Session of 1998
HOUSE BILL No. 2945
By Representative Gilmore
(By request)
2-13
10
AN ACT concerning children; relating to the best
interests of the child;
11 amending K.S.A.
38-129, 38-1111 and 59-2127 and K.S.A. 1997 Supp.
12 38-1502, 38-1562,
38-1563 and 38-1565 and repealing the existing sec-
13 tions; also repealing
K.S.A. 1997 Supp. 38-1502b.
14
15 Be it enacted by the Legislature of the
State of Kansas:
16 Section 1. K.S.A.
38-129 is hereby amended to read as follows: 38-
17 129. (a) The district court may grant the
grandparents of an unmarried
18 minor child reasonable visitation rights to
the child during the child's
19 minority upon a finding that the visitation
rights would be in the child's
20 best interests and when a substantial
relationship between the child and
21 the grandparent has been established.
22 (b) The district court
may grant the parents of a deceased person
23 visitation rights, or may enforce
visitation rights previously granted, pur-
24 suant to this section, even if the
surviving parent has remarried and the
25 surviving parent's spouse has adopted the
child. Visitation rights may be
26 granted pursuant to this subsection without
regard to whether the adop-
27 tion of the child occurred before or after
the effective date of this act.
28 (c) The best
interests of a child shall have precedence over the pref-
29 erence of a parent or parents.
30 Sec. 2. K.S.A.
38-1111 is hereby amended to read as follows: 38-
31 1111. As used in this
act ,: (a) ``Parent and child
relationship'' means the
32 legal relationship existing between a child
and the child's biological or
33 adoptive parents incident to which the law
confers or imposes rights,
34 privileges, duties and obligations. It
includes the mother and child rela-
35 tionship and the father and child
relationship.
36 (b) The best
interests of a child shall have precedence over the pref-
37 erence of a parent or parents.
38 Sec. 3. K.S.A. 1997
Supp. 38-1502 is hereby amended to read as
39 follows: 38-1502. As used in this code,
unless the context otherwise in-
40 dicates:
41 (a) ``Child in need of
care'' means a person less than 18 years of age
42 who:
43 (1) Is without adequate
parental care, control or subsistence and the
HB 2945
2
1 condition is not due solely to the
lack of financial means of the child's
2 parents or other custodian;
3 (2) is without the
care or control necessary for the child's physical,
4 mental or emotional health;
5 (3) has been
physically, mentally or emotionally abused or neglected
6 or sexually abused;
7 (4) has been
placed for care or adoption in violation of law;
8 (5) has been
abandoned or does not have a known living parent;
9 (6) is not
attending school as required by K.S.A. 72-977 or 72-1111,
10 and amendments thereto;
11 (7) except in the case
of a violation of K.S.A. 41-727, subsection (j)
12 of K.S.A. 74-8810 or subsection (m) or (n)
of K.S.A. 79-3321, and amend-
13 ments thereto, or, except as provided in
subsection (a)(12) of K.S.A. 21-
14 4204a and amendments thereto, does an act
which, when committed by
15 a person under 18 years of age, is
prohibited by state law, city ordinance
16 or county resolution but which is not
prohibited when done by an adult;
17 (8) while less than 10
years of age, commits any act which if done by
18 an adult would constitute the commission of
a felony or misdemeanor as
19 defined by K.S.A. 21-3105 and amendments
thereto;
20 (9) is willfully and
voluntarily absent from the child's home without
21 the consent of the child's parent or other
custodian;
22 (10) is willfully and
voluntarily absent at least a second time from a
23 court ordered or designated placement, or a
placement pursuant to court
24 order, if the absence is without the
consent of the person with whom the
25 child is placed or, if the child is placed
in a facility, without the consent
26 of the person in charge of such facility or
such person's designee;
27 (11) has been residing
in the same residence with a sibling or another
28 person under 18 years of age, who has been
physically, mentally or emo-
29 tionally abused or neglected, or sexually
abused; or
30 (12) while less than 10
years of age commits the offense defined in
31 K.S.A. 21-4204a and amendments thereto.
32 (b) ``Physical, mental
or emotional abuse or neglect'' means the in-
33 fliction of physical, mental or emotional
injury or the causing of a dete-
34 rioration of a child and may include, but
shall not be limited to, failing to
35 maintain reasonable care and treatment,
negligent treatment or maltreat-
36 ment or exploiting a child to the extent
that the child's health or emotional
37 well-being is endangered. A parent
legitimately practicing religious beliefs
38 who does not provide specified medical
treatment for a child because of
39 religious beliefs shall not for that reason
be considered a negligent parent;
40 however, this exception shall not preclude
a court from entering an order
41 pursuant to subsection (a)(2) of K.S.A.
38-1513 and amendments thereto.
42 (c) ``Sexual abuse''
means any act committed with a child which is
43 described in article 35, chapter 21 of the
Kansas Statutes Annotated and
HB 2945
3
1 those acts described in K.S.A.
21-3602 or 21-3603, and amendments
2 thereto, regardless of the age of the
child.
3 (d) ``Parent,''
when used in relation to a child or children, includes a
4 guardian, conservator and every
person who is by law liable to maintain,
5 care for or support the child.
6 (e) ``Interested
party'' means the state, the petitioner, the child, any
7 parent and any person found to be an
interested party pursuant to K.S.A.
8 38-1541 and amendments thereto.
9 (f) ``Law
enforcement officer'' means any person who by virtue of
10 office or public employment is vested by
law with a duty to maintain
11 public order or to make arrests for crimes,
whether that duty extends to
12 all crimes or is limited to specific
crimes.
13 (g) ``Youth residential
facility'' means any home, foster home or struc-
14 ture which provides 24-hour-a-day care for
children and which is licensed
15 pursuant to article 5 of chapter 65 of the
Kansas Statutes Annotated.
16 (h) ``Shelter facility''
means any public or private facility or home
17 other than a juvenile detention facility
that may be used in accordance
18 with this code for the purpose of providing
either temporary placement
19 for the care of children in need of care
prior to the issuance of a dis-
20 positional order or longer term care under
a dispositional order.
21 (i) ``Juvenile detention
facility'' means any secure public or private
22 facility used for the lawful custody of
accused or adjudicated juvenile
23 offenders which must not be a jail.
24 (j) ``Adult correction
facility'' means any public or private facility, se-
25 cure or nonsecure, which is used for the
lawful custody of accused or
26 convicted adult criminal offenders.
27 (k) ``Secure facility''
means a facility which is operated or structured
28 so as to ensure that all entrances and
exits from the facility are under the
29 exclusive control of the staff of the
facility, whether or not the person
30 being detained has freedom of movement
within the perimeters of the
31 facility, or which relies on locked rooms
and buildings, fences or physical
32 restraint in order to control behavior of
its residents. No secure facility
33 shall be in a city or county jail.
34 (l) ``Ward of the
court'' means a child over whom the court has ac-
35 quired jurisdiction by the filing of a
petition pursuant to this code and
36 who continues subject to that jurisdiction
until the petition is dismissed
37 or the child is discharged as provided in
K.S.A. 38-1503 and amendments
38 thereto.
39 (m) ``Custody,'' whether
temporary, protective or legal, means the
40 status created by court order or statute
which vests in a custodian,
41 whether an individual or an agency, the
right to physical possession of
42 the child and the right to determine
placement of the child, subject to
43 restrictions placed by the court.
HB 2945
4
1 (n) ``Placement''
means the designation by the individual or agency
2 having custody of where and with whom
the child will live.
3 (o) ``Secretary''
means the secretary of social and rehabilitation serv-
4 ices.
5 (p) ``Relative''
means a person related by blood, marriage or adoption
6 but, when referring to a relative of
a child's parent, does not include the
7 child's other parent.
8
(q) ``Court-appointed special advocate'' means a responsible
adult
9 other than an attorney guardian ad
litem who is appointed by the court
10 to represent the best interests of a child,
as provided in K.S.A. 38-1505a
11 and amendments thereto, in a proceeding
pursuant to this code.
12 (r) ``Multidisciplinary
team'' means a group of persons, appointed by
13 the court or by the state department of
social and rehabilitation services
14 under K.S.A. 38-1523a and amendments
thereto, which has knowledge
15 of the circumstances of a child in need of
care.
16 (s) ``Jail'' means:
17 (1) An adult jail or
lockup; or
18 (2) a facility in the
same building or on the same grounds as an adult
19 jail or lockup, unless the facility meets
all applicable standards and licen-
20 sure requirements under law and there is
(A) total separation of the ju-
21 venile and adult facility spatial areas
such that there could be no haphaz-
22 ard or accidental contact between juvenile
and adult residents in the
23 respective facilities; (B) total separation
in all juvenile and adult program
24 activities within the facilities, including
recreation, education, counseling,
25 health care, dining, sleeping, and general
living activities; and (C) separate
26 juvenile and adult staff, including
management, security staff and direct
27 care staff such as recreational,
educational and counseling.
28 (t) ``Kinship care''
means the placement of a child in the home of the
29 child's relative or in the home of another
adult with whom the child or
30 the child's parent already has a close
emotional attachment.
31 (u) ``Juvenile intake
and assessment worker'' means a responsible
32 adult authorized to perform intake and
assessment services as part of the
33 intake and assessment system established
pursuant to K.S.A. 75-7023 and
34 amendments thereto.
35 (v) The best
interests of a child shall have precedence over the pref-
36 erence of a parent or parents.
37 Sec. 4. K.S.A. 1997
Supp. 38-1562 is hereby amended to read as
38 follows: 38-1562. (a) At any time after a
child has been adjudicated to be
39 a child in need of care and prior to
disposition, the judge shall permit any
40 interested parties, and any persons
required to be notified pursuant to
41 subsection (b), to be heard as to proposals
for appropriate disposition of
42 the case.
43 (b) Before entering an
order placing the child in the custody of a
HB 2945
5
1 person other than the child's parent,
the court shall require notice of the
2 time and place of the hearing to be
given to all the child's grandparents
3 at their last known addresses or, if
no grandparent is living or if no living
4 grandparent's address is known, to
the closest relative of each of the
5 child's parents whose address is
known. Such notice shall be given by
6 restricted mail not less than 10
business days before the hearing and shall
7 state that the person receiving the
notice shall have an opportunity to be
8 heard at the hearing. The provisions
of this subsection shall not require
9 additional notice to any person
otherwise receiving notice of the hearing
10 pursuant to K.S.A. 38-1536 and amendments
thereto.
11 (c) Prior to entering an
order of disposition, the court shall give con-
12 sideration to the child's physical, mental
and emotional condition; the
13 child's need for assistance; the manner in
which the parent participated
14 in the abuse, neglect or abandonment of the
child; any relevant infor-
15 mation from the intake and assessment
process; and the evidence re-
16 ceived at the dispositional hearing. The
best interests of a child shall have
17 precedence over the preference of a
parent or parents.
18 Sec. 5. K.S.A. 1997
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. The
28 best interests of a child shall have
precedence over the preference of a
29 parent or parents.
30 (b) The duration of any
period of supervision or other terms or con-
31 ditions shall be for an initial period of
no more than 18 months. The
32 court, at the expiration of that period,
upon a hearing and for good cause
33 shown, may make successive extensions of
the supervision or other terms
34 or conditions for up to 12 months at a
time.
35 (c) The court may order
the child and the parents of any child who
36 has been adjudged a child in need of care
to attend counseling sessions
37 as the court directs. The expense of the
counseling may be assessed as
38 an expense in the case. No mental health
center shall charge a greater
39 fee for court-ordered counseling than the
center would have charged to
40 the person receiving counseling if the
person had requested counseling
41 on the person's own initiative.
42 (d) If the court finds
that placing the child in the custody of a parent
43 will not assure protection from physical,
mental or emotional abuse or
HB 2945
6
1 neglect or sexual abuse or will not
be in the best interests of the child,
2 the court shall enter an order
awarding custody of the child, until the
3 further order of the court, to one of
the following:
4 (1) A relative of
the child or a person with whom the child has close
5 emotional ties;
6 (2) any other
suitable person;
7 (3) a shelter
facility; or
8 (4) the
secretary.
9 In making such a
custody order, the court shall give preference, to the
10 extent that the court finds it is in the
best interests of the child, first to
11 granting custody to a relative of the child
and second to granting custody
12 of the child to a person with whom the
child has close emotional ties. If
13 the court has awarded legal custody based
on the finding specified by this
14 subsection, the legal custodian shall not
return the child to the home of
15 that parent without the written consent of
the court.
16 (e) When the custody of
the child is awarded to the secretary:
17 (1) The court may
recommend to the secretary where the child
18 should be placed.
19 (2) The secretary shall
notify the court in writing of any placement
20 of the child or, within 10 days of the
order awarding the custody of the
21 child to the secretary, any proposed
placement of the child, whichever
22 occurs first.
23 (3) The court may
determine if such placement is in the best interests
24 of the child, and if the court determines
that such placement is not in the
25 best interests of the child, the court
shall notify the secretary who shall
26 then make an alternative placement subject
to the procedures established
27 in this paragraph. In determining if such
placement is in the best interests
28 of the child, the court, after providing
the parties with an opportunity to
29 be heard, shall consider the health and
safety needs of the child and the
30 resources available to meet the needs of
children in the custody of the
31 secretary.
32 (f) If custody of a
child is awarded under this section to a person
33 other than the child's parent, the court
may grant any individual reason-
34 able rights to visit the child upon motion
of the individual and a finding
35 that the visitation rights would be in the
best interests of the child.
36 (g) If the court issues
an order of custody pursuant to this section,
37 the court may enter an order restraining
any alleged perpetrator of phys-
38 ical, sexual, mental or emotional abuse of
the child from residing in the
39 child's home; visiting, contacting,
harassing or intimidating the child; or
40 attempting to visit, contact, harass or
intimidate the child.
41 (h) The court shall not
enter an order removing a child from the
42 custody of a parent pursuant to this
section unless the court first finds
43 from evidence presented by the petitioner
that reasonable efforts have
HB 2945
7
1 been made to prevent or eliminate the
need for removal of the child or
2 that an emergency exists which
threatens the safety of the child and re-
3 quires the immediate removal of the
child. Such findings shall be included
4 in any order entered by the
court.
5 (i) In addition to
or in lieu of any other order authorized by this
6 section, if a child is adjudged to be
a child in need of care by reason of a
7 violation of the uniform controlled
substances act (K.S.A. 65-4101 et seq.
8 and amendments thereto) or K.S.A.
41-719, 41-804, 41-2719, 65-4152,
9 65-4153, 65-4154 or 65-4155, and
amendments thereto, the court shall
10 order the child to submit to and complete
an alcohol and drug evaluation
11 by a community-based alcohol and drug
safety action program certified
12 pursuant to K.S.A. 8-1008 and amendments
thereto and to pay a fee not
13 to exceed the fee established by that
statute for such evaluation. If the
14 court finds that the child and those
legally liable for the child's support
15 are indigent, the fee may be waived. In no
event shall the fee be assessed
16 against the secretary or the department of
social and rehabilitation serv-
17 ices.
18 (j) In addition to any
other order authorized by this section, if child
19 support has been requested and the parent
or parents have a duty to
20 support the child, the court may order one
or both parents to pay child
21 support and, when custody is awarded to the
secretary, the court shall
22 order one or both parents to pay child
support. The court shall determine,
23 for each parent separately, whether the
parent is already subject to an
24 order to pay support for the child. If the
parent is not presently ordered
25 to pay support for any child who is a ward
of the court and the court has
26 personal jurisdiction over the parent, the
court shall order the parent to
27 pay child support in an amount determined
under K.S.A. 38-1595 and
28 amendments thereto. Except for good cause
shown, the court shall issue
29 an immediate income withholding order
pursuant to K.S.A. 23-4,105 et
30 seq. and amendments thereto for each
parent ordered to pay support
31 under this subsection, regardless of
whether a payor has been identified
32 for the parent. A parent ordered to pay
child support under this subsec-
33 tion shall be notified, at the hearing or
otherwise, that the child support
34 order may be registered pursuant to K.S.A.
38-1597 and amendments
35 thereto. The parent shall also be informed
that, after registration, the
36 income withholding order may be served on
the parent's employer with-
37 out further notice to the parent and the
child support order may be en-
38 forced by any method allowed by law.
Failure to provide this notice shall
39 not affect the validity of the child
support order.
40 Sec. 6. K.S.A. 1997
Supp. 38-1565 is hereby amended to read as
41 follows: 38-1565. (a) If a child is placed
outside the child's home and no
42 plan is made a part of the record of the
dispositional hearing, a written
43 plan shall be prepared which provides for
reintegration of the child into
HB 2945
8
1 the child's family or, if
reintegration is not a viable alternative, for other
2 placement of the child. If the goal
is reintegration into the family, the
3 plan shall include measurable
objectives and time schedules for reinte-
4 gration. The plan shall be submitted
to the court not later than 30 days
5 after the dispositional order is
entered. If the child is placed in the custody
6 of the secretary, the plan shall be
prepared and submitted by the secre-
7 tary. If the child is placed in the
custody of a facility or person other than
8 the secretary, the plan shall be
prepared and submitted by a court services
9 officer. The best interests of a
child shall have precedence over the pref-
10 erence of a parent or parents.
11 (b) A court services
officer or, if the child is in the secretary's custody,
12 the secretary shall submit to the court, at
least every six months, a written
13 report of the progress being made toward
the goals of the plan submitted
14 pursuant to subsection (a). If the child is
placed in foster care, the foster
15 parent or parents shall submit to the
court, at least every six months, a
16 report in regard to the child's adjustment,
progress and condition. The
17 department of social and rehabilitation
services shall notify the foster
18 parent or parents of the foster parent's or
parent's duty to submit such
19 report, on a form provided by the
department of social and rehabilitation
20 services, at least two weeks prior to the
date when the report is due, and
21 the name of the judge and the address of
the court to which the report
22 is to be submitted. Such report shall be
confidential and shall only be
23 reviewed by the court and the child's
guardian ad litem. The court shall
24 review the progress being made toward the
goals of the plan and the
25 foster parent report and, if the court
determines that progress is inade-
26 quate or that the plan is no longer viable,
the court shall hold a hearing
27 pursuant to subsection (c). If the
secretary has custody of the child, such
28 hearing shall be held no more than 12
months after the child is placed
29 outside the child's home and at least every
12 months thereafter. If the
30 goal of the plan submitted pursuant to
subsection (a) is reintegration into
31 the family and the court determines after
12 months from the time such
32 plan is first submitted that progress is
inadequate, the court shall hold a
33 hearing pursuant to subsection (c). Nothing
in this subsection shall be
34 interpreted to prohibit termination of
parental rights prior to the expi-
35 ration of 12 months.
36 (c) Whenever a hearing
is required under subsection (b), the court
37 shall notify all interested parties and
hold a hearing to determine whether
38 proceedings shall be commenced pursuant to
this code to terminate the
39 parental rights of either or both parents.
If, after hearing, the court de-
40 termines that the child's needs are not
adequately being met, the court
41 shall order commencement of proceedings
pursuant to this code to ter-
42 minate the parental rights of either or
both parents unless the court finds
43 good cause why the plan should be modified
or a new plan adopted. If
HB 2945
9
1 the court finds good cause why the
plan should be modified or a new
2 plan adopted, the court may rescind
any of its prior dispositional orders
3 and enter any dispositional order
authorized by this code or may order
4 that a new plan for the reintegration
be prepared and submitted to the
5 court.
6
Sec. 7. K.S.A. 59-2127 is hereby amended to read as
follows: 59-
7 2127. (a) If the basis for venue in
an agency adoption is subsection (b)(3)
8 of K.S.A. 59-2126 and the petitioner
does not reside in Kansas and the
9 child to be adopted did not reside in
Kansas prior to receipt of custody
10 by the agency, the court shall determine
whether or not to exercise its
11 jurisdiction under this act based on the
best interests of the child. For
12 this purpose the court shall consider the
following factors:
13 (1) If another state
recently was the child's or mother's home state;
14 (2) if another state has
a closer connection with the child or the child's
15 adoptive or genetic parent or parents;
16 (3) if substantial
evidence concerning the child's present or future
17 care, protection, training and personal
relationships is more readily avail-
18 able in another state;
19 (4) the unavailability
of placement opportunities for such child within
20 the state of Kansas; and
21 (5) any other factor the
court deems relevant in its determination of
22 whether or not to exercise its
jurisdiction.
23 (b) Before determining
whether or not to exercise its jurisdiction the
24 court may communicate with a court of
another state and exchange in-
25 formation pertinent to the assumption of
jurisdiction by either court with
26 a view to assuring that jurisdiction will
be exercised by such court of
27 another state and that a forum will be
available to the parties.
28 (c) If the court
determines not to exercise its jurisdiction, it may dis-
29 miss the proceedings, or it may stay the
proceedings upon condition that
30 an adoption proceeding be promptly
commenced in another named state
31 or upon any other conditions which may be
just and proper.
32 (d) The best
interests of a child shall have precedence over the pref-
33 erence of a parent or parents.
34 Sec. 8. K.S.A.
38-129, 38-1111 and 59-2127 and K.S.A. 1997 Supp.
35 38-1502, 38-1502b, 38-1562, 38-1563 and
38-1565 are hereby repealed.
36 Sec. 9. This act
shall take effect and be in force from and after its
37 publication in the statute book.
38
39