Session of 1998
                   
HOUSE BILL No. 3006
         
By Committee on Appropriations
         
3-5
            9             AN ACT concerning children; relating to children in need of care; amend-
10             ing K.S.A. 38-1561, 38-1581 and 59-2132 and K.S.A. 1997 Supp. 38-
11             1502, 38-1562, 38-1563, 38-1565, 38-1582 and 38-1583 and repealing
12             the existing 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

HB 3006

2

  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 dis-
40       positional 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.

HB 3006

3

  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

HB 3006

4

  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
13       the 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 to interested parties, foster parents, preadoptive parents
23       or relatives providing care for the child. The court, after consideration of
24       the evidence, shall determine whether progress toward the case plan goal
25       is adequate or reintegration is a viable alternative, or if the case should
26       be referred to the county or district attorney for filing of a petition to
27       terminate parental rights or to appoint a permanent guardian.
28           (z) ``Extended out of home placement'' means a child has been in the
29       custody of the secretary and placed with neither parent for 15 of the most
30       recent 22 months beginning 60 days after the date at which a child in the
31       custody of the secretary was removed from the home.
32           Sec. 2. K.S.A. 38-1561 is hereby amended to read as follows: 38-
33       1561. The order of disposition may be entered at the time of the adju-
34       dication, but shall be entered within 30 days following adjudication, unless
35       delayed for good cause shown. In no case shall a permanency hearing be
36       held later than 30 days following a determination that reintegration is not
37       a viable alternative.
38           Sec. 3. K.S.A. 1997 Supp. 38-1562 is hereby amended to read as
39       follows: 38-1562. (a) At any time after a child has been adjudicated to be
40       a child in need of care and prior to disposition, the judge shall permit any
41       interested parties, and any persons required to be notified pursuant to
42       subsection (b), to be heard as to proposals for appropriate disposition of
43       the case.

HB 3006

5

  1           (b) Before entering an order placing the child in the custody of a
  2       person other than the child's parent, the court shall require notice of the
  3       time and place of the hearing to be given to all the child's grandparents
  4       at their last known addresses or, if no grandparent is living or if no living
  5       grandparent's address is known, to the closest relative of each of the
  6       child's parents whose address is known, and to the foster parent, pre-
  7       adoptive parent or relative providing care. Such notice shall be given by
  8       restricted mail not less than 10 business days before the hearing and shall
  9       state that the person receiving the notice shall have an opportunity to be
10       heard at the hearing. The provisions of this subsection shall not require
11       additional notice to any person otherwise receiving notice of the hearing
12       pursuant to K.S.A. 38-1536 and amendments thereto. Individuals receiv-
13       ing notice pursuant to this subsection shall not be made a party to the
14       action solely on the basis of this notice and opportunity to be heard.
15           (c) Prior to entering an order of disposition, the court shall give con-
16       sideration to the child's physical, mental and emotional condition; the
17       child's need for assistance; the manner in which the parent participated
18       in the abuse, neglect or abandonment of the child; any relevant infor-
19       mation from the intake and assessment process; and the evidence re-
20       ceived at the dispositional hearing. In determining when reunification is
21       a viable alternative, the court shall specifically consider whether the par-
22       ent has been found by a court to have: (1) Committed murder in the first
23       degree, K.S.A. 21-3401 and amendments thereto, murder in the second
24       degree, K.S.A. 21-3402 and amendments thereto, capital murder, K.S.A.
25       21-3439 and amendments thereto, voluntary manslaughter, K.S.A. 21-
26       3403 and amendments thereto or violated a law of another state which
27       prohibits such murder or manslaughter of a child; (2) aided or abetted,
28       attempted, conspired or solicited to commit such murder or voluntary
29       manslaughter of a child as provided in subsection (c)(1); (3) committed a
30       felony battery that resulted in bodily injury to the child or another child;
31       (4) subjected the child or another child to aggravated circumstances as
32       defined in subsection (x) of K.S.A. 38-1502 and amendments thereto; or
33       (5) parental rights of the parent to another child have been terminated
34       involuntarily. If reintegration is not a viable alternative, the court shall
35       consider whether a compelling reason has been documented in the case
36       plan to find neither adoption nor permanent guardianship are in the best
37       interests of the child, the child is in a stable placement with a relative, or
38       services set out in the case plan necessary for the safe return of the child
39       have been made available to the parent with whom reintegration is
40       planned. If reintegration is not a viable alternative and either adoption
41       or permanent guardianship might be in the best interests of the child, the
42       county or district attorney shall file a motion to terminate parental rights
43       or permanent guardianship within 30 days.

HB 3006

6

  1           Sec. 4. K.S.A. 1997 Supp. 38-1563 is hereby amended to read as
  2       follows: 38-1563. (a) After consideration of any evidence offered relating
  3       to disposition, the court may retain jurisdiction and place the child in the
  4       custody of the child's parent subject to terms and conditions which the
  5       court prescribes to assure the proper care and protection of the child,
  6       including supervision of the child and the parent by a court services of-
  7       ficer, or may order the child and the parent to participate in programs
  8       operated by the secretary or another appropriate individual or agency.
  9       The terms and conditions may require any special treatment or care which
10       the child needs for the child's physical, mental or emotional health.
11           (b) The duration of any period of supervision or other terms or con-
12       ditions shall be for an initial period of no more than 18 months. The
13       court, at the expiration of that period, upon a hearing and for good cause
14       shown, may make successive extensions of the supervision or other terms
15       or conditions for up to 12 months at a time.
16           (c) The court may order the child and the parents of any child who
17       has been adjudged a child in need of care to attend counseling sessions
18       as the court directs. The expense of the counseling may be assessed as
19       an expense in the case. No mental health center shall charge a greater
20       fee for court-ordered counseling than the center would have charged to
21       the person receiving counseling if the person had requested counseling
22       on the person's own initiative.
23           (d) If the court finds that placing the child in the custody of a parent
24       will not assure protection from physical, mental or emotional abuse or
25       neglect or sexual abuse or will not be in the best interests of the child,
26       the court shall enter an order awarding custody of the child, until the
27       further order of the court, to one of the following:
28           (1) A relative of the child or a person with whom the child has close
29       emotional ties;
30           (2) any other suitable person;
31           (3) a shelter facility; or
32           (4) the secretary.
33           In making such a custody order, the court shall give preference, to the
34       extent that the court finds it is in the best interests of the child, first to
35       granting custody to a relative of the child and second to granting custody
36       of the child to a person with whom the child has close emotional ties. If
37       the court has awarded legal custody based on the finding specified by this
38       subsection, the legal custodian shall not return the child to the home of
39       that parent without the written consent of the court.
40           (e) When the custody of the child is awarded to the secretary:
41           (1) The court may recommend to the secretary where the child
42       should be placed.
43           (2) The secretary shall notify the court in writing of any placement

HB 3006

7

  1       of the child or, within 10 days of the order awarding the custody of the
  2       child to the secretary, any proposed placement of the child, whichever
  3       occurs first.
  4           (3) The court may determine if such placement is in the best interests
  5       of the child, and if the court determines that such placement is not in the
  6       best interests of the child, the court shall notify the secretary who shall
  7       then make an alternative placement subject to the procedures established
  8       in this paragraph. In determining if such placement is in the best interests
  9       of the child, the court, after providing the parties with an opportunity to
10       be heard, shall consider the health and safety needs of the child and the
11       resources available to meet the needs of children in the custody of the
12       secretary.
13           (f) If custody of a child is awarded under this section to a person
14       other than the child's parent, the court may grant any individual reason-
15       able rights to visit the child upon motion of the individual and a finding
16       that the visitation rights would be in the best interests of the child.
17           (g) If the court issues an order of custody pursuant to this section,
18       the court may enter an order restraining any alleged perpetrator of phys-
19       ical, sexual, mental or emotional abuse of the child from residing in the
20       child's home; visiting, contacting, harassing or intimidating the child; or
21       attempting to visit, contact, harass or intimidate the child.
22           (h) The court shall not enter an order removing a child from the
23       custody of a parent pursuant to this section unless the court first finds
24       from evidence presented by the petitioner that reasonable efforts have
25       been made to prevent or eliminate the need for removal of the child;
26       reintegration is not a viable alternative; or that an emergency exists which
27       threatens the safety of the child and requires the immediate removal of
28       the child. Reintegration is not a viable alternative when the: (1) Parent
29       has been found by a court to have committed murder in the first degree,
30       K.S.A. 21-3401 and amendments thereto, murder in the second degree,
31       K.S.A. 21-3402 and amendments thereto, capital murder, K.S.A. 21-3439
32       and amendments thereto, voluntary manslaughter, K.S.A. 21-3403 and
33       amendments thereto or violated a law of another state which prohibits
34       such murder or manslaughter of a child; (2) parent aided or abetted,
35       attempted, conspired or solicited to commit such murder or voluntary
36       manslaughter of a child as provided in subsection (h)(1); (3) parent com-
37       mitted a felony battery that resulted in bodily injury to the child or an-
38       other child; (4) parent has subjected the child or another child to aggra-
39       vated circumstances as defined in subsection (x) of K.S.A. 38-1502, and
40       amendments thereto; or (5) parental rights of the parent to another child
41       have been terminated involuntarily. Such findings shall be included in
42       any order entered by the court.
43           (i) In addition to or in lieu of any other order authorized by this

HB 3006

8

  1       section, if a child is adjudged to be a child in need of care by reason of a
  2       violation of the uniform controlled substances act (K.S.A. 65-4101 et seq.
  3       and amendments thereto) or K.S.A. 41-719, 41-804, 41-2719, 65-4152,
  4       65-4153, 65-4154 or 65-4155, and amendments thereto, the court shall
  5       order the child to submit to and complete an alcohol and drug evaluation
  6       by a community-based alcohol and drug safety action program certified
  7       pursuant to K.S.A. 8-1008 and amendments thereto and to pay a fee not
  8       to exceed the fee established by that statute for such evaluation. If the
  9       court finds that the child and those legally liable for the child's support
10       are indigent, the fee may be waived. In no event shall the fee be assessed
11       against the secretary or the department of social and rehabilitation serv-
12       ices.
13           (j) In addition to any other order authorized by this section, if child
14       support has been requested and the parent or parents have a duty to
15       support the child, the court may order one or both parents to pay child
16       support and, when custody is awarded to the secretary, the court shall
17       order one or both parents to pay child support. The court shall determine,
18       for each parent separately, whether the parent is already subject to an
19       order to pay support for the child. If the parent is not presently ordered
20       to pay support for any child who is a ward of the court and the court has
21       personal jurisdiction over the parent, the court shall order the parent to
22       pay child support in an amount determined under K.S.A. 38-1595 and
23       amendments thereto. Except for good cause shown, the court shall issue
24       an immediate income withholding order pursuant to K.S.A. 23-4,105 et
25       seq. and amendments thereto for each parent ordered to pay support
26       under this subsection, regardless of whether a payor has been identified
27       for the parent. A parent ordered to pay child support under this subsec-
28       tion shall be notified, at the hearing or otherwise, that the child support
29       order may be registered pursuant to K.S.A. 38-1597 and amendments
30       thereto. The parent shall also be informed that, after registration, the
31       income withholding order may be served on the parent's employer with-
32       out further notice to the parent and the child support order may be en-
33       forced by any method allowed by law. Failure to provide this notice shall
34       not affect the validity of the child support order.
35           Sec. 5. K.S.A. 1997 Supp. 38-1565 is hereby amended to read as
36       follows: 38-1565. (a) If a child is placed outside the child's home and no
37       plan is made a part of the record of the dispositional hearing, a written
38       plan shall be prepared which provides for reintegration of the child into
39       the child's family or, if reintegration is not a viable alternative, for other
40       placement of the child. Reintegration is not a viable alternative when the:
41       (1) Parent has been found by a court to have committed murder in the
42       first degree, K.S.A. 21-3401 and amendments thereto, murder in the sec-
43       ond degree, K.S.A. 21-3402 and amendments thereto, capital murder,

HB 3006

9

  1       K.S.A. 21-3439 and amendments thereto, voluntary manslaughter, K.S.A.
  2       21-3403 and amendments thereto or violated a law of another state which
  3       prohibits such murder or manslaughter of a child; (2) parent aided or
  4       abetted, attempted, conspired or solicited to commit such murder or vol-
  5       untary manslaughter of a child as provided in subsection (a)(1); (3) parent
  6       committed a felony battery that resulted in bodily injury to the child or
  7       another child; (4) parent has subjected the child or another child to ag-
  8       gravated circumstances as defined in subsection (x) of K.S.A. 38-1502,
  9       and amendments thereto; or (5) parental rights of the parent to another
10       child have been terminated involuntarily. If the goal is reintegration into
11       the family, the plan shall include measurable objectives and time sched-
12       ules for reintegration. The plan shall be submitted to the court not later
13       than 30 days after the dispositional order is entered. If the child is placed
14       in the custody of the secretary, the plan shall be prepared and submitted
15       by the secretary. If the child is placed in the custody of a facility or person
16       other than the secretary, the plan shall be prepared and submitted by a
17       court services officer.
18           (b) A court services officer or, if the child is in the secretary's custody,
19       the secretary shall submit to the court, at least every six months, a written
20       report of the progress being made toward the goals of the plan submitted
21       pursuant to subsection (a). If the child is placed in foster care, the foster
22       parent or parents shall submit to the court, at least every six months, a
23       report in regard to the child's adjustment, progress and condition. The
24       department of social and rehabilitation services shall notify the foster
25       parent or parents of the foster parent's or parent's duty to submit such
26       report, on a form provided by the department of social and rehabilitation
27       services, at least two weeks prior to the date when the report is due, and
28       the name of the judge and the address of the court to which the report
29       is to be submitted. Such report shall be confidential and shall only be
30       reviewed by the court and the child's guardian ad litem. The court shall
31       review the progress being made toward the goals of the plan and the
32       foster parent report and, if the court determines that progress is inade-
33       quate or that the plan is no longer viable, the court shall hold a hearing
34       pursuant to subsection (c). If the secretary has custody of the child, such
35       hearing shall be held no more than 12 months after the child is placed
36       outside the child's home and at least every 12 months thereafter. For
37       children in the custody of the secretary prior to July 1, 1998, within 30
38       days of receiving a request from the secretary, a permanency hearing shall
39       be held. If the goal of the plan submitted pursuant to subsection (a) is
40       reintegration into the family and the court determines after 12 months
41       from the time such plan is first submitted that progress is inadequate, the
42       court shall hold a hearing pursuant to subsection (c). Nothing in this
43       subsection shall be interpreted to prohibit termination of parental rights

HB 3006

10

  1       prior to the expiration of 12 months.
  2           (c) Whenever a hearing is required under subsection (b), the court
  3       shall notify all interested parties and hold a hearing to determine whether
  4       proceedings shall be commenced pursuant to this code to terminate the
  5       parental rights of either or both parents. If, after hearing, the court de-
  6       termines that the child's needs are not adequately being met, the court
  7       shall order commencement of proceedings pursuant to this code to ter-
  8       minate the parental rights of either or both parents unless the court finds
  9       good cause why the plan should be modified or a new plan adopted. If
10       the court finds good cause why the plan should be modified or a new
11       plan adopted the foster parents, preadoptive parents or relatives provid-
12       ing care for the child and hold a hearing. Individuals receiving notice
13       pursuant to this subsection shall not be made a party to the action solely
14       on the basis of this notice and opportunity to be heard. After providing
15       the interested parties, foster parents, preadoptive parents or relatives pro-
16       viding care for the child an opportunity to be heard, the court shall de-
17       termine whether the child's needs are being adequately met and whether
18       reintegration continues to be a viable alternative. If the court finds rein-
19       tegration is no longer a viable alternative, the court shall consider whether
20       the child is in a stable placement with a relative, services set out in the
21       case plan necessary for the safe return of the child have been made avail-
22       able to the parent with whom reintegration is planned or compelling rea-
23       sons are documented in the case plan to support a finding that neither
24       adoption nor permanent guardianship are in the child's best interest. If
25       reintegration is not a viable alternative and either adoption or permanent
26       guardianship might be in the best interests of the child, the county or
27       district attorney shall file a motion to terminate parental rights or for
28       permanent guardianship within 30 days. When the court finds reintegra-
29       tion continues to be a viable alternative, the court may rescind any of its
30       prior dispositional orders and enter any dispositional order authorized by
31       this code or may order that a new plan for the reintegration be prepared
32       and submitted to the court.
33           Sec. 6. K.S.A. 38-1581 is hereby amended to read as follows: 38-
34       1581. (a) Either in the petition filed under this code or in a motion made
35       in proceedings under this code, any interested party may request that the
36       parental rights of either or both parents be found unfit and the parental
37       rights of either or both parents be terminated or a permanent guardi-
38       anship be appointed.
39           (b) Whenever a pleading is filed requesting termination of parental
40       rights, the pleading shall contain a statement of specific facts which are
41       relied upon to support the request, including dates, times and locations
42       to the extent known.
43           (c) The county or district attorney shall file pleadings alleging a par-

HB 3006

11

  1       ent is unfit and requesting termination of parental rights or permanent
  2       guardianship within 30 days after the court has determined reintegration
  3       is not a viable alternative and has not found a compelling reason why
  4       adoption or permanent guardianship may be in the best interest of the
  5       child.
  6           Sec. 7. K.S.A. 1997 Supp. 38-1582 is hereby amended to read as
  7       follows: 38-1582. (a) Upon receiving a petition or motion requesting ter-
  8       mination of parental rights or permanent guardianship the court shall set
  9       the time and place for the hearing on the request.
10           (b) (1) The court shall give notice of the hearing: (A) As provided in
11       K.S.A. 38-1533 and 38-1534 and amendments thereto; and (B) to all the
12       child's grandparents at their last known addresses or, if no grandparent
13       is living or if no living grandparent's address is known, to the closest
14       relative of each of the child's parents whose address is known,; and (C)
15       to the foster parents, preadoptive parents or relatives providing care;
16       which notice shall be given by restricted mail not less than 10 business
17       days before the hearing. Individuals receiving notice pursuant to this
18       subsection shall not be made a party to the action solely on the basis of
19       this notice and opportunity to be heard.
20           (2) The provisions of subsection (b)(1)(B) shall not require additional
21       notice to any person otherwise receiving notice of the hearing pursuant
22       to K.S.A. 38-1536 and amendments thereto.
23           (3)  Prior to the commencement of the hearing the court shall de-
24       termine that due diligence has been used in determining the identity of
25       the interested parties and in accomplishing service of process.
26           (c) In any case in which a parent of a child cannot be located by the
27       exercise of due diligence, service shall be made upon the child's nearest
28       blood relative who can be located and upon the person with whom the
29       child resides. Service by publication shall be ordered upon the parent.
30           (d) Prior to a hearing on a petition or a motion requesting termination
31       of parental rights, the court shall appoint an attorney to represent any
32       parent who fails to appear and may award a reasonable fee to the attorney
33       for services. The fee may be assessed as an expense in the proceedings.
34           Sec. 8. K.S.A. 1997 Supp. 38-1583 is hereby amended to read as
35       follows: 38-1583. (a) When the child has been adjudicated to be a child
36       in need of care, the court may terminate parental rights when the court
37       finds by clear and convincing evidence that the parent is unfit by reason
38       of conduct or condition which renders the parent unable to care properly
39       for a child and the conduct or condition is unlikely to change in the
40       foreseeable future.
41           (b) In making a determination hereunder the court shall consider,
42       but is not limited to, the following, if applicable:
43           (1) Emotional illness, mental illness, mental deficiency or physical

HB 3006

12

  1       disability of the parent, of such duration or nature as to render the parent
  2       unlikely to care for the ongoing physical, mental and emotional needs of
  3       the child;
  4           (2) conduct toward a child of a physically, emotionally or sexually
  5       cruel or abusive nature;
  6           (3) excessive use of intoxicating liquors or narcotic or dangerous
  7       drugs;
  8           (4) physical, mental or emotional neglect of the child;
  9           (5) conviction of a felony and imprisonment;
10           (6) unexplained injury or death of another child or stepchild of the
11       parent;
12           (7) reasonable efforts by appropriate public or private child caring
13       agencies have been unable to rehabilitate the family; and
14           (8) lack of effort on the part of the parent to adjust the parent's cir-
15       cumstances, conduct or conditions to meet the needs of the child.
16           (c) In addition to the foregoing, when a child is not in the physical
17       custody of a parent, the court, in proceedings concerning the termination
18       of parental rights, shall also consider, but is not limited to the following:
19           (1) Failure to assure care of the child in the parental home when able
20       to do so;
21           (2) failure to maintain regular visitation, contact or communication
22       with the child or with the custodian of the child;
23           (3) failure to carry out a reasonable plan approved by the court di-
24       rected toward the integration of the child into the parental home; and
25           (4) failure to pay a reasonable portion of the cost of substitute physical
26       care and maintenance based on ability to pay.
27           In making the above determination, the court may disregard incidental
28       visitations, contacts, communications or contributions.
29           (d) The rights of the parents may be terminated as provided in this
30       section if the court finds that the parents have abandoned the child or
31       the child was left under such circumstances that the identity of the par-
32       ents is unknown and cannot be ascertained, despite diligent searching,
33       and the parents have not come forward to claim the child within three
34       months after the child is found.
35           (e) The existence of any one of the above standing alone may, but
36       does not necessarily, establish grounds for termination of parental rights.
37       The determination shall be based on an evaluation of all factors which
38       are applicable. In considering any of the above factors for terminating the
39       rights of a parent, the court shall give primary consideration to the phys-
40       ical, mental or emotional condition and needs of the child. If presented
41       to the court and subject to the provisions of K.S.A. 60-419, and amend-
42       ments thereto, the court shall consider as evidence testimony from a
43       person licensed to practice medicine and surgery, a licensed psychologist

HB 3006

13

  1       or a licensed social worker expressing an opinion relating to the physical,
  2       mental or emotional condition and needs of the child. The court shall
  3       consider any such testimony only if the licensed professional providing
  4       such testimony is subject to cross-examination.
  5           (f) A termination of parental rights under the Kansas code for care
  6       of children shall not terminate the right of the child to inherit from or
  7       through the parent. Upon such termination, all the rights of birth parents
  8       to such child, including their right to inherit from or through such child,
  9       shall cease.
10           (g) If, after finding the parent unfit, the court determines a compelling
11       reason why it is not in the best interests of the child to terminate parental
12       rights, the court may award permanent guardianship to an individual
13       providing care for the child, a relative or other person with whom the
14       child has a close emotional attachment. Prior to awarding permanent
15       guardianship, the court shall receive and consider an assessment as pro-
16       vided in K.S.A. 59-2132 and amendments thereto of any potential per-
17       manent guardian.
18           Sec. 9. K.S.A. 59-2132 is hereby amended to read as follows: 59-
19       2132. (a) Except as provided in subsection (h), in independent and agency
20       adoptions, the court shall require the petitioner to obtain an assessment
21       by a court approved social worker licensed to practice social work in
22       Kansas or by a licensed child-placing agency of the advisability of the
23       adoption.
24           (b) The petitioner shall file with the court, not less than 10 days be-
25       fore the hearing on the petition, a report of the assessment and, if nec-
26       essary, confirmation or clarification of the information filed under K.S.A.
27       59-2130, and amendments thereto.
28           (c) If there is no licensed social worker or licensed child-placing
29       agency available to make the assessment and report to the court, the court
30       may use the department of social and rehabilitation services for that pur-
31       pose.
32           (d) The costs of making the assessment and report may be assessed
33       as court costs in the case as provided in article 20 of chapter 60 of the
34       Kansas Statutes Annotated and amendments thereto.
35           (e) In making the assessment, the social worker, child-placing agency
36       or department of social and rehabilitation services is authorized to observe
37       the child in the petitioner's home, verify financial information of the pe-
38       titioner, shall clear the name of the petitioner with the child abuse and
39       neglect registry through the department of social and rehabilitation serv-
40       ices and, when appropriate, with a similar registry in another state or
41       nation, shall determine whether the petitioner has been convicted of a
42       felony for any act described in articles 34, 35 or 36 of chapter 21 of the
43       Kansas Statutes Annotated, and amendments thereto, or, within the last

HB 3006

14

  1       five years been convicted of a felony violation of the uniform controlled
  2       substances act, K.S.A. 65-4101 et seq. and amendments thereto and, when
  3       appropriate, any similar conviction in another jurisdiction, and to contact
  4       the agency or individuals consenting to the adoption and confirm and, if
  5       necessary, clarify any genetic and medical history filed with the petition.
  6       This information shall be made a part of the report to the court. The
  7       report to the court by the social worker, child-placing agency or depart-
  8       ment of social and rehabilitation services shall include the results of the
  9       investigation of the petitioner, the petitioner's home and the ability of the
10       petitioner to care for the child.
11           (f) In the case of a nonresident who is filing a petition to adopt a child
12       in Kansas, the assessment and report required by this section must be
13       completed in the petitioner's state of residence by a licensed social
14       worker, a licensed child-placing agency or a comparable entity in that
15       state and filed with the court not less than 10 days before the hearing on
16       the petition.
17           (g) The assessment and report required by this section must have
18       been completed not more than one year prior to the filing of the petition
19       for adoption.
20           (h) The assessment and report required by this section may be waived
21       by the court upon review of a petition requesting such waiver by such
22       child's grandparent or grandparents or upon the court's own motion.
23           Sec. 10. K.S.A. 38-1561, 38-1581 and 59-2132 and K.S.A. 1997 Supp.
24       38-1502, 38-1502b, 38-1562, 38-1563, 38-1565, 38-1582 and 38-1583 are
25       hereby repealed.
26           Sec. 11. This act shall take effect and be in force from and after its
27       publication in the statute book.
28      
29