HOUSE BILL No. 2820

      An Act concerning children; relating to children in need of care; termination of parental
      rights; relating to notice of change in child's residence; amending K.S.A. 38-1561, 38-
      1581 and 59-2132 and K.S.A. 1997 Supp. 38-1502, 38-1562, 38-1563, 38-1565, 38-1582,
      38-1583 and 38-1585 and repealing the existing sections; also repealing K.S.A. 1997
      Supp. 38-1502b.

Be it enacted by the Legislature of the State of Kansas:

    Section 1. K.S.A. 1997 Supp. 38-1502 is hereby amended to read as
follows: 38-1502. As used in this code, unless the context otherwise in-
dicates:

    (a) ``Child in need of care'' means a person less than 18 years of age
who:

    (1) Is without adequate parental care, control or subsistence and the
condition is not due solely to the lack of financial means of the child's
parents or other custodian;

    (2) is without the care or control necessary for the child's physical,
mental or emotional health;

    (3) has been physically, mentally or emotionally abused or neglected
or sexually abused;

    (4) has been placed for care or adoption in violation of law;

    (5) has been abandoned or does not have a known living parent;

    (6) is not attending school as required by K.S.A. 72-977 or 72-1111,
and amendments thereto;

    (7) except in the case of a violation of K.S.A. 41-727, subsection (j)
of K.S.A. 74-8810 or subsection (m) or (n) of K.S.A. 79-3321, and amend-
ments thereto, or, except as provided in subsection (a)(12) of K.S.A. 21-
4204a and amendments thereto, does an act which, when committed by
a person under 18 years of age, is prohibited by state law, city ordinance
or county resolution but which is not prohibited when done by an adult;

    (8) while less than 10 years of age, commits any act which if done by
an adult would constitute the commission of a felony or misdemeanor as
defined by K.S.A. 21-3105 and amendments thereto;

    (9) is willfully and voluntarily absent from the child's home without
the consent of the child's parent or other custodian;

    (10) is willfully and voluntarily absent at least a second time from a
court ordered or designated placement, or a placement pursuant to court
order, if the absence is without the consent of the person with whom the
child is placed or, if the child is placed in a facility, without the consent
of the person in charge of such facility or such person's designee;

    (11) has been residing in the same residence with a sibling or another
person under 18 years of age, who has been physically, mentally or emo-
tionally abused or neglected, or sexually abused; or

    (12) while less than 10 years of age commits the offense defined in
K.S.A. 21-4204a and amendments thereto.

    (b) ``Physical, mental or emotional abuse or neglect'' means the in-
fliction of physical, mental or emotional injury or the causing of a dete-
rioration of a child and may include, but shall not be limited to, failing to
maintain reasonable care and treatment, negligent treatment or maltreat-
ment or exploiting a child to the extent that the child's health or emotional
well-being is endangered. A parent legitimately practicing religious beliefs
who does not provide specified medical treatment for a child because of
religious beliefs shall not for that reason be considered a negligent parent;
however, this exception shall not preclude a court from entering an order
pursuant to subsection (a)(2) of K.S.A. 38-1513 and amendments thereto.

    (c) ``Sexual abuse'' means any act committed with a child which is
described in article 35, chapter 21 of the Kansas Statutes Annotated and
those acts described in K.S.A. 21-3602 or 21-3603, and amendments
thereto, regardless of the age of the child.

    (d) ``Parent,'' when used in relation to a child or children, includes a
guardian, conservator and every person who is by law liable to maintain,
care for or support the child.

    (e) ``Interested party'' means the state, the petitioner, the child, any
parent and any person found to be an interested party pursuant to K.S.A.
38-1541 and amendments thereto.

    (f) ``Law enforcement officer'' means any person who by virtue of
office or public employment is vested by law with a duty to maintain
public order or to make arrests for crimes, whether that duty extends to
all crimes or is limited to specific crimes.

    (g) ``Youth residential facility'' means any home, foster home or struc-
ture which provides 24-hour-a-day care for children and which is licensed
pursuant to article 5 of chapter 65 of the Kansas Statutes Annotated.

    (h) ``Shelter facility'' means any public or private facility or home
other than a juvenile detention facility that may be used in accordance
with this code for the purpose of providing either temporary placement
for the care of children in need of care prior to the issuance of a dispos-
itional order or longer term care under a dispositional order.

    (i) ``Juvenile detention facility'' means any secure public or private
facility used for the lawful custody of accused or adjudicated juvenile
offenders which must not be a jail.

    (j) ``Adult correction facility'' means any public or private facility, se-
cure or nonsecure, which is used for the lawful custody of accused or
convicted adult criminal offenders.

    (k) ``Secure facility'' means a facility which is operated or structured
so as to ensure that all entrances and exits from the facility are under the
exclusive control of the staff of the facility, whether or not the person
being detained has freedom of movement within the perimeters of the
facility, or which relies on locked rooms and buildings, fences or physical
restraint in order to control behavior of its residents. No secure facility
shall be in a city or county jail.

    (l) ``Ward of the court'' means a child over whom the court has ac-
quired jurisdiction by the filing of a petition pursuant to this code and
who continues subject to that jurisdiction until the petition is dismissed
or the child is discharged as provided in K.S.A. 38-1503 and amendments
thereto.

    (m) ``Custody,'' whether temporary, protective or legal, means the
status created by court order or statute which vests in a custodian,
whether an individual or an agency, the right to physical possession of
the child and the right to determine placement of the child, subject to
restrictions placed by the court.

    (n) ``Placement'' means the designation by the individual or agency
having custody of where and with whom the child will live.

    (o) ``Secretary'' means the secretary of social and rehabilitation serv-
ices.

    (p) ``Relative'' means a person related by blood, marriage or adoption
but, when referring to a relative of a child's parent, does not include the
child's other parent.

    (q) ``Court-appointed special advocate'' means a responsible adult
other than an attorney guardian ad litem who is appointed by the court
to represent the best interests of a child, as provided in K.S.A. 38-1505a
and amendments thereto, in a proceeding pursuant to this code.

    (r) ``Multidisciplinary team'' means a group of persons, appointed by
the court or by the state department of social and rehabilitation services
under K.S.A. 38-1523a and amendments thereto, which has knowledge
of the circumstances of a child in need of care.

    (s) ``Jail'' means:

    (1) An adult jail or lockup; or

    (2) a facility in the same building or on the same grounds as an adult
jail or lockup, unless the facility meets all applicable standards and licen-
sure requirements under law and there is (A) total separation of the ju-
venile and adult facility spatial areas such that there could be no haphaz-
ard or accidental contact between juvenile and adult residents in the
respective facilities; (B) total separation in all juvenile and adult program
activities within the facilities, including recreation, education, counseling,
health care, dining, sleeping, and general living activities; and (C) separate
juvenile and adult staff, including management, security staff and direct
care staff such as recreational, educational and counseling.

    (t) ``Kinship care'' means the placement of a child in the home of the
child's relative or in the home of another adult with whom the child or
the child's parent already has a close emotional attachment.

    (u) ``Juvenile intake and assessment worker'' means a responsible
adult authorized to perform intake and assessment services as part of the
intake and assessment system established pursuant to K.S.A. 75-7023, and
amendments thereto.

    (v) ``Abandon'' means to forsake, desert or cease providing care for
the child without making appropriate provisions for substitute care.

    (w) ``Permanent guardianship'' means a judicially created relation-
ship between child and caretaker which is intended to be permanent and
self-sustaining without ongoing state oversight or intervention. The per-
manent guardian stands in loco parentis and exercises all the rights and
responsibilities of a parent.

    (x) ``Aggravated circumstances'' means the abandonment, torture,
chronic abuse, sexual abuse or chronic, life threatening neglect of a child.

    (y) ``Permanency hearing'' means a notice and opportunity to be
heard is provided to interested parties, foster parents, preadoptive parents
or relatives providing care for the child. The court, after consideration of
the evidence, shall determine whether progress toward the case plan goal
is adequate or reintegration is a viable alternative, or if the case should
be referred to the county or district attorney for filing of a petition to
terminate parental rights or to appoint a permanent guardian.

    (z) ``Extended out of home placement'' means a child has been in the
custody of the secretary and placed with neither parent for 15 of the most
recent 22 months beginning 60 days after the date at which a child in the
custody of the secretary was removed from the home.

    Sec. 2. K.S.A. 38-1561 is hereby amended to read as follows: 38-
1561. The order of disposition may be entered at the time of the adju-
dication, but shall be entered within 30 days following adjudication, unless
delayed for good cause shown. In no case shall a permanency hearing be
held later than 30 days following a determination that reintegration is not
a viable alternative.

    Sec. 3. K.S.A. 1997 Supp. 38-1562 is hereby amended to read as
follows: 38-1562. (a) At any time after a child has been adjudicated to be
a child in need of care and prior to disposition, the judge shall permit any
interested parties, and any persons required to be notified pursuant to
subsection (b), to be heard as to proposals for appropriate disposition of
the case.

    (b) Before entering an order placing the child in the custody of a
person other than the child's parent, the court shall require notice of the
time and place of the hearing to be given to all the child's grandparents
at their last known addresses or, if no grandparent is living or if no living
grandparent's address is known, to the closest relative of each of the
child's parents whose address is known, and to the foster parent, pre-
adoptive parent or relative providing care. Such notice shall be given by
restricted mail not less than 10 business days before the hearing and shall
state that the person receiving the notice shall have an opportunity to be
heard at the hearing. The provisions of this subsection shall not require
additional notice to any person otherwise receiving notice of the hearing
pursuant to K.S.A. 38-1536 and amendments thereto. Individuals receiv-
ing notice pursuant to this subsection shall not be made a party to the
action solely on the basis of this notice and opportunity to be heard.

    (c) Prior to entering an order of disposition, the court shall give con-
sideration to the child's physical, mental and emotional condition; the
child's need for assistance; the manner in which the parent participated
in the abuse, neglect or abandonment of the child; any relevant infor-
mation from the intake and assessment process; and the evidence re-
ceived at the dispositional hearing. In determining when reunification is
a viable alternative, the court shall specifically consider whether the par-
ent has been found by a court to have: (1) Committed murder in the first
degree, K.S.A. 21-3401 and amendments thereto, murder in the second
degree, K.S.A. 21-3402 and amendments thereto, capital murder, K.S.A.
21-3439 and amendments thereto, voluntary manslaughter, K.S.A. 21-
3403 and amendments thereto or violated a law of another state which
prohibits such murder or manslaughter of a child; (2) aided or abetted,
attempted, conspired or solicited to commit such murder or voluntary
manslaughter of a child as provided in subsection (c)(1); (3) committed a
felony battery that resulted in bodily injury to the child or another child;
(4) subjected the child or another child to aggravated circumstances as
defined in subsection (x) of K.S.A. 38-1502 and amendments thereto; (5)
parental rights of the parent to another child have been terminated in-
voluntarily; or (6) the child has been in extended out of home placement
as defined in subsection (z) of K.S.A. 38-1502 and amendments thereto.
If reintegration is not a viable alternative, the court shall consider whether
a compelling reason has been documented in the case plan to find neither
adoption nor permanent guardianship are in the best interests of the child,
the child is in a stable placement with a relative, or services set out in the
case plan necessary for the safe return of the child have been made avail-
able to the parent with whom reintegration is planned. If reintegration is
not a viable alternative and either adoption or permanent guardianship
might be in the best interests of the child, the county or district attorney
or the county or district attorney's designee shall file a motion to terminate
parental rights or permanent guardianship within 30 days and the court
shall set a hearing on such motion within 90 days of the filing of such
motion.

    Sec. 4. K.S.A. 1997 Supp. 38-1563 is hereby amended to read as
follows: 38-1563. (a) After consideration of any evidence offered relating
to disposition, the court may retain jurisdiction and place the child in the
custody of the child's parent subject to terms and conditions which the
court prescribes to assure the proper care and protection of the child,
including supervision of the child and the parent by a court services of-
ficer, or may order the child and the parent to participate in programs
operated by the secretary or another appropriate individual or agency.
The terms and conditions may require any special treatment or care which
the child needs for the child's physical, mental or emotional health.

    (b) The duration of any period of supervision or other terms or con-
ditions shall be for an initial period of no more than 18 months. The
court, at the expiration of that period, upon a hearing and for good cause
shown, may make successive extensions of the supervision or other terms
or conditions for up to 12 months at a time.

    (c) The court may order the child and the parents of any child who
has been adjudged a child in need of care to attend counseling sessions
as the court directs. The expense of the counseling may be assessed as
an expense in the case. No mental health center shall charge a greater
fee for court-ordered counseling than the center would have charged to
the person receiving counseling if the person had requested counseling
on the person's own initiative.

    (d) If the court finds that placing the child in the custody of a parent
will not assure protection from physical, mental or emotional abuse or
neglect or sexual abuse or will not be in the best interests of the child,
the court shall enter an order awarding custody of the child, until the
further order of the court, to one of the following:

    (1) A relative of the child or a person with whom the child has close
emotional ties;

    (2) any other suitable person;

    (3) a shelter facility; or

    (4) the secretary.

    In making such a custody order, the court shall give preference, to the
extent that the court finds it is in the best interests of the child, first to
granting custody to a relative of the child and second to granting custody
of the child to a person with whom the child has close emotional ties. If
the court has awarded legal custody based on the finding specified by this
subsection, the legal custodian shall not return the child to the home of
that parent without the written consent of the court.

    (e) When the custody of the child is awarded to the secretary:

    (1) The court may recommend to the secretary where the child
should be placed.

    (2) The secretary shall notify the court in writing of any placement
of the child or, within 10 days of the order awarding the custody of the
child to the secretary, any proposed placement of the child, whichever
occurs first.

    (3) The court may determine if such placement is in the best interests
of the child, and if the court determines that such placement is not in the
best interests of the child, the court shall notify the secretary who shall
then make an alternative placement subject to the procedures established
in this paragraph. In determining if such placement is in the best interests
of the child, the court, after providing the parties with an opportunity to
be heard, shall consider the health and safety needs of the child and the
resources available to meet the needs of children in the custody of the
secretary.

    (f) If custody of a child is awarded under this section to a person
other than the child's parent, the court may grant any individual reason-
able rights to visit the child upon motion of the individual and a finding
that the visitation rights would be in the best interests of the child.

    (g) If the court issues an order of custody pursuant to this section,
the court may enter an order restraining any alleged perpetrator of phys-
ical, sexual, mental or emotional abuse of the child from residing in the
child's home; visiting, contacting, harassing or intimidating the child; or
attempting to visit, contact, harass or intimidate the child.

    (h) The court shall not enter an order removing a child from the
custody of a parent pursuant to this section unless the court first finds
from evidence presented by the petitioner that reasonable efforts have
been made to prevent or eliminate the need for removal of the child;
reintegration is not a viable alternative; or that an emergency exists which
threatens the safety of the child and requires the immediate removal of
the child. Reintegration may not be a viable alternative when the: (1)
Parent has been found by a court to have committed murder in the first
degree, K.S.A. 21-3401 and amendments thereto, murder in the second
degree, K.S.A. 21-3402 and amendments thereto, capital murder, K.S.A.
21-3439 and amendments thereto, voluntary manslaughter, K.S.A. 21-
3403 and amendments thereto or violated a law of another state which
prohibits such murder or manslaughter of a child; (2) parent aided or
abetted, attempted, conspired or solicited to commit such murder or vol-
untary manslaughter of a child as provided in subsection (h)(1); (3) parent
committed a felony battery that resulted in bodily injury to the child or
another child; (4) parent has subjected the child or another child to ag-
gravated circumstances as defined in subsection (x) of K.S.A. 38-1502,
and amendments thereto; (5) parental rights of the parent to another child
have been terminated involuntarily or (6) the child has been in extended
out of home placement as defined in subsection (z) of K.S.A. 38-1502 and
amendments thereto. Such findings shall be included in any order entered
by the court.

    (i) In addition to or in lieu of any other order authorized by this
section, if a child is adjudged to be a child in need of care by reason of a
violation of the uniform controlled substances act (K.S.A. 65-4101 et seq.
and amendments thereto) or K.S.A. 41-719, 41-804, 41-2719, 65-4152,
65-4153, 65-4154 or 65-4155, and amendments thereto, the court shall
order the child to submit to and complete an alcohol and drug evaluation
by a community-based alcohol and drug safety action program certified
pursuant to K.S.A. 8-1008 and amendments thereto and to pay a fee not
to exceed the fee established by that statute for such evaluation. If the
court finds that the child and those legally liable for the child's support
are indigent, the fee may be waived. In no event shall the fee be assessed
against the secretary or the department of social and rehabilitation serv-
ices.

    (j) In addition to any other order authorized by this section, if child
support has been requested and the parent or parents have a duty to
support the child, the court may order one or both parents to pay child
support and, when custody is awarded to the secretary, the court shall
order one or both parents to pay child support. The court shall determine,
for each parent separately, whether the parent is already subject to an
order to pay support for the child. If the parent is not presently ordered
to pay support for any child who is a ward of the court and the court has
personal jurisdiction over the parent, the court shall order the parent to
pay child support in an amount determined under K.S.A. 38-1595 and
amendments thereto. Except for good cause shown, the court shall issue
an immediate income withholding order pursuant to K.S.A. 23-4,105 et
seq. and amendments thereto for each parent ordered to pay support
under this subsection, regardless of whether a payor has been identified
for the parent. A parent ordered to pay child support under this subsec-
tion shall be notified, at the hearing or otherwise, that the child support
order may be registered pursuant to K.S.A. 38-1597 and amendments
thereto. The parent shall also be informed that, after registration, the
income withholding order may be served on the parent's employer with-
out further notice to the parent and the child support order may be en-
forced by any method allowed by law. Failure to provide this notice shall
not affect the validity of the child support order.

    Sec. 5. K.S.A. 1997 Supp. 38-1565 is hereby amended to read as
follows: 38-1565. (a) If a child is placed outside the child's home and no
plan is made a part of the record of the dispositional hearing, a written
plan shall be prepared which provides for reintegration of the child into
the child's family or, if reintegration is not a viable alternative, for other
placement of the child. Reintegration may not be a viable alternative
when the: (1) Parent has been found by a court to have committed murder
in the first degree, K.S.A. 21-3401 and amendments thereto, murder in
the second degree, K.S.A. 21-3402 and amendments thereto, capital mur-
der, K.S.A. 21-3439 and amendments thereto, voluntary manslaughter,
K.S.A. 21-3403 and amendments thereto or violated a law of another state
which prohibits such murder or manslaughter of a child; (2) parent aided
or abetted, attempted, conspired or solicited to commit such murder or
voluntary manslaughter of a child as provided in subsection (a)(1); (3)
parent committed a felony battery that resulted in bodily injury to the
child or another child; (4) parent has subjected the child or another child
to aggravated circumstances as defined in subsection (x) of K.S.A. 38-
1502, and amendments thereto; (5) parental rights of the parent to an-
other child have been terminated involuntarily; or (6) the child has been
in extended out of home placement as defined in subsection (z) of K.S.A.
38-1502 and amendments thereto. If the goal is reintegration into the
family, the plan shall include measurable objectives and time schedules
for reintegration. The plan shall be submitted to the court not later than
30 days after the dispositional order is entered. If the child is placed in
the custody of the secretary, the plan shall be prepared and submitted by
the secretary. If the child is placed in the custody of a facility or person
other than the secretary, the plan shall be prepared and submitted by a
court services officer.

    (b) A court services officer or, if the child is in the secretary's custody,
the secretary shall submit to the court, at least every six months, a written
report of the progress being made toward the goals of the plan submitted
pursuant to subsection (a). If the child is placed in foster care, the foster
parent or parents shall submit to the court, at least every six months, a
report in regard to the child's adjustment, progress and condition. The
department of social and rehabilitation services shall notify the foster
parent or parents of the foster parent's or parent's duty to submit such
report, on a form provided by the department of social and rehabilitation
services, at least two weeks prior to the date when the report is due, and
the name of the judge and the address of the court to which the report
is to be submitted. Such report shall be confidential and shall only be
reviewed by the court and the child's guardian ad litem. The court shall
review the progress being made toward the goals of the plan and the
foster parent report and, if the court determines that progress is inade-
quate or that the plan is no longer viable, the court shall hold a hearing
pursuant to subsection (c). If the secretary has custody of the child, such
hearing shall be held no more than 12 months after the child is placed
outside the child's home and at least every 12 months thereafter. For
children in the custody of the secretary prior to July 1, 1998, within 30
days of receiving a request from the secretary, a permanency hearing shall
be held. If the goal of the plan submitted pursuant to subsection (a) is
reintegration into the family and the court determines after 12 months
from the time such plan is first submitted that progress is inadequate, the
court shall hold a hearing pursuant to subsection (c). Nothing in this
subsection shall be interpreted to prohibit termination of parental rights
prior to the expiration of 12 months.

    (c) Whenever a hearing is required under subsection (b), the court
shall notify all interested parties and hold a hearing to determine whether
proceedings shall be commenced pursuant to this code to terminate the
parental rights of either or both parents. If, after hearing, the court de-
termines that the child's needs are not adequately being met, the court
shall order commencement of proceedings pursuant to this code to ter-
minate the parental rights of either or both parents unless the court finds
good cause why the plan should be modified or a new plan adopted. If
the court finds good cause why the plan should be modified or a new
plan adopted the foster parents, preadoptive parents or relatives provid-
ing care for the child and hold a hearing. Individuals receiving notice
pursuant to this subsection shall not be made a party to the action solely
on the basis of this notice and opportunity to be heard. After providing
the interested parties, foster parents, preadoptive parents or relatives pro-
viding care for the child an opportunity to be heard, the court shall de-
termine whether the child's needs are being adequately met and whether
reintegration continues to be a viable alternative. If the court finds rein-
tegration is no longer a viable alternative, the court shall consider whether
the child is in a stable placement with a relative, services set out in the
case plan necessary for the safe return of the child have been made avail-
able to the parent with whom reintegration is planned or compelling rea-
sons are documented in the case plan to support a finding that neither
adoption nor permanent guardianship are in the child's best interest. If
reintegration is not a viable alternative and either adoption or permanent
guardianship might be in the best interests of the child, the county or
district attorney or the county or district attorney's designee shall file a
motion to terminate parental rights or for permanent guardianship within
30 days and the court shall set a hearing on such motion within 90 days
of the filing of such motion. When the court finds reintegration continues
to be a viable alternative, the court may rescind any of its prior disposi-
tional orders and enter any dispositional order authorized by this code or
may order that a new plan for the reintegration be prepared and sub-
mitted to the court.

    Sec. 6. K.S.A. 38-1581 is hereby amended to read as follows: 38-
1581. (a) Either in the petition filed under this code or in a motion made
in proceedings under this code, any interested party may request that the
parental rights of either or both parents be found unfit and the parental
rights of either or both parents be terminated or a permanent guardi-
anship be appointed.

    (b) Whenever a pleading is filed requesting termination of parental
rights, the pleading shall contain a statement of specific facts which are
relied upon to support the request, including dates, times and locations
to the extent known.

    (c) The county or district attorney or the county or district attorney's
designee shall file pleadings alleging a parent is unfit and requesting ter-
mination of parental rights or permanent guardianship within 30 days
after the court has determined reintegration is not a viable alternative
and has not found a compelling reason why adoption or permanent guard-
ianship may be in the best interest of the child. The court shall set a
hearing on such pleadings and matters within 90 days of the filing of such
pleadings.

    Sec. 7. K.S.A. 1997 Supp. 38-1582 is hereby amended to read as
follows: 38-1582. (a) Upon receiving a petition or motion requesting ter-
mination of parental rights or permanent guardianship the court shall set
the time and place for the hearing on the request.

    (b) (1) The court shall give notice of the hearing: (A) As provided in
K.S.A. 38-1533 and 38-1534 and amendments thereto; and (B) to all the
child's grandparents at their last known addresses or, if no grandparent
is living or if no living grandparent's address is known, to the closest
relative of each of the child's parents whose address is known,; and (C)
to the foster parents, preadoptive parents or relatives providing care;
which notice shall be given by restricted mail not less than 10 business
days before the hearing. Individuals receiving notice pursuant to this
subsection shall not be made a party to the action solely on the basis of
this notice and opportunity to be heard.

    (2) The provisions of subsection (b)(1)(B) shall not require additional
notice to any person otherwise receiving notice of the hearing pursuant
to K.S.A. 38-1536 and amendments thereto.

    (3)  Prior to the commencement of the hearing the court shall de-
termine that due diligence has been used in determining the identity of
the interested parties and in accomplishing service of process.

    (c) In any case in which a parent of a child cannot be located by the
exercise of due diligence, service shall be made upon the child's nearest
blood relative who can be located and upon the person with whom the
child resides. Service by publication shall be ordered upon the parent.

    (d) Prior to a hearing on a petition or a motion requesting termination
of parental rights, the court shall appoint an attorney to represent any
parent who fails to appear and may award a reasonable fee to the attorney
for services. The fee may be assessed as an expense in the proceedings.

    Sec. 8. K.S.A. 1997 Supp. 38-1583 is hereby amended to read as
follows: 38-1583. (a) When the child has been adjudicated to be a child
in need of care, the court may terminate parental rights when the court
finds by clear and convincing evidence that the parent is unfit by reason
of conduct or condition which renders the parent unable to care properly
for a child and the conduct or condition is unlikely to change in the
foreseeable future.

    (b) In making a determination hereunder the court shall consider,
but is not limited to, the following, if applicable:

    (1) Emotional illness, mental illness, mental deficiency or physical
disability of the parent, of such duration or nature as to render the parent
unlikely to care for the ongoing physical, mental and emotional needs of
the child;

    (2) conduct toward a child of a physically, emotionally or sexually
cruel or abusive nature;

    (3) excessive use of intoxicating liquors or narcotic or dangerous
drugs;

    (4) physical, mental or emotional neglect of the child;

    (5) conviction of a felony and imprisonment;

    (6) unexplained injury or death of another child or stepchild of the
parent;

    (7) reasonable efforts by appropriate public or private child caring
agencies have been unable to rehabilitate the family; and

    (8) lack of effort on the part of the parent to adjust the parent's cir-
cumstances, conduct or conditions to meet the needs of the child.

    (c) In addition to the foregoing, when a child is not in the physical
custody of a parent, the court, in proceedings concerning the termination
of parental rights, shall also consider, but is not limited to the following:

    (1) Failure to assure care of the child in the parental home when able
to do so;

    (2) failure to maintain regular visitation, contact or communication
with the child or with the custodian of the child;

    (3) failure to carry out a reasonable plan approved by the court di-
rected toward the integration of the child into the parental home; and

    (4) failure to pay a reasonable portion of the cost of substitute physical
care and maintenance based on ability to pay.

    In making the above determination, the court may disregard incidental
visitations, contacts, communications or contributions.

    (d) The rights of the parents may be terminated as provided in this
section if the court finds that the parents have abandoned the child or
the child was left under such circumstances that the identity of the par-
ents is unknown and cannot be ascertained, despite diligent searching,
and the parents have not come forward to claim the child within three
months after the child is found.

    (e) The existence of any one of the above standing alone may, but
does not necessarily, establish grounds for termination of parental rights.
The determination shall be based on an evaluation of all factors which
are applicable. In considering any of the above factors for terminating the
rights of a parent, the court shall give primary consideration to the phys-
ical, mental or emotional condition and needs of the child. If presented
to the court and subject to the provisions of K.S.A. 60-419, and amend-
ments thereto, the court shall consider as evidence testimony from a
person licensed to practice medicine and surgery, a licensed psychologist
or a licensed social worker expressing an opinion relating to the physical,
mental or emotional condition and needs of the child. The court shall
consider any such testimony only if the licensed professional providing
such testimony is subject to cross-examination.

    (f) A termination of parental rights under the Kansas code for care
of children shall not terminate the right of the child to inherit from or
through the parent. Upon such termination, all the rights of birth parents
to such child, including their right to inherit from or through such child,
shall cease.

    (g) If, after finding the parent unfit, the court determines a compelling
reason why it is not in the best interests of the child to terminate parental
rights, the court may award permanent guardianship to an individual
providing care for the child, a relative or other person with whom the
child has a close emotional attachment. Prior to awarding permanent
guardianship, the court shall receive and consider an assessment as pro-
vided in K.S.A. 59-2132 and amendments thereto of any potential per-
manent guardian.

    (h) If a parent is convicted of an offense as provided in subsection (7)
of K.S.A. 38-1585 and amendments thereto or is adjudicated a juvenile
offender because of an act which if committed by an adult would be an
offense as provided in subsection (7) of K.S.A. 38-1585 and amendments
thereto, and if the victim was the other parent of a child, the court may
disregard such convicted or adjudicated parent's opinions or wishes in
regard to the placement of such child.

    Sec. 9. K.S.A. 1997 Supp. 38-1585 is hereby amended to read as
follows: 38-1585. (a) It is presumed in the manner provided in K.S.A. 60-
414 and amendments thereto that a parent is unfit by reason of conduct
or condition which renders the parent unable to fully care for a child, if
the state establishes by clear and convincing evidence that:

    (1) A parent has previously been found to be an unfit parent in pro-
ceedings under K.S.A. 38-1581 et seq. and amendments thereto, or com-
parable proceedings under the laws of another state, or the federal gov-
ernment;

    (2) a parent has twice before been convicted of a crime specified in
article 34, 35, or 36 of chapter 21 of the Kansas Statutes Annotated, or
comparable offenses under the laws of another state, the federal govern-
ment or any foreign government, or an attempt or attempts to commit
such crimes and the victim was under the age of 18 years;

    (3) on two or more prior occasions a child in the physical custody of
the parent has been adjudicated a child in need of care as defined by
subsection (a)(3) of K.S.A. 38-1502 and amendments thereto;

    (4) the parent has been convicted of causing the death of another
child or stepchild of the parent;

    (5) the child has been in an out-of-home placement, other than kin-
ship care, under court order for a cumulative total period of one year or
longer and the parent has substantially neglected or willfully refused to
carry out a reasonable plan, approved by the court, directed toward re-
integration of the child into the parental home; or

    (6) (1) the child has been in an out-of-home placement, other than
kinship care, under court order for a cumulative total period of two years
or longer; (2) the parent has failed to carry out a reasonable plan, ap-
proved by the court, directed toward reintegration of the child into the
parental home; and (3) there is a substantial probability that the parent
will not carry out such plan in the near future.; or

    (7) a parent has been convicted of capital murder, K.S.A. 21-3439
and amendments thereto, murder in the first degree, K.S.A. 21-3401 and
amendments thereto, murder in the second degree, K.S.A. 21-3402 and
amendments thereto or voluntary manslaughter, K.S.A. 21-3403 and
amendments thereto, or if a juvenile has been adjudicated a juvenile of-
fender because of an act which if committed by an adult would be an
offense as provided in this subsection, and the victim of such murder was
the other parent of the child.

    (b) The burden of proof is on the parent to rebut the presumption.
If a parent has been convicted of capital murder, K.S.A. 21-3439 and
amendments thereto or murder in the first degree, K.S.A. 21-3401 and
amendments thereto as provided in subsection (a)(7), the burden of proof
is on the parent to rebut the presumption by clear and convincing evi-
dence. In the absence of proof that the parent is presently fit and able to
care for the child or that the parent will be fit and able to care for the
child in the foreseeable future, the court shall now terminate the parents
parental rights in proceedings pursuant to K.S.A. 38-1581 et seq. and
amendments thereto.

    Sec. 10. K.S.A. 59-2132 is hereby amended to read as follows: 59-
2132. (a) Except as provided in subsection (h), in independent and agency
adoptions, the court shall require the petitioner to obtain an assessment
by a court approved social worker licensed to practice social work in
Kansas or by a licensed child-placing agency of the advisability of the
adoption.

    (b) The petitioner shall file with the court, not less than 10 days be-
fore the hearing on the petition, a report of the assessment and, if nec-
essary, confirmation or clarification of the information filed under K.S.A.
59-2130, and amendments thereto.

    (c) If there is no licensed social worker or licensed child-placing
agency available to make the assessment and report to the court, the court
may use the department of social and rehabilitation services for that pur-
pose.

    (d) The costs of making the assessment and report may be assessed
as court costs in the case as provided in article 20 of chapter 60 of the
Kansas Statutes Annotated and amendments thereto.

    (e) In making the assessment, the social worker, child-placing agency
or department of social and rehabilitation services is authorized to observe
the child in the petitioner's home, verify financial information of the pe-
titioner, shall clear the name of the petitioner with the child abuse and
neglect registry through the department of social and rehabilitation serv-
ices and, when appropriate, with a similar registry in another state or
nation, shall determine whether the petitioner has been convicted of a
felony for any act described in articles 34, 35 or 36 of chapter 21 of the
Kansas Statutes Annotated, and amendments thereto, or, within the last
five years been convicted of a felony violation of the uniform controlled
substances act, K.S.A. 65-4101 et seq. and amendments thereto and, when
appropriate, any similar conviction in another jurisdiction, and to contact
the agency or individuals consenting to the adoption and confirm and, if
necessary, clarify any genetic and medical history filed with the petition.
This information shall be made a part of the report to the court. The
report to the court by the social worker, child-placing agency or depart-
ment of social and rehabilitation services shall include the results of the
investigation of the petitioner, the petitioner's home and the ability of the
petitioner to care for the child.

    (f) In the case of a nonresident who is filing a petition to adopt a child
in Kansas, the assessment and report required by this section must be
completed in the petitioner's state of residence by a licensed social
worker, a licensed child-placing agency or a comparable entity in that
state and filed with the court not less than 10 days before the hearing on
the petition.

    (g) The assessment and report required by this section must have
been completed not more than one year prior to the filing of the petition
for adoption.

    (h) The assessment and report required by this section may be waived
by the court upon review of a petition requesting such waiver by such
child's grandparent or grandparents or upon the court's own motion.

    New Sec. 11. (a) Except as provided in subsection (d), a parent en-
titled to the custody of a child pursuant to K.S.A. 38-1121, and amend-
ments thereto, shall give written notice to the other parent who has been
granted custodial or visitation rights pursuant to subsection (d) of K.S.A.
38-1121, and amendments thereto, not less than 21 days prior to changing
the residence of the child to a place outside this state or removing the
child from this state for a period of time exceeding 90 days. Such notice
shall be sent by restricted mail, return receipt requested, to the last known
address of the other parent.

    (b) Failure to give notice as required by subsection (a) is an indirect
civil contempt punishable as provided by law. In addition, the court may
assess, against the parent required to give notice, reasonable attorney fees
and any other expenses incurred by the other parent by reason of the
failure to give notice.

    (c) A change of the residence of a child to another state or removal
of a child from this state for a period of time exceeding 90 days may be
considered a material change of circumstances which justifies modifica-
tion of a prior order of child support or custody.

    (d) A parent entitled to the custody of a child pursuant to K.S.A.
38-1121, and amendments thereto, shall not be required to give the notice
required by this section to the other parent when the other parent has
been convicted of any crime specified in article 34, 35 or 36 of chapter
21 of the Kansas Statutes Annotated, and amendments thereto, in which
the child is the victim of such crime.

    (e) This section shall be part of and supplemental to the Kansas par-
entage act.

    Sec. 12. K.S.A. 38-1561, 38-1581 and 59-2132 and K.S.A. 1997 Supp.
38-1502, 38-1502b, 38-1562, 38-1563, 38-1565, 38-1582, 38-1583 and 38-
1585 are hereby repealed.

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

I hereby certify that the above Bill originated in the
House, and passed that body

__________________________________

House adopted
Conference Committee Report __________________________

__________________________________

Speaker of the House.

__________________________________

Chief Clerk of the House.

Passed the Senate
as amended __________________________

Senate adopted
Conference Committe Report __________________________

__________________________________

President of the Senate

__________________________________

Secretary of the Senate.

Approved__________________________

__________________________________

Governor.