Session of 2000
HOUSE BILL No. 2916
By Representative Gregory
2-9
9 AN ACT
concerning children; relating to mental or emotional abuse;
10 amending K.S.A.
38-1521, 38-1523a, 38-1524, 38-1525, and 38-1526
11 and K.S.A. 1999 Supp.
38-1502, 38-1522, 38-1542, 38-1543 and 38-
12 1663 and repealing the
existing sections.
13
14 Be it enacted by the Legislature of the
State of Kansas:
15 Section
1. K.S.A. 1999 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
2
1 order, if the absence is
without the consent of the person with whom the
2 child is placed or, if the
child is placed in a facility, without the consent
3 of the person in charge of
such facility or such person's designee;
4
(11) has been residing in the same residence with a sibling or
another
5 person under 18 years of age,
who has been physically, mentally or emo-
6 tionally abused or neglected,
or sexually abused; or
7
(12) while less than 10 years of age commits the offense
defined in
8 K.S.A. 21-4204a and
amendments thereto. is a child in need of
protection
9 or a youth in need of community
intervention.
10
(b) "Physical, mental or emotional abuse
or neglect" means the in-
11 fliction of physical, mental or
emotional injury or the causing of a dete-
12 rioration of a child and may include, but
shall not be limited to, failing to
13 maintain reasonable care and treatment,
negligent treatment or maltreat-
14 ment or exploiting a child to the extent
that the child's health or emotional
15 well-being is endangered.
A parent legitimately practicing religious beliefs
16 who does not provide specified medical
treatment for a child because of
17 religious beliefs shall not for that reason
be considered a negligent parent;
18 however, this exception shall not preclude
a court from entering an order
19 pursuant to subsection (a)(2) of K.S.A.
38-1513 and amendments thereto.
20 (c) "Sexual
abuse" means any act committed with a child which is
21 described in article 35, chapter 21 of the
Kansas Statutes Annotated and
22 those acts described in K.S.A. 21-3602 or
21-3603, and amendments
23 thereto, regardless of the age of the
child.
24 (d) "Parent,"
when used in relation to a child or children, includes a
25 guardian, conservator and every person who
is by law liable to maintain,
26 care for or support the child.
27 (e) "Interested
party" means the state, the petitioner, the child, any
28 parent and any person found to be an
interested party pursuant to K.S.A.
29 38-1541 and amendments thereto.
30 (f) "Law
enforcement officer" means any person who by virtue of
31 office or public employment is vested by
law with a duty to maintain
32 public order or to make arrests for crimes,
whether that duty extends to
33 all crimes or is limited to specific
crimes.
34 (g) "Youth
residential facility" means any home, foster home or struc-
35 ture which provides 24-hour-a-day care for
children and which is licensed
36 pursuant to article 5 of chapter 65 of the
Kansas Statutes Annotated.
37 (h) "Shelter
facility" means any public or private facility or home
38 other than a juvenile detention facility
that may be used in accordance
39 with this code for the purpose of providing
either temporary placement
40 for the care of children in need of care
prior to the issuance of a dispos-
41 itional order or longer term care under a
dispositional order.
42 (i) "Juvenile
detention facility" means any secure public or private
43 facility used for the lawful custody of
accused or adjudicated juvenile
3
1 offenders which must not be a
jail.
2 (j) "Adult
correction facility" means any public or private facility, se-
3 cure or nonsecure, which is used for
the lawful custody of accused or
4 convicted adult criminal
offenders.
5 (k) "Secure
facility" means a facility which is operated or structured
6 so as to ensure that all entrances
and exits from the facility are under the
7 exclusive control of the staff of the
facility, whether or not the person
8 being detained has freedom of
movement within the perimeters of the
9 facility, or which relies on locked
rooms and buildings, fences or physical
10 restraint in order to control behavior of
its residents. No secure facility
11 shall be in a city or county jail.
12 (l) "Ward of the
court" means a child over whom the court has ac-
13 quired jurisdiction by the filing of a
petition pursuant to this code and
14 who continues subject to that jurisdiction
until the petition is dismissed
15 or the child is discharged as provided in
K.S.A. 38-1503 and amendments
16 thereto.
17 (m) "Custody,"
whether temporary, protective or legal, means the
18 status created by court order or statute
which vests in a custodian,
19 whether an individual or an agency, the
right to physical possession of
20 the child and the right to determine
placement of the child, subject to
21 restrictions placed by the court.
22 (n) "Placement"
means the designation by the individual or agency
23 having custody of where and with whom the
child will live.
24 (o) "Secretary"
means the secretary of social and rehabilitation
25 services.
26 (p) "Relative"
means a person related by blood, marriage or adoption
27 but, when referring to a relative of a
child's parent, does not include the
28 child's other parent.
29
(q) "Court-appointed special advocate" means a responsible
adult
30 other than an attorney guardian ad
litem who is appointed by the court
31 to represent the best interests of a child,
as provided in K.S.A. 38-1505a
32 and amendments thereto, in a proceeding
pursuant to this code.
33
(r) "Multidisciplinary team" means a group of persons,
appointed by
34 the court or by the state department of
social and rehabilitation services
35 under K.S.A. 38-1523a and amendments
thereto, which has knowledge
36 of the circumstances of a child in need of
care.
37 (s) "Jail"
means:
38 (1) An adult jail
or lockup; or
39 (2) a facility in
the same building or on the same grounds as an adult
40 jail or lockup, unless the facility meets
all applicable standards and licen-
41 sure requirements under law and there is
(A) total separation of the ju-
42 venile and adult facility spatial areas
such that there could be no haphaz-
43 ard or accidental contact between juvenile
and adult residents in the
4
1 respective facilities; (B) total
separation in all juvenile and adult program
2 activities within the facilities,
including recreation, education, counseling,
3 health care, dining, sleeping, and
general living activities; and (C) separate
4 juvenile and adult staff, including
management, security staff and direct
5 care staff such as recreational,
educational and counseling.
6
(t) "Kinship care" means the placement of a child in the home
of the
7 child's relative or in the home of
another adult with whom the child or
8 the child's parent already has a
close emotional attachment.
9
(u) "Juvenile intake and assessment worker" means a
responsible
10 adult authorized to perform intake and
assessment services as part of the
11 intake and assessment system established
pursuant to K.S.A. 75-7023, and
12 amendments thereto.
13 (v) "Abandon"
means to forsake, desert or cease providing care for
14 the child without making appropriate
provisions for substitute care.
15 (w) "Permanent
guardianship" means a judicially created relationship
16 between child and caretaker which is
intended to be permanent and self-
17 sustaining without ongoing state oversight
or intervention. The perma-
18 nent guardian stands in loco parentis and
exercises all the rights and
19 responsibilities of a parent. Upon
appointment of a permanent guardian,
20 the child in need of care proceedings shall
be dismissed. A permanent
21 guardian may be appointed after termination
of parental rights.
22 (x) "Aggravated
circumstances" means the abandonment, torture,
23 chronic abuse, sexual abuse or chronic,
life threatening neglect of a child.
24 (y) "Permanency
hearing" means a notice and opportunity to be
25 heard is provided to interested parties,
foster parents, preadoptive parents
26 or relatives providing care for the child.
The court, after consideration of
27 the evidence, shall determine whether
progress toward the case plan goal
28 is adequate or reintegration is a viable
alternative, or if the case should
29 be referred to the county or district
attorney for filing of a petition to
30 terminate parental rights or to appoint a
permanent guardian.
31 (z) "Extended out
of home placement" means a child has been in the
32 custody of the secretary and placed with
neither parent for 15 of the most
33 recent 22 months beginning 60 days after
the date at which a child in the
34 custody of the secretary was removed from
the home.
35 (aa) "Educational
institution" means all schools at the elementary and
36 secondary levels.
37 (bb) "Educator"
means any administrator, teacher or other profes-
38 sional or paraprofessional employee of an
educational institution who has
39 exposure to a pupil specified in subsection
(a) of K.S.A. 1999 Supp. 72-
40 89b03 and amendments thereto.
41 (cc) "Child in
need of protection" means a person less than 18 years
42 of age who:
43 (1) Has been
physically abused or sexually abused;
5
1 (2) has
been placed for care or adoption in violation of law;
2 (3) has
been abandoned or does not have a known living parent; or
3 (4) has
been residing in the same residence with a sibling or
another
4 person under 18 years of age, who
has been physically, mentally or emo-
5 tionally abused or neglected, or
sexually abused.
6
(dd) "Youth in need of community intervention" means a person
less
7 than 18 years of age who:
8 (1) Has
been severely or chronically mentally or emotionally
abused;
9 (2) is
without the care or control necessary for the youth's
physical,
10 mental or emotional health;
11 (3) is not
attending school as required by K.S.A. 72-977 or 72-1111,
12 and amendments thereto;
13 (4) except in
the case of a violation of K.S.A. 41-727, subsection (j) of
14 K.S.A. 74-8810 or subsection (m) or (n)
of K.S.A. 79-3321, and amend-
15 ments thereto, or, except as provided in
subsection (a)(12) of K.S.A. 21-
16 4204a, and amendments thereto, does an
act which, when committed by
17 a person under 18 years of age, is
prohibited by state law, city ordinance
18 or county resolution but which is not
prohibited when done by an adult;
19 (5) while less
than 10 years of age, commits any act which if done by
20 an adult would constitute the commission
of a felony or misdemeanor as
21 defined by K.S.A. 21-3105, and
amendments thereto;
22 (6) is
willfully and voluntarily absent from the child's home
without
23 the consent of the child's parent or
other custodian;
24 (7) is
willfully and voluntarily absent from a court ordered or
desig-
25 nated placement, or a placement pursuant
to a court order, if the absence
26 is without the consent of the person
with whom the child is placed or, if
27 the child is placed in a facility,
without the consent of the person in charge
28 of such facility or such person's
designee; or
29 (8) while less
than 10 years of age commits the offense defined in
30 K.S.A. 21-4204a, and amendments
thereto.
31
(ee) "Community intervention team" means a group of persons,
ap-
32 pointed by the court or by the state
department of social and rehabilitation
33 services for the purpose of assessing
the needs of a child who is alleged to
34 be a youth in need of community
intervention.
35 Sec.
2. K.S.A. 38-1521 is hereby amended to read as follows:
38-
36 1521. It is the policy of this state
to provide for the protection of chil-
37 dren who have been subject to
physical, mental or emotional abuse
or
38 neglect or sexual abuse by
encouraging the reporting of suspected child
39 abuse and neglect, insuring the thorough
and prompt investigation of
40 these reports and providing preventive and
rehabilitative services when
41 appropriate to abused or neglected children
and their families so that, if
42 possible, the families can remain together
without further threat to the
43 children.
6
1 The secretary,
within the limit of appropriations therefor, shall conduct
2 a continuing publicity and
educational program for local staff of the de-
3 partment of social and rehabilitation
services, persons required to report
4 under this code and other appropriate
persons. The program shall include
5 courses which encourage the reporting
of cases of children suspected of
6 having been injured as a result of
physical, mental or emotional abuse
or
7 neglect or sexual
abuse. In addition, the courses shall include an analysis
8 of the powers and duties granted
under this code, the methods of diag-
9 nosing injuries inflicted as a result
of abuse, the procedures followed by
10 the department of social and rehabilitation
services in carrying out its
11 duties under this code and the role of the
courts in this area of the law.
12 Sec.
3. K.S.A. 1999 Supp. 38-1522 is hereby amended to read as
13 follows: 38-1522. (a) When any of the
following persons has reason to
14 suspect that a child has been injured as a
result of physical, mental or
15 emotional abuse or
neglect or sexual abuse, the person shall report the
16 matter promptly as provided in subsection
(c) or (e): Persons licensed to
17 practice the healing arts or dentistry;
persons licensed to practice optom-
18 etry; persons engaged in postgraduate
training programs approved by the
19 state board of healing arts; licensed
psychologists; licensed professional
20 or practical nurses examining, attending or
treating a child under the age
21 of 18; teachers, school administrators or
other employees of a school
22 which the child is attending; chief
administrative officers of medical care
23 facilities; registered marriage and family
therapists; persons licensed by
24 the secretary of health and environment to
provide child care services or
25 the employees of persons so licensed at the
place where the child care
26 services are being provided to the child;
licensed social workers; firefight-
27 ers; emergency medical services personnel;
mediators appointed under
28 K.S.A. 23-602 and amendments thereto;
juvenile intake and assessment
29 workers; and law enforcement officers. The
report may be made orally
30 and shall be followed by a written report
if requested. When the suspicion
31 is the result of medical examination or
treatment of a child by a member
32 of the staff of a medical care facility or
similar institution, that staff mem-
33 ber shall immediately notify the
superintendent, manager or other person
34 in charge of the institution who shall make
a written report forthwith.
35 Every written report shall contain, if
known, the names and addresses of
36 the child and the child's parents or other
persons responsible for the
37 child's care, the child's age, the nature
and extent of the child's injury
38 (including any evidence of previous
injuries) and any other information
39 that the maker of the report believes might
be helpful in establishing the
40 cause of the injuries and the identity of
the persons responsible for the
41 injuries.
42 (b) Any other
person who has reason to suspect that a child has been
43 injured as a result of physical,
mental or emotional abuse or neglect
or
7
1 sexual abuse may report the matter as
provided in subsection (c) or (e).
2 (c) Except
as provided by subsection (e), reports made pursuant to
3 this section shall be made to the
state department of social and rehabil-
4 itation services. When the department
is not open for business, the re-
5 ports shall be made to the
appropriate law enforcement agency. On the
6 next day that the state department of
social and rehabilitation services is
7 open for business, the law
enforcement agency shall report to the de-
8 partment any report received and any
investigation initiated pursuant to
9 subsection (a) of K.S.A. 38-1524 and
amendments thereto. The reports
10 may be made orally or, on request of the
department, in writing.
11 (d) Any person
who is required by this section to report an injury to
12 a child and who knows of the death of a
child shall notify immediately
13 the coroner as provided by K.S.A. 22a-242,
and amendments thereto.
14 (e) Reports of
child abuse or neglect occurring in an institution op-
15 erated by the secretary of social and
rehabilitation services or the com-
16 missioner of juvenile justice shall be made
to the attorney general. All
17 other reports of child abuse or neglect by
persons employed by or of
18 children of persons employed by the state
department of social and re-
19 habilitation services or the juvenile
justice authority shall be made to the
20 appropriate law enforcement agency.
21 (f) Willful and
knowing failure to make a report required by this sec-
22 tion is a class B misdemeanor.
23 (g) Preventing or
interfering with, with the intent to prevent, the
24 making of a report required by this section
is a class B misdemeanor.
25 Sec.
4. K.S.A. 38-1523a is hereby amended to read as follows:
38-
26 1523a. (a) Upon recommendation of the
state department of social and
27 rehabilitation services or the county or
district attorney, the court may
28 appoint a multidisciplinary team to assist
in gathering information re-
29 garding a child alleged to be a child in
need of care by reason of physical,
30 mental or emotional abuse
or neglect or sexual abuse. The team may be
31 a standing multidisciplinary team or may be
appointed for a specific child.
32 (b) Any person
appointed as a member of a multidisciplinary team
33 may decline to serve and shall incur no
civil liability as the result of de-
34 clining to serve.
35 (c) This section
shall be part of and supplemental to the Kansas code
36 for care of children.
37 (d) The
multidisciplinary team may request disclosure of information
38 in regard to a child alleged to be a child
in need of care, or a child who
39 has been adjudged to be a child in need of
care, by making a written
40 verified application to the district court.
Upon a finding by the court there
41 is probable cause to believe the
information sought may assist in deter-
42 mining if a child is a child in need of
care as defined in K.S.A. 38-1502
43 and amendments thereto, or in assisting a
child who has been adjudicated
8
1 a child in need of care, then the
court may issue a subpoena, subpoena
2 duces tecum or enter an order for the
production of the requested doc-
3 uments, reports or information and
directing the document, reports or
4 information to be delivered to the
applicant at a specified time, date and
5 place. The time and date of delivery
shall not be sooner than five days
6 after the service of the subpoena or
order, excluding Saturdays, Sundays
7 or holidays. The court issuing the
subpoena or order shall keep all appli-
8 cations filed pursuant to this
subsection and a copy of the subpoena or
9 order in a special file maintained
for such purpose or in the official court
10 file for the child. Upon receiving service
of a subpoena, subpoena duces
11 tecum or an order for production pursuant
to this subsection, the party
12 served shall give oral or written notice of
service to any person known to
13 have a right to assert a privilege or
assert a right of confidentiality in regard
14 to the documents, reports or information
sought at least three days before
15 the specified date of delivery.
16 (e) The written
verified application shall be in substantially the fol-
17 lowing form:
18
Name of Court
19 In the Interest of ________ Case No.
20
Name(s)
21 Date of birth: ____________
22 Each a child under 18 years of age.
23
WRITTEN APPLICATION FOR DISCLOSURE OF INFORMATION
24 County of __________
25
ss
26 State of Kansas
27 The undersigned
applicant being first duly sworn alleges and states as follows:
28 1. The applicant is
______________.
29 2. There is an investigation
being made into the report of alleged neglect or abuse in
30 regard to the
above-named child or children.
31 A petition has
been filed alleging the above-named child is a child in need of
care or
32
the child has been adjudicated to be a child
in need of care.
33
3. The following documents, reports
and/or information are requested. (List specifi-
34 cally.)
35 4. The reasons for the request
are:
36 Further applicant saith not.
37
38
Applicant
39 Subscribed and sworn to before me
40 this ______ day of ________,
19__ (year).
41
42
Notary
Public
43
9
1 My commission expires:
2 ____________
3 (f) Any
parent, child, guardian ad litem, party subpoenaed or subject
4 to an order of production or person
who claims a privilege or right of
5 confidentiality may request in
writing that the court issuing the subpoena
6 or order for production withdraw the
subpoena, subpoena duces tecum
7 or order for production issued
pursuant to subsection (d). The request
8 shall automatically stay the
operation of the subpoena, subpoena duces
9 tecum or order for production and the
documents, reports or information
10 requested shall not be delivered until the
issuing court has held a hearing
11 to determine if the documents, reports or
information are subject to the
12 claimed privilege or right of
confidentiality, and whether it is in the best
13 interests of the child for the subpoena or
order to produce to be honored.
14 The request to withdraw shall be filed with
the district court issuing the
15 subpoena or order at least 24 hours prior
to the specified time and date
16 of delivery, excluding Saturdays, Sundays
or holidays, and a copy of the
17 written request must be given to the person
subpoenaed or subject to
18 the order for production at least 24 hours
prior to the specified time and
19 date of delivery.
20 Sec.
5. K.S.A. 38-1524 is hereby amended to read as follows:
38-
21 1524. (a) When a report to a law
enforcement agency indicates that a
22 child may be harmed, the law enforcement
agency shall promptly initiate
23 an investigation. If the law enforcement
officer reasonably believes the
24 child will be harmed, the officer shall
remove the child from the location
25 where the child is found as authorized by
K.S.A. 38-1527 and amend-
26 ments thereto.
27 (b) Whenever any
person furnishes information to the state depart-
28 ment of social and rehabilitation services
that a child appears to be a child
29 in need of care or a youth in need of
community intervention, the de-
30 partment shall make a preliminary inquiry
to determine whether the in-
31 terests of the child require further action
be taken. Whenever practicable,
32 the inquiry shall include a preliminary
investigation of the circumstances
33 which were the subject of the information,
including the home and en-
34 vironmental situation and the previous
history of the child. If reasonable
35 grounds to believe abuse or neglect exist,
immediate steps shall be taken
36 to protect the health and welfare of the
abused or neglected child as well
37 as that of any other child under the same
care who may be harmed by
38 abuse or neglect. After the inquiry, if the
department determines it is not
39 possible to provide otherwise those
services necessary to protect the in-
40 terests of the child, the department shall
recommend to the county or
41 district attorney that a petition be
filed.
42 (c) As part of
the inquiry for a youth in need of community interven-
43 tion, the department shall request that
a community intervention team
10
1 make an assessment of such child
alleged to be a youth in need of com-
2 munity intervention. The secretary
shall consider the assessment of the
3 community intervention team when
assisting such youth and such youth's
4 family in accessing support
services.
5 Sec.
6. K.S.A. 38-1525 is hereby amended to read as follows:
38-
6 1525. (a) No employer shall
terminate the employment of, prevent or
7 impair the practice or occupation of
or impose any other sanction on any
8 employee because the employee made an
oral or written report to, or
9 cooperated with an investigation by,
a law enforcement agency or the
10 department of social and rehabilitation
services relating to injury inflicted
11 upon a child which was suspected by the
employee of having resulted
12 from the physical, mental or
emotional abuse or neglect or sexual
abuse
13 of the child.
14 (b) Violation of
this section is a class B misdemeanor.
15 Sec.
7. K.S.A. 38-1526 is hereby amended to read as follows:
38-
16 1526. Anyone participating without
malice in the making of an oral or
17 written report to a law enforcement agency
or the department of social
18 and rehabilitation services relating to
injury inflicted upon a child under
19 18 years of age as a result of
physical, mental or emotional abuse
or
20 neglect or sexual abuse or
in any follow-up activity to or investigation of
21 the report shall have immunity from any
civil liability that might otherwise
22 be incurred or imposed. Any such
participant shall have the same im-
23 munity with respect to participation in any
judicial proceedings resulting
24 from the report.
25 Sec.
8. K.S.A. 1999 Supp. 38-1542 is hereby amended to read as
26 follows: 38-1542. (a) The court upon
verified application may issue ex
27 parte an order directing that a
child be held in protective custody and, if
28 the child has not been taken into custody,
an order directing that the
29 child be taken into custody. The
application shall state:
30 (1) The
applicant's belief that the child is a child in need of care
and
31 is likely to sustain harm if not
immediately afforded protective custody;
32 and
33 (2) the specific
facts which are relied upon to support the belief.
34 (b) (1) The
order of protective custody may be issued only after the
35 court has determined there is probable
cause to believe the allegations
36 in the application are true. The order
shall remain in effect until the
37 temporary custody hearing provided for in
K.S.A. 38-1543 and amend-
38 ments thereto, unless earlier rescinded by
the court.
39 (2) No child
shall be held in protective custody for more than 72
40 hours, excluding Saturdays, Sundays and
legal holidays, unless within the
41 72-hour period a determination is made as
to the necessity for temporary
42 custody in a temporary custody hearing.
Nothing in this subsection (b)(2)
43 shall be construed to mean that the child
must remain in protective cus-
11
1 tody for 72 hours.
2
(c) Whenever the court determines the necessity for an order
of pro-
3 tective custody, the court may place
the child in the protective custody
4 of: (1) A parent or other person
having custody of the child and may enter
5 a restraining order pursuant to
subsection (d); (2) a person, other than
6 the parent or other person having
custody, who shall not be required to
7 be licensed under article 5 of
chapter 65 of the Kansas Statutes Anno-
8 tated; (3) a youth residential
facility; or (4) the secretary. When the child
9 is placed in the protective custody
of the secretary, the secretary shall
10 have the discretionary authority to place
the child with a parent or to
11 make other suitable placement for the
child. When circumstances re-
12 quire, a child in protective custody may be
placed in a juvenile detention
13 facility or other secure facility pursuant
to an order of protective custody
14 for not to exceed 24 hours, excluding
Saturdays, Sundays and legal holi-
15 days.
16 (d) The order of
protective custody shall be served on the child's
17 parents and any other person having legal
custody of the child. The order
18 shall prohibit all parties from removing
the child from the court's juris-
19 diction without the court's permission.
20 (e) If the court
issues an order of protective custody, the court may
21 also enter an order restraining any alleged
perpetrator of physical, or
22 sexual, mental or
emotional abuse of the child from residing in the
child's
23 home; visiting, contacting, harassing or
intimidating the child; or attempt-
24 ing to visit, contact, harass or intimidate
the child. Such restraining order
25 shall be served on any alleged perpetrator
to whom the order is directed.
26 (f) The court
shall not enter an order removing a child from the
27 custody of a parent pursuant to this
section unless the court first finds
28 from evidence presented by the petitioner
that reasonable efforts have
29 been made to prevent or eliminate the need
for removal of the child or
30 that an emergency exists which threatens
the safety of the child and re-
31 quires the immediate removal of the child.
Such findings shall be included
32 in any order entered by the court.
33 Sec.
9. K.S.A. 1999 Supp. 38-1543 is hereby amended to read as
34 follows: 38-1543. (a) Upon notice and
hearing, the court may issue an
35 order directing who shall have temporary
custody and may modify the
36 order during the pendency of the
proceedings as will best serve the child's
37 welfare.
38 (b) A hearing
pursuant to this section shall be held within 72 hours,
39 excluding Saturdays, Sundays and legal
holidays, following a child having
40 been taken into protective custody.
41 (c) Whenever it
is determined that a temporary custody hearing is
42 required, the court shall immediately set
the time and place for the hear-
43 ing. Notice of a temporary custody hearing
shall be in substantially the
12
1 following form:
2
(Name of Court)
3 (Caption of Case)
4
NOTICE OF TEMPORARY CUSTODY HEARING
5 TO:
6
(Names)
(Relationship) (Addresses)
7
______________ ______________ __________________________
8
______________ ______________ __________________________
9
______________ ______________ __________________________
10 On __________, __________, 19
__ (year), at __ o'clock __.
11 the court (day) (date)
12 will conduct a hearing at ________ to
determine if the above named child or children
13 should be in the temporary custody of some
person or agency other than the parent or other
14 person having legal custody prior to the
hearing on the petition filed in the above captioned
15 case. The court may order one or both
parents to pay child support.
16 ________, an attorney, has been
appointed as guardian ad litem for the child or
17 children. Each parent or other legal
custodian has the right to appear and be heard person-
18 ally, either with or without an attorney.
An attorney will be appointed for a parent who can
19 show that the parent is not financially
able to hire one.
20 Date ________, 19 __
(year) __ Clerk of the District Court
21 by __________________________
22
23
REPORT OF SERVICE
24 I certify that I have
delivered a true copy of the above notice to the persons above
named
25 in the manner and at the times indicated
below:
26
Name Location
of Service Manner of
Service Date Time
27
(other
than above)
28
__________ ______ ______ ______ ______
29
__________ ______ ______ ______ ______
30
__________ ______ ______ ______ ______
31 Date Returned ________, 19
__ (year)
32
33
(Signature)
34
35
(Title)
36 (d) Notice of the
temporary custody hearing shall be given at least
37 24 hours prior to the hearing. The court
may continue the hearing to
38 afford the 24 hours prior notice or, with
the consent of the party, proceed
39 with the hearing at the designated time. If
an order of temporary custody
40 is entered and the parent or other person
having custody of the child has
41 not been notified of the hearing, did not
appear or waive appearance and
42 requests a rehearing, the court shall
rehear the matter without unnec-
43 essary delay.
13
1 (e) Oral
notice may be used for giving notice of a temporary custody
2 hearing where there is insufficient
time to give written notice. Oral notice
3 is completed upon filing a
certificate of oral notice in substantially the
4 following form:
5
(Name of Court)
6 (Caption of Case)
7
CERTIFICATE OF ORAL NOTICE OF TEMPORARY CUSTODY
HEARING
8 I gave oral
notice that the court will conduct a hearing at __ o'clock __m.
9 on ________, 19 __
(year), to the persons listed, in the manner and at the
times
10 indicated below:
11
Name Relationship Date Time
Method of Communication
12
(in
person or telephone)
13
__________ ________ ______ ______ __________________________
14
__________ ________ ______ ______ __________________________
15
__________ ________ ______ ______ __________________________
16 I advised each of the above persons
that:
17 (1) The hearing is to determine
if the above child or children should be in the temporary
18 custody
of a person or agency other than a parent;
19 (2) the court will appoint an
attorney to serve as guardian ad litem for the child or
20 children
named above;
21 (3) each parent or legal
custodian has the right to appear and be heard personally
either
22 with or
without an attorney;
23 (4) ian attorney will be
appointed for a parent who can show that the parent is not
24
financially able to hire an attorney; and
25 (5) the court may order one or
both parents to pay child support.
26
27
(Signature)
28
29
(Name
Printed)
30
31
(Title)
32 (f) The court may
enter an order of temporary custody after deter-
33 mining that: (1) The child is dangerous to
self or to others; (2) the child
34 is not likely to be available within the
jurisdiction of the court for future
35 proceedings; or (3) the health or welfare
of the child may be endangered
36 without further care.
37 (g) Whenever the
court determines the necessity for an order of tem-
38 porary custody the court may place the
child in the temporary custody
39 of: (1) A parent or other person having
custody of the child and may enter
40 a restraining order pursuant to subsection
(h); (2) a person, other than
41 the parent or other person having custody,
who shall not be required to
42 be licensed under article 5 of chapter 65
of the Kansas Statutes Anno-
43 tated; (3) a youth residential facility; or
(4) the secretary. When the child
14
1 is placed in the temporary custody of
the secretary, the secretary shall
2 have the discretionary authority to
place the child with a parent or to
3 make other suitable placement for the
child. When circumstances re-
4 quire, a child may be placed in a
juvenile detention facility or other secure
5 facility, but the total amount of
time that the child may be held in such
6 facility under this section and
K.S.A. 38-1542 and amendments thereto
7 shall not exceed 24 hours, excluding
Saturdays, Sundays and legal holi-
8 days. The order of temporary custody
shall remain in effect until modified
9 or rescinded by the court or a
disposition order is entered but not ex-
10 ceeding 60 days, unless good cause is shown
and stated on the record.
11 (h) If the court
issues an order of temporary custody, the court may
12 enter an order restraining any alleged
perpetrator of physical, or
sexual,
13 mental or emotional abuse
of the child from residing in the child's home;
14 visiting, contacting, harassing or
intimidating the child; or attempting to
15 visit, contact, harass or intimidate the
child.
16 (i) The court
shall not enter an order removing a child from the cus-
17 tody of a parent pursuant to this section
unless the court first finds from
18 evidence presented by the petitioner that
reasonable efforts have been
19 made to prevent or eliminate the need for
removal of the child or that
20 an emergency exists which threatens the
safety of the child and requires
21 the immediate removal of the child. Such
findings shall be included in
22 any order entered by the court.
23 Sec.
10. K.S.A. 1999 Supp. 38-1563 is hereby amended to read as
24 follows: 38-1563. (a) After
consideration of any evidence offered relat-
25 ing to disposition, the court may retain
jurisdiction and place the child in
26 the custody of the child's parent subject
to terms and conditions which
27 the court prescribes to assure the proper
care and protection of the child,
28 including supervision of the child and the
parent by a court services of-
29 ficer, or may order the child and the
parent to participate in programs
30 operated by the secretary or another
appropriate individual or agency.
31 The terms and conditions may require any
special treatment or care which
32 the child needs for the child's physical,
mental or emotional health.
33 (b) The duration
of any period of supervision or other terms or con-
34 ditions shall be for an initial period of
no more than 18 months. The
35 court, at the expiration of that period,
upon a hearing and for good cause
36 shown, may make successive extensions of
the supervision or other terms
37 or conditions for up to 12 months at a
time.
38 (c) The court may
order the child and the parents of any child who
39 has been adjudged a child in need of care
to attend counseling sessions
40 as the court directs. The expense of the
counseling may be assessed as
41 an expense in the case. No mental health
center shall charge a greater
42 fee for court-ordered counseling than the
center would have charged to
43 the person receiving counseling if the
person had requested counseling
15
1 on the person's own initiative.
2 (d) If the
court finds that placing the child in the custody of a parent
3 will not assure protection from
physical, mental or emotional abuse
or
4 neglect or sexual
abuse or will not be in the best interests of the child,
5 the court shall enter an order
awarding custody of the child, until the
6 further order of the court, to one of
the following:
7 (1) A
relative of the child or a person with whom the child has close
8 emotional ties;
9 (2) any
other suitable person;
10 (3) a shelter
facility; or
11 (4) the
secretary.
12 In making such a
custody order, the court shall give preference, to the
13 extent that the court finds it is in the
best interests of the child, first to
14 granting custody to a relative of the child
and second to granting custody
15 of the child to a person with whom the
child has close emotional ties. If
16 the court has awarded legal custody based
on the finding specified by this
17 subsection, the legal custodian shall not
return the child to the home of
18 that parent without the written consent of
the court.
19 (e) When the
custody of the child is awarded to the secretary:
20 (1) The court may
recommend to the secretary where the child
21 should be placed.
22 (2) The secretary
shall notify the court in writing of any placement
23 of the child or, within 10 days of the
order awarding the custody of the
24 child to the secretary, any proposed
placement of the child, whichever
25 occurs first.
26 (3) The court may
determine if such placement is in the best interests
27 of the child, and if the court determines
that such placement is not in the
28 best interests of the child, the court
shall notify the secretary who shall
29 then make an alternative placement subject
to the procedures established
30 in this paragraph. In determining if such
placement is in the best interests
31 of the child, the court, after providing
the parties with an opportunity to
32 be heard, shall consider the health and
safety needs of the child and the
33 resources available to meet the needs of
children in the custody of the
34 secretary.
35 (f) If custody of
a child is awarded under this section to a person
36 other than the child's parent, the court
may grant any individual reason-
37 able rights to visit the child upon motion
of the individual and a finding
38 that the visitation rights would be in the
best interests of the child.
39 (g) If the court
issues an order of custody pursuant to this section,
40 the court may enter an order restraining
any alleged perpetrator of phys-
41 ical, or
sexual, mental or emotional abuse of the child
from residing in
42 the child's home; visiting, contacting,
harassing or intimidating the child;
43 or attempting to visit, contact, harass or
intimidate the child.
16
1 (h) The
court shall not enter an order removing a child from the
2 custody of a parent pursuant to this
section unless the court first finds
3 from evidence presented by the
petitioner that reasonable efforts have
4 been made to prevent or eliminate the
need for removal of the child;
5 reintegration is not a viable
alternative; or that an emergency exists which
6 threatens the safety of the child and
requires the immediate removal of
7 the child. Reintegration may not be a
viable alternative when the: (1)
8 Parent has been found by a court to
have committed murder in the first
9 degree, K.S.A. 21-3401 and amendments
thereto, murder in the second
10 degree, K.S.A. 21-3402 and amendments
thereto, capital murder, K.S.A.
11 21-3439 and amendments thereto, voluntary
manslaughter, K.S.A. 21-
12 3403 and amendments thereto or violated a
law of another state which
13 prohibits such murder or manslaughter of a
child; (2) parent aided or
14 abetted, attempted, conspired or solicited
to commit such murder or vol-
15 untary manslaughter of a child as provided
in subsection (h)(1); (3) parent
16 committed a felony battery that resulted in
bodily injury to the child or
17 another child; (4) parent has subjected the
child or another child to ag-
18 gravated circumstances as defined in
subsection (x) of K.S.A. 38-1502,
19 and amendments thereto; (5) parental rights
of the parent to another child
20 have been terminated involuntarily or (6)
the child has been in extended
21 out of home placement as defined in
subsection (z) of K.S.A. 38-1502
22 and amendments thereto. Such findings shall
be included in any order
23 entered by the court.
24 (i) In addition
to or in lieu of any other order authorized by this
25 section, if a child is adjudged to be a
child in need of care by reason of a
26 violation of the uniform controlled
substances act (K.S.A. 65-4101 et seq.
27 and amendments thereto) or K.S.A. 41-719,
41-804, 41-2719, 65-4152,
28 65-4153, 65-4154 or 65-4155, and amendments
thereto, the court shall
29 order the child to submit to and complete
an alcohol and drug evaluation
30 by a community-based alcohol and drug
safety action program certified
31 pursuant to K.S.A. 8-1008 and amendments
thereto and to pay a fee not
32 to exceed the fee established by that
statute for such evaluation. If the
33 court finds that the child and those
legally liable for the child's support
34 are indigent, the fee may be waived. In no
event shall the fee be assessed
35 against the secretary or the department of
social and rehabilitation serv-
36 ices.
37 (j) In addition
to any other order authorized by this section, if child
38 support has been requested and the parent
or parents have a duty to
39 support the child, the court may order one
or both parents to pay child
40 support and, when custody is awarded to the
secretary, the court shall
41 order one or both parents to pay child
support. The court shall determine,
42 for each parent separately, whether the
parent is already subject to an
43 order to pay support for the child. If the
parent is not presently ordered
17
1 to pay support for any child who is a
ward of the court and the court has
2 personal jurisdiction over the
parent, the court shall order the parent to
3 pay child support in an amount
determined under K.S.A. 38-1595 and
4 amendments thereto. Except for good
cause shown, the court shall issue
5 an immediate income withholding order
pursuant to K.S.A. 23-4,105 et
6 seq. and amendments thereto
for each parent ordered to pay support
7 under this subsection, regardless of
whether a payor has been identified
8 for the parent. A parent ordered to
pay child support under this subsec-
9 tion shall be notified, at the
hearing or otherwise, that the child support
10 order may be registered pursuant to K.S.A.
38-1597 and amendments
11 thereto. The parent shall also be informed
that, after registration, the
12 income withholding order may be served on
the parent's employer with-
13 out further notice to the parent and the
child support order may be en-
14 forced by any method allowed by law.
Failure to provide this notice shall
15 not affect the validity of the child
support order.
16 New Sec.
11. There is hereby established in the state treasury the
17 family services and community intervention
fund which shall be admin-
18 istered by the secretary of social and
rehabilitation services. The secretary
19 of social and rehabilitation services may
accept money from any source
20 for the purposes for which money in the
family services and community
21 intervention fund may be expended. Upon
receipt of such money, the
22 secretary shall remit the entire amount at
least monthly to the state trea-
23 surer, who shall deposit it in the state
treasury and credit it to the family
24 services and community intervention fund.
All moneys in the special fund
25 for family services and community
intervention shall be used for the pur-
26 pose of assisting state, county, or local
governments or political subdivi-
27 sions thereof; or community agencies; to
provide services, intervention
28 and support services to children alleged or
adjudged to be a youth in need
29 of community intervention as defined by
K.S.A. 38-1502, and amend-
30 ments thereto, especially those youth at
risk because of their own actions
31 or behaviors and not due to abuse or
neglect by a parent, guardian or
32 other person responsible for their care.
The purpose of the family services
33 and community intervention fund shall be to
enhance the ability of fam-
34 ilies and children to resolve problems
within the family and community
35 that might otherwise result in a child
becoming a ward of the court, by
36 the collaboration of governmental and local
service providers. All ex-
37 penditures from the family services and
community intervention fund
38 shall be made in accordance with
appropriation acts upon warrants of the
39 director of accounts and reports issued
pursuant to vouchers approved
40 by the secretary or by a person or persons
designated by the secretary.
41 Sec. 12. K.S.A. 38-1521,
38-1523a, 38-1524, 38-1525 and 38-1526
42 and K.S.A. 1999 Supp. 38-1502, 38-1522,
38-1542, 38-1543 and 38-1663
43 are hereby repealed.
18
1 Sec. 13. This act
shall take effect and be in force from and after its
2 publication in the statute book.