Session of 2000
HOUSE BILL No. 3001
By Committee on Appropriations
2-22
9 AN ACT
concerning child in need of care cases; relating to
jurisdiction;
10 amending K.S.A.
20-3001, 20-3012, 20-3016, 38-1503, 38-1518, 38-
11 1523a and 38-1593 and
K.S.A. 1999 Supp. 20-3013, 38-1506, 38-1523
12 and 38-1591 and
repealing the existing sections.
13
14 Be it enacted by the Legislature of the
State of Kansas:
15 Section
1. K.S.A. 20-3001 is hereby amended to read as follows:
20-
16 3001. (a) On January 10, 1977, there
shall be and is hereby established a
17 court of record which shall be known as the
court of appeals. The court
18 of appeals shall be a part of the court of
justice in which the judicial
19 power of the state is vested by section 1
of article 3 of the constitution of
20 the state of Kansas and shall be subject to
the general administrative
21 authority of the supreme court. The court
of appeals shall have such
22 jurisdiction over appeals in civil and
criminal cases and from administra-
23 tive bodies and officers of the state as
may be prescribed by law, and shall
24 have such original jurisdiction as may be
necessary to the complete de-
25 termination of any cause on review. During
the pendency of any appeal,
26 the court of appeals, on such terms as may
be just, may make an order
27 suspending further proceedings in the court
below, until the decision of
28 the court of appeals.
29 (b) On and
after January 1, 2001, the court of appeals shall have
30 original jurisdiction over the 18th
judicial district proceedings concerning
31 any child who appears to be a child in
need of care pursuant to article
32 15 of chapter 38 of the Kansas Statutes
Annotated, and amendments
33 thereto.
34 Sec.
2. K.S.A. 20-3012 is hereby amended to read as follows:
20-
35 3012. (a) Except as provided
further, for the purpose of hearing and
36 determining cases, the judges of the court
of appeals may sit together or
37 in panels. A hearing panel shall consist of
three (3) judges. For conven-
38 ience in administration, each panel may be
numbered, and the chief judge
39 from time to time shall designate the
number of panels and make assign-
40 ments of judges among such panels. The
chief judge may sit as a member
41 of a panel and shall preside over such
panel. When the chief judge is not
42 a member of a hearing panel, he or
she the chief judge shall appoint a
43 member of the panel to preside.
2
1 (b) For
the purpose of hearing and determining child in need of
care
2 cases pursuant to article 15 of
chapter 38 of the Kansas Statutes Anno-
3 tated, and amendments thereto, in
the 18th judicial district, the chief judge
4 shall appoint a judge or judges of
the court of appeals.
5 Sec.
3. K.S.A. 1999 Supp. 20-3013 is hereby amended to read as
6 follows: 20-3013. (a) The
court of appeals shall sit and maintain its prin-
7 cipal offices in the city of Topeka,
and it shall be the duty of the secretary
8 of administration to provide a
courtroom and other suitable quarters in
9 Topeka for the use of the court of
appeals and its staff. However, any
10 hearing panel of the court of appeals may
hold court in the courthouse
11 of any county for the purpose of hearing
oral arguments in cases before
12 such court. When a panel of the court of
appeals sits in any location other
13 than in Topeka, the chief judge of the
judicial district in which the panel
14 is sitting shall assign a courtroom to the
hearing panel for its use while
15 sitting, shall provide suitable office
space for use by the members of the
16 panel and shall provide such other
personnel as may be needed by the
17 panel.
18 (b) When a
judge or judges of the court of appeals sits in the 18th
19 judicial district hearing and
determining cases pursuant to article 15 of
20 chapter 38 of the Kansas Statutes
Annotated, and amendments thereto,
21 the chief judge of the 18th judicial
district shall assign a courtroom, suit-
22 able office space and personnel as may
be needed by such judge or judges.
23 Sec.
4. K.S.A. 20-3016 is hereby amended to read as follows:
20-
24 3016. (a) The court of appeals, prior to
final determination of any case
25 before it, may request that such case be
transferred to the supreme court
26 for its review and final determination by
certifying to the supreme court
27 that the case is within the jurisdiction of
the supreme court and that the
28 court of appeals has made one
(1) or more of the following findings with
29 respect to such case:
30 (1) One or more
issues in such case are not within the jurisdiction of
31 the court of appeals;
32 (2) the subject
matter of the case has significant public interest;
33 (3) the case
involves legal questions of major public significance; or
34 (4) the caseload
of the court of appeals is such that the expeditious
35 administration of justice requires such
transfer.
36 (b) Any
certification of findings and request for transfer of a case
37 pursuant to subsection (a) shall be made in
the manner and form pre-
38 scribed by rules of the supreme court. The
supreme court shall consider
39 such certification and may accept the case
for review and final determi-
40 nation or may decline jurisdiction and
order that the case be determined
41 by the court of appeals.
42 (c) Any appeal
from a decision of a judge of the court of appeals
43 concerning a child in need of care case
pursuant to article 15 of chapter
3
1 38 of the Kansas Statutes
Annotated, and amendments thereto, in the 18th
2 judicial district shall be to the
supreme court.
3 Sec.
5. K.S.A. 38-1503 is hereby amended to read as follows:
38-
4 1503. (a) Proceedings concerning any
child who appears to be a child in
5 need of care shall be governed by
this code, except in those instances
6 when the Indian child welfare act of
1978 (25 U.S.C. § § 1901 et seq.)
7 applies.
8 (b) Subject
to the uniform child custody jurisdiction act, K.S.A. 38-
9 1301 et seq. and amendments
thereto, and except as provided further,
10 the district court shall have original
jurisdiction to receive and determine
11 proceedings under this code. In the 18th
judicial district, the court of
12 appeals shall have original jurisdiction
to receive and determine proceed-
13 ings under this code.
14 (c) When
jurisdiction has been acquired by the court over the person
15 of a child in need of care it may continue
until the child: (1) Has attained
16 the age of 21 years; (2) has been adopted;
or (3) has been discharged by
17 the court. Any child 18 years of age or
over may request, by motion to
18 the court, that the jurisdiction of the
court cease. Subsequently, the court
19 shall enter an order discharging the person
from any further jurisdiction
20 of the court.
21 (d) When it is no
longer appropriate for the court to exercise juris-
22 diction over a child the court, upon its
own motion or the motion of an
23 interested party, shall enter an order
discharging the child. Except upon
24 request of the child, the court shall not
enter an order discharging a child
25 which reaches 18 years of age before
completing the child's high school
26 education until June 1 of the school year
during which the child became
27 18 years of age as long as the child is
still attending high school.
28 (e) Unless the
court finds that substantial injustice would result, the
29 provisions of this code shall govern with
respect to acts or omissions oc-
30 curring prior to the effective date of this
code and with respect to children
31 alleged or adjudicated to have done or to
have been affected by the acts
32 or omissions, to the same extent as if the
acts or omissions had occurred
33 on or after the effective date and the
children had been alleged or ad-
34 judicated to be children in need of
care.
35 Sec.
6. K.S.A. 1999 Supp. 38-1506 is hereby amended to read as
36 follows: 38-1506. (a) Official file.
The official file of proceedings pursuant
37 to this code shall consist of the petition,
process, service of process, or-
38 ders, writs and journal entries reflecting
hearings held and judgments and
39 decrees entered by the court. The official
file shall be kept separate from
40 other records of the court. The official
file shall be privileged and shall
41 not be disclosed directly or indirectly to
anyone except:
42 (1) A judge of
the district court and members of the staff of the court
43 designated by a judge of the district court
or an appellate court;
4
1 (2) the
guardian ad litem and the parties to the proceedings and
their
2 attorneys;
3 (3) any
individual, or any public or private agency or institution,
hav-
4 ing custody of the child under court
order or providing educational, med-
5 ical or mental health services to the
child or a court-approved advocate
6 for the child or any placement
provider or potential placement provider
7 as determined by the secretary or
court services officer; and
8 (4) any
other person when authorized by a court order, subject to any
9 conditions imposed by the order.
10 (b) Social
file. Reports and information received by the court, other
11 than the official file, shall be privileged
and open to inspection only by
12 the guardian ad litem or an attorney
for an interested party or upon court
13 order. The reports shall not be further
disclosed by the guardian ad litem
14 or attorney without approval of the court
or by being presented as ad-
15 missible evidence.
16
(c) Preservation of records. The Kansas state
historical society shall
17 be allowed to take possession for
preservation in the state archives of any
18 court records related to proceedings under
the Kansas code for care of
19 children whenever such records otherwise
would be destroyed. No such
20 records in the custody of the Kansas state
historical society shall be dis-
21 closed directly or indirectly to anyone for
80 years after creation of the
22 records, except as provided in subsections
(a) and (b). Pursuant to sub-
23 sections (a)(4) and (b), a judge of
the district court may allow inspection
24 for research purposes of any court records
in the custody of the Kansas
25 state historical society related to
proceedings under the Kansas code for
26 care of children.
27 Sec.
7. K.S.A. 38-1518 is hereby amended to read as follows:
38-
28 1518. (a) Fingerprints or photographs shall
not be taken of any person
29 under 18 years of age who is taken into
custody for any purpose, except:
30 (1) As authorized
by K.S.A. 38-1611 and amendments thereto; or
31 (2) if authorized
by a judge of the district court or an appellate court
32 having jurisdiction.
33 (b) Fingerprints
and photographs taken under subsection (a)(2) shall
34 be kept readily distinguishable from those
of persons of the age of
35 majority.
36 (c) Fingerprints
and photographs taken under subsection (a)(2) may
37 be sent to a state or federal repository
only if authorized by a judge of
38 the district court or an appellate
court having jurisdiction.
39 (d) Nothing in
this section shall preclude the custodian of the child
40 from authorizing photographs or
fingerprints of the child to be used in
41 any action under the Kansas parentage
act.
42 (e) This section
shall be part of and supplemental to the Kansas code
43 for care of children.
5
1 Sec.
8. K.S.A. 1999 Supp. 38-1523 is hereby amended to read as
2 follows: 38-1523. (a)
Investigation for child abuse or neglect. The state
3 department of social and
rehabilitation services and law enforcement of-
4 ficers shall have the duty to receive
and investigate reports of child abuse
5 or neglect for the purpose of
determining whether the report is valid and
6 whether action is required to protect
the child from further abuse or
7 neglect. If the department and such
officers determine that no action is
8 necessary to protect the child but
that a criminal prosecution should be
9 considered, the department and such
law enforcement officers shall make
10 a report of the case to the appropriate law
enforcement agency. In no
11 instance shall an investigation by the
department of social and rehabili-
12 tation services proceed under this section
when the alleged victim has
13 reached the age of 23 years.
14 (b) Joint
investigations. When a report of child abuse or neglect in-
15 dicates (1) that there is serious physical
injury to or serious deterioration
16 or sexual abuse of the child and (2) that
action may be required to protect
17 the child, the investigation shall be
conducted as a joint effort between
18 the department of social and rehabilitation
services and the appropriate
19 law enforcement agency or agencies, with a
free exchange of information
20 between them. If a statement of a suspect
is obtained by the law enforce-
21 ment agency, a copy of the statement shall
be provided to the department
22 of social and rehabilitation services on
request.
23
(c) Investigation of certain cases. Suspected child
abuse or neglect
24 which occurs in an institution operated by
the secretary shall be investi-
25 gated by an agent under the direction of
the attorney general. Any other
26 suspected child abuse or neglect by persons
employed by the state de-
27 partment of social and rehabilitation
services shall be investigated by the
28 appropriate law enforcement agency under
the direction of the appro-
29 priate county or district attorney, and not
by the state department of social
30 and rehabilitation services.
31
(d) Coordination of investigations by county or district
attorney. If a
32 dispute develops between agencies
investigating a reported case of child
33 abuse or neglect, the appropriate county or
district attorney shall take
34 charge of, direct and coordinate the
investigation.
35
(e) Investigations concerning certain facilities. Any
investigation in-
36 volving a facility subject to licensing or
regulation by the secretary of
37 health and environment shall be promptly
reported to the state secretary
38 of health and environment.
39
(f) Cooperation between agencies. Law enforcement
agencies and the
40 department of social and rehabilitation
services shall assist each other in
41 taking action which is necessary to protect
the child regardless of which
42 party conducted the initial
investigation.
43
(g) Cooperation between school personnel and investigative
agencies.
6
1 Elementary and secondary schools, the
state department of social and
2 rehabilitation services and law
enforcement agencies shall cooperate with
3 each other in the investigation of
reports of suspected child abuse or
4 neglect. Administrators of elementary
and secondary schools shall provide
5 to employees of the state department
of social and rehabilitation services
6 and law enforcement agencies access
to a child in a setting on school
7 premises determined by school
personnel for the purpose of the inves-
8 tigation of a report of suspected
child abuse or neglect. To the extent that
9 safety and practical considerations
allow, law enforcement officers on
10 school premises for the purpose of
investigating a report of suspected
11 child abuse or neglect shall not be in
uniform.
12 (h) The secretary
or the secretary's designee or a law enforcement
13 officer may request disclosure of
documents, reports or information in
14 regard to a child, who is the subject of a
report of abuse or neglect, by
15 making a written verified application to
the district court. Upon a finding
16 by the court there is probable cause to
believe the information sought
17 will assist in the investigation of a
report of child abuse or neglect, the
18 court may issue a subpoena, subpoena duces
tecum or an order for the
19 production of the requested documents,
reports or information and di-
20 recting the documents, reports or
information to be delivered to the ap-
21 plicant at a specific time, date and
place.
22 The time and date of
delivery shall not be sooner than five days after
23 the service of the subpoena or order,
excluding Saturdays, Sundays and
24 holidays. The court issuing the subpoena or
order shall keep all applica-
25 tions filed pursuant to this subsection and
a copy of the subpoena or order
26 in a special file maintained for that
purpose. Upon receiving service of a
27 subpoena, subpoena duces tecum or an order
for production pursuant to
28 this subsection, the party served shall
give oral or written notice of service
29 to any person known to have a right to
assert a privilege or assert a right
30 of confidentiality in regard to the
documents, reports or information
31 sought at least three days before the date
of delivery.
32 (i) The written
verified application shall be in substantially the fol-
33 lowing form:
34
Name of Court
35 In the Interest of ________ Case No.
________
36
Name(s)
37 Date of birth: __________
38 Each a child under 18 years of age.
39
WRITTEN APPLICATION FOR
40
DISCLOSURE OF INFORMATION
41 County of ____________
42
ss
43 State of Kansas
7
1 The undersigned
applicant being first duly sworn alleges and states as follows:
2 1. The
applicant is ________________.
3
2. There is an investigation being made into the report
of alleged abuse or neglect in
4
regard to the above-named child
or children.
5
3. The following documents, reports and/or information
are requested. (List specifi-
6
cally.)
7
4. The reasons for the request are:
8
Further applicant saith not.
9
10
Applicant
11 Subscribed and sworn to before me this
______ day of ______, 19__ (year) __.
12
______________________________
13
Notary
Public
14 My commission expires:
15 ______________
16 (j) Any parent,
child, guardian ad litem, party subpoenaed or subject
17 to an order of production or person who
claims a privilege or right of
18 confidentiality may request in writing that
the court issuing the subpoena
19 or order of production withdraw the
subpoena, subpoena duces tecum
20 or order for production issued pursuant to
subsection (i). The request
21 shall automatically stay the operation of
the subpoena, subpoena duces
22 tecum or order for production and the
documents, reports or information
23 requested shall not be delivered until the
issuing court has held a hearing
24 to determine if the documents, reports or
information are subject to the
25 claimed privilege or right of
confidentiality, and whether it is in the best
26 interests of the child for the subpoena or
order to produce to be honored.
27 The request to withdraw shall be filed with
the district court issuing the
28 subpoena or order at least 24 hours prior
to the specified time and date
29 of delivery, excluding Saturdays, Sundays
or holidays, and a copy of the
30 written request must be given to the person
subpoenaed or subject to
31 the order for production at least 24 hours
prior to the specified time and
32 date of delivery.
33 Sec.
9. K.S.A. 38-1523a is hereby amended to read as follows:
38-
34 1523a. (a) Upon recommendation of the state
department of social and
35 rehabilitation services or the county or
district attorney, the court may
36 appoint a multidisciplinary team to assist
in gathering information re-
37 garding a child alleged to be a child in
need of care by reason of physical,
38 mental or emotional abuse or neglect or
sexual abuse. The team may be
39 a standing multidisciplinary team or may be
appointed for a specific child.
40 (b) Any person
appointed as a member of a multidisciplinary team
41 may decline to serve and shall incur no
civil liability as the result of de-
42 clining to serve.
43 (c) This section
shall be part of and supplemental to the Kansas code
8
1 for care of children.
2 (d) The
multidisciplinary team may request disclosure of information
3 in regard to a child alleged to be a
child in need of care, or a child who
4 has been adjudged to be a child in
need of care, by making a written
5 verified application to the
district court. Upon a finding by the court
there
6 is probable cause to believe the
information sought may assist in deter-
7 mining if a child is a child in need
of care as defined in K.S.A. 38-1502
8 and amendments thereto, or in
assisting a child who has been adjudicated
9 a child in need of care, then the
court may issue a subpoena, subpoena
10 duces tecum or enter an order for the
production of the requested doc-
11 uments, reports or information and
directing the document, reports or
12 information to be delivered to the
applicant at a specified time, date and
13 place. The time and date of delivery shall
not be sooner than five days
14 after the service of the subpoena or order,
excluding Saturdays, Sundays
15 or holidays. The court issuing the subpoena
or order shall keep all appli-
16 cations filed pursuant to this subsection
and a copy of the subpoena or
17 order in a special file maintained for such
purpose or in the official court
18 file for the child. Upon receiving service
of a subpoena, subpoena duces
19 tecum or an order for production pursuant
to this subsection, the party
20 served shall give oral or written notice of
service to any person known to
21 have a right to assert a privilege or
assert a right of confidentiality in regard
22 to the documents, reports or information
sought at least three days before
23 the specified date of delivery.
24 (e) The written
verified application shall be in substantially the fol-
25 lowing form:
26
Name of Court
27 In the Interest of ________ Case No.
________
28
Name(s)
29 Date of birth: __________
30 Each a child under 18 years of age.
31
WRITTEN APPLICATION FOR DISCLOSURE OF INFORMATION
32 County of ____________
33
ss
34 State of Kansas
35 The undersigned
applicant being first duly sworn alleges and states as follows:
36 1. The applicant is
________________
37 2. There is
an investigation being made into the report of alleged neglect or
abuse in
38
regard to the above-named child or children.
39
A petition has been filed alleging the above-named child is
a child in need of care
40
or the child has been adjudicated to be a child in
need of care.
41 3. The
following documents, reports and/or information are requested.
(List specifi-
42
cally.)
43 4. The
reasons for the request are:
9
1
Further applicant saith not.
2
3
4 ,
19__ year __.
5
6
Notary
Public
7 My commission
expires:
8 ______________
9 (f) Any
parent, child, guardian ad litem, party subpoenaed or subject
10 to an order of production or person who
claims a privilege or right of
11 confidentiality may request in writing that
the court issuing the subpoena
12 or order for production withdraw the
subpoena, subpoena duces tecum
13 or order for production issued pursuant to
subsection (d). The request
14 shall automatically stay the operation of
the subpoena, subpoena duces
15 tecum or order for production and the
documents, reports or information
16 requested shall not be delivered until the
issuing court has held a hearing
17 to determine if the documents, reports or
information are subject to the
18 claimed privilege or right of
confidentiality, and whether it is in the best
19 interests of the child for the subpoena or
order to produce to be honored.
20 The request to withdraw shall be filed with
the district court issuing the
21 subpoena or order at least 24 hours prior
to the specified time and date
22 of delivery, excluding Saturdays, Sundays
or holidays, and a copy of the
23 written request must be given to the person
subpoenaed or subject to
24 the order for production at least 24 hours
prior to the specified time and
25 date of delivery.
26 Sec.
10. K.S.A. 1999 Supp. 38-1591 is hereby amended to read as
27 follows: 38-1591. (a) An appeal may be
taken by any interested party from
28 any adjudication, disposition, termination
of parental rights or order of
29 temporary custody in any proceedings
pursuant to this code.
30 (b) An appeal
from an order entered by a district magistrate judge
31 shall be to a district judge. The appeal
shall be heard within 30 days from
32 the date the notice of appeal is filed. If
no record was made of the pro-
33 ceedings, the trial shall be de novo.
34 (c) Procedure on
appeal shall be governed by article 21 of chapter
35 60 of the Kansas Statutes Annotated.
36
(d) Notwithstanding any other provision of law to the
contrary, ap-
37 peals under this section shall have
priority over all other cases.
38 (e) An appeal
from an order entered by a court of appeals judge shall
39 be to the supreme court.
40 Sec.
11. K.S.A. 38-1593 is hereby amended to read as follows:
38-
41 1593. (a) When an appeal is taken pursuant
to this code, fees of the
42 guardian ad litem or of an attorney
appointed to represent a parent shall
10
1 be fixed by the
district court. The fees, together with the costs
of tran-
2 scripts and records on appeal, shall
be taxed as expenses on appeal. The
3 court on appeal may assess the fees
and expenses against an interested
4 party or order that they be paid from
the general fund of the county.
5 (b) When
the court orders the fees and expenses assessed against a
6 party, they shall be paid from the
county general fund, subject to reim-
7 bursement by the party against whom
they were assessed. The county
8 may enforce the order as a civil
judgment, except the county shall not be
9 required to pay the docket fee or fee
for execution.
10 Sec. 12. K.S.A. 20-3001,
20-3012, 20-3016, 38-1503, 38-1518, 38-
11 1523a and 38-1593 and K.S.A. 1999 Supp.
20-3013, 38-1506, 38-1523
12 and 38-1591 are hereby repealed.
13 Sec. 13. This act shall
take effect and be in force from and after
14 January 1, 2001, and its publication in the
statute book.