Session of 1999
         
HOUSE BILL No. 2374
         
By Committee on Judiciary
          
2-10
          
  9             AN  ACT concerning children in need of care; relating to placement;
10             protective custody; amending K.S.A. 38-1542 and 38-1568 and K.S.A.
11             1998 Supp. 38-1502 and 38-1528 and repealing the existing sections;
12             also repealing K.S.A. 1998 Supp. 38-1502c.
13      
14       Be it enacted by the Legislature of the State of Kansas:
15             Section  1. K.S.A. 1998 Supp. 38-1502 is hereby amended to read as
16       follows: 38-1502. As used in this code, unless the context otherwise
17       indicates:
18             (a) "Child in need of care" means a person less than 18 years of age
19       who:
20             (1) Is without adequate parental care, control or subsistence and the
21       condition is not due solely to the lack of financial means of the child's
22       parents or other custodian;
23             (2) is without the care or control necessary for the child's physical,
24       mental or emotional health;
25             (3) has been physically, mentally or emotionally abused or neglected
26       or sexually abused;
27             (4) has been placed for care or adoption in violation of law;
28             (5) has been abandoned or does not have a known living parent;
29             (6) is not attending school as required by K.S.A. 72-977 or 72-1111,
30       and amendments thereto;
31             (7) except in the case of a violation of K.S.A. 41-727, subsection (j)
32       of K.S.A. 74-8810 or subsection (m) or (n) of K.S.A. 79-3321, and amend-
33       ments thereto, or, except as provided in subsection (a)(12) of K.S.A. 21-
34       4204a and amendments thereto, does an act which, when committed by
35       a person under 18 years of age, is prohibited by state law, city ordinance
36       or county resolution but which is not prohibited when done by an adult;
37             (8) while less than 10 years of age, commits any act which if done by
38       an adult would constitute the commission of a felony or misdemeanor as
39       defined by K.S.A. 21-3105 and amendments thereto;
40             (9) is willfully and voluntarily absent from the child's home without
41       the consent of the child's parent or other custodian;
42             (10) is willfully and voluntarily absent at least a second time from a
43       court ordered or designated placement, or a placement pursuant to court

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

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

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  1       activities within the facilities, including recreation, education, counseling,
  2       health care, dining, sleeping, and general living activities; and (C) separate
  3       juvenile and adult staff, including management, security staff and direct
  4       care staff such as recreational, educational and counseling.
  5             (t) "Kinship care" means the placement of a child in the home of the
  6       child's relative or in the home of another adult with whom the child or
  7       the child's parent already has a close emotional attachment.
  8             (u) "Juvenile intake and assessment worker" means a responsible
  9       adult authorized to perform intake and assessment services as part of the
10       intake and assessment system established pursuant to K.S.A. 75-7023, and
11       amendments thereto.
12             (v) "Abandon" means to forsake, desert or cease providing care for
13       the child without making appropriate provisions for substitute care.
14             (w) "Permanent guardianship" means a judicially created relationship
15       between child and caretaker which is intended to be permanent and self-
16       sustaining without ongoing state oversight or intervention. The perma-
17       nent 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             (aa) "Educational institution" means all schools at the elementary and
33       secondary levels.
34             (bb) "Educator" means any administrator, teacher or other profes-
35       sional or paraprofessional employee of an educational institution who has
36       exposure to a pupil specified in subsection (a)(1) through (5) of K.S.A. 72-
37       89b03 and amendments thereto.
38             Sec.  2. K.S.A. 1998 Supp. 38-1528 is hereby amended to read as
39       follows: 38-1528. (a) To the extent possible, when any law enforcement
40       officer takes into custody a child under the age of 18 years, without a
41       court order, the child shall forthwith be delivered to the custody of the
42       child's parent or other custodian unless there are reasonable grounds to
43       believe that such action would not be in the best interests of the child.

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  1       Except as provided in subsection (b), if the child is not delivered to the
  2       custody of the child's parent or other custodian, the child shall forthwith
  3       be delivered to a facility or person designated by the secretary or to a
  4       court designated shelter facility, court services officer, juvenile intake and
  5       assessment worker, licensed attendant care center or other person. If,
  6       after delivery of the child to a shelter facility, the person in charge of the
  7       shelter facility at that time and the law enforcement officer determine
  8       that the child will not remain in the shelter facility, the law enforcement
  9       officer shall deliver the child to a juvenile detention facility or other secure
10       facility, designated by the court, where the child shall be detained for not
11       more than 24 hours, excluding Saturdays, Sundays and legal holidays. It
12       shall be the duty of the law enforcement officer to furnish to the county
13       or district attorney, without unnecessary delay, all the information in the
14       possession of the officer pertaining to the child, the child's parents or
15       other persons interested in or likely to be interested in the child and all
16       other facts and circumstances which caused the child to be taken into
17       custody.
18             (b) When any law enforcement officer takes into custody any child as
19       provided in subsection (c) of K.S.A. 38-1527 and amendments thereto,
20       proceedings shall be initiated in accordance with the provisions of the
21       interstate compact on juveniles, K.S.A. 38-1001 et seq. and amendments
22       thereto. Any child taken into custody pursuant to the interstate compact
23       on juveniles may be detained in a juvenile detention facility or other
24       secure facility.
25             (c) Whenever a child under the age of 18 years is taken into custody
26       by a law enforcement officer without a court order and is thereafter
27       placed in the custody of a shelter facility, court services officer, juvenile
28       intake and assessment worker, licensed attendant care center or other
29       person as authorized by this code, the facility or person shall have physical
30       custody and provide care and supervision for the child upon written ap-
31       plication of the law enforcement officer. The application shall state:
32             (1) The name and address of the child, if known;
33             (2) the names and addresses of the child's parents or nearest relatives
34       and persons with whom the child has been residing, if known; and
35             (3) the officer's belief that the child is a child in need of care and that
36       there are reasonable grounds to believe that the circumstances or con-
37       dition of the child is such that, unless the child is placed in the immediate
38       custody of the shelter facility or other person, it would be harmful to the
39       child.
40             (d) A copy of the application shall be furnished by the facility or
41       person receiving the child to the county or district attorney without un-
42       necessary delay.
43             (e) The shelter facility or other person designated by the court who

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  1       has custody of the child pursuant to this section shall discharge the child
  2       not later than 48 72 hours following admission, excluding Saturdays, Sun-
  3       days and legal holidays, unless a court has entered an order pertaining to
  4       temporary custody or release.
  5             (f) In absence of a court order to the contrary, the county or district
  6       attorney or the placing law enforcement agency shall have the authority
  7       to direct at any time the release of the child.
  8             (g) When any law enforcement officer takes into custody any child as
  9       provided in subsection (d) of K.S.A. 38-1527, and amendments thereto,
10       the child shall forthwith be delivered to the school in which the child is
11       enrolled, any location designated by the school in which the child is en-
12       rolled to address truancy issues or the child's parent or other custodian.
13             Sec.  3. K.S.A. 38-1542 is hereby amended to read as follows: 38-
14       1542. (a) The court upon verified application may issue ex parte an order
15       directing that a child be held in protective custody and, if the child has
16       not been taken into custody, an order directing that the child be taken
17       into custody. The application shall state:
18             (1) The applicant's belief that the child is a child in need of care and
19       is likely to sustain harm if not immediately afforded protective custody;
20       and
21             (2) the specific facts which are relied upon to support the belief.
22             (b)  (1) The order of protective custody may be issued only after the
23       court has determined there is probable cause to believe the allegations
24       in the application are true. The order shall remain in effect until the
25       temporary custody hearing provided for in K.S.A. 38-1543 and amend-
26       ments thereto, unless earlier rescinded by the court.
27             (2) Prior to July 1, 1993, No child shall be held in protective custody
28       for more than 72 hours, excluding Saturdays, Sundays and legal holidays,
29       unless within the 72-hour period a determination is made as to the ne-
30       cessity for temporary custody in a temporary custody hearing. Nothing in
31       this subsection (b)(2) shall be construed to mean that the child must
32       remain in protective custody for 72 hours.
33             (3) On and after July 1, 1993, no child shall be held in protective
34       custody for more than 48 hours, excluding Saturdays, Sundays and legal
35       holidays, unless within the 48-hour period a determination is made as to
36       the necessity for temporary custody in a temporary custody hearing.
37       Nothing in this subsection (b)(3) shall be construed to mean that the child
38       must remain in protective custody for 48 hours.
39             (c) Whenever the court determines the necessity for an order of pro-
40       tective custody, the court may place the child in the protective custody
41       of: (1) A parent or other person having custody of the child and may enter
42       a restraining order pursuant to subsection (d); (2) a person, other than
43       the parent or other person having custody, who shall not be required to

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  1       be licensed under article 5 of chapter 65 of the Kansas Statutes Anno-
  2       tated; (3) a youth residential facility; or (4) the secretary. When the child
  3       is placed in the protective custody of the secretary, the secretary shall
  4       have the discretionary authority to place the child with a parent or to
  5       make other suitable placement for the child. When circumstances re-
  6       quire, a child in protective custody may be placed in a juvenile detention
  7       facility or other secure facility pursuant to an order of protective custody
  8       for not to exceed 24 hours, excluding Saturdays, Sundays and legal
  9       holidays.
10             (d) The order of protective custody shall be served on the child's
11       parents and any other person having legal custody of the child. The order
12       shall prohibit all parties from removing the child from the court's juris-
13       diction without the court's permission.
14             (e) If the court issues an order of protective custody, the court may
15       also enter an order restraining any alleged perpetrator of physical, sexual,
16       mental or emotional abuse of the child from residing in the child's home;
17       visiting, contacting, harassing or intimidating the child; or attempting to
18       visit, contact, harass or intimidate the child. Such restraining order shall
19       be served on any alleged perpetrator to whom the order is directed.
20             (f) The court shall not enter an order removing a child from the
21       custody of a parent pursuant to this section unless the court first finds
22       from evidence presented by the petitioner that reasonable efforts have
23       been made to prevent or eliminate the need for removal of the child or
24       that an emergency exists which threatens the safety of the child and re-
25       quires the immediate removal of the child. Such findings shall be included
26       in any order entered by the court.
27             Sec.  4. K.S.A. 38-1568 is hereby amended to read as follows: 38-
28       1568. (a) Valid court order. During proceedings under this code, the court
29       may enter an order directing a child who is the subject of the proceedings
30       to remain in a present or future placement if:
31             (1) The court makes a finding that the child has been adjudicated to
32       be a child in need of care pursuant to: (A) Subsection (a)(10) of K.S.A.
33       38-1502, and amendments thereto; or (B) any of the subsections (a)(1)
34       through (a)(9) or (a)(11) of K.S.A. 38-1502, and amendments thereto, and
35       the court determines that the child is not likely to be available within the
36       jurisdiction of the court for future proceedings;
37             (2) the child and the child's guardian ad litem are present before the
38       court at the time the order is entered; and
39             (3) the child and the child's guardian ad litem are given adequate and
40       fair warning, both orally and in writing, of the consequences of violation
41       of the order and a copy of such warning is recorded in the official file of
42       the case.
43             (b) Application. Any person may file with the court a verified appli-

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  1       cation for a determination that a child has violated an order entered pur-
  2       suant to subsection (a) and for an order authorizing the holding of such
  3       child in a secure facility as provided by this section. Such application shall
  4       state the applicant's belief that the child has violated a valid court order
  5       entered pursuant to subsection (a) and the specific facts which are relied
  6       upon to support the belief.
  7             (c) Ex parte order. Upon the filing of an application in accordance
  8       with subsection (b), the court may enter ex parte an order directing that
  9       the child be taken into custody and held in a secure facility designated
10       by the court if the court determines that there is probable cause to believe
11       the allegations in the application. The order shall remain in effect for not
12       more than 24 hours following the child's being taken into custody. The
13       order shall be served on the child's parents, any legal custodian of the
14       child and the child's guardian ad litem.
15             (d) Preliminary hearing. Within 24 hours following a child's being
16       taken into custody pursuant to an order issued under subsection (c), the
17       court shall hold a hearing to determine whether the child admits or denies
18       the allegations of the application and, if the child denies such allegations,
19       whether there is probable cause to hold the child in a secure facility
20       pending a hearing on the application pursuant to subsection (e). Notice
21       of the time and place of the preliminary hearing shall be given orally or
22       in writing to the child's parents, any legal custodian of the child and the
23       child's guardian ad litem. At the hearing, the child shall have the right to:
24       (1) Have in writing the alleged violation and the facts relied upon in the
25       application; (2) a guardian ad litem pursuant to K.S.A. 38-1505, and
26       amendments thereto; and (3) the right to confront and present witnesses.
27       If, upon the hearing, the court finds that the child admits the allegations
28       of the application, the court shall proceed without delay to hold a hearing
29       on the application pursuant to subsection (e). If, upon the hearing, the
30       court finds that the child denies the allegations of the application, the
31       court may enter an order directing that the child be held in a secure
32       facility pending a hearing pursuant to subsection (e) if the court finds
33       that there is probable cause to believe that the child has violated a valid
34       court order entered pursuant to subsection (a) and that secure detention
35       of the child is necessary for the protection of the child or to assure the
36       appearance of the child at the hearing on the application pursuant to
37       subsection (e).
38             (e) Hearing on violation of order; authorization. The court shall hold
39       a hearing on an application filed pursuant to subsection (b) within 24
40       hours following the child's being taken into custody, if the child admits
41       the allegations of the application, or within 72 hours following the child's
42       being taken into custody, if secure detention of the child is ordered pur-
43       suant to subsection (d). Notice of the time and place of such hearing shall

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

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  1       for care of children. 
  2       Sec.  5. K.S.A. 38-1542 and 38-1568 and K.S.A. 1998 Supp. 38-1502,
  3       38-1502c and 38-1528 are hereby repealed.
  4        Sec.  6. This act shall take effect and be in force from and after its
  5       publication in the statute book.