SB 355
SENATE BILL No. 355
By Committee on Ways and
Means
3-23
AN ACT concerning the Kansas
code for care of children; relating to
permanent guardians; hearings;
amending K.S.A. 38-1542 and K.S.A.
1998 Supp. 38-1502, 38-1528,
38-1543, 38-1562, 38-1565 and 38-1583
and repealing the existing
sections; also repealing K.S.A. 1998 Supp.
38-1502c.
Be it enacted by the Legislature
of the State of Kansas:
Section 1. K.S.A. 1998 Supp.
38-1502 is hereby amended to read as
follows:38-1502. As used in this
code, unless the context otherwise
indicates:
(a) "Child in need of care"
means a person less than 18 years of age
who:
(1) Is without adequate parental
care, control or subsistence and the
condition is not due solely to
the lack of financial means of the child's
parents or other custodian;
(2) is without the care or
control necessary for the child's physical,
mental or emotional health;
(3) has been physically,
mentally or emotionally abused or neglected
or sexually abused;
(4) has been placed for care or
adoption in violation of law;
(5) has been abandoned or does
not have a known living parent;
(6) is not attending school as
required by K.S.A. 72-977 or 72-1111,
and amendments thereto;
(7) except in the case of a
violation of K.S.A. 41-727, subsection (j)
of K.S.A. 74-8810 or subsection
(m) or (n) of K.S.A. 79-3321, and amend-
ments thereto, or, except as
provided in subsection (a)(12) of K.S.A. 21-
4204a and amendments thereto,
does an act which, when committed by
a person under 18 years of age,
is prohibited by state law, city ordinance
or county resolution but which
is not prohibited when done by an adult;
(8) while less than 10 years of
age, commits any act which if done by
an adult would constitute the
commission of a felony or misdemeanor as
defined by K.S.A. 21-3105 and
amendments thereto;
(9) is willfully and voluntarily
absent from the child's home without
the consent of the child's
parent or other custodian;
(10) is willfully and
voluntarily absent at least a second time from a
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court ordered or designated
placement, or a placement pursuant to court
order, if the absence is without
the consent of the person with whom the
child is placed or, if the child
is placed in a facility, without the consent
of the person in charge of such
facility or such person's designee;
(11) has been residing in the
same residence with a sibling or another
person under 18 years of age,
who has been physically, mentally or emo-
tionally abused or neglected, or
sexually abused; or
(12) while less than 10 years of
age commits the offense defined in
K.S.A. 21-4204a and amendments
thereto.
(b) "Physical, mental or
emotional abuse or neglect" means the in-
fliction of physical, mental or
emotional injury or the causing of a dete-
rioration of a child and may
include, but shall not be limited to, failing to
maintain reasonable care and
treatment, negligent treatment or maltreat-
ment or exploiting a child to
the extent that the child's health or emotional
well-being is endangered. A
parent legitimately practicing religious beliefs
who does not provide specified
medical treatment for a child because of
religious beliefs shall not for
that reason be considered a negligent parent;
however, this exception shall
not preclude a court from entering an order
pursuant to subsection (a)(2) of
K.S.A. 38-1513 and amendments thereto.
(c) "Sexual abuse" means any act
committed with a child which is
described in article 35, chapter
21 of the Kansas Statutes Annotated and
those acts described in K.S.A.
21-3602 or 21-3603, and amendments
thereto, regardless of the age
of the child.
(d) "Parent," when used in
relation to a child or children, includes a
guardian, conservator and every
person who is by law liable to maintain,
care for or support the
child.
(e) "Interested party" means the
state, the petitioner, the child, any
parent and any person found to
be an interested party pursuant to K.S.A.
38-1541 and amendments
thereto.
(f) "Law enforcement officer"
means any person who by virtue of
office or public employment is
vested by law with a duty to maintain
public order or to make arrests
for crimes, whether that duty extends to
all crimes or is limited to
specific crimes.
(g) "Youth residential facility"
means any home, foster home or struc-
ture which provides
24-hour-a-day care for children and which is licensed
pursuant to article 5 of chapter
65 of the Kansas Statutes Annotated.
(h) "Shelter facility" means any
public or private facility or home
other than a juvenile detention
facility that may be used in accordance
with this code for the purpose
of providing either temporary placement
for the care of children in need
of care prior to the issuance of a dispos-
itional order or longer term
care under a dispositional order.
(i) "Juvenile detention
facility" means any secure public or private
facility used for the lawful
custody of accused or adjudicated juvenile
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offenders which must not be a
jail.
(j) "Adult correction facility"
means any public or private facility, se-
cure or nonsecure, which is used
for the lawful custody of accused or
convicted adult criminal
offenders.
(k) "Secure facility" means a
facility which is operated or structured
so as to ensure that all
entrances and exits from the facility are under the
exclusive control of the staff
of the facility, whether or not the person
being detained has freedom of
movement within the perimeters of the
facility, or which relies on
locked rooms and buildings, fences or physical
restraint in order to control
behavior of its residents. No secure facility
shall be in a city or county
jail.
(l) "Ward of the court" means a
child over whom the court has ac-
quired jurisdiction by the
filing of a petition pursuant to this code and
who continues subject to that
jurisdiction until the petition is dismissed
or the child is discharged as
provided in K.S.A. 38-1503 and amendments
thereto.
(m) "Custody," whether
temporary, protective or legal, means the
status created by court order or
statute which vests in a custodian,
whether an individual or an
agency, the right to physical possession of
the child and the right to
determine placement of the child, subject to
restrictions placed by the
court.
(n) "Placement" means the
designation by the individual or agency
having custody of where and with
whom the child will live.
(o) "Secretary" means the
secretary of social and rehabilitation
services.
(p) "Relative" means a person
related by blood, marriage or adoption
but, when referring to a
relative of a child's parent, does not include the
child's other parent.
(q) "Court-appointed special
advocate" means a responsible adult
other than an attorney guardian
ad litem who is appointed by the court
to represent the best interests
of a child, as provided in K.S.A. 38-1505a
and amendments thereto, in a
proceeding pursuant to this code.
(r) "Multidisciplinary team"
means a group of persons, appointed by
the court or by the state
department of social and rehabilitation services
under K.S.A. 38-1523a and
amendments thereto, which has knowledge
of the circumstances of a child
in need of care.
(s) "Jail" means:
(1) An adult jail or lockup;
or
(2) a facility in the same
building or on the same grounds as an adult
jail or lockup, unless the
facility meets all applicable standards and licen-
sure requirements under law and
there is (A) total separation of the ju-
venile and adult facility
spatial areas such that there could be no haphaz-
ard or accidental contact
between juvenile and adult residents in the
4
respective facilities; (B) total
separation in all juvenile and adult program
activities within the
facilities, including recreation, education, counseling,
health care, dining, sleeping,
and general living activities; and (C) separate
juvenile and adult staff,
including management, security staff and direct
care staff such as recreational,
educational and counseling.
(t) "Kinship care" means the
placement of a child in the home of the
child's relative or in the home
of another adult with whom the child or
the child's parent already has a
close emotional attachment.
(u) "Juvenile intake and
assessment worker" means a responsible
adult authorized to perform
intake and assessment services as part of the
intake and assessment system
established pursuant to K.S.A. 75-7023, and
amendments thereto.
(v) "Abandon" means to forsake,
desert or cease providing care for
the child without making
appropriate provisions for substitute care.
(w) "Permanent guardianship"
means a judicially created relationship
between child and caretaker
which is intended to be permanent and self-
sustaining without ongoing state
oversight or intervention. The perma-
nent guardian stands in loco
parentis and exercises all the rights and
responsibilities of a parent.
When parental rights are not terminated, par-
ents remain responsible for
financial support. Upon appointment of a
permanent guardian, the child in
need of care proceedings shall be dis-
missed. A permanent guardian may
be appointed after termination of
parental rights.
(x) "Aggravated circumstances"
means the abandonment, torture,
chronic abuse, sexual abuse or
chronic, life threatening neglect of a child.
(y) "Permanency hearing" means a
notice and opportunity to be
heard is provided to interested
parties, foster parents, preadoptive parents
or relatives providing care for
the child. The court, after consideration of
the evidence, shall determine
whether progress toward the case plan goal
is adequate or reintegration is
a viable alternative, or if the case should
be referred to the county or
district attorney for filing of a petition to
terminate parental rights or to
appoint a permanent guardian.
(z) "Extended out of home
placement" means a child has been in the
custody of the secretary and
placed with neither parent for 15 of the most
recent 22 months beginning 60
days after the date at which a child in the
custody of the secretary was
removed from the home.
(aa) "Educational institution"
means all schools at the elementary and
secondary levels.
(bb) "Educator" means any
administrator, teacher or other profes-
sional or paraprofessional
employee of an educational institution who has
exposure to a pupil specified in
subsection (a)(1) through (5) of K.S.A. 72-
89b03 and amendments
thereto.
Sec. 2. K.S.A. 1998 Supp.
38-1528 is hereby amended to read as
5
follows:38-1528. (a) To the
extent possible, when any law enforcement
officer takes into custody a
child under the age of 18 years, without a
court order, the child shall
forthwith be delivered to the custody of the
child's parent or other
custodian unless there are reasonable grounds to
believe that such action would
not be in the best interests of the child.
Except as provided in subsection
(b), if the child is not delivered to the
custody of the child's parent or
other custodian, the child shall forthwith
be delivered to a facility or
person designated by the secretary or to a
court designated shelter
facility, court services officer, juvenile intake and
assessment worker, licensed
attendant care center or other person. If,
after delivery of the child to a
shelter facility, the person in charge of the
shelter facility at that time
and the law enforcement officer determine
that the child will not remain
in the shelter facility, the law enforcement
officer shall deliver the child
to a juvenile detention facility or other secure
facility, designated by the
court, where the child shall be detained for not
more than 24 hours, excluding
Saturdays, Sundays and legal holidays. It
shall be the duty of the law
enforcement officer to furnish to the county
or district attorney, without
unnecessary delay, all the information in the
possession of the officer
pertaining to the child, the child's parents or
other persons interested in or
likely to be interested in the child and all
other facts and circumstances
which caused the child to be taken into
custody.
(b) When any law enforcement
officer takes into custody any child as
provided in subsection (c) of
K.S.A. 38-1527 and amendments thereto,
proceedings shall be initiated
in accordance with the provisions of the
interstate compact on juveniles,
K.S.A. 38-1001 et seq. and amendments
thereto. Any child taken into
custody pursuant to the interstate compact
on juveniles may be detained in
a juvenile detention facility or other
secure facility.
(c) Whenever a child under the
age of 18 years is taken into custody
by a law enforcement officer
without a court order and is thereafter
placed in the custody of a
shelter facility, court services officer, juvenile
intake and assessment worker,
licensed attendant care center or other
person as authorized by this
code, the facility or person shall have physical
custody and provide care and
supervision for the child upon written ap-
plication of the law enforcement
officer. The application shall state:
(1) The name and address of the
child, if known;
(2) the names and addresses of
the child's parents or nearest relatives
and persons with whom the child
has been residing, if known; and
(3) the officer's belief that
the child is a child in need of care and that
there are reasonable grounds to
believe that the circumstances or con-
dition of the child is such
that, unless the child is placed in the immediate
custody of the shelter facility
or other person, it would be harmful to the
6
child.
(d) A copy of the application
shall be furnished by the facility or
person receiving the child to
the county or district attorney without un-
necessary delay.
(e) The shelter facility or
other person designated by the court who
has custody of the child
pursuant to this section shall discharge the child
not later than 48 72 hours
following admission, excluding Saturdays, Sun-
days and legal holidays, unless
a court has entered an order pertaining to
temporary custody or
release.
(f) In absence of a court order
to the contrary, the county or district
attorney or the placing law
enforcement agency shall have the authority
to direct at any time the
release of the child.
(g) When any law enforcement
officer takes into custody any child as
provided in subsection (d) of
K.S.A. 38-1527, and amendments thereto,
the child shall forthwith be
delivered to the school in which the child is
enrolled, any location
designated by the school in which the child is en-
rolled to address truancy issues
or the child's parent or other custodian.
Sec. 3. K.S.A. 38-1542 is hereby
amended to read as follows:38-
1542. (a) The court upon
verified application may issue ex parte an order
directing that a child be held
in protective custody and, if the child has
not been taken into custody, an
order directing that the child be taken
into custody. The application
shall state:
(1) The applicant's belief that
the child is a child in need of care and
is likely to sustain harm if not
immediately afforded protective custody;
and
(2) the specific facts which are
relied upon to support the belief.
(b) (1) The order of protective
custody may be issued only after the
court has determined there is
probable cause to believe the allegations
in the application are true. The
order shall remain in effect until the
temporary custody hearing
provided for in K.S.A. 38-1543 and amend-
ments thereto, unless earlier
rescinded by the court.
(2) Prior to July 1, 1993, No
child shall be held in protective custody
for more than 72 hours,
excluding Saturdays, Sundays and legal holidays,
unless within the 72-hour period
a determination is made as to the ne-
cessity for temporary custody in
a temporary custody hearing. Nothing in
this subsection (b)(2) shall be
construed to mean that the child must
remain in protective custody for
72 hours.
(3) On and after July 1, 1993,
no child shall be held in protective
custody for more than 48 hours,
excluding Saturdays, Sundays and legal
holidays, unless within the
48-hour period a determination is made as to
the necessity for temporary
custody in a temporary custody hearing.
Nothing in this subsection
(b)(3) shall be construed to mean that the child
must remain in protective
custody for 48 hours.
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(c) Whenever the court
determines the necessity for an order of pro-
tective custody, the court may
place the child in the protective custody
of: (1) A parent or other person
having custody of the child and may enter
a restraining order pursuant to
subsection (d); (2) a person, other than
the parent or other person
having custody, who shall not be required to
be licensed under article 5 of
chapter 65 of the Kansas Statutes Anno-
tated; (3) a youth residential
facility; or (4) the secretary. When the child
is placed in the protective
custody of the secretary, the secretary shall
have the discretionary authority
to place the child with a parent or to
make other suitable placement
for the child. When circumstances re-
quire, a child in protective
custody may be placed in a juvenile detention
facility or other secure
facility pursuant to an order of protective custody
for not to exceed 24 hours,
excluding Saturdays, Sundays and legal
holidays.
(d) The order of protective
custody shall be served on the child's
parents and any other person
having legal custody of the child. The order
shall prohibit all parties from
removing the child from the court's juris-
diction without the court's
permission.
(e) If the court issues an order
of protective custody, the court may
also enter an order restraining
any alleged perpetrator of physical, sexual,
mental or emotional abuse of the
child from residing in the child's home;
visiting, contacting, harassing
or intimidating the child; or attempting to
visit, contact, harass or
intimidate the child. Such restraining order shall
be served on any alleged
perpetrator to whom the order is directed.
(f) The court shall not enter an
order removing a child from the
custody of a parent pursuant to
this section unless the court first finds
from evidence presented by the
petitioner that reasonable efforts have
been made to prevent or
eliminate the need for removal of the child or
that an emergency exists which
threatens the safety of the child and re-
quires the immediate removal of
the child. Such findings shall be included
in any order entered by the
court.
Sec. 4. K.S.A. 1998 Supp.
38-1543 is hereby amended to read as
follows:38-1543. (a) Upon notice
and hearing, the court may issue an
order directing who shall have
temporary custody and may modify the
order during the pendency of the
proceedings as will best serve the child's
welfare.
(b) A hearing hereunder pursuant
to this section shall be held within
48 72 hours, excluding
Saturdays, Sundays and legal holidays, following a
child having been taken into
protective custody.
(c) Whenever it is determined
that a temporary custody hearing is
required, the court shall
immediately set the time and place for the hear-
ing. Notice of a temporary
custody hearing shall be in substantially the
following form:
8
(Name of Court)
(Caption of Case)
NOTICE OF TEMPORARY CUSTODY
HEARING
TO:
(Names)(Relationship)(Addresses)
On , , 19, at o'clock m. the
court will
(day)(date)
conduct a hearing at to
determine if the above named child
or children should be in the
temporary custody of some person or agency other than the
parent or other person having
legal custody prior to the hearing on the petition filed in the
above captioned case. The court
may order one or both parents to pay child support.
, an attorney, has been
appointed as guardian ad litem for the child
or children. Each parent or
other legal custodian has the right to appear and be heard
personally, either with or
without an attorney. An attorney will be appointed for a parent
who can show that the parent is
not financially able to hire one.
Date , 19
Clerk of the District Court
by
(Seal)
REPORT OF SERVICE
I certify that I have delivered
a true copy of the above notice to the persons above named
in the manner and at the times
indicated below:
NameLocation of ServiceManner of
ServiceDateTime
(other than above)
Date Returned , 19
(Signature)
(Title)
(d) Notice of the temporary
custody hearing shall be given at least
24 hours prior to the hearing.
The court may continue the hearing to
afford the 24 hours prior notice
or, with the consent of the party, proceed
with the hearing at the
designated time. If an order of temporary custody
is entered and the parent or
other person having custody of the child has
not been notified of the
hearing, did not appear or waive appearance and
requests a rehearing, the court
shall rehear the matter without unnec-
essary delay.
(e) Oral notice may be used for
giving notice of a temporary custody
hearing where there is
insufficient time to give written notice. Oral notice
9
is completed upon filing a
certificate of oral notice in substantially the
following form:
(Name of Court)
(Caption of Case)
CERTIFICATE OF ORAL NOTICE OF
TEMPORARY CUSTODY HEARING
I gave oral notice that the
court will conduct a hearing at o'clock m. on
, 19, to the persons listed, in
the manner and at the times indicated
below:
NameRelationshipDateTimeMethod
of Communication
(in person or telephone)
I advised each of the above
persons that:
(1) The hearing is to determine
if the above child or children should be in the temporary
custody of a person or agency
other than a parent;
(2) the court will appoint an
attorney to serve as guardian ad litem for the child or
children named above;
(3) each parent or legal
custodian has the right to appear and be heard personally
either
with or without an attorney;
(4) an attorney will be
appointed for a parent who can show that the parent is not
financially able to hire an
attorney; and
(5) the court may order one or
both parents to pay child support.
(Signature)
(Name Printed)
(Title)
(f) The court may enter an order
of temporary custody after deter-
mining that: (1) The child is
dangerous to self or to others; (2) the child
is not likely to be available
within the jurisdiction of the court for future
proceedings; or (3) the health
or welfare of the child may be endangered
without further care.
(g) Whenever the court
determines the necessity for an order of tem-
porary custody the court may
place the child in the temporary custody
of: (1) A parent or other person
having custody of the child and may enter
a restraining order pursuant to
subsection (h); (2) a person, other than
the parent or other person
having custody, who shall not be required to
be licensed under article 5 of
chapter 65 of the Kansas Statutes Anno-
tated; (3) a youth residential
facility; or (4) the secretary. When the child
is placed in the temporary
custody of the secretary, the secretary shall
have the discretionary authority
to place the child with a parent or to
10
make other suitable placement
for the child. When circumstances re-
quire, a child may be placed in
a juvenile detention facility or other secure
facility, but the total amount
of time that the child may be held in such
facility under this section and
K.S.A. 38-1542 and amendments thereto
shall not exceed 24 hours,
excluding Saturdays, Sundays and legal holi-
days. The order of temporary
custody shall remain in effect until modified
or rescinded by the court or a
disposition order is entered but not ex-
ceeding 60 days, unless good
cause is shown and stated on the record.
(h) If the court issues an order
of temporary custody, the court may
enter an order restraining any
alleged perpetrator of physical, sexual,
mental or emotional abuse of the
child from residing in the child's home;
visiting, contacting, harassing
or intimidating the child; or attempting to
visit, contact, harass or
intimidate the child.
(i) The court shall not enter an
order removing a child from the cus-
tody of a parent pursuant to
this section unless the court first finds from
evidence presented by the
petitioner that reasonable efforts have been
made to prevent or eliminate the
need for removal of the child or that
an emergency exists which
threatens the safety of the child and requires
the immediate removal of the
child. Such findings shall be included in
any order entered by the
court.
Sec. 5. K.S.A. 1998 Supp.
38-1562 is hereby amended to read as
follows:38-1562. (a) At any time
after a child has been adjudicated to be
a child in need of care and
prior to disposition, the judge shall permit any
interested parties, and any
persons required to be notified pursuant to
subsection (b), to be heard as
to proposals for appropriate disposition of
the case.
(b) Before entering an order
placing the child in the custody of a
person other than the child's
parent, the court shall require notice of the
time and place of the hearing to
be given to all the child's grandparents
at their last known addresses
or, if no grandparent is living or if no living
grandparent's address is known,
to the closest relative of each of the
child's parents whose address is
known, and to the foster parent, prea-
doptive parent or relative
providing care. Such notice shall be given by
restricted mail not less than 10
business days before the hearing and shall
state that the person receiving
the notice shall have an opportunity to be
heard at the hearing. The
provisions of this subsection shall not require
additional notice to any person
otherwise receiving notice of the hearing
pursuant to K.S.A. 38-1536 and
amendments thereto. Individuals receiv-
ing notice pursuant to this
subsection shall not be made a party to the
action solely on the basis of
this notice and opportunity to be heard.
(c) Prior to entering an order
of disposition, the court shall give con-
sideration to the child's
physical, mental and emotional condition; the
child's need for assistance; the
manner in which the parent participated
11
in the abuse, neglect or
abandonment of the child; any relevant infor-
mation from the intake and
assessment process; and the evidence re-
ceived at the dispositional
hearing. In determining when reunification is
a viable alternative, the court
shall specifically consider whether the par-
ent has been found by a court to
have: (1) Committed murder in the first
degree, K.S.A. 21-3401 and
amendments thereto, murder in the second
degree, K.S.A. 21-3402 and
amendments thereto, capital murder, K.S.A.
21-3439 and amendments thereto,
voluntary manslaughter, K.S.A. 21-
3403 and amendments thereto or
violated a law of another state which
prohibits such murder or
manslaughter of a child; (2) aided or abetted,
attempted, conspired or
solicited to commit such murder or voluntary
manslaughter of a child as
provided in subsection (c)(1); (3) committed a
felony battery that resulted in
bodily injury to the child or another child;
(4) subjected the child or
another child to aggravated circumstances as
defined in subsection (x) of
K.S.A. 38-1502 and amendments thereto; (5)
parental rights of the parent to
another child have been terminated in-
voluntarily; or (6) the child
has been in extended out of home placement
as defined in subsection (z) of
K.S.A. 38-1502 and amendments thereto.
If reintegration is not a viable
alternative, the court shall consider whether
a compelling reason has been
documented in the case plan to find neither
adoption nor permanent
guardianship are in the best interests of the
child, the child is in a stable
placement with a relative, or services set out
in the case plan necessary for
the safe return of the child have been made
available to the parent with
whom reintegration is planned. If reintegra-
tion is not a viable alternative
and either adoption or permanent guardi-
anship might be in the best
interests of the child, the county or district
attorney or the county or
district attorney's designee shall file a motion
to terminate parental rights or
permanent guardianship within 30 days
and the court shall set a
hearing on such motion within 90 days of the
filing of such motion. No such
hearing is required when the parents vol-
untarily relinquish parental
rights or agree to appointment of a perma-
nent guardian.
Sec. 6. K.S.A. 1998 Supp.
38-1565 is hereby amended to read as
follows:38-1565. (a) If a child
is placed outside the child's home and no
plan is made a part of the
record of the dispositional hearing, a written
plan shall be prepared which
provides for reintegration of the child into
the child's family or, if
reintegration is not a viable alternative, for other
placement of the child.
Reintegration may not be a viable alternative
when the: (1) Parent has been
found by a court to have committed murder
in the first degree, K.S.A.
21-3401 and amendments thereto, murder in
the second degree, K.S.A.
21-3402 and amendments thereto, capital mur-
der, K.S.A. 21-3439 and
amendments thereto, voluntary manslaughter,
K.S.A. 21-3403 and amendments
thereto or violated a law of another state
12
which prohibits such murder or
manslaughter of a child; (2) parent aided
or abetted, attempted, conspired
or solicited to commit such murder or
voluntary manslaughter of a
child as provided in subsection (a)(1); (3)
parent committed a felony
battery that resulted in bodily injury to the
child or another child; (4)
parent has subjected the child or another child
to aggravated circumstances as
defined in subsection (x) of K.S.A. 38-
1502, and amendments thereto;
(5) parental rights of the parent to an-
other child have been terminated
involuntarily; or (6) the child has been
in extended out of home
placement as defined in subsection (z) of K.S.A.
38-1502 and amendments thereto.
If the goal is reintegration into the
family, the plan shall include
measurable objectives and time schedules
for reintegration. The plan
shall be submitted to the court not later than
30 days after the dispositional
order is entered. If the child is placed in
the custody of the secretary,
the plan shall be prepared and submitted by
the secretary. If the child is
placed in the custody of a facility or person
other than the secretary, the
plan shall be prepared and submitted by a
court services officer.
(b) A court services officer or,
if the child is in the secretary's custody,
the secretary shall submit to
the court, at least every six months, a written
report of the progress being
made toward the goals of the plan submitted
pursuant to subsection (a). If
the child is placed in foster care, the foster
parent or parents shall submit
to the court, at least every six months, a
report in regard to the child's
adjustment, progress and condition. The
department of social and
rehabilitation services shall notify the foster
parent or parents of the foster
parent's or parent's duty to submit such
report, on a form provided by
the department of social and rehabilitation
services, at least two weeks
prior to the date when the report is due, and
the name of the judge and the
address of the court to which the report
is to be submitted. Such report
shall be confidential and shall only be
reviewed by the court and the
child's guardian ad litem. The court shall
review the progress being made
toward the goals of the plan and the
foster parent report and, if the
court determines that progress is inade-
quate or that the plan is no
longer viable, the court shall hold a hearing
pursuant to subsection (c). If
the secretary has custody of the child, such
hearing shall be held no more
than 12 months after the child is placed
outside the child's home and at
least every 12 months thereafter. For
children in the custody of the
secretary prior to July 1, 1998, within 30
days of receiving a request from
the secretary, a permanency hearing shall
be held. If the goal of the plan
submitted pursuant to subsection (a) is
reintegration into the family
and the court determines after 12 months
from the time such plan is first
submitted that progress is inadequate, the
court shall hold a hearing
pursuant to subsection (c). Nothing in this
subsection shall be interpreted
to prohibit termination of parental rights
13
prior to the expiration of 12
months.
(c) Whenever a hearing is
required under subsection (b), the court
shall notify all interested
parties and the foster parents, preadoptive par-
ents or relatives providing care
for the child and hold a hearing. Individ-
uals receiving notice pursuant
to this subsection shall not be made a party
to the action solely on the
basis of this notice and opportunity to be heard.
After providing the interested
parties, foster parents, preadoptive parents
or relatives providing care for
the child an opportunity to be heard, the
court shall determine whether
the child's needs are being adequately met
and whether reintegration
continues to be a viable alternative. If the court
finds reintegration is no longer
a viable alternative, the court shall con-
sider whether the child is in a
stable placement with a relative, services
set out in the case plan
necessary for the safe return of the child have
been made available to the
parent with whom reintegration is planned or
compelling reasons are
documented in the case plan to support a finding
that neither adoption nor
permanent guardianship are in the child's best
interest. If reintegration is
not a viable alternative and either adoption or
permanent guardianship might be
in the best interests of the child, the
county or district attorney or
the county or district attorney's designee
shall file a motion to terminate
parental rights or for permanent guardi-
anship within 30 days and the
court shall set a hearing on such motion
within 90 days of the filing of
such motion. When the court finds rein-
tegration continues to be a
viable alternative, the court may rescind any
of its prior dispositional
orders and enter any dispositional order author-
ized by this code or may order
that a new plan for the reintegration be
prepared and submitted to the
court. No such hearing is required when
the parents voluntarily
relinquish parental rights or agree to appointment
of a permanent guardian.
Sec. 7. K.S.A. 1998 Supp.
38-1583 is hereby amended to read as
follows:38-1583. (a) When the
child has been adjudicated to be a child
in need of care, the court may
terminate parental rights when the court
finds by clear and convincing
evidence that the parent is unfit by reason
of conduct or condition which
renders the parent unable to care properly
for a child and the conduct or
condition is unlikely to change in the
foreseeable future.
(b) In making a determination
hereunder the court shall consider,
but is not limited to, the
following, if applicable:
(1) Emotional illness, mental
illness, mental deficiency or physical
disability of the parent, of
such duration or nature as to render the parent
unlikely to care for the ongoing
physical, mental and emotional needs of
the child;
(2) conduct toward a child of a
physically, emotionally or sexually
cruel or abusive nature;
14
(3) excessive use of
intoxicating liquors or narcotic or dangerous
drugs;
(4) physical, mental or
emotional neglect of the child;
(5) conviction of a felony and
imprisonment;
(6) unexplained injury or death
of another child or stepchild of the
parent;
(7) reasonable efforts by
appropriate public or private child caring
agencies have been unable to
rehabilitate the family; and
(8) lack of effort on the part
of the parent to adjust the parent's cir-
cumstances, conduct or
conditions to meet the needs of the child.
(c) In addition to the
foregoing, when a child is not in the physical
custody of a parent, the court,
in proceedings concerning the termination
of parental rights, shall also
consider, but is not limited to the following:
(1) Failure to assure care of
the child in the parental home when able
to do so;
(2) failure to maintain regular
visitation, contact or communication
with the child or with the
custodian of the child;
(3) failure to carry out a
reasonable plan approved by the court di-
rected toward the integration of
the child into the parental home; and
(4) failure to pay a reasonable
portion of the cost of substitute physical
care and maintenance based on
ability to pay.
In making the above
determination, the court may disregard incidental
visitations, contacts,
communications or contributions.
(d) The rights of the parents
may be terminated as provided in this
section if the court finds that
the parents have abandoned the child or
the child was left under such
circumstances that the identity of the par-
ents is unknown and cannot be
ascertained, despite diligent searching,
and the parents have not come
forward to claim the child within three
months after the child is
found.
(e) The existence of any one of
the above standing alone may, but
does not necessarily, establish
grounds for termination of parental rights.
The determination shall be based
on an evaluation of all factors which
are applicable. In considering
any of the above factors for terminating the
rights of a parent, the court
shall give primary consideration to the phys-
ical, mental or emotional
condition and needs of the child. If presented
to the court and subject to the
provisions of K.S.A. 60-419, and amend-
ments thereto, the court shall
consider as evidence testimony from a
person licensed to practice
medicine and surgery, a licensed psychologist
or a licensed social worker
expressing an opinion relating to the physical,
mental or emotional condition
and needs of the child. The court shall
consider any such testimony only
if the licensed professional providing
such testimony is subject to
cross-examination.
(f) A termination of parental
rights under the Kansas code for care
15
of children shall not terminate
the right of the child to inherit from or
through the parent. Upon such
termination, all the rights of birth parents
to such child, including their
right to inherit from or through such child,
shall cease.
(g) If, after finding the parent
unfit, the court determines a compel-
ling reason why it is not in the
best interests of the child to terminate
parental rights or upon
agreement of the parents, the court may award
permanent guardianship to an
individual providing care for the child, a
relative or other person with
whom the child has a close emotional at-
tachment. Prior to awarding
permanent guardianship, the court shall re-
ceive and consider an assessment
as provided in K.S.A. 59-2132 and
amendments thereto of any
potential permanent guardian. Upon appoint-
ment of a permanent guardian,
the court shall enter an order discharging
the child from the court's
jurisdiction.
(h) If a parent is convicted of
an offense as provided in subsection
(7) of K.S.A. 38-1585 and
amendments thereto or is adjudicated a juvenile
offender because of an act which
if committed by an adult would be an
offense as provided in
subsection (7) of K.S.A. 38-1585 and amendments
thereto, and if the victim was
the other parent of a child, the court may
disregard such convicted or
adjudicated parent's opinions or wishes in
regard to the placement of such
child.
New Sec. 8. (a) A permanent
guardian may be appointed after a find-
ing of unfitness pursuant to
K.S.A. 38-1583 and amendments thereto or
with the consent and agreement
of the parents.
(b) Upon appointment of the
permanent guardian, the child in need
of care proceeding shall be
dismissed.
Sec. 9. K.S.A. 38-1542 and
K.S.A. 1998 Supp. 38-1502, 38-1502c, 38-
1528, 38-1543, 38-1562, 38-1565
and 38-1583 are hereby repealed.
Sec. 10. This act shall take
effect and be in force from and after its
publication in the statute
book.