As Amended by Senate Committee
         

          Session of 1998
                   
SENATE BILL No. 615
         
By Committee on Judiciary
         
2-10
          10             AN ACT concerning the Kansas code for care of children; relating to
11             definitions; reporting requirements; violations of orders; amending
12             K.S.A. 38-1568 and K.S.A. 1997 Supp. 38-1502 and 38-1522 and re-
13             pealing the existing sections; also repealing K.S.A. 1997 Supp. 38-
14             1502b.
15            
16       Be it enacted by the Legislature of the State of Kansas:
17           Section 1. K.S.A. 1997 Supp. 38-1502 is hereby amended to read as
18       follows: 38-1502. As used in this code, unless the context otherwise in-
19       dicates:
20           (a) ``Child in need of care'' means a person less than 18 years of age
21       who:
22           (1) Is without adequate parental care, control or subsistence and the
23       condition is not due solely to the lack of financial means of the child's
24       parents or other custodian;
25           (2) is without the care or control necessary for the child's physical,
26       mental or emotional health;
27           (3) has been physically, mentally or emotionally abused or neglected
28       or sexually abused;
29           (4) has been placed for care or adoption in violation of law;
30           (5) has been abandoned or does not have a known living parent;
31           (6) is not attending school as required by K.S.A. 72-977 or 72-1111,
32       and amendments thereto;
33           (7) except in the case of a violation of K.S.A. 41-727, subsection (j)
34       of K.S.A. 74-8810 or subsection (m) or (n) of K.S.A. 79-3321, and amend-
35       ments thereto, or, except as provided in subsection (a)(12) of K.S.A. 21-
36       4204a and amendments thereto, does an act which, when committed by
37       a person under 18 years of age, is prohibited by state law, city ordinance
38       or county resolution but which is not prohibited when done by an adult;
39           (8) while less than 10 years of age, commits any act which if done by
40       an adult would constitute the commission of a felony or misdemeanor as
41       defined by K.S.A. 21-3105 and amendments thereto;
42           (9) is willfully and voluntarily absent from the child's home without
43       the consent of the child's parent or other custodian;

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  1           (10) is willfully and voluntarily absent at least a second time from a
  2       court ordered or designated placement, or a placement pursuant to court
  3       order, if the absence is without the consent of the person with whom the
  4       child is placed or, if the child is placed in a facility, without the consent
  5       of the person in charge of such facility or such person's designee;
  6           (11) has been residing in the same residence with a sibling or another
  7       person under 18 years of age, who has been physically, mentally or emo-
  8       tionally abused or neglected, or sexually abused; or
  9           (12) while less than 10 years of age commits the offense defined in
10       K.S.A. 21-4204a and amendments thereto.
11           (b) ``Physical, mental or emotional abuse or neglect'' means the in-
12       fliction of physical, mental or emotional injury or the causing of a dete-
13       rioration of a child and may include, but shall not be limited to, failing to
14       maintain reasonable care and treatment, negligent treatment or maltreat-
15       ment or exploiting a child to the extent that the child's health or emotional
16       well-being is endangered. A parent legitimately practicing religious beliefs
17       who does not provide specified medical treatment for a child because of
18       religious beliefs shall not for that reason be considered a negligent parent;
19       however, this exception shall not preclude a court from entering an order
20       pursuant to subsection (a)(2) of K.S.A. 38-1513 and amendments thereto.
21           (c) ``Sexual abuse'' means any act committed with a child which is
22       described in article 35, chapter 21 of the Kansas Statutes Annotated and
23       those acts described in K.S.A. 21-3602 or 21-3603, and amendments
24       thereto, regardless of the age of the child.
25           (d) ``Parent,'' when used in relation to a child or children, includes a
26       guardian, conservator and every person who is by law liable to maintain,
27       care for or support the child.
28           (e) ``Interested party'' means the state, the petitioner, the child, any
29       parent and any person found to be an interested party pursuant to K.S.A.
30       38-1541 and amendments thereto.
31           (f) ``Law enforcement officer'' means any person who by virtue of
32       office or public employment is vested by law with a duty to maintain
33       public order or to make arrests for crimes, whether that duty extends to
34       all crimes or is limited to specific crimes.
35           (g) ``Youth residential facility'' means any home, foster home or struc-
36       ture which provides 24-hour-a-day care for children and which is licensed
37       pursuant to article 5 of chapter 65 of the Kansas Statutes Annotated.
38           (h) ``Shelter facility'' means any public or private facility or home
39       other than a juvenile detention facility that may be used in accordance
40       with this code for the purpose of providing either temporary placement
41       for the care of children in need of care prior to the issuance of a dispos-
42       itional order or longer term care under a dispositional order.
43           (i) ``Juvenile detention facility'' means any secure public or private

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  1       facility used for the lawful custody of accused or adjudicated juvenile
  2       offenders which must not be a jail.
  3           (j) ``Adult correction facility'' means any public or private facility, se-
  4       cure or nonsecure, which is used for the lawful custody of accused or
  5       convicted adult criminal offenders.
  6           (k) ``Secure facility'' means a facility which is operated or structured
  7       so as to ensure that all entrances and exits from the facility are under the
  8       exclusive control of the staff of the facility, whether or not the person
  9       being detained has freedom of movement within the perimeters of the
10       facility, or which relies on locked rooms and buildings, fences or physical
11       restraint in order to control behavior of its residents. No secure facility
12       shall be in a city or county jail.
13           (l) ``Ward of the court'' means a child over whom the court has ac-
14       quired jurisdiction by the filing of a petition pursuant to this code and
15       who continues subject to that jurisdiction until the petition is dismissed
16       or the child is discharged as provided in K.S.A. 38-1503 and amendments
17       thereto.
18           (m) ``Custody,'' whether temporary, protective or legal, means the
19       status created by court order or statute which vests in a custodian,
20       whether an individual or an agency, the right to physical possession of
21       the child and the right to determine placement of the child, subject to
22       restrictions placed by the court.
23           (n) ``Placement'' means the designation by the individual or agency
24       having custody of where and with whom the child will live.
25           (o) ``Secretary'' means the secretary of social and rehabilitation serv-
26       ices.
27           (p) ``Relative'' means a person related by blood, marriage or adoption
28       but, when referring to a relative of a child's parent, does not include the
29       child's other parent.
30           (q) ``Court-appointed special advocate'' means a responsible adult
31       other than an attorney guardian ad litem who is appointed by the court
32       to represent the best interests of a child, as provided in K.S.A. 38-1505a
33       and amendments thereto, in a proceeding pursuant to this code.
34           (r) ``Multidisciplinary team'' means a group of persons, appointed by
35       the court or by the state department of social and rehabilitation services
36       under K.S.A. 38-1523a and amendments thereto, which has knowledge
37       of the circumstances of a child in need of care.
38           (s) ``Jail'' means:
39           (1) An adult jail or lockup; or
40           (2) a facility in the same building or on the same grounds as an adult
41       jail or lockup, unless the facility meets all applicable standards and licen-
42       sure requirements under law and there is (A) total separation of the ju-
43       venile and adult facility spatial areas such that there could be no haphaz-

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  1       ard or accidental contact between juvenile and adult residents in the
  2       respective facilities; (B) total separation in all juvenile and adult program
  3       activities within the facilities, including recreation, education, counseling,
  4       health care, dining, sleeping, and general living activities; and (C) separate
  5       juvenile and adult staff, including management, security staff and direct
  6       care staff such as recreational, educational and counseling.
  7           (t) ``Kinship care'' means the placement of a child in the home of the
  8       child's relative or in the home of another adult with whom the child or
  9       the child's parent already has a close emotional attachment.
10           (u) ``Juvenile intake and assessment worker'' means a responsible
11       adult authorized to perform intake and assessment services as a part of
12       the intake and assessment system established pursuant to K.S.A. 75-7023
13       and amendments thereto.
14           Sec. 2. K.S.A. 1997 Supp. 38-1522 is hereby amended to read as
15       follows: 38-1522. (a) When any of the following persons has reason to
16       suspect that a child has been injured as a result of physical, mental or
17       emotional abuse or neglect or sexual abuse, the person shall report the
18       matter promptly within promptly, but in no case more than 48 hours
19       after having reason to suspect the child has been injured, excluding
20       Saturdays and Sundays and legal holidays as provided in subsection (c)
21       or (e): Persons licensed to practice the healing arts or dentistry; persons
22       licensed to practice optometry; persons engaged in postgraduate training
23       programs approved by the state board of healing arts; licensed psychol-
24       ogists; licensed professional or practical nurses examining, attending or
25       treating a child under the age of 18; teachers, school administrators or
26       other employees of a school which the child is attending; chief adminis-
27       trative officers of medical care facilities; registered marriage and family
28       therapists; persons licensed by the secretary of health and environment
29       to provide child care services or the employees of persons so licensed at
30       the place where the child care services are being provided to the child;
31       licensed social workers; firefighters; emergency medical services person-
32       nel; mediators appointed under K.S.A. 23-602 and amendments thereto;
33       juvenile intake and assessment workers; persons providing direct services
34       to children through a contract with the state department of social and
35       rehabilitation services; and law enforcement officers. The report may be
36       made orally and shall be followed by a written report if requested. When
37       the suspicion is the result of medical examination or treatment of a child
38       by a member of the staff of a medical care facility or similar institution,
39       that staff member shall immediately notify the superintendent, manager
40       or other person in charge of the institution who shall make a written
41       report forthwith. Every written report shall contain, if known, the names
42       and addresses of the child and the child's parents or other persons re-
43       sponsible for the child's care, the child's age, the nature and extent of the

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  1       child's injury (including any evidence of previous injuries) and any other
  2       information that the maker of the report believes might be helpful in
  3       establishing the cause of the injuries and the identity of the persons re-
  4       sponsible for the injuries.
  5           (b) Any other person who has reason to suspect that a child has been
  6       injured as a result of physical, mental or emotional abuse or neglect or
  7       sexual abuse may report the matter as provided in subsection (c) or (e).
  8           (c) Except as provided by subsection (e), reports made pursuant to
  9       this section shall be made to the state department of social and rehabil-
10       itation services. When the department is not open for business, the re-
11       ports shall be made to the appropriate law enforcement agency. On the
12       next day that the state department of social and rehabilitation services is
13       open for business, the law enforcement agency shall report to the de-
14       partment any report received and any investigation initiated pursuant to
15       subsection (a) of K.S.A. 38-1524 and amendments thereto. The reports
16       may be made orally or, on request of the department, in writing.
17           (d) Any person who is required by this section to report an injury to
18       a child and who knows of the death of a child shall notify immediately
19       the coroner as provided by K.S.A. 22a-242, and amendments thereto.
20           (e) Reports of child abuse or neglect occurring in an institution op-
21       erated by the secretary of social and rehabilitation services or the com-
22       missioner of juvenile justice shall be made to the attorney general. All
23       other reports of child abuse or neglect by persons employed by or of
24       children of persons employed by the state department of social and re-
25       habilitation services or the juvenile justice authority shall be made to the
26       appropriate law enforcement agency.
27           (f) Willful and knowing failure to make a report required by this sec-
28       tion is a class B misdemeanor.
29           (g) Preventing or interfering with, with the intent to prevent, the
30       making of a report required by this section is a class B misdemeanor.
31           Sec. 3. K.S.A. 38-1568 is hereby amended to read as follows: 38-
32       1568. (a) Valid court order. During proceedings under this code, the court
33       may enter an order directing a child who is the subject of the proceedings
34       to remain in a present or future placement if:
35           (1) The court makes a finding that the child has been adjudicated to
36       be a child in need of care pursuant to: (A) Subsection (a)(10) of K.S.A.
37       38-1502, and amendments thereto; or (B) any of the subsections (a)(1)
38       through (a)(9) or (a)(11) of K.S.A. 38-1502, and amendments thereto, and
39       the court determines that the child is not likely to be available within the
40       jurisdiction of the court for future proceedings;
41           (2) the child and the child's guardian ad litem are present before the
42       court at the time the order is entered; and
43           (3) the child and the child's guardian ad litem are given adequate and

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  1       fair warning, both orally and in writing, of the consequences of violation
  2       of the order and a copy of such warning is recorded in the official file of
  3       the case.
  4           (b) Application. Any person may file with the court a verified appli-
  5       cation for a determination that a child has violated an order entered pur-
  6       suant to subsection (a) and for an order authorizing the holding of such
  7       child in a secure facility as provided by this section. Such application shall
  8       state the applicant's belief that the child has violated a valid court order
  9       entered pursuant to subsection (a) and the specific facts which are relied
10       upon to support the belief.
11           (c) Ex parte order. Upon the filing of an application in accordance
12       with subsection (b), the court may enter ex parte an order directing that
13       the child be taken into custody and held in a secure facility designated
14       by the court if the court determines that there is probable cause to believe
15       the allegations in the application. The order shall remain in effect for not
16       more than 24 hours following the child's being taken into custody. The
17       order shall be served on the child's parents, any legal custodian of the
18       child and the child's guardian ad litem.
19           (d) Preliminary hearing. Within 24 hours following a child's being
20       taken into custody pursuant to an order issued under subsection (c), the
21       court shall hold a hearing to determine whether the child admits or denies
22       the allegations of the application and, if the child denies such allegations,
23       whether there is probable cause to hold the child in a secure facility
24       pending a hearing on the application pursuant to subsection (e). Notice
25       of the time and place of the preliminary hearing shall be given orally or
26       in writing to the child's parents, any legal custodian of the child and the
27       child's guardian ad litem. At the hearing, the child shall have the right to:
28       (1) Have in writing the alleged violation and the facts relied upon in the
29       application; (2) a guardian ad litem pursuant to K.S.A. 38-1505, and
30       amendments thereto; and (3) the right to confront and present witnesses.
31       If, upon the hearing, the court finds that the child admits the allegations
32       of the application, the court shall proceed without delay to hold a hearing
33       on the application pursuant to subsection (e). If, upon the hearing, the
34       court finds that the child denies the allegations of the application, the
35       court may enter an order directing that the child be held in a secure
36       facility pending a hearing pursuant to subsection (e) if the court finds
37       that there is probable cause to believe that the child has violated a valid
38       court order entered pursuant to subsection (a) and that secure detention
39       of the child is necessary for the protection of the child or to assure the
40       appearance of the child at the hearing on the application pursuant to
41       subsection (e).
42           (e) Hearing on violation of order; authorization. The court shall hold
43       a hearing on an application filed pursuant to subsection (b) within 24

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  1       hours following the child's being taken into custody, if the child admits
  2       the allegations of the application, or within 72 hours following the child's
  3       being taken into custody, if secure detention of the child is ordered pur-
  4       suant to subsection (d). Notice of the time and place of such hearing shall
  5       be given orally or in writing to the child's parents, any legal custodian of
  6       the child and the child's guardian ad litem. Upon such hearing, the court
  7       may enter an order awarding custody of the child to the secretary, if the
  8       secretary does not have legal custody of the child, and authorizing the
  9       secretary to place the child in a secure facility if the court determines
10       that:
11           (1) The child has been adjudicated to be a child in need of care
12       pursuant to subsection (a)(10) subsections (a)(1) through (a)(11) of K.S.A.
13       38-1502, and amendments thereto;
14           (2) the child has violated a valid court order entered pursuant to sub-
15       section (a);
16           (3) the child has been provided at the hearing with the right to: (A)
17       Have the alleged violation in writing and served upon the child a reason-
18       able time before the hearing; (B) a hearing before the court on the issue
19       of placement in a secure facility; (C) an explanation of the nature and
20       consequences of the proceeding; (D) a guardian ad litem pursuant to
21       K.S.A. 38-1505, and amendments thereto; (E) confront and present wit-
22       nesses; (F) have a transcript or record of the proceedings; and (G) appeal;
23       and
24           (4) there is no less restrictive alternative appropriate to the needs of
25       the juvenile and the community.
26           The authorization to place a child in a secure facility pursuant to this
27       subsection shall expire 60 days, including Saturdays, Sundays and legal
28       holidays, after it is issued. The court may grant extensions of such au-
29       thorization for two additional periods not exceeding 60 days, including
30       Saturdays, Sundays and legal holidays, upon rehearing pursuant to K.S.A.
31       38-1564, and amendments thereto. Payment by the secretary to a secure
32       facility for child care services provided pursuant to this subsection shall
33       be paid only upon receipt by the secretary of a copy of a valid court order.
34           (f) Limitations on facilities used. Nothing in this section shall author-
35       ize placement of a child in a juvenile detention facility, except that a child
36       may be held in any such facility which, if in an adult jail, is in quarters
37       separated by sight and sound from adult prisoners:
38           (1) When ordered by a court pursuant to subsection (c) or (d), for
39       not longer than the times permitted by those subsections; or
40           (2) when ordered by a court pursuant to subsection (e), for not more
41       than 24 hours following the hearing provided for by that subsection, ex-
42       cept that nothing in this subsection shall allow a child to be held in an
43       adult jail for more than 24 hours.

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  1           (g) Time limits, computation. Except as otherwise specifically pro-
  2       vided by subsection (e), Saturdays, Sundays and legal holidays shall not
  3       be counted in computing any time limit imposed by this section.
  4           (h) This section shall be part of and supplemental to the Kansas code
  5       for care of children.
  6           Sec. 4. K.S.A. 38-1568 and K.S.A. 1997 Supp. 38-1502, 38-1502b and
  7       38-1522 are hereby repealed.
  8           Sec. 5. This act shall take effect and be in force from and after its
  9       publication in the statute book.
10      
11