) subjected the child or another child to
aggravated circumstances as
43 defined in subsection (x)
of K.S.A. 38-1502 and amendments thereto; (5)
22
1 parental rights of the parent to
another child have been terminated in-
2 voluntarily; or (6) the child has
been in extended out of home placement
3 as defined in subsection (z)
of K.S.A. 38-1502 and amendments thereto.
4 If reintegration is not a viable
alternative, the court shall consider whether
5 a compelling reason has been
documented in the case plan to find neither
6 adoption nor permanent guardianship
are in the best interests of the
7 child, the child is in a stable
placement with a relative, or services set out
8 in the case plan necessary for the
safe return of the child have been made
9 available to the parent with whom
reintegration is planned. If reintegra-
10 tion is not a viable alternative and either
adoption or permanent guardi-
11 anship might be in the best interests of
the child, the county or district
12 attorney or the county or district
attorney's designee shall file a motion
13 to terminate parental rights or a motion
to establish permanent guardi-
14 anship within 30 days and the court shall
set a hearing on such motion
15 within 90 days of the filing of such
motion. No such hearing is required
16 when the parents voluntarily relinquish
parental rights or agree to ap-
17 pointment of a permanent guardian.
18 Sec.
12. K.S.A. 1999 Supp. 38-1563 is hereby amended to read as
19 follows: 38-1563. (a) After consideration
of any evidence offered relating
20 to disposition, the court may retain
jurisdiction and place the child in the
21 custody of the child's parent subject to
terms and conditions which the
22 court prescribes to assure the proper care
and protection of the child,
23 including supervision of the child and the
parent by a court services of-
24 ficer, or may order the child and the
parent to participate in programs
25 operated by the secretary or another
appropriate individual or agency.
26 The terms and conditions may require any
special treatment or care which
27 the child needs for the child's physical,
mental or emotional health.
28 (b) The duration
of any period of supervision or other terms or con-
29 ditions shall be for an initial period of
no more than 18 12 months. The
30 court, at the expiration of that period,
upon a hearing and for good cause
31 shown, may make successive extensions of
the supervision or other terms
32 or conditions for up to 12 months at a
time.
33 (c) The court may
order the child and the parents of any child who
34 has been adjudged a child in need of care
to attend counseling sessions
35 as the court directs. The expense of the
counseling may be assessed as
36 an expense in the case. No mental health
center shall charge a greater
37 fee for court-ordered counseling than the
center would have charged to
38 the person receiving counseling if the
person had requested counseling
39 on the person's own initiative.
40 (d) If the court
finds that placing the child in the custody of a parent
41 will not assure protection from physical,
mental or emotional abuse or
42 neglect or sexual abuse or is contrary
to the welfare of the child or will
43 not that placement
would be in the best interests of the child, the court
23
1 shall enter an order awarding custody
of the child, until the further order
2 of the court, to one of the
following:
3 (1) A
relative of the child or a person with whom the child has close
4 emotional ties;
5 (2) any
other suitable person;
6 (3) a
shelter facility; or or
7 (4) the
secretary., if the child is adjudged to
be a child in need of care
8 by reason of a finding by
the court that the child is a child in need of
9 protection;
or.
10
(5) If the child is adjudged to be a
child in need of care by reason of
11 a finding that the child is a
youth in need of community services, the
court
12 shall not place the child in the custody
of the secretary if the court has
13 received from the secretary, written
documentation of the services and/or
14 community services plan offered or
delivered to prevent the need for such
15 custody unless the court finds that the
services documented by the sec-
16 retary are insufficient to protect the
safety of the child and that being in
17 the custody of the parent with such
services in place is contrary to the
18 welfare or that placement is in the best
interests of the child. The court
19 shall have the authority to require any
person or entity agreeing to par-
20 ticipate in the plan to perform as set
out in the plan. The secretary shall
21 present to the court in writing the
specific actions taken to maintain the
22 family unit and prevent the unnecessary
removal of the child from the
23 child's home.
24 In making such a
custody order, the court shall give preference, to the
25 extent that the court finds it is in the
best interests of the child, first to
26 granting custody to a relative of the child
and second to granting custody
27 of the child to a person with whom the
child has close emotional ties. If
28 the court has awarded legal custody based
on the finding specified by this
29 subsection, the legal custodian shall not
return the child to the home of
30 that parent without the written consent of
the court.
31 (e) When the
custody of the child is awarded to the secretary:
32 (1) The court may
recommend to the secretary where the child
33 should be placed.
34 (2) The secretary
shall notify the court in writing of any placement
35 of the child or, within 10 days of the
order awarding the custody of the
36 child to the secretary, any proposed
placement of the child, whichever
37 occurs first.
38 (3) The court may
determine if such placement is contrary to the
39 welfare or in the best
interests of the child, and if the court determines
40 that such placement is not in the best
interests of the child, the court
41 shall notify the secretary who shall then
make an alternative placement
42 subject to the procedures established in
this paragraph. In determining
43 if such placement is in the best interests
of the child, the court, after
24
1 providing the parties with an
opportunity to be heard, shall consider the
2 health and safety needs of the child
and the resources available to meet
3 the needs of children in the custody
of the secretary.
4 (4) When
the secretary provides the court with a plan to provide
5 services to a child or family
which the court finds is in place and which
6 will assure the safety of the
child, the court shall approve the return of
7 the child to the child's home. The
court shall have the authority to require
8 any person or entity agreeing to
participate in the plan to perform as set
9 out in the plan.
10 (f) If custody of
a child is awarded under this section to a person
11 other than the child's parent, the court
may grant any individual reason-
12 able rights to visit the child upon motion
of the individual and a finding
13 that the visitation rights would be in the
best interests of the child.
14 (g) If the court
issues an order of custody pursuant to this section,
15 the court may enter an order restraining
any alleged perpetrator of phys-
16 ical, sexual, mental or emotional abuse of
the child from residing in the
17 child's home; visiting, contacting,
harassing or intimidating the child,
18 other family member or witness; or
attempting to visit, contact, harass or
19 intimidate the child, other family
member or witness.
20 (h) The court
shall not enter an order removing a child from the
21 custody of a parent pursuant to this
section unless the court first finds
22 from evidence presented by the petitioner
that reasonable efforts have
23 been made to maintain the family unit
and prevent or eliminate the need
24 for the unnecessary
removal of the child; from the child's home or
that
25 reasonable efforts are not necessary
because reintegration is not a viable
26 alternative; or that an emergency exists
which threatens the safety of the
27 child and requires the immediate
removal that allowing the child to re-
28 main in the home is contrary to the
welfare of the child or that placement
29 would be in the best
interest of the child. If the child is placed in the
30 custody of the secretary, the court
shall provide the secretary with a copy
31 of any orders entered for the
purpose of documenting these orders
32 within 10 days of making the order.
Reintegration may not be a viable
33 alternative when the: (1) Parent has been
found by a court to have com-
34 mitted murder in the first degree, K.S.A.
21-3401, and amendments
35 thereto, murder in the second degree,
K.S.A. 21-3402, and amendments
36 thereto, capital murder, K.S.A.
21-3439, and amendments thereto, vol-
37 untary manslaughter, K.S.A. 21-3403,
and amendments thereto, or vio-
38 lated a law of another state which
prohibits such murder or manslaughter
39 of a child; (2) parent aided or abetted,
attempted, conspired or solicited
40 to commit such murder or voluntary
manslaughter of a child as provided
41 in subsection (h)(1); (3) parent committed
a felony battery that resulted
42 in bodily injury to the child or another
child; (4) parent has subjected the
43 child or another child to aggravated
circumstances as defined in subsec-
25
1 tion (x) of K.S.A.
38-1502, and amendments thereto; (5) parental rights
2 of the parent to another child have
been terminated involuntarily or (6)
3 the child has been in extended out of
home placement as defined in
4 subsection (z) of
K.S.A. 38-1502, and amendments thereto. Such findings
5 shall be included in any order
entered by the court.
6 (i) In
addition to or in lieu of any other order authorized by this
7 section, if a child is adjudged to be
a child in need of care by reason of a
8 violation of the uniform controlled
substances act (K.S.A. 65-4101 et seq.,
9 and amendments
thereto), or K.S.A. 41-719, 41-804,
41-2719, 65-4152,
10 65-4153, 65-4154 or 65-4155, and amendments
thereto, the court shall
11 order the child to submit to and complete
an alcohol and drug evaluation
12 by a community-based alcohol and drug
safety action program certified
13 pursuant to K.S.A. 8-1008, and
amendments thereto, and to pay a fee not
14 to exceed the fee established by that
statute for such evaluation. If the
15 court finds that the child and those
legally liable for the child's support
16 are indigent, the fee may be waived. In no
event shall the fee be assessed
17 against the secretary or the department of
social and rehabilitation serv-
18 ices.
19 (j) In addition
to any other order authorized by this section, if child
20 support has been requested and the parent
or parents have a duty to
21 support the child, the court may order one
or both parents to pay child
22 support and, when custody is awarded to the
secretary, the court shall
23 order one or both parents to pay child
support. The court shall determine,
24 for each parent separately, whether the
parent is already subject to an
25 order to pay support for the child. If the
parent is not presently ordered
26 to pay support for any child who is a ward
of the court and the court has
27 personal jurisdiction over the parent, the
court shall order the parent to
28 pay child support in an amount determined
under K.S.A. 38-1595, and
29 amendments thereto. Except for good cause
shown, the court shall issue
30 an immediate income withholding order
pursuant to K.S.A. 23-4,105 et
31 seq., and amendments
thereto, for each parent ordered to pay support
32 under this subsection, regardless of
whether a payor has been identified
33 for the parent. A parent ordered to pay
child support under this subsec-
34 tion shall be notified, at the hearing or
otherwise, that the child support
35 order may be registered pursuant to K.S.A.
38-1597, and amendments
36 thereto. The parent shall also be informed
that, after registration, the
37 income withholding order may be served on
the parent's employer with-
38 out further notice to the parent and the
child support order may be en-
39 forced by any method allowed by law.
Failure to provide this notice shall
40 not affect the validity of the child
support order.
41 Sec.
13. K.S.A. 1999 Supp. 38-1565 is hereby amended to read as
42 follows: 38-1565. (a) If a child is placed
outside the child's home and no
43 permanency plan is made a part of
the record of the dispositional hearing,
26
1 a written permanency plan
shall be prepared which provides for reinte-
2 gration of the child into the child's
family or, if reintegration is not a
3 viable alternative, for other
permanent placement of the child. Reinte-
4 gration may not be a viable
alternative when the: (1) Parent has been
5 found by a court to have committed
murder in the first degree, K.S.A.
6 21-3401 and amendments thereto,
murder in the second degree, K.S.A.
7 21-3402 and amendments thereto,
capital murder, K.S.A. 21-3439 and
8 amendments thereto, voluntary
manslaughter, K.S.A. 21-3403 and
9 amendments thereto or violated a law
of another state which prohibits
10 such murder or manslaughter of a child; (2)
parent aided or abetted,
11 attempted, conspired or solicited to commit
such murder or voluntary
12 manslaughter of a child as provided in
subsection (a)(1); (3) parent com-
13 mitted a felony battery that resulted in
bodily injury to the child or an-
14 other child; (4) parent has subjected the
child or another child to aggra-
15 vated circumstances as defined in
subsection (x) of K.S.A. 38-1502, and
16 amendments thereto; (5) parental rights of
the parent to another child
17 have been terminated involuntarily; or (6)
the child has been in extended
18 out of home placement as defined in
subsection (z) of K.S.A. 38-1502
19 and amendments thereto. If the
permanency goal is reintegration into the
20 family, the permanency plan shall
include measurable objectives and time
21 schedules for reintegration. The plan shall
be submitted to the court not
22 later than 30 days after the dispositional
order is entered. If the child is
23 placed in the custody of the secretary, the
plan shall be prepared and
24 submitted by the secretary. If the child is
placed in the custody of a facility
25 or person other than the secretary, the
plan shall be prepared and sub-
26 mitted by a court services officer.
27 (b) A court
services officer or, if the child is in the secretary's
custody,
28 the secretary shall submit to the court, at
least every six months, a written
29 report of the progress being made toward
the goals of the permanency
30 plan submitted pursuant to subsection (a)
and the specific actions taken
31 to achieve the goals of the permanency
plan. If the child is placed in foster
32 care, the foster parent or parents shall
submit to the court, at least every
33 six months, a report in regard to the
child's adjustment, progress and
34 condition. The department of social and
rehabilitation services shall notify
35 the foster parent or parents of the foster
parent's or parent's duty to
36 submit such report, on a form provided by
the department of social and
37 rehabilitation services, at least two weeks
prior to the date when the
38 report is due, and the name of the judge
and the address of the court to
39 which the report is to be submitted. Such
report shall be confidential and
40 shall only be reviewed by the court and the
child's guardian ad litem. The
41 court shall review the progress
being made toward plan submitted by the
42 secretary, the reports submitted by
foster parents and determine whether
43 reasonable efforts and progress have
been made to achieve the goals of
27
1 the permanency plan
and the foster parent report and,. If the
court de-
2 termines that progress is inadequate
or that the permanency plan is no
3 longer viable, the court shall hold a
hearing pursuant to subsection (c). If
4 the secretary has custody of the
child, such hearing shall be held no more
5 than 12 months after the child is
placed outside the child's home and at
6 least every 12 months thereafter.
For children in the custody of the sec-
7 retary prior to July 1, 1998,
within 30 days of receiving a request from
8 the secretary, a permanency
hearing shall be held. At each hearing, the
9 court shall make a written finding
whether reasonable efforts have been
10 made to accomplish the permanency goal
and whether continued out of
11 home placement is necessary for the
child's safety. If the goal of the per-
12 manency plan submitted pursuant to
subsection (a) is reintegration into
13 the family and the court determines after
12 months from the time such
14 plan is first submitted that progress is
inadequate, the court shall hold a
15 hearing pursuant to subsection (c). Nothing
in this subsection shall be
16 interpreted to prohibit termination of
parental rights prior to the expi-
17 ration of 12 months.
18 (c) Whenever a
hearing is required under subsection (b), the court
19 shall notify all interested parties and the
foster parents, preadoptive par-
20 ents or relatives providing care for the
child and hold a hearing. Individ-
21 uals receiving notice pursuant to this
subsection shall not be made a party
22 to the action solely on the basis of this
notice and opportunity to be heard.
23 After providing the interested parties,
foster parents, preadoptive parents
24 or relatives providing care for the child
an opportunity to be heard, the
25 court shall determine whether the child's
needs are being adequately met
26 and whether reintegration continues to be a
viable alternative. If the court
27 finds reintegration is no longer a viable
alternative, the court shall con-
28 sider whether the child is in a stable
placement with a relative, services
29 set out in the case plan necessary for the
safe return of the child have
30 been made available to the parent with whom
reintegration is planned or
31 compelling reasons are documented in the
case plan to support a finding
32 that neither adoption nor permanent
guardianship are in the child's best
33 interest. If reintegration is not a viable
alternative and either adoption or
34 permanent guardianship might be in the best
interests of the child, the
35 county or district attorney or the county
or district attorney's designee
36 shall file a motion to terminate parental
rights or for a motion to establish
37 a permanent guardianship within 30
days and the court shall set a hearing
38 on such motion within 90 days of the filing
of such motion. When the
39 court finds reintegration continues to be a
viable alternative, the court
40 shall determine whether and, if
applicable, when the child will be returned
41 to the parent; may rescind any of
its prior dispositional orders and enter
42 any dispositional order authorized by this
code or may order that a new
43 plan for the reintegration be prepared and
submitted to the court. If
28
1 reintegration cannot be
accomplished as approved by the court, the court
2 shall be informed and shall
schedule a hearing pursuant to subsection (c).
3 No such hearing is required when the
parents voluntarily relinquish pa-
4 rental rights or agree to appointment
of a permanent guardian.
5 Sec.
14. K.S.A. 38-1566 is hereby amended to read as follows:
38-
6 1566. (a) Except as provided
in K.S.A. 38-1567, and amendments thereto,
7 if a child has been in the same
foster home or shelter facility for six months
8 or longer, or has been placed by the
secretary in the home of a parent or
9 relative, the secretary shall give
written notice of any plan to move the
10 child to a different placement. The notice
shall be given to (a) (1) the
11 court having jurisdiction over the child;
(b) (2) each parent whose address
12 is available; (c)
(3) the foster parent or custodian from whose home or
13 shelter facility it is proposed to remove
the child; (d) (4) the child, if 12
14 or more years of age; and
(e) (5) the child's guardian ad
litem. The notice
15 shall state the home or shelter facility to
which the secretary plans to
16 transfer the child and the reason for the
proposed action. The notice shall
17 be delivered or mailed 30 days in advance
of the planned transfer, except
18 that the secretary shall not be required to
wait 30 days to transfer the
19 child if all persons enumerated in clauses
(b) (2) through (e)
(5) consent
20 in writing to the transfer. Within 10 days
after receipt of the notice any
21 person receiving notice as provided above
may request, either orally or
22 in writing, that the court conduct a
hearing to determine whether or not
23 the change in placement is in the best
interests of the child concerned.
24 When the request has been received, the
court shall schedule a hearing
25 and immediately notify the secretary of the
request and the time and date
26 the matter will be heard. The court shall
give notice of the hearing to
27 persons enumerated in clauses
(b) (2) through (e)
(5). The secretary shall
28 not change the placement of the child
unless the change is approved by
29 the court.
30 (b) When,
after the notice set out above, a child in the custody of
the
31 secretary is removed from the home of a
parent after having been placed
32 in the home of a parent for a period of
six months or longer, the secretary
33 shall request a finding by the court
whether reasonable efforts were made
34 to prevent the necessity for removal and
whether allowing the child to
35 remain in the home is contrary to the
welfare of the child or not in the
36 best interests of the child. The
secretary shall present to the court in
37 writing the efforts to maintain the
family unit and prevent the unnecessary
38 removal of the child from the child's
home. In making the finding, the
39 court may rely on documentation
submitted by the secretary or may set
40 the date for a hearing on the matter. If
the secretary requests such finding,
41 the court shall provide the secretary
with a written copy of the finding
42 by the court for the purpose
of documenting these orders not more
43 than 45 days from the date of the
request.
29
1 Sec.
15. K.S.A. 38-1567 is hereby amended to read as follows:
38-
2 1567. When an emergency exists
requiring immediate action to assure
3 the safety and protection of the
child or the secretary is notified that the
4 foster parents or shelter facility
refuse to allow the child to remain, the
5 secretary may transfer the child to
another foster home or shelter facility
6 without prior court approval, but the
secretary shall notify the court of
7 the action at the earliest practical
time. When the child is removed from
8 the home of a parent after having
been placed in the home or facility for
9 a period of six months or longer,
the secretary shall present to the court
10 in writing the specific nature of the
emergency and request a finding by
11 the court whether remaining in the home
was contrary to the welfare or
12 not in the best interests
of the child. In making the finding, the court
13 may rely on documentation submitted by
the secretary or may set the date
14 for a hearing on the matter. If the
secretary requests such a finding, the
15 court shall provide the secretary with a
written copy of the finding by the
16 court not more than 45 days from the
date of the request.
17 Sec.
16. K.S.A. 38-1568 is hereby amended to read as follows:
38-
18 1568. (a) Valid court order. During
proceedings under this code, the court
19 may enter an order directing a child who is
the subject of the proceedings
20 to remain in a present or future placement
if:
21 (1) The court
makes a finding that the child has been adjudicated to
22 be a child in need of care pursuant
to: (A) Subsection (a)(10)
(c)(6) of
23 K.S.A. 38-1502, and amendments
thereto; or (B) any of the subsections
24 (a)(1) through (a)(9) or
(a)(11) (b), (c)(1) through (c)(5) or
(c)(7) (a)(1)
25 through (a)(12) of K.S.A.
38-1502, and amendments thereto, and the
26 court determines that the child is not
likely to be available within the
27 jurisdiction of the court for future
proceedings;
28 (2) the child and
the child's guardian ad litem are present before the
29 court at the time the order is entered;
and
30 (3) the child and
the child's guardian ad litem are given adequate and
31 fair warning, both orally and in writing,
of the consequences of violation
32 of the order and a copy of such warning is
recorded in the official file of
33 the case.
34
(b) Application. Any person may file with the court a
verified appli-
35 cation for a determination that a child has
violated an order entered pur-
36 suant to subsection (a) and for an order
authorizing the holding of such
37 child in a secure facility as provided by
this section. Such application shall
38 state the applicant's belief that the child
has violated a valid court order
39 entered pursuant to subsection (a) and the
specific facts which are relied
40 upon to support the belief.
41 (c) Ex parte
order. Upon the filing of an application in accordance
42 with subsection (b), the court may enter
ex parte an order directing that
43 the child be taken into custody and held in
a secure facility designated
30
1 by the court if the court determines
that there is probable cause to believe
2 the allegations in the application.
The order shall remain in effect for not
3 more than 24 hours following the
child's being taken into custody. The
4 order shall be served on the child's
parents, any legal custodian of the
5 child and the child's guardian ad
litem.
6
(d) Preliminary hearing. Within 24 hours following a
child's being
7 taken into custody pursuant to an
order issued under subsection (c), the
8 court shall hold a hearing to
determine whether the child admits or denies
9 the allegations of the application
and, if the child denies such allegations,
10 whether there is probable cause to hold the
child in a secure facility
11 pending a hearing on the application
pursuant to subsection (e). Notice
12 of the time and place of the preliminary
hearing shall be given orally or
13 in writing to the child's parents, any
legal custodian of the child and the
14 child's guardian ad litem. At the
hearing, the child shall have the right to:
15 (1) Have in writing the alleged violation
and the facts relied upon in the
16 application; (2) a guardian ad litem
pursuant to K.S.A. 38-1505, and
17 amendments thereto; and (3) the right to
confront and present witnesses.
18 If, upon the hearing, the court finds that
the child admits the allegations
19 of the application, the court shall proceed
without delay to hold a hearing
20 on the application pursuant to subsection
(e). If, upon the hearing, the
21 court finds that the child denies the
allegations of the application, the
22 court may enter an order directing that the
child be held in a secure
23 facility pending a hearing pursuant to
subsection (e) if the court finds
24 that there is probable cause to believe
that the child has violated a valid
25 court order entered pursuant to subsection
(a) and that secure detention
26 of the child is necessary for the
protection of the child or to assure the
27 appearance of the child at the hearing on
the application pursuant to
28 subsection (e).
29 (e) Hearing on
violation of order; authorization. The court shall hold
30 a hearing on an application filed pursuant
to subsection (b) within 24
31 hours following the child's being taken
into custody, if the child admits
32 the allegations of the application, or
within 72 hours following the child's
33 being taken into custody, if secure
detention of the child is ordered pur-
34 suant to subsection (d). Notice of the time
and place of such hearing shall
35 be given orally or in writing to the
child's parents, any legal custodian of
36 the child and the child's guardian ad
litem. Upon such hearing, the court
37 may enter an order awarding custody of the
child to : (1) A parent; (2) a
38 person other than the parent or other
person having custody, who shall
39 not be required to be licensed under
article 5 of chapter 65 of the Kansas
40 Statutes Annotated, and amendments
thereto; (3) a youth residential fa-
41 cility; or (4) the secretary, if the
secretary does not already have legal
42 custody of the child, and authorizing the
secretary custodian to place the
43 child in a secure facility if the court
determines that:
31
1 (1) The
child has been adjudicated to be a child in need of care
2 pursuant to subsection
(a)(10) (c)(6)
(a)(10) of K.S.A. 38-1502, and
3 amendments thereto;
4 (2) the
child has violated a valid court order entered pursuant to sub-
5 section (a);
6 (3) the
child has been provided at the hearing with the right to: (A)
7 Have the alleged violation in writing
and served upon the child a reason-
8 able time before the hearing; (B) a
hearing before the court on the issue
9 of placement in a secure facility;
(C) an explanation of the nature and
10 consequences of the proceeding; (D) a
guardian ad litem pursuant to
11 K.S.A. 38-1505, and amendments thereto; (E)
confront and present wit-
12 nesses; (F) have a transcript or record of
the proceedings; and (G) appeal;
13 and
14 (4) there is no
less restrictive alternative appropriate to the needs of
15 the juvenile and the community.
16 The authorization to
place a child in a secure facility pursuant to this
17 subsection shall expire 60 days, including
Saturdays, Sundays and legal
18 holidays, after it is issued. The court may
grant extensions of such au-
19 thorization for two additional periods not
exceeding 60 days, including
20 Saturdays, Sundays and legal holidays, upon
rehearing pursuant to K.S.A.
21 38-1564, and amendments thereto. Payment by
the secretary to a secure
22 facility for child care services provided
pursuant to this subsection shall
23 be paid only upon receipt by the secretary
of a copy of a valid court order.
24
(f) Limitations on facilities used. Nothing in this
section shall author-
25 ize placement of a child in a juvenile
detention facility, except that a child
26 may be held in any such facility which, if
in an adult jail, is in quarters
27 separated by sight and sound from adult
prisoners:
28 (1) When ordered
by a court pursuant to subsection (c) or (d), for
29 not longer than the times permitted by
those subsections; or
30 (2) when ordered
by a court pursuant to subsection (e), for not more
31 than 24 hours following the hearing
provided for by that subsection, ex-
32 cept that nothing in this subsection shall
allow a child to be held in an
33 adult jail for more than 24 hours.
34 (g) Time
limits, computation. Except as otherwise specifically pro-
35 vided by subsection (e), Saturdays, Sundays
and legal holidays shall not
36 be counted in computing any time limit
imposed by this section.
37 (h) This section
shall be part of and supplemental to the Kansas code
38 for care of children.
39 Sec.
17. K.S.A. 1999 Supp. 38-1581 is hereby amended to read as
40 follows: 38-1581. (a) Either in the
petition filed under this code or in a
41 motion made in proceedings under this code,
any interested party may
42 request that either or both parents be
found unfit and the parental rights
43 of either or both parents be terminated or
a permanent guardianship be
32
1 appointed.
2
(b) Whenever a pleading is filed requesting termination of
parental
3 rights, the pleading shall contain a
statement of specific facts which are
4 relied upon to support the request,
including dates, times and locations
5 to the extent known.
6 (c) The
county or district attorney or the county or district
attorney's
7 designee shall file pleadings
alleging a parent is unfit and requesting ter-
8 mination of parental rights or the
establishment of a permanent guardi-
9 anship within 30 days after the court
has determined reintegration is not
10 a viable alternative and
unless the court has not found a compelling
reason
11 why adoption or permanent guardianship may
not be in the best interest
12 of the child. The court shall set a hearing
on such pleadings and matters
13 within 90 days of the filing of such
pleadings.
14 Sec.
18. K.S.A. 1999 Supp. 38-1583 is hereby amended to read as
15 follows: 38-1583. (a) When the child has
been adjudicated to be a child
16 in need of care, the court may terminate
parental rights when the court
17 finds by clear and convincing evidence that
the parent is unfit by reason
18 of conduct or condition which renders the
parent unable to care properly
19 for a child and the conduct or condition is
unlikely to change in the
20 foreseeable future.
21 (b) In making a
determination hereunder the court shall consider,
22 but is not limited to, the following, if
applicable:
23 (1) Emotional
illness, mental illness, mental deficiency or physical
24 disability of the parent, of such duration
or nature as to render the parent
25 unlikely to care for the ongoing physical,
mental and emotional needs of
26 the child;
27 (2) conduct
toward a child of a physically, emotionally or sexually
28 cruel or abusive nature;
29 (3) excessive use
of intoxicating liquors or narcotic or dangerous
30 drugs;
31 (4) physical,
mental or emotional neglect of the child;
32 (5) conviction of
a felony and imprisonment;
33 (6) unexplained
injury or death of another child or stepchild of the
34 parent;
35 (7) reasonable
efforts by appropriate public or private child caring
36 agencies have been unable to rehabilitate
the family; and
37 (8) lack of
effort on the part of the parent to adjust the parent's cir-
38 cumstances, conduct or conditions to meet
the needs of the child.
39 (c) In addition
to the foregoing, when a child is not in the physical
40 custody of a parent, the court, in
proceedings concerning the termination
41 of parental rights, shall also consider,
but is not limited to the following:
42 (1) Failure to
assure care of the child in the parental home when able
43 to do so;
33
1 (2) failure
to maintain regular visitation, contact or communication
2 with the child or with the custodian
of the child;
3 (3) failure
to carry out a reasonable plan approved by the court di-
4 rected toward the integration of the
child into the parental home; and
5 (4) failure
to pay a reasonable portion of the cost of substitute physical
6 care and maintenance based on ability
to pay.
7 In making the
above determination, the court may disregard incidental
8 visitations, contacts, communications
or contributions.
9 (d) The
rights of the parents may be terminated as provided in this
10 section if the court finds that the parents
have abandoned the child or
11 the child was left under such circumstances
that the identity of the par-
12 ents is unknown and cannot be ascertained,
despite diligent searching,
13 and the parents have not come forward to
claim the child within three
14 months after the child is found.
15 (e) The existence
of any one of the above standing alone may, but
16 does not necessarily, establish grounds for
termination of parental rights.
17 The determination shall be based on an
evaluation of all factors which
18 are applicable. In considering any of the
above factors for terminating the
19 rights of a parent, the court shall give
primary consideration to the phys-
20 ical, mental or emotional condition and
needs of the child. If presented
21 to the court and subject to the provisions
of K.S.A. 60-419, and amend-
22 ments thereto, the court shall consider as
evidence testimony from a
23 person licensed to practice medicine and
surgery, a licensed psychologist
24 or a licensed social worker expressing an
opinion relating to the physical,
25 mental or emotional condition and needs of
the child. The court shall
26 consider any such testimony only if the
licensed professional providing
27 such testimony is subject to
cross-examination.
28 (f) A termination
of parental rights under the Kansas code for care
29 of children shall not terminate the right
of the child to inherit from or
30 through the parent. Upon such termination,
all the rights of birth parents
31 to such child, including their right to
inherit from or through such child,
32 shall cease.
33 (g) If, after
finding the parent unfit, the court determines a compel-
34 ling reason why it is contrary to the
welfare or not in the best interests
35 of the child to terminate parental rights
or upon agreement of the parents,
36 the court may award permanent guardianship
to an individual providing
37 care for the child, a relative or other
person with whom the child has a
38 close emotional attachment. Prior to
awarding permanent guardianship,
39 the court shall receive and consider an
assessment as provided in K.S.A.
40 59-2132 and amendments thereto of any
potential permanent guardian.
41 Upon appointment of a permanent guardian,
the court shall enter an
42 order discharging the child from
the court's jurisdiction continue to
have
43 jurisdiction to review placement
and appoint a successor guardian or
34
1 guardians and
shall discharge the child from the custody of the
secretary.
2 (h) If a
parent is convicted of an offense as provided in subsection
3 (7) of K.S.A. 38-1585 and amendments
thereto or is adjudicated a juvenile
4 offender because of an act which if
committed by an adult would be an
5 offense as provided in subsection (7)
of K.S.A. 38-1585 and amendments
6 thereto, and if the victim was the
other parent of a child, the court may
7 disregard such convicted or
adjudicated parent's opinions or wishes in
8 regard to the placement of such
child.
9 (i) If the secretary
has documented to the court a compelling
10 reason why custody for adoption,
custody for permanent guardi-
11 anship, custody for permanent
guardianship nor custody for place-
12 ment with a fit and willing relative
are currently a viable option,
13 the court may order custody to remain
with the secretary for con-
14 tinued permanency planning and
another planned permanent living
15 arrangement.
16 Sec.
19. K.S.A. 1999 Supp. 38-1584 is hereby amended to read as
17 follows: 38-1584. (a) Purpose of
section. The purpose of this section is to
18 provide stability in the life of a child
who must be removed from the
19 home of a parent, to acknowledge that time
perception of a child differs
20 from that of an adult and to make the
ongoing physical, mental and emo-
21 tional needs of the child the decisive
consideration in proceedings under
22 this section. The primary goal for all
children whose parents' parental
23 rights have been terminated is placement in
a permanent family setting.
24 (b) Actions by
the court. (1) Custody for adoption. When parental
25 rights have been terminated and it appears
that adoption is a viable al-
26 ternative, the court shall enter one of the
following orders:
27 (A) An order
granting custody of the child, for adoption proceedings,
28 to a reputable person of good moral
character, the secretary or a corpo-
29 ration organized under the laws of the
state of Kansas authorized to care
30 for and surrender children for adoption as
provided in K.S.A. 38-112 et
31 seq. and amendments thereto. The
person, secretary or corporation shall
32 have authority to place the child in a
family home, be a party to proceed-
33 ings and give consent for the legal
adoption of the child which shall be
34 the only consent required to authorize the
entry of an order or decree of
35 adoption.
36 (B) An order
granting custody of the child to proposed adoptive par-
37 ents and consenting to the adoption of the
child by the proposed adoptive
38 parents.
39 (2) Custody
for long-term foster care permanent
guardianship. When
40 parental rights have been terminated and it
does not appear that adoption
41 is a viable alternative, the court
shall may enter an order granting
custody
42 of the child for foster
care permanent guardianship to a reputable
person
43 of good moral character, a youth
residential facility, the secretary or a
35
1 corporation or association
willing to receive the child, embracing in its
2 objectives the purpose of
caring for or obtaining homes for children.
Upon
3 appointment of a permanent
guardian, the court shall continue to
have
4 jurisdiction to review
placement and appoint a successor guardian or
5 guardians and
shall discharge the child from the custody of the
secretary.
6
(3) Custody for placement with a fit and willing
relative. When pa-
7 rental rights have been terminated
and it does not appear that adoption
8 is a viable alternative, the court
may enter an order granting custody of
9 the child for placement with a
willing relative who is a reputable person
10 of good moral character. Upon an order
of custody and placement with
11 a fit and willing relative, the court
shall continue to have jurisdiction
to
12 review placement and
shall discharge the child from the custody of
the
13 secretary.
14 (3)
(4) Preferences in custody for adoption or
long-term foster care
15 permanent guardianship. In making an
order under subsection (b)(1) or
16 (2), the court shall give preference, to
the extent that the court finds it is
17 in the best interests of the child, first
to granting such custody to a relative
18 of the child and second to granting such
custody to a person with whom
19 the child has close emotional ties.
20 (c) Guardian
and conservator of child. The secretary shall be guard-
21 ian and conservator of any child placed in
the secretary's custody, subject
22 to any prior conservatorship.
23 (d) Reports
and review of progress and reasonable efforts to
imple-
24 ment a permanency plan of adoption;
permanent guardianship; or place-
25 ment with a fit and willing
relative. After parental rights have been ter-
26 minated and up to the time an adoption has
been accomplished, the
27 person or agency awarded custody of the
child shall within 60 days submit
28 a written plan for permanent placement
which shall include measurable
29 objectives and time schedules and shall
thereafter not less frequently than
30 each six months make a written report to
the court stating the progress
31 having been made toward finding an adoptive
placement or long-term
32 foster care permanent
guardianship or placement for the child
with a fit
33 and willing relative. Upon the
receipt of each report the court shall review
34 the contents thereof and determine whether
or not a hearing should be
35 held on the subject. In any case, the court
shall notify all interested parties
36 and hear evidence regarding progress toward
finding an adoptive home
37 or the acceptability of the
long-term foster care permanent guardian or
38 placement with a fit and willing
relative plan within 18
12 months after
39 parental rights have been terminated and
every 12 months thereafter. If
40 the court determines that
inadequate progress is being reasonable
efforts
41 or progress have not been made
toward finding an adoptive placement or
42 establishing an acceptable
long-term foster care plan permanent
guardi-
43 anship or placement with a fit and
willing relative, the court may rescind
36
1 its prior orders and make other
orders regarding custody and adoption
2 that are appropriate under the
circumstances. Reports of a proposed
3 adoptive placement need not contain
the identity of the proposed adop-
4 tive parents.
5
(e) Discharge upon adoption. When the adoption of a
child has been
6 accomplished, the court shall enter
an order discharging the child from
7 the court's jurisdiction in the
pending proceedings.
8 (f) If
the department secretary
has documented to the court a com-
9 pelling reason why neither custody
for adoption nor custody for perma-
10 nent guardianship nor custody for
placement with a fit and willing relative
11 are currently a viable option, the court
may order custody to remain with
12 the secretary for continued permanency
planning and another planned
13 permanent living arrangement.
14 Sec.
20. K.S.A. 1999 Supp. 38-1585 is hereby amended to read as
15 follows: 38-1585. (a) It is presumed in the
manner provided in K.S.A. 60-
16 414 and amendments thereto that a parent is
unfit by reason of conduct
17 or condition which renders the parent
unable to fully care for a child, if
18 the state establishes by clear and
convincing evidence that:
19 (1) A parent has
previously been found to be an unfit parent in pro-
20 ceedings under K.S.A. 38-1581 et
seq. and amendments thereto, or com-
21 parable proceedings under the laws of
another state, or the federal gov-
22 ernment;
23 (2) a parent has
twice before been convicted of a crime specified in
24 article 34, 35, or 36 of chapter 21 of the
Kansas Statutes Annotated, or
25 comparable offenses under the laws of
another state, the federal govern-
26 ment or any foreign government, or an
attempt or attempts to commit
27 such crimes and the victim was under the
age of 18 years;
28 (3) on two or
more prior occasions a child in the physical custody of
29 the parent has been adjudicated a child in
need of care as defined by
30 subsection (a)(3)
(b)(1) (a)(3) of K.S.A.
38-1502 and amendments
31 thereto;
32 (4) the parent
has been convicted of causing the death of another
33 child or stepchild of the parent;
34 (5) the child has
been in an out-of-home placement, other than kin-
35 ship care, under court order for a
cumulative total period of one year or
36 longer and the parent has substantially
neglected or willfully refused to
37 carry out a reasonable plan, approved by
the court, directed toward re-
38 integration of the child into the parental
home;
39 (6) (1) the
child has been in an out-of-home placement, other than
40 kinship care, under court order for a
cumulative total period of two years
41 or longer; (2) the parent has failed to
carry out a reasonable plan, ap-
42 proved by the court, directed toward
reintegration of the child into the
43 parental home; and (3) there is a
substantial probability that the parent
37
1 will not carry out such plan in the
near future; or
2 (7) a
parent has been convicted of capital murder, K.S.A. 21-3439
3 and amendments thereto, murder in the
first degree, K.S.A. 21-3401 and
4 amendments thereto, murder in the
second degree, K.S.A. 21-3402 and
5 amendments thereto or voluntary
manslaughter, K.S.A. 21-3403 and
6 amendments thereto, or if a juvenile
has been adjudicated a juvenile of-
7 fender because of an act which if
committed by an adult would be an
8 offense as provided in this
subsection, and the victim of such murder was
9 the other parent of the child.
10 (b) The burden of
proof is on the parent to rebut the presumption.
11 If a parent has been convicted of capital
murder, K.S.A. 21-3439 and
12 amendments thereto or murder in the first
degree, K.S.A. 21-3401 and
13 amendments thereto as provided in
subsection (a)(7), the burden of proof
14 is on the parent to rebut the presumption
by clear and convincing evi-
15 dence. In the absence of proof that the
parent is presently fit and able to
16 care for the child or that the parent will
be fit and able to care for the
17 child in the foreseeable future, the court
shall now terminate the parents
18 parental rights in proceedings pursuant to
K.S.A. 38-1581 et seq. and
19 amendments thereto.
20 Sec.
21. K.S.A. 1999 Supp. 38-1587 is hereby amended to read as
21 follows: 38-1587. (a) A permanent guardian
may be appointed after a
22 finding of unfitness pursuant to K.S.A.
38-1583 and amendments thereto
23 or with the consent and agreement of the
parents.
24 (b) Upon
appointment of the permanent guardian, the child in
need
25 of care proceeding shall be
dismissed court shall continue to have
juris-
26 diction to review placement and
appoint a successor or replacement
27 guardian or guardians and
shall discharge the child from the custody
of
28 the secretary.
29 Sec.
22. K.S.A. 1999 Supp. 38-1591 is hereby amended to read as
30 follows: 38-1591. (a) An appeal may be
taken by any interested party from
31 any adjudication, disposition, termination
of parental rights or order of
32 temporary custody in any proceedings
pursuant to this code.
33 (b) An appeal
from an order entered by a district magistrate judge
34 shall be to a district judge. The appeal
shall be heard within 30 days from
35 the date the notice of appeal is filed. If
no record was made of the pro-
36 ceedings, the trial shall be de novo.
37 (c) Procedure on
appeal shall be governed by article 21 of chapter
38 60 of the Kansas Statutes Annotated.
39
(d) Notwithstanding any other provision of law to the
contrary, ap-
40 peals under this section shall have
priority over all other cases.
41 (e) Every
notice of appeal, docketing statement and brief shall be
ver-
42 ified by the interested party if the
party has been personally served at
43 any time during the proceedings. Failure
to have the required verification
38
1 shall result in the dismissal of
the appeal.
2
Sec. 23. K.S.A. 1999 Supp. 60-1610 is hereby
amended to read as
3 follows: 60-1610. A decree in
an action under this article may include
4 orders on the following
matters:
5
(a) Minor children.
(1) Child support and
education. The court shall
6 make provisions for the
support and education of the minor children. The
7 court may modify or change
any prior order, including any order issued
8 in a title IV-D case, within
three years of the date of the original order
9 or a modification order, when
a material change in circumstances is
10 shown, irrespective of the present
domicile of the child or the parents. If
11 more than three years has passed
since the date of the original order or
12 modification order, a material
change in circumstance need not be shown.
13 The court may make a modification
of child support retroactive to a date
14 at least one month after the date
that the motion to modify was filed with
15 the court. Any increase in support
ordered effective prior to the date the
16 court's judgment is filed shall not
become a lien on real property pursuant
17 to K.S.A. 60-2202 and amendments
thereto. Regardless of the type of
18 custodial arrangement ordered by
the court, the court may order the child
19 support and education expenses to
be paid by either or both parents for
20 any child less than 18 years of
age, at which age the support shall ter-
21 minate unless: (A) The parent or
parents agree, by written agreement
22 approved by the court, to pay
support beyond the time the child reaches
23 18 years of age; (B) the child
reaches 18 years of age before completing
24 the child's high school education
in which case the support shall not ter-
25 minate automatically, unless
otherwise ordered by the court, until June
26 30 of the school year during which
the child became 18 years of age if
27 the child is still attending high
school; or (C) the child is still a bona fide
28 high school student after June 30
of the school year during which the
29 child became 18 years of age, in
which case the court, on motion, may
30 order support to continue through
the school year during which the child
31 becomes 19 years of age so long as
the child is a bona fide high school
32 student and the parents jointly
participated or knowingly acquiesced in
33 the decision which delayed the
child's completion of high school. The
34 court, in extending support
pursuant to subsection (a)(1)(C), may impose
35 such conditions as are appropriate
and shall set the child support utilizing
36 the guideline table category for
16-year through 18-year old children.
37 Provision for payment of support
and educational expenses of a child after
38 reaching 18 years of age if still
attending high school shall apply to any
39 child subject to the jurisdiction
of the court, including those whose sup-
40 port was ordered prior to July 1,
1992. If an agreement approved by the
41 court prior to July 1, 1988,
provides for termination of support before the
42 date provided by subsection
(a)(1)(B), the court may review and modify
43 such agreement, and any order based
on such agreement, to extend the
39
1 date for termination of
support to the date provided by subsection
2 (a)(1)(B). If an agreement
approved by the court prior to July 1, 1992,
3 provides for termination of
support before the date provided by subsec-
4 tion (a)(1)(C), the court may
review and modify such agreement, and any
5 order based on such
agreement, to extend the date for termination of
6 support to the date provided
by subsection (a)(1)(C). For purposes of this
7 section, ``bona fide high
school student'' means a student who is enrolled
8 in full accordance with the
policy of the accredited high school in which
9 the student is pursuing a
high school diploma or a graduate equivalency
10 diploma (GED). In determining the
amount to be paid for child support,
11 the court shall consider all
relevant factors, without regard to marital
12 misconduct, including the financial
resources and needs of both parents,
13 the financial resources and needs
of the child and the physical and emo-
14 tional condition of the child.
Until a child reaches 18 years of age, the
15 court may set apart any portion of
property of either the husband or wife,
16 or both, that seems necessary and
proper for the support of the child.
17 Every order requiring payment of
child support under this section shall
18 require that the support be paid
through the clerk of the district court or
19 the court trustee except for good
cause shown.
20
(2) Child custody and
residency. (A) Changes in
custody. Subject to
21 the provisions of the uniform child
custody jurisdiction act (K.S.A. 38-
22 1301 et
seq., and amendments thereto), the court may
change or modify
23 any prior order of custody when a
material change of circumstances is
24 shown, but no ex parte order shall
have the effect of changing the custody
25 of a minor child from the parent
who has had the sole de facto custody
26 of the child to the other parent
unless there is sworn testimony to support
27 a showing of extraordinary
circumstances. If an interlocutory order is
28 issued ex parte, the court shall
hear a motion to vacate or modify the
29 order within 15 days of the date
that a party requests a hearing whether
30 to vacate or modify the
order.
31
(B) Examination of parties.
The court may order physical or mental
32 examinations of the parties if
requested pursuant to K.S.A. 60-235 and
33 amendments thereto.
34
(3) Child custody or residency
criteria. The court shall
determine
35 custody or residency of a child in
accordance with the best interests of
36 the child.
37 (A) If
the parties have a written agreement concerning the
custody
38 or residency of their minor child,
it is presumed that the agreement is in
39 the best interests of the child.
This presumption may be overcome and
40 the court may make a different
order if the court makes specific findings
41 of fact stating why the agreement
is not in the best interests of the child.
42 (B) In
determining the issue of custody or residency of a child,
the
43 court shall consider all relevant
factors, including but not limited to:
40
1
(i) The length of time that the child has been under the
actual care
2 and control of any person
other than a parent and the circumstances
3 relating
thereto;
4
(ii) the desires of the child's parents as to custody or
residency;
5
(iii) the desires of the child as to the child's custody or
residency;
6
(iv) the interaction and interrelationship of the child with
parents,
7 siblings and any other person
who may significantly affect the child's best
8 interests;
9
(v) the child's adjustment to the child's home, school and
community;
10 (vi) the
willingness and ability of each parent to respect and
appre-
11 ciate the bond between the child
and the other parent and to allow for a
12 continuing relationship between the
child and the other parent; and
13
(vii) evidence of spousal abuse.
14 Neither parent
shall be considered to have a vested interest in the
15 custody or residency of any child
as against the other parent, regardless
16 of the age of the child, and there
shall be no presumption that it is in the
17 best interests of any infant or
young child to give custody or residency to
18 the mother.
19
(4) Types of custodial
arrangements. Subject to the provisions of
this
20 article, the court may make any
order relating to custodial arrangements
21 which is in the best interests of
the child. The order shall include, but
22 not be limited to, one of the
following, in the order of preference:
23
(A) Joint custody.
The court may place the custody of a child
with
24 both parties on a shared or
joint-custody basis. In that event, the parties
25 shall have equal rights to make
decisions in the best interests of the child
26 under their custody. When a child
is placed in the joint custody of the
27 child's parents, the court may
further determine that the residency of the
28 child shall be divided either in an
equal manner with regard to time of
29 residency or on the basis of a
primary residency arrangement for the child.
30 The court, in its discretion, may
require the parents to submit a plan for
31 implementation of a joint custody
order upon finding that both parents
32 are suitable parents or the
parents, acting individually or in concert, may
33 submit a custody implementation
plan to the court prior to issuance of a
34 custody decree. If the court does
not order joint custody, it shall include
35 in the record the specific findings
of fact upon which the order for custody
36 other than joint custody is
based.
37
(B) Sole custody. The
court may place the custody of a child with one
38 parent, and the other parent shall
be the noncustodial parent. The cus-
39 todial parent shall have the right
to make decisions in the best interests
40 of the child, subject to the
visitation rights of the noncustodial parent.
41
(C) Divided custody.
In an exceptional case, the court may divide
the
42 custody of two or more children
between the parties.
43
(D) Nonparental custody.
If during the proceedings the court deter-
41
1 mines that there is probable
cause to believe that: (i) The child is a child
2 in need of care as defined by
subsections (a)(1), (2) or (3)
(b)(1) or (c)(1)
3 of K.S.A. 38-1502 and
amendments thereto; (ii) neither parent is fit to
4 have custody; or (iii) the
child is currently residing with such child's grand-
5 parent, grandparents, aunt or
uncle and such relative has had actual phys-
6 ical custody of such child
for a significant length of time, the court may
7 award temporary custody of
the child to such relative, another person or
8 agency if the court finds the
award of custody to such relative, another
9 person or agency is in the
best interests of the child. In making such a
10 custody order, the court shall give
preference, to the extent that the court
11 finds it is in the best interests
of the child, first to awarding such custody
12 to a relative of the child by
blood, marriage or adoption and second to
13 awarding such custody to another
person with whom the child has close
14 emotional ties. The court may make
temporary orders for care, support,
15 education and visitation that it
considers appropriate. Temporary custody
16 orders are to be entered in lieu of
temporary orders provided for in K.S.A.
17 38-1542 and 38-1543, and amendments
thereto, and shall remain in effect
18 until there is a final
determination under the Kansas code for care of
19 children. An award of temporary
custody under this paragraph shall not
20 terminate parental rights nor give
the court the authority to consent to
21 the adoption of the child. When the
court enters orders awarding tem-
22 porary custody of the child to an
agency or a person other than the parent
23 but not a relative as described in
subpart (iii), the court shall refer a
24 transcript of the proceedings to
the county or district attorney. The county
25 or district attorney shall file a
petition as provided in K.S.A. 38-1531 and
26 amendments thereto and may request
termination of parental rights pur-
27 suant to K.S.A. 38-1581 and
amendments thereto. The costs of the pro-
28 ceedings shall be paid from the
general fund of the county. When a final
29 determination is made that the
child is not a child in need of care, the
30 county or district attorney shall
notify the court in writing and the court,
31 after a hearing, shall enter
appropriate custody orders pursuant to this
32 section. If the same judge presides
over both proceedings, the notice is
33 not required. Any disposition
pursuant to the Kansas code for care of
34 children shall be binding and shall
supersede any order under this section.
35 When the court enters orders
awarding temporary custody of the child
36 to a relative as described in
subpart (iii), the court shall annually review
37 the temporary custody to evaluate
whether such custody is still in the best
38 interests of the child. If the
court finds such custody is in the best interests
39 of the child, such custody shall
continue. If the court finds such custody
40 is not in the best interests of the
child, the court shall determine the
41 custody pursuant to this
section.
42
(b) Financial matters.
(1) Division of property.
The decree shall di-
43 vide the real and personal property
of the parties, including any retire-
42
1 ment and pension plans,
whether owned by either spouse prior to mar-
2 riage, acquired by either
spouse in the spouse's own right after marriage
3 or acquired by the spouses'
joint efforts, by: (A) a division of the property
4 in kind; (B) awarding the
property or part of the property to one of the
5 spouses and requiring the
other to pay a just and proper sum; or (C)
6 ordering a sale of the
property, under conditions prescribed by the court,
7 and dividing the proceeds of
the sale. Upon request, the trial court shall
8 set a valuation date to be
used for all assets at trial, which may be the
9 date of separation, filing or
trial as the facts and circumstances of the case
10 may dictate. The trial court may
consider evidence regarding changes in
11 value of various assets before and
after the valuation date in making the
12 division of property. In dividing
defined-contribution types of retirement
13 and pension plans, the court shall
allocate profits and losses on the non-
14 participant's portion until date of
distribution to that nonparticipant. In
15 making the division of property the
court shall consider the age of the
16 parties; the duration of the
marriage; the property owned by the parties;
17 their present and future earning
capacities; the time, source and manner
18 of acquisition of property; family
ties and obligations; the allowance of
19 maintenance or lack thereof;
dissipation of assets; the tax consequences
20 of the property division upon the
respective economic circumstances of
21 the parties; and such other factors
as the court considers necessary to
22 make a just and reasonable division
of property. The decree shall provide
23 for any changes in beneficiary
designation on: (A) Any insurance or an-
24 nuity policy that is owned by the
parties, or in the case of group life
25 insurance policies, under which
either of the parties is a covered person;
26 (B) any trust instrument under
which one party is the grantor or holds a
27 power of appointment over part or
all of the trust assets, that may be
28 exercised in favor of either party;
or (C) any transfer on death or payable
29 on death account under which one or
both of the parties are owners or
30 beneficiaries. Nothing in this
section shall relieve the parties of the ob-
31 ligation to effectuate any change
in beneficiary designation by the filing
32 of such change with the insurer or
issuer in accordance with the terms
33 of such policy.
34
(2) Maintenance. The
decree may award to either party an allowance
35 for future support denominated as
maintenance, in an amount the court
36 finds to be fair, just and
equitable under all of the circumstances. The
37 decree may make the future payments
modifiable or terminable under
38 circumstances prescribed in the
decree. The court may make a modifi-
39 cation of maintenance retroactive
to a date at least one month after the
40 date that the motion to modify was
filed with the court. In any event, the
41 court may not award maintenance for
a period of time in excess of 121
42 months. If the original court
decree reserves the power of the court to
43 hear subsequent motions for
reinstatement of maintenance and such a
43
1 motion is filed prior to the
expiration of the stated period of time for
2 maintenance payments, the
court shall have jurisdiction to hear a motion
3 by the recipient of the
maintenance to reinstate the maintenance pay-
4 ments. Upon motion and
hearing, the court may reinstate the payments
5 in whole or in part for a
period of time, conditioned upon any modifying
6 or terminating circumstances
prescribed by the court, but the reinstate-
7 ment shall be limited to a
period of time not exceeding 121 months. The
8 recipient may file subsequent
motions for reinstatement of maintenance
9 prior to the expiration of
subsequent periods of time for maintenance
10 payments to be made, but no single
period of reinstatement ordered by
11 the court may exceed 121 months.
Maintenance may be in a lump sum,
12 in periodic payments, on a
percentage of earnings or on any other basis.
13 At any time, on a hearing with
reasonable notice to the party affected,
14 the court may modify the amounts or
other conditions for the payment
15 of any portion of the maintenance
originally awarded that has not already
16 become due, but no modification
shall be made without the consent of
17 the party liable for the
maintenance, if it has the effect of increasing or
18 accelerating the liability for the
unpaid maintenance beyond what was
19 prescribed in the original decree.
Every order requiring payment of main-
20 tenance under this section shall
require that the maintenance be paid
21 through the clerk of the district
court or the court trustee except for good
22 cause shown.
23
(3) Separation agreement.
If the parties have entered into a separa-
24 tion agreement which the court
finds to be valid, just and equitable, the
25 agreement shall be incorporated in
the decree. The provisions of the
26 agreement on all matters settled by
it shall be confirmed in the decree
27 except that any provisions for the
custody, support or education of the
28 minor children shall be subject to
the control of the court in accordance
29 with all other provisions of this
article. Matters settled by an agreement
30 incorporated in the decree, other
than matters pertaining to the custody,
31 support or education of the minor
children, shall not be subject to sub-
32 sequent modification by the court
except: (A) As prescribed by the agree-
33 ment or (B) as subsequently
consented to by the parties.
34
(4) Costs and fees.
Costs and attorney fees may be awarded to
either
35 party as justice and equity
require. The court may order that the amount
36 be paid directly to the attorney,
who may enforce the order in the attor-
37 ney's name in the same
case.
38
(c) Miscellaneous matters.
(1) Restoration of name.
Upon the request
39 of a spouse, the court shall order
the restoration of that spouse's maiden
40 or former name.
41
(2) Effective date as to
remarriage. Any marriage contracted by
a
42 party, within or outside this
state, with any other person before a judg-
43 ment of divorce becomes final shall
be voidable until the decree of divorce
44
1 becomes final. An agreement
which waives the right of appeal from the
2 granting of the divorce and
which is incorporated into the decree or
3 signed by the parties and
filed in the case shall be effective to shorten
4 the period of time during
which the remarriage is voidable.
5 Sec.
24. 23. K.S.A. 75-3329 is
hereby amended to read as follows:
6 75-3329. As used in this act:
7
(a) ``Board'' means the secretary of social and rehabilitation
services.
8 (b) ``State
institution'' means institution as defined in K.S.A. 76-
9 12a01, and amendments
thereto.
10 (c) ``Child'' or
``children'' means a person or persons under the age
11 of eighteen (18)
18.
12 (d) ``Private
children's home'' means any licensed home, institution
13 or charitable organization which is
operated by a corporation organized
14 not for profit under the
laws of this state which the secretary finds has
15 and maintains adequate facilities and is
properly staffed to provide ade-
16 quate care, custody, education, training
and treatment for any child which
17 the secretary may place therein under the
authority of this act, or a li-
18 censed foster care home, boarding home,
personal care home or nursing
19 home.
20 Sec. 25.
24. K.S.A. 38-1503, 38-1531, 38-1566, 38-1567,
38-1568
21 and 75-3329 and K.S.A. 1999 Supp. 38-1502,
38-1507, 38-1513, 38-1532,
22 38-1542, 38-1543, 38-1544, 38-1562,
38-1563, 38-1565, 38-1581, 38-
23 1583, 38-1584, 38-1585,
38-1587, and 38-1591 and
60-1610 are hereby
24 repealed.
25 Sec. 26.
25. This act shall take effect and be in force
from and after
26 its publication in the statute book.