Session of 2000
HOUSE BILL No. 2953
By Representatives Gregory and Weber
2-9
9 AN ACT
concerning children; relating to school attendance; amending
10 K.S.A. 38-1568 and
K.S.A. 1999 Supp. 38-1502 and 72-1113 and re-
11 pealing the existing
sections.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section
1. K.S.A. 1999 Supp. 38-1502 is hereby amended to read as
15 follows: 38-1502. As used in this code,
unless the context otherwise
16 indicates:
17 (a) "Child in
need of care" means a person less than 18 years of age
18 who:
19 (1) Is without
adequate parental care, control or subsistence and the
20 condition is not due solely to the lack of
financial means of the child's
21 parents or other custodian;
22 (2) is without
the care or control necessary for the child's physical,
23 mental or emotional health;
24 (3) has been
physically, mentally or emotionally abused or neglected
25 or sexually abused;
26 (4) has been
placed for care or adoption in violation of law;
27 (5) has been
abandoned or does not have a known living parent;
28 (6) is
not attending school as required by K.S.A. 72-977 or
72-1111,
29 and amendments
thereto;
30
(7) except in the case of a violation of K.S.A.
41-727, subsection (j)
31 of K.S.A. 74-8810 or subsection (m) or (n)
of K.S.A. 79-3321, and amend-
32 ments thereto, or, except as provided in
subsection (a)(12) of K.S.A. 21-
33 4204a and amendments thereto, does an act
which, when committed by
34 a person under 18 years of age, is
prohibited by state law, city ordinance
35 or county resolution but which is not
prohibited when done by an adult;
36 (8)
(7) while less than 10 years of age, commits any act
which if done
37 by an adult would constitute the commission
of a felony or misdemeanor
38 as defined by K.S.A. 21-3105 and amendments
thereto;
39 (9)
(8) is willfully and voluntarily absent from the
child's home with-
40 out the consent of the child's parent or
other custodian;
41 (10)
(9) is willfully and voluntarily absent at least a
second time from
42 a court ordered or designated placement, or
a placement pursuant to
43 court order, if the absence is without the
consent of the person with whom
2
1 the child is placed or, if the child
is placed in a facility, without the consent
2 of the person in charge of such
facility or such person's designee;
3
(11) (10) has been residing in the
same residence with a sibling or
4 another person under 18 years of age,
who has been physically, mentally
5 or emotionally abused or neglected,
or sexually abused; or
6
(12) (11) while less than 10 years of
age commits the offense defined
7 in K.S.A. 21-4204a and amendments
thereto.
8
(b) "Physical, mental or emotional abuse or neglect" means the
in-
9 fliction of physical, mental or
emotional injury or the causing of a dete-
10 rioration of a child and may include, but
shall not be limited to, failing to
11 maintain reasonable care and treatment,
negligent treatment or maltreat-
12 ment or exploiting a child to the extent
that the child's health or emotional
13 well-being is endangered. A parent
legitimately practicing religious beliefs
14 who does not provide specified medical
treatment for a child because of
15 religious beliefs shall not for that reason
be considered a negligent parent;
16 however, this exception shall not preclude
a court from entering an order
17 pursuant to subsection (a)(2) of K.S.A.
38-1513 and amendments thereto.
18 (c) "Sexual
abuse" means any act committed with a child which is
19 described in article 35, chapter 21 of the
Kansas Statutes Annotated and
20 those acts described in K.S.A. 21-3602 or
21-3603, and amendments
21 thereto, regardless of the age of the
child.
22 (d) "Parent,"
when used in relation to a child or children, includes a
23 guardian, conservator and every person who
is by law liable to maintain,
24 care for or support the child.
25 (e) "Interested
party" means the state, the petitioner, the child, any
26 parent and any person found to be an
interested party pursuant to K.S.A.
27 38-1541 and amendments thereto.
28 (f) "Law
enforcement officer" means any person who by virtue of
29 office or public employment is vested by
law with a duty to maintain
30 public order or to make arrests for crimes,
whether that duty extends to
31 all crimes or is limited to specific
crimes.
32 (g) "Youth
residential facility" means any home, foster home or struc-
33 ture which provides 24-hour-a-day care for
children and which is licensed
34 pursuant to article 5 of chapter 65 of the
Kansas Statutes Annotated.
35 (h) "Shelter
facility" means any public or private facility or home
36 other than a juvenile detention facility
that may be used in accordance
37 with this code for the purpose of providing
either temporary placement
38 for the care of children in need of care
prior to the issuance of a dispos-
39 itional order or longer term care under a
dispositional order.
40 (i) "Juvenile
detention facility" means any secure public or private
41 facility used for the lawful custody of
accused or adjudicated juvenile
42 offenders which must not be a jail.
43 (j) "Adult
correction facility" means any public or private facility, se-
3
1 cure or nonsecure, which is used for
the lawful custody of accused or
2 convicted adult criminal
offenders.
3 (k) "Secure
facility" means a facility which is operated or structured
4 so as to ensure that all entrances
and exits from the facility are under the
5 exclusive control of the staff of the
facility, whether or not the person
6 being detained has freedom of
movement within the perimeters of the
7 facility, or which relies on locked
rooms and buildings, fences or physical
8 restraint in order to control
behavior of its residents. No secure facility
9 shall be in a city or county
jail.
10 (l) "Ward of the
court" means a child over whom the court has ac-
11 quired jurisdiction by the filing of a
petition pursuant to this code and
12 who continues subject to that jurisdiction
until the petition is dismissed
13 or the child is discharged as provided in
K.S.A. 38-1503 and amendments
14 thereto.
15 (m) "Custody,"
whether temporary, protective or legal, means the
16 status created by court order or statute
which vests in a custodian,
17 whether an individual or an agency, the
right to physical possession of
18 the child and the right to determine
placement of the child, subject to
19 restrictions placed by the court.
20 (n) "Placement"
means the designation by the individual or agency
21 having custody of where and with whom the
child will live.
22 (o) "Secretary"
means the secretary of social and rehabilitation
23 services.
24 (p) "Relative"
means a person related by blood, marriage or adoption
25 but, when referring to a relative of a
child's parent, does not include the
26 child's other parent.
27
(q) "Court-appointed special advocate" means a responsible
adult
28 other than an attorney guardian ad
litem who is appointed by the court
29 to represent the best interests of a child,
as provided in K.S.A. 38-1505a
30 and amendments thereto, in a proceeding
pursuant to this code.
31
(r) "Multidisciplinary team" means a group of persons,
appointed by
32 the court or by the state department of
social and rehabilitation services
33 under K.S.A. 38-1523a and amendments
thereto, which has knowledge
34 of the circumstances of a child in need of
care.
35 (s) "Jail"
means:
36 (1) An adult jail
or lockup; or
37 (2) a facility in
the same building or on the same grounds as an adult
38 jail or lockup, unless the facility meets
all applicable standards and licen-
39 sure requirements under law and there is
(A) total separation of the ju-
40 venile and adult facility spatial areas
such that there could be no haphaz-
41 ard or accidental contact between juvenile
and adult residents in the
42 respective facilities; (B) total separation
in all juvenile and adult program
43 activities within the facilities, including
recreation, education, counseling,
4
1 health care, dining, sleeping, and
general living activities; and (C) separate
2 juvenile and adult staff, including
management, security staff and direct
3 care staff such as recreational,
educational and counseling.
4
(t) "Kinship care" means the placement of a child in the home
of the
5 child's relative or in the home of
another adult with whom the child or
6 the child's parent already has a
close emotional attachment.
7
(u) "Juvenile intake and assessment worker" means a
responsible
8 adult authorized to perform intake
and assessment services as part of the
9 intake and assessment system
established pursuant to K.S.A. 75-7023, and
10 amendments thereto.
11 (v) "Abandon"
means to forsake, desert or cease providing care for
12 the child without making appropriate
provisions for substitute care.
13 (w) "Permanent
guardianship" means a judicially created relationship
14 between child and caretaker which is
intended to be permanent and self-
15 sustaining without ongoing state oversight
or intervention. The perma-
16 nent guardian stands in loco parentis and
exercises all the rights and
17 responsibilities of a parent. Upon
appointment of a permanent guardian,
18 the child in need of care proceedings shall
be dismissed. A permanent
19 guardian may be appointed after termination
of parental rights.
20 (x) "Aggravated
circumstances" means the abandonment, torture,
21 chronic abuse, sexual abuse or chronic,
life threatening neglect of a child.
22 (y) "Permanency
hearing" means a notice and opportunity to be
23 heard is provided to interested parties,
foster parents, preadoptive parents
24 or relatives providing care for the child.
The court, after consideration of
25 the evidence, shall determine whether
progress toward the case plan goal
26 is adequate or reintegration is a viable
alternative, or if the case should
27 be referred to the county or district
attorney for filing of a petition to
28 terminate parental rights or to appoint a
permanent guardian.
29 (z) "Extended out
of home placement" means a child has been in the
30 custody of the secretary and placed with
neither parent for 15 of the most
31 recent 22 months beginning 60 days after
the date at which a child in the
32 custody of the secretary was removed from
the home.
33 (aa) "Educational
institution" means all schools at the elementary and
34 secondary levels.
35 (bb) "Educator"
means any administrator, teacher or other profes-
36 sional or paraprofessional employee of an
educational institution who has
37 exposure to a pupil specified in subsection
(a) of K.S.A. 1999 Supp. 72-
38 89b03 and amendments thereto.
39 Sec.
2. K.S.A. 38-1568 is hereby amended to read as follows:
38-
40 1568. (a) Valid court order. During
proceedings under this code, the court
41 may enter an order directing a child who is
the subject of the proceedings
42 to remain in a present or future placement
if:
43 (1) The court
makes a finding that the child has been adjudicated to
5
1 be a child in need of care pursuant
to: (A) Subsection (a)(10) (a)(9) of
2 K.S.A. 38-1502, and amendments
thereto; or (B) any of the subsections
3 (a)(1) through
(a)(9) (a)(8) or (a)(11)
(a)(10) of K.S.A. 38-1502, and
4 amendments thereto, and the court
determines that the child is not likely
5 to be available within the
jurisdiction of the court for future proceedings;
6 (2) the
child and the child's guardian ad litem are present before
the
7 court at the time the order is
entered; and
8 (3) the
child and the child's guardian ad litem are given adequate
and
9 fair warning, both orally and in
writing, of the consequences of violation
10 of the order and a copy of such warning is
recorded in the official file of
11 the case.
12
(b) Application. Any person may file with the court a
verified appli-
13 cation for a determination that a child has
violated an order entered pur-
14 suant to subsection (a) and for an order
authorizing the holding of such
15 child in a secure facility as provided by
this section. Such application shall
16 state the applicant's belief that the child
has violated a valid court order
17 entered pursuant to subsection (a) and the
specific facts which are relied
18 upon to support the belief.
19 (c) Ex parte
order. Upon the filing of an application in accordance
20 with subsection (b), the court may enter
ex parte an order directing that
21 the child be taken into custody and held in
a secure facility designated
22 by the court if the court determines that
there is probable cause to believe
23 the allegations in the application. The
order shall remain in effect for not
24 more than 24 hours following the child's
being taken into custody. The
25 order shall be served on the child's
parents, any legal custodian of the
26 child and the child's guardian ad
litem.
27
(d) Preliminary hearing. Within 24 hours following a
child's being
28 taken into custody pursuant to an order
issued under subsection (c), the
29 court shall hold a hearing to determine
whether the child admits or denies
30 the allegations of the application and, if
the child denies such allegations,
31 whether there is probable cause to hold the
child in a secure facility
32 pending a hearing on the application
pursuant to subsection (e). Notice
33 of the time and place of the preliminary
hearing shall be given orally or
34 in writing to the child's parents, any
legal custodian of the child and the
35 child's guardian ad litem. At the
hearing, the child shall have the right to:
36 (1) Have in writing the alleged violation
and the facts relied upon in the
37 application; (2) a guardian ad litem
pursuant to K.S.A. 38-1505, and
38 amendments thereto; and (3) the right to
confront and present witnesses.
39 If, upon the hearing, the court finds that
the child admits the allegations
40 of the application, the court shall proceed
without delay to hold a hearing
41 on the application pursuant to subsection
(e). If, upon the hearing, the
42 court finds that the child denies the
allegations of the application, the
43 court may enter an order directing that the
child be held in a secure
6
1 facility pending a hearing pursuant
to subsection (e) if the court finds
2 that there is probable cause to
believe that the child has violated a valid
3 court order entered pursuant to
subsection (a) and that secure detention
4 of the child is necessary for the
protection of the child or to assure the
5 appearance of the child at the
hearing on the application pursuant to
6 subsection (e).
7
(e) Hearing on violation of order; authorization. The
court shall hold
8 a hearing on an application filed
pursuant to subsection (b) within 24
9 hours following the child's being
taken into custody, if the child admits
10 the allegations of the application, or
within 72 hours following the child's
11 being taken into custody, if secure
detention of the child is ordered pur-
12 suant to subsection (d). Notice of the time
and place of such hearing shall
13 be given orally or in writing to the
child's parents, any legal custodian of
14 the child and the child's guardian ad
litem. Upon such hearing, the court
15 may enter an order awarding custody of the
child to the secretary, if the
16 secretary does not have legal custody of
the child, and authorizing the
17 secretary to place the child in a secure
facility if the court determines
18 that:
19 (1) The child has
been adjudicated to be a child in need of care
20 pursuant to subsection (a)(10) of K.S.A.
38-1502, and amendments
21 thereto;
22 (2) the child has
violated a valid court order entered pursuant to sub-
23 section (a);
24 (3) the child has
been provided at the hearing with the right to: (A)
25 Have the alleged violation in writing and
served upon the child a reason-
26 able time before the hearing; (B) a hearing
before the court on the issue
27 of placement in a secure facility; (C) an
explanation of the nature and
28 consequences of the proceeding; (D) a
guardian ad litem pursuant to
29 K.S.A. 38-1505, and amendments thereto; (E)
confront and present wit-
30 nesses; (F) have a transcript or record of
the proceedings; and (G) appeal;
31 and
32 (4) there is no
less restrictive alternative appropriate to the needs of
33 the juvenile and the community.
34 The authorization to
place a child in a secure facility pursuant to this
35 subsection shall expire 60 days, including
Saturdays, Sundays and legal
36 holidays, after it is issued. The court may
grant extensions of such au-
37 thorization for two additional periods not
exceeding 60 days, including
38 Saturdays, Sundays and legal holidays, upon
rehearing pursuant to K.S.A.
39 38-1564, and amendments thereto. Payment by
the secretary to a secure
40 facility for child care services provided
pursuant to this subsection shall
41 be paid only upon receipt by the secretary
of a copy of a valid court order.
42
(f) Limitations on facilities used. Nothing in this
section shall author-
43 ize placement of a child in a juvenile
detention facility, except that a child
7
1 may be held in any such facility
which, if in an adult jail, is in quarters
2 separated by sight and sound from
adult prisoners:
3 (1) When
ordered by a court pursuant to subsection (c) or (d), for
4 not longer than the times permitted
by those subsections; or
5 (2) when
ordered by a court pursuant to subsection (e), for not more
6 than 24 hours following the hearing
provided for by that subsection, ex-
7 cept that nothing in this subsection
shall allow a child to be held in an
8 adult jail for more than 24
hours.
9 (g) Time
limits, computation. Except as otherwise specifically pro-
10 vided by subsection (e), Saturdays, Sundays
and legal holidays shall not
11 be counted in computing any time limit
imposed by this section.
12 (h) This section
shall be part of and supplemental to the Kansas code
13 for care of children.
14 Sec.
3. K.S.A. 1999 Supp. 72-1113 is hereby amended to read as
15 follows: 72-1113. (a) Each board of
education shall designate one or more
16 employees who shall keep a report
to the secretary of social and rehabil-
17 itation services, or a designee
thereof, all cases of children who are less
18 than 13 years of age and are not
attending school as required by law, and
19 to the appropriate county or
district attorney, or a designee thereof, of
20 all cases of children who are 13 or
more years of age but less than 18
21 years of age and are not attending school
as required by law. A copy of
22 such report shall be given to the intake
and assessment program in the
23 school district. The designation
shall be made no later than September 1
24 of each school year and shall be certified
no later than 10 days thereafter
25 by the board of education to the
secretary of social and rehabilitation
26 services, or the designee thereof,
to the county or district attorney, or the
27 designee thereof, and to
the commissioner of education. The commis-
28 sioner of education shall compile and
maintain a list of the designated
29 employees of each board of education.
30 (b) Whenever a
child is required by law to attend school, and the
31 child is not enrolled in a public or
nonpublic school, the child shall be
32 considered to be not attending school as
required by law and a report
33 thereof shall be made in accordance
with the provisions of subsection (a)
34 by a designated employee of the board of
education of the school district
35 in which the child resides. The provisions
of this subsection are subject
36 to the provisions of subsection (d).
37 (c)
(1) Whenever a child is required by law to attend school and
is
38 enrolled in school, and the child is
inexcusably absent therefrom on either
39 three consecutive school days or five
school days in any semester or seven
40 school days in any school year, whichever
of the foregoing occurs first,
41 the child shall be considered to be not
attending school as required by
42 law. A child is inexcusably absent from
school if the child is absent there-
43 from all or a significant part of a school
day without a valid excuse ac-
8
1 ceptable to the school employee
designated by the board of education to
2 have responsibility for the school
attendance of such child.
3 (2) Each
board of education shall adopt rules for determination of
4 valid excuse for absence from school
and for determination of what shall
5 constitute a "significant part of a
school day" for the purpose of this
6 section.
7 (3) Each
board of education shall designate one or more employees,
8 who shall each be responsible for
determining the acceptability and va-
9 lidity of offered excuses for absence
from school of specified children, so
10 that a designee is responsible for making
such determination for each
11 child enrolled in school.
12 (4) Whenever a
determination is made in accordance with the pro-
13 visions of this subsection that a child is
not attending school as required
14 by law, the designated employee who is
responsible for such determina-
15 tion shall make a report thereof in
accordance with the provisions of
16 subsection (a).
17 (5) The
provisions of this subsection are subject to the provisions of
18 subsection (d).
19 (d)
(1) Prior to making any report under this section that a child
is
20 not attending school as required by law,
the designated employee of the
21 board of education shall serve written
notice thereof, by personal delivery
22 or by first class mail, upon a parent or
person acting as parent of the child.
23 The notice shall inform the parent
or person acting as parent that con-
24 tinued failure of the child to
attend school without a valid excuse will
25 result in a report being made to
the secretary of social and rehabilitation
26 services or to the county or
district attorney. Upon failure, on the school
27 day next succeeding personal delivery of
the notice or within three school
28 days after the notice was mailed, of
attendance at school by the child or
29 of an acceptable response, as determined by
the designated employee, to
30 the notice by a parent or person acting as
parent of the child, the desig-
31 nated employee shall make a report thereof
in accordance with the pro-
32 visions of subsection (a).
The designated employee shall submit with the
33 report a certificate verifying the manner
in which notice was provided to
34 the parent or person acting as parent.
35 (2) Whenever a
law enforcement officer assumes temporary custody
36 of a child who is found away from home or
school without a valid excuse
37 during the hours school is actually in
session, and the law enforcement
38 officer delivers the child to the school in
which the child is enrolled or to
39 a location designated by the school in
which the child is enrolled to ad-
40 dress truancy issues, the designated
employee of the board of education
41 shall serve notice thereof upon a parent or
person acting as parent of the
42 child. The notice may be oral or written
and shall inform the parent or
43 person acting as parent of the child that
the child was absent from school
9
1 without a valid excuse and was
delivered to school by a law enforcement
2 officer.
3
(e) Whenever the secretary of social and
rehabilitation services re-
4 ceives a report required
under this section, the secretary shall investigate
5 the matter. If, during the
investigation, the secretary determines that the
6 reported child is not
attending school as required by law, the secretary
7 shall institute proceedings
under the code for care of children. If, during
8 the investigation, the
secretary determines that a criminal prosecution
9 should be considered, the
secretary shall make a report of the case to the
10 appropriate law enforcement
agency.
11
(f) Whenever a county or district attorney receives a report
required
12 under this section, the county or
district attorney shall investigate the
13 matter. If, during the
investigation, the county or district attorney deter-
14 mines that the reported child is
not attending school as required by law,
15 the county or district attorney
shall prepare and file a petition alleging
16 that the child is a child in need
of care. If, during the investigation, the
17 county or district attorney
determines that a criminal prosecution is nec-
18 essary, the county or district
attorney shall commence the same.
19
(g) As used in this section, "board of education"
means the board of
20 education of a school district or the
governing authority of a nonpublic
21 school. The provisions of this act shall
apply to both public and nonpublic
22 schools.
23 Sec. 4. K.S.A. 38-1568 and
K.S.A. 1999 Supp. 38-1502 and 72-1113
24 are hereby repealed.
25 Sec. 5. This act shall
take effect and be in force from and after its
26 publication in the statute book.