Session of 1998
HOUSE BILL No. 2710
By Committee on Judiciary
1-23
9
AN ACT concerning children; relating to
children in need of care; amend-
10 ing K.S.A. 38-1581 and
59-2132 and K.S.A. 1997 Supp. 38-1502, 38-
11 1562, 38-1563,
38-1565, 38-1582 and 38-1583 and repealing the exist-
12 ing sections; also
repealing K.S.A. 1997 Supp. 38-1502b.
13
14 Be it enacted by the Legislature of the
State of Kansas:
15 Section 1. K.S.A. 1997 Supp.
38-1502 is hereby amended to read as
16 follows: 38-1502. As used in this code,
unless the context otherwise in-
17 dicates:
18 (a) ``Child in need of care''
means a person less than 18 years of age
19 who:
20 (1) Is without adequate
parental care, control or subsistence and the
21 condition is not due solely to the lack of
financial means of the child's
22 parents or other custodian;
23 (2) is without the care or
control necessary for the child's physical,
24 mental or emotional health;
25 (3) has been physically,
mentally or emotionally abused or neglected
26 or sexually abused;
27 (4) has been placed for care
or adoption in violation of law;
28 (5) has been abandoned or
does not have a known living parent;
29 (6) is not attending school
as required by K.S.A. 72-977 or 72-1111,
30 and amendments thereto;
31 (7) except in the case of a
violation of K.S.A. 41-727, subsection (j)
32 of K.S.A. 74-8810 or subsection (m) or (n)
of K.S.A. 79-3321, and amend-
33 ments thereto, or, except as provided in
subsection (a)(12) of K.S.A. 21-
34 4204a and amendments thereto, does an act
which, when committed by
35 a person under 18 years of age, is
prohibited by state law, city ordinance
36 or county resolution but which is not
prohibited when done by an adult;
37 (8) while less than 10 years
of age, commits any act which if done by
38 an adult would constitute the commission of
a felony or misdemeanor as
39 defined by K.S.A. 21-3105 and amendments
thereto;
40 (9) is willfully and
voluntarily absent from the child's home without
41 the consent of the child's parent or other
custodian;
42 (10) is willfully and
voluntarily absent at least a second time from a
43 court ordered or designated placement, or a
placement pursuant to court
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1 order, if the absence is without the
consent of the person with whom the
2 child is placed or, if the child is
placed in a facility, without the consent
3 of the person in charge of such
facility or such person's designee;
4 (11) has been residing
in the same residence with a sibling or another
5 person under 18 years of age, who has
been physically, mentally or emo-
6 tionally abused or neglected, or
sexually abused; or
7 (12) while less than 10
years of age commits the offense defined in
8 K.S.A. 21-4204a and amendments
thereto.
9 (b) ``Physical, mental
or emotional abuse or neglect'' means the in-
10 fliction of physical, mental or emotional
injury or the causing of a dete-
11 rioration of a child and may include, but
shall not be limited to, failing to
12 maintain reasonable care and treatment,
negligent treatment or maltreat-
13 ment or exploiting a child to the extent
that the child's health or emotional
14 well-being is endangered. A parent
legitimately practicing religious beliefs
15 who does not provide specified medical
treatment for a child because of
16 religious beliefs shall not for that reason
be considered a negligent parent;
17 however, this exception shall not preclude
a court from entering an order
18 pursuant to subsection (a)(2) of K.S.A.
38-1513 and amendments thereto.
19 (c) ``Sexual abuse'' means
any act committed with a child which is
20 described in article 35, chapter 21 of the
Kansas Statutes Annotated and
21 those acts described in K.S.A. 21-3602 or
21-3603, and amendments
22 thereto, regardless of the age of the
child.
23 (d) ``Parent,'' when used in
relation to a child or children, includes a
24 guardian, conservator and every person who
is by law liable to maintain,
25 care for or support the child.
26 (e) ``Interested party''
means the state, the petitioner, the child, any
27 parent and any person found to be an
interested party pursuant to K.S.A.
28 38-1541 and amendments thereto.
29 (f) ``Law enforcement
officer'' means any person who by virtue of
30 office or public employment is vested by
law with a duty to maintain
31 public order or to make arrests for crimes,
whether that duty extends to
32 all crimes or is limited to specific
crimes.
33 (g) ``Youth residential
facility'' means any home, foster home or struc-
34 ture which provides 24-hour-a-day care for
children and which is licensed
35 pursuant to article 5 of chapter 65 of the
Kansas Statutes Annotated.
36 (h) ``Shelter facility''
means any public or private facility or home
37 other than a juvenile detention facility
that may be used in accordance
38 with this code for the purpose of providing
either temporary placement
39 for the care of children in need of care
prior to the issuance of a dispos-
40 itional order or longer term care under a
dispositional order.
41 (i) ``Juvenile detention
facility'' means any secure public or private
42 facility used for the lawful custody of
accused or adjudicated juvenile
43 offenders which must not be a jail.
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1 (j) ``Adult correction
facility'' means any public or private facility, se-
2 cure or nonsecure, which is used for
the lawful custody of accused or
3 convicted adult criminal
offenders.
4 (k) ``Secure facility''
means a facility which is operated or structured
5 so as to ensure that all entrances
and exits from the facility are under the
6 exclusive control of the staff of the
facility, whether or not the person
7 being detained has freedom of
movement within the perimeters of the
8 facility, or which relies on locked
rooms and buildings, fences or physical
9 restraint in order to control
behavior of its residents. No secure facility
10 shall be in a city or county jail.
11 (l) ``Ward of the court''
means a child over whom the court has ac-
12 quired jurisdiction by the filing of a
petition pursuant to this code and
13 who continues subject to that jurisdiction
until the petition is dismissed
14 or the child is discharged as provided in
K.S.A. 38-1503 and amendments
15 thereto.
16 (m) ``Custody,'' whether
temporary, protective or legal, means the
17 status created by court order or statute
which vests in a custodian,
18 whether an individual or an agency, the
right to physical possession of
19 the child and the right to determine
placement of the child, subject to
20 restrictions placed by the court.
21 (n) ``Placement'' means the
designation by the individual or agency
22 having custody of where and with whom the
child will live.
23 (o) ``Secretary'' means the
secretary of social and rehabilitation serv-
24 ices.
25 (p) ``Relative'' means a
person related by blood, marriage or adoption
26 but, when referring to a relative of a
child's parent, does not include the
27 child's other parent.
28 (q) ``Court-appointed special
advocate'' means a responsible adult
29 other than an attorney guardian ad
litem who is appointed by the court
30 to represent the best interests of a child,
as provided in K.S.A. 38-1505a
31 and amendments thereto, in a proceeding
pursuant to this code.
32 (r) ``Multidisciplinary
team'' means a group of persons, appointed by
33 the court or by the state department of
social and rehabilitation services
34 under K.S.A. 38-1523a and amendments
thereto, which has knowledge
35 of the circumstances of a child in need of
care.
36 (s) ``Jail'' means:
37 (1) An adult jail or lockup;
or
38 (2) a facility in the same
building or on the same grounds as an adult
39 jail or lockup, unless the facility meets
all applicable standards and licen-
40 sure requirements under law and there is
(A) total separation of the ju-
41 venile and adult facility spatial areas
such that there could be no haphaz-
42 ard or accidental contact between juvenile
and adult residents in the
43 respective facilities; (B) total separation
in all juvenile and adult program
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1 activities within the facilities,
including recreation, education, counseling,
2 health care, dining, sleeping, and
general living activities; and (C) separate
3 juvenile and adult staff, including
management, security staff and direct
4 care staff such as recreational,
educational and counseling.
5 (t) ``Kinship care''
means the placement of a child in the home of the
6 child's relative or in the home of
another adult with whom the child or
7 the child's parent already has a
close emotional attachment.
8 (u) ``Juvenile
intake and assessment worker'' means a responsible
9 adult authorized to perform intake
and assessment services as part of the
10 intake and assessment system established
pursuant to K.S.A. 75-7023, and
11 amendments thereto.
12 (v) Abandon`` means to
forsake, desert or cease providing care for the
13 child without making appropriate
provisions for substitute care.
14 (w) ``Permanent
guardianship'' means a judicially created relation-
15 ship between child and caretaker which
is intended to be permanent and
16 self-sustaining without ongoing state
oversight or intervention. The per-
17 manent guardian stands in loco parentis
and exercises all the rights and
18 responsibilities of a parent.
19 (x) ``Aggravated
circumstances'' means the abandonment; torture;
20 chronic abuse; sexual abuse; or chronic,
life threatening neglect of a child.
21 (y) ``Permanency hearing''
means a notice and opportunity to be
22 heard is provided the interested
parties, foster parents, preadoptive par-
23 ents or relatives providing care for the
child. The court, after considera-
24 tion of the evidence, shall determine
whether progress toward the case
25 plan goal is adequate or reintegration
is a viable alternative.
26 (z) ``Extended out of home
placement'' means a child has been in the
27 custody of the secretary and placed with
neither parent for 15 of the most
28 recent 22 months beginning 60 days after
the date at which a child in the
29 custody of the secretary was removed
from the home.
30 Sec. 2. K.S.A. 1997 Supp.
38-1562 is hereby amended to read as
31 follows: 38-1562. (a) At any time after a
child has been adjudicated to be
32 a child in need of care and prior to
disposition, the judge shall permit any
33 interested parties, and any persons
required to be notified pursuant to
34 subsection (b), to be heard as to proposals
for appropriate disposition of
35 the case.
36 (b) Before entering an order
placing the child in the custody of a
37 person other than the child's parent, the
court shall require notice of the
38 time and place of the hearing to be given
to all the child's grandparents
39 at their last known addresses or, if no
grandparent is living or if no living
40 grandparent's address is known, to the
closest relative of each of the
41 child's parents whose address is known,
and to the foster parent, pre-
42 adoptive parent or relative providing
care. Such notice shall be given by
43 restricted mail not less than 10 business
days before the hearing and shall
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1 state that the person receiving the
notice shall have an opportunity to be
2 heard at the hearing. The provisions
of this subsection shall not require
3 additional notice to any person
otherwise receiving notice of the hearing
4 pursuant to K.S.A. 38-1536 and
amendments thereto.
5 (c) Prior to entering
an order of disposition, the court shall give con-
6 sideration to the child's physical,
mental and emotional condition; the
7 child's need for assistance; the
manner in which the parent participated
8 in the abuse, neglect or abandonment
of the child; any relevant infor-
9 mation from the intake and assessment
process; and the evidence re-
10 ceived at the dispositional hearing. The
court shall specifically consider
11 whether the parent has been found by a
court to have: (1) Committed
12 murder pursuant to K.S.A. 21-3401,
21-3402 or 21-3439, and amend-
13 ments thereto, voluntary manslaughter,
K.S.A. 21-3403, and amendments
14 thereto, or violated a law of another
state which prohibits such murder
15 or manslaughter of a child; (2) aided or
abetted, attempted, conspired or
16 solicited to commit such a murder or
such voluntary manslaughter; (3)
17 committed a felony assault that resulted
in serious bodily injury to the
18 child or another child; (4) subjected
the child or another child to aggra-
19 vated circumstances as defined in
subsection (x) of K.S.A. 38-1502, and
20 amendments thereto; or (5) parental
rights of the parent to another child
21 have been terminated involuntarily. If
reintegration is not a viable alter-
22 native, the court shall consider whether
a compelling reason has been
23 documented in the case plan to find
neither adoption nor permanent
24 guardianship are in the best interests
of the child. If reintegration is not
25 a viable alternative and either adoption
or permanent guardianship might
26 be in the child's best interests, the
state or guardian ad litem shall file a
27 motion to terminate parental rights
within 30 days.
28 Sec. 3. K.S.A. 1997 Supp.
38-1563 is hereby amended to read as
29 follows: 38-1563. (a) After consideration
of any evidence offered relating
30 to disposition, the court may retain
jurisdiction and place the child in the
31 custody of the child's parent subject to
terms and conditions which the
32 court prescribes to assure the proper care
and protection of the child,
33 including supervision of the child and the
parent by a court services of-
34 ficer, or may order the child and the
parent to participate in programs
35 operated by the secretary or another
appropriate individual or agency.
36 The terms and conditions may require any
special treatment or care which
37 the child needs for the child's physical,
mental or emotional health.
38 (b) The duration of any
period of supervision or other terms or con-
39 ditions shall be for an initial period of
no more than 18 months. The
40 court, at the expiration of that period,
upon a hearing and for good cause
41 shown, may make successive extensions of
the supervision or other terms
42 or conditions for up to 12 months at a
time.
43 (c) The court may order the
child and the parents of any child who
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1 has been adjudged a child in need of
care to attend counseling sessions
2 as the court directs. The expense of
the counseling may be assessed as
3 an expense in the case. No mental
health center shall charge a greater
4 fee for court-ordered counseling than
the center would have charged to
5 the person receiving counseling if
the person had requested counseling
6 on the person's own initiative.
7 (d) If the court finds
that placing the child in the custody of a parent
8 will not assure protection from
physical, mental or emotional abuse or
9 neglect or sexual abuse or will not
be in the best interests of the child,
10 the court shall enter an order awarding
custody of the child, until the
11 further order of the court, to one of the
following:
12 (1) A relative of the child
or a person with whom the child has close
13 emotional ties;
14 (2) any other suitable
person;
15 (3) a shelter facility;
or
16 (4) the secretary.
17 In making such a custody
order, the court shall give preference, to the
18 extent that the court finds it is in the
best interests of the child, first to
19 granting custody to a relative of the child
and second to granting custody
20 of the child to a person with whom the
child has close emotional ties. If
21 the court has awarded legal custody based
on the finding specified by this
22 subsection, the legal custodian shall not
return the child to the home of
23 that parent without the written consent of
the court.
24 (e) When the custody of the
child is awarded to the secretary:
25 (1) The court may recommend
to the secretary where the child
26 should be placed.
27 (2) The secretary shall
notify the court in writing of any placement
28 of the child or, within 10 days of the
order awarding the custody of the
29 child to the secretary, any proposed
placement of the child, whichever
30 occurs first.
31 (3) The court may determine
if such placement is in the best interests
32 of the child, and if the court determines
that such placement is not in the
33 best interests of the child, the court
shall notify the secretary who shall
34 then make an alternative placement subject
to the procedures established
35 in this paragraph. In determining if such
placement is in the best interests
36 of the child, the court, after providing
the parties with an opportunity to
37 be heard, shall consider the health and
safety needs of the child and the
38 resources available to meet the needs of
children in the custody of the
39 secretary.
40 (f) If custody of a child is
awarded under this section to a person
41 other than the child's parent, the court
may grant any individual reason-
42 able rights to visit the child upon motion
of the individual and a finding
43 that the visitation rights would be in the
best interests of the child.
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1 (g) If the court issues
an order of custody pursuant to this section,
2 the court may enter an order
restraining any alleged perpetrator of phys-
3 ical, sexual, mental or emotional
abuse of the child from residing in the
4 child's home; visiting, contacting,
harassing or intimidating the child; or
5 attempting to visit, contact, harass
or intimidate the child.
6 (h) The court shall not
enter an order removing a child from the
7 custody of a parent pursuant to this
section unless the court first finds
8 from evidence presented by the
petitioner that reasonable efforts have
9 been made to prevent or eliminate the
need for removal of the child;
10 reintegration is not a viable
alternative; or that an emergency exists which
11 threatens the safety of the child and
requires the immediate removal of
12 the child. Reintegration is not a viable
alternative when the: (1) Parent
13 has been found by a court to have
committed murder pursuant to K.S.A.
14 21-3401, 21-3402 or 21-3439, and
amendments thereto, voluntary man-
15 slaughter, K.S.A. 21-3403, and
amendments thereto, or violated a law of
16 another state which prohibits such
murder or manslaughter of a child;
17 (2) parent aided or abetted, attempted,
conspired or solicited to commit
18 such a murder or such voluntary
manslaughter; (3) parent committed a
19 felony assault that resulted in serious
bodily injury to the child or another
20 child; (4) parent has subjected the
child or another child to aggravated
21 circumstances as defined in subsection
(x) of K.S.A. 38-1502, and amend-
22 ments thereto; or (5) parental rights of
the parent to another child have
23 been terminated involuntarily. Such
findings shall be included in any or-
24 der entered by the court.
25 (i) In addition to or in lieu
of any other order authorized by this
26 section, if a child is adjudged to be a
child in need of care by reason of a
27 violation of the uniform controlled
substances act (K.S.A. 65-4101 et seq.
28 and amendments thereto) or K.S.A. 41-719,
41-804, 41-2719, 65-4152,
29 65-4153, 65-4154 or 65-4155, and amendments
thereto, the court shall
30 order the child to submit to and complete
an alcohol and drug evaluation
31 by a community-based alcohol and drug
safety action program certified
32 pursuant to K.S.A. 8-1008 and amendments
thereto and to pay a fee not
33 to exceed the fee established by that
statute for such evaluation. If the
34 court finds that the child and those
legally liable for the child's support
35 are indigent, the fee may be waived. In no
event shall the fee be assessed
36 against the secretary or the department of
social and rehabilitation serv-
37 ices.
38 (j) In addition to any other
order authorized by this section, if child
39 support has been requested and the parent
or parents have a duty to
40 support the child, the court may order one
or both parents to pay child
41 support and, when custody is awarded to the
secretary, the court shall
42 order one or both parents to pay child
support. The court shall determine,
43 for each parent separately, whether the
parent is already subject to an
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1 order to pay support for the child.
If the parent is not presently ordered
2 to pay support for any child who is a
ward of the court and the court has
3 personal jurisdiction over the
parent, the court shall order the parent to
4 pay child support in an amount
determined under K.S.A. 38-1595 and
5 amendments thereto. Except for good
cause shown, the court shall issue
6 an immediate income withholding order
pursuant to K.S.A. 23-4,105 et
7 seq. and amendments thereto
for each parent ordered to pay support
8 under this subsection, regardless of
whether a payor has been identified
9 for the parent. A parent ordered to
pay child support under this subsec-
10 tion shall be notified, at the hearing or
otherwise, that the child support
11 order may be registered pursuant to K.S.A.
38-1597 and amendments
12 thereto. The parent shall also be informed
that, after registration, the
13 income withholding order may be served on
the parent's employer with-
14 out further notice to the parent and the
child support order may be en-
15 forced by any method allowed by law.
Failure to provide this notice shall
16 not affect the validity of the child
support order.
17 Sec. 4. K.S.A. 1997 Supp.
38-1565 is hereby amended to read as
18 follows: 38-1565. (a) If a child is placed
outside the child's home and no
19 plan is made a part of the record of the
dispositional hearing, a written
20 plan shall be prepared which provides for
reintegration of the child into
21 the child's family or, if reintegration is
not a viable alternative, for other
22 placement of the child. Reintegration is
not a viable alternative when the:
23 (1) Parent has been found by a court to
have committed murder pursuant
24 to K.S.A. 21-3401, 21-3402 or 21-3439,
and amendments thereto, volun-
25 tary manslaughter, K.S.A. 21-3403, and
amendments thereto, or violated
26 a law of another state which prohibits
such murder or manslaughter of a
27 child; (2) parent aided or abetted,
attempted, conspired or solicited to
28 commit such a murder or such voluntary
manslaughter; (3) parent com-
29 mitted a felony assault that resulted in
serious bodily injury to the child
30 or another child; (4) parent has
subjected the child or another child to
31 aggravated circumstances as defined in
subsection (x) of K.S.A. 38-1502,
32 and amendments thereto; or (5) parental
rights of the parent to another
33 child have been terminated
involuntarily. If the goal is reintegration into
34 the family, the plan shall include
measurable objectives and time sched-
35 ules for reintegration. The plan shall be
submitted to the court not later
36 than 30 days after the dispositional order
is entered. If the child is placed
37 in the custody of the secretary, the plan
shall be prepared and submitted
38 by the secretary. If the child is placed in
the custody of a facility or person
39 other than the secretary, the plan shall be
prepared and submitted by a
40 court services officer.
41 (b) A court services officer
or, if the child is in the secretary's custody,
42 the secretary shall submit to the court, at
least every six months, a written
43 report of the progress being made toward
the goals of the plan submitted
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1 pursuant to subsection (a). If the
child is placed in foster care, the foster
2 parent or parents shall submit to the
court, at least every six months, a
3 report in regard to the child's
adjustment, progress and condition. The
4 department of social and
rehabilitation services shall notify the foster
5 parent or parents of the foster
parent's or parent's duty to submit such
6 report, on a form provided by the
department of social and rehabilitation
7 services, at least two weeks prior to
the date when the report is due, and
8 the name of the judge and the address
of the court to which the report
9 is to be submitted. Such report shall
be confidential and shall only be
10 reviewed by the court and the child's
guardian ad litem. The court shall
11 review the progress being made toward the
goals of the plan and the
12 foster parent report and, if the court
determines that progress is inade-
13 quate or that the plan is no longer viable,
the court shall hold a hearing
14 pursuant to subsection (c). If the
secretary has custody of the child, such
15 hearing shall be held no more than 12
months after the child is placed
16 outside the child's home and at least every
12 months thereafter. If the
17 goal of the plan submitted pursuant to
subsection (a) is reintegration into
18 the family and the court determines after
12 months from the time such
19 plan is first submitted that progress is
inadequate, the court shall hold a
20 hearing pursuant to subsection (c). Nothing
in this subsection shall be
21 interpreted to prohibit termination of
parental rights prior to the expi-
22 ration of 12 months.
23 (c) Whenever a hearing is
required under subsection (b), the court
24 shall notify all interested parties and
hold a hearing to determine whether
25 proceedings shall be commenced
pursuant to this code to terminate the
26 parental rights of either or both
parents. If, after hearing, the court de-
27 termines that the child's needs are
not adequately being met, the court
28 shall order commencement of
proceedings pursuant to this code to ter-
29 minate the parental rights of
either or both parents unless the court finds
30 good cause why the plan should be
modified or a new plan adopted. If
31 the court finds good cause why the
plan should be modified or a new
32 plan adopted the foster
parents, preadoptive parents or relatives provid-
33 ing care for the child and hold a
hearing. After providing the foster par-
34 ents, preadoptive parents or relatives
providing care for the child an op-
35 portunity to be heard, the court shall
determine whether the child's needs
36 are being adequately met and whether
reintegration continues to be a
37 viable alternative. If the court finds
reintegration is no longer a viable
38 alternative, the court shall consider
whether compelling reasons are doc-
39 umented in the case plan to support a
finding that neither adoption nor
40 permanent guardianship are in the
child's best interest. If reintegration
41 is not a viable alternative and either
adoption or permanent guardianship
42 might be in the child's best interests,
the state or guardian ad litem shall
43 file a motion to terminate parental
rights within 30 days. When the court
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1 finds reintegration continues to
be a viable alternative, the court may
2 rescind any of its prior
dispositional orders and enter any dispositional
3 order authorized by this code or may
order that a new plan for the re-
4 integration be prepared and submitted
to the court.
5 Sec. 5. K.S.A. 38-1581
is hereby amended to read as follows: 38-
6 1581. (a) Either in the petition
filed under this code or in a motion made
7 in proceedings under this code, any
interested party may request that the
8 parental rights of either or both
parents be terminated.
9 (b) Whenever a pleading
is filed requesting termination of parental
10 rights, the pleading shall contain a
statement of specific facts which are
11 relied upon to support the request,
including dates, times and locations
12 to the extent known.
13 (c) The state or guardian
ad litem shall file pleadings alleging a parent
14 is unfit and requesting termination of
parental rights when: (1) Within
15 30 days when the court has determined
reintegration is not a viable al-
16 ternative and has not found a compelling
reason why adoption or per-
17 manent guardianship are not in the
child's best interest; (2) on and after
18 July 1, 1998, a child has been in
extended out of home placement as
19 defined in subsection (y) of K.S.A.
38-1502, and amendments thereto; or
20 (3) for children in the secretary's
custody prior to July 1, 1998, within 30
21 days of receiving a request from the
secretary. Nothing in this subsection
22 shall be interpreted to prohibit others
from filing a motion to terminate
23 parental rights.
24 Sec. 6. K.S.A. 1997 Supp.
38-1582 is hereby amended to read as
25 follows: 38-1582. (a) Upon receiving a
petition or motion requesting ter-
26 mination of parental rights the court shall
set the time and place for the
27 hearing on the request.
28 (b) (1) The court shall give
notice of the hearing: (A) As provided in
29 K.S.A. 38-1533 and 38-1534 and amendments
thereto; and (B) to all the
30 child's grandparents at their last known
addresses or, if no grandparent
31 is living or if no living grandparent's
address is known, to the closest
32 relative of each of the child's parents
whose address is known,; and (C)
33 to the foster parents, preadoptive
parents or relatives providing care;
34 which notice shall be given by restricted
mail not less than 10 business
35 days before the hearing.
36 (2) The provisions of
subsection (b)(1)(B) shall not require additional
37 notice to any person otherwise receiving
notice of the hearing pursuant
38 to K.S.A. 38-1536 and amendments
thereto.
39 (3) Prior to the commencement
of the hearing the court shall de-
40 termine that due diligence has been used in
determining the identity of
41 the interested parties and in accomplishing
service of process.
42 (c) In any case in which a
parent of a child cannot be located by the
43 exercise of due diligence, service shall be
made upon the child's nearest
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1 blood relative who can be located and
upon the person with whom the
2 child resides. Service by publication
shall be ordered upon the parent.
3 (d) Prior to a hearing
on a petition or a motion requesting termination
4 of parental rights, the court shall
appoint an attorney to represent any
5 parent who fails to appear and may
award a reasonable fee to the attorney
6 for services. The fee may be assessed
as an expense in the proceedings.
7 Sec. 7. K.S.A. 1997
Supp. 38-1583 is hereby amended to read as
8 follows: 38-1583. (a) When the child
has been adjudicated to be a child
9 in need of care, the court may
terminate parental rights when the court
10 finds by clear and convincing evidence that
the parent is unfit by reason
11 of conduct or condition which renders the
parent unable to care properly
12 for a child and the conduct or condition is
unlikely to change in the
13 foreseeable future.
14 (b) In making a determination
hereunder the court shall consider,
15 but is not limited to, the following, if
applicable:
16 (1) Emotional illness, mental
illness, mental deficiency or physical
17 disability of the parent, of such duration
or nature as to render the parent
18 unlikely to care for the ongoing physical,
mental and emotional needs of
19 the child;
20 (2) conduct toward a child of
a physically, emotionally or sexually
21 cruel or abusive nature;
22 (3) excessive use of
intoxicating liquors or narcotic or dangerous
23 drugs;
24 (4) physical, mental or
emotional neglect of the child;
25 (5) conviction of a felony
and imprisonment;
26 (6) unexplained injury or
death of another child or stepchild of the
27 parent;
28 (7) reasonable efforts by
appropriate public or private child caring
29 agencies have been unable to rehabilitate
the family; and
30 (8) lack of effort on the
part of the parent to adjust the parent's cir-
31 cumstances, conduct or conditions to meet
the needs of the child.
32 (c) In addition to the
foregoing, when a child is not in the physical
33 custody of a parent, the court, in
proceedings concerning the termination
34 of parental rights, shall also consider,
but is not limited to the following:
35 (1) Failure to assure care of
the child in the parental home when able
36 to do so;
37 (2) failure to maintain
regular visitation, contact or communication
38 with the child or with the custodian of the
child;
39 (3) failure to carry out a
reasonable plan approved by the court di-
40 rected toward the integration of the child
into the parental home; and
41 (4) failure to pay a
reasonable portion of the cost of substitute physical
42 care and maintenance based on ability to
pay.
43 In making the above
determination, the court may disregard incidental
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1 visitations, contacts, communications
or contributions.
2 (d) The rights of the
parents may be terminated as provided in this
3 section if the court finds that the
parents have abandoned the child or
4 the child was left under such
circumstances that the identity of the par-
5 ents is unknown and cannot be
ascertained, despite diligent searching,
6 and the parents have not come forward
to claim the child within three
7 months after the child is found.
8 (e) The existence of
any one of the above standing alone may, but
9 does not necessarily, establish
grounds for termination of parental rights.
10 The determination shall be based on an
evaluation of all factors which
11 are applicable. In considering any of the
above factors for terminating the
12 rights of a parent, the court shall give
primary consideration to the phys-
13 ical, mental or emotional condition and
needs of the child. If presented
14 to the court and subject to the provisions
of K.S.A. 60-419, and amend-
15 ments thereto, the court shall consider as
evidence testimony from a
16 person licensed to practice medicine and
surgery, a licensed psychologist
17 or a licensed social worker expressing an
opinion relating to the physical,
18 mental or emotional condition and needs of
the child. The court shall
19 consider any such testimony only if the
licensed professional providing
20 such testimony is subject to
cross-examination.
21 (f) A termination of parental
rights under the Kansas code for care
22 of children shall not terminate the right
of the child to inherit from or
23 through the parent. Upon such termination,
all the rights of birth parents
24 to such child, including their right to
inherit from or through such child,
25 shall cease.
26 (g) If, after finding the
parent unfit, the court determines a compelling
27 reason why it is not in the best
interests of the child to terminate parental
28 rights, the court may award permanent
guardianship to an individual
29 providing care for the child, a relative
or other person with whom the
30 child has a close emotional
attachment.
31 Sec. 8. K.S.A. 59-2132 is
hereby amended to read as follows: 59-
32 2132. (a) Except as provided in subsection
(h), in independent and agency
33 adoptions, the court shall require the
petitioner to obtain an assessment
34 by a court approved social worker licensed
to practice social work in
35 Kansas or by a licensed child-placing
agency of the advisability of the
36 adoption.
37 (b) The petitioner shall file
with the court, not less than 10 days be-
38 fore the hearing on the petition, a report
of the assessment and, if nec-
39 essary, confirmation or clarification of
the information filed under K.S.A.
40 59-2130, and amendments thereto.
41 (c) If there is no licensed
social worker or licensed child-placing
42 agency available to make the assessment and
report to the court, the court
43 may use the department of social and
rehabilitation services for that pur-
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1 pose.
2 (d) The costs of making
the assessment and report may be assessed
3 as court costs in the case as
provided in article 20 of chapter 60 of the
4 Kansas Statutes Annotated and
amendments thereto.
5 (e) In making the
assessment, the social worker, child-placing agency
6 or department of social and
rehabilitation services is authorized to observe
7 the child in the petitioner's home,
verify financial information of the pe-
8 titioner, shall clear the name of the
petitioner with the child abuse and
9 neglect registry through the
department of social and rehabilitation serv-
10 ices, shall determine whether petitioner
has been convicted of a felony for
11 any act described in articles 34, 35 or
36 of chapter 21 of the Kansas
12 Statutes Annotated, and amendments
thereto, or, within the last five years
13 been convicted of a felony violation of
the uniform controlled substances
14 act, and to contact the agency or
individuals consenting to the adoption
15 and confirm and, if necessary, clarify any
genetic and medical history filed
16 with the petition. This information shall
be made a part of the report to
17 the court. The report to the court by the
social worker, child-placing
18 agency or department of social and
rehabilitation services shall include
19 the results of the investigation of the
petitioner, the petitioner's home
20 and the ability of the petitioner to care
for the child.
21 (f) In the case of a
nonresident who is filing a petition to adopt a child
22 in Kansas, the assessment and report
required by this section must be
23 completed in the petitioner's state of
residence by a licensed social
24 worker, a licensed child-placing agency or
a comparable entity in that
25 state and filed with the court not less
than 10 days before the hearing on
26 the petition.
27 (g) The assessment and report
required by this section must have
28 been completed not more than one year prior
to the filing of the petition
29 for adoption.
30 (h) The assessment and report
required by this section may be waived
31 by the court upon review of a petition
requesting such waiver by such
32 child's grandparent or grandparents or upon
the court's own motion.
33 Sec. 9. K.S.A. 38-1581 and
59-2132 and K.S.A. 1997 Supp. 38-1502,
34 38-1502b, 38-1562, 38-1563, 38-1565,
38-1582 and 38-1583 are hereby
35 repealed.
36 Sec. 10. This act shall take
effect and be in force from and after its
37 publication in the statute book.
38