As Amended by Senate Committee
Session of 2000
SENATE BILL No. 461
By Committee on Judiciary
1-20
10 AN ACT
concerning child in need of care proceedings; relating to per-
11 manent guardianship;
amending K.S.A. 1999 Supp. 38-1502, 38-1583
12 and 38-1587 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.
9
(b) ``Physical, mental or emotional abuse or neglect'' means
the in-
10 fliction of physical, mental or emotional
injury or the causing of a dete-
11 rioration of a child and may include, but
shall not be limited to, failing to
12 maintain reasonable care and treatment,
negligent treatment or maltreat-
13 ment or exploiting a child to the extent
that the child's health or emotional
14 well-being is endangered. A parent
legitimately practicing religious beliefs
15 who does not provide specified medical
treatment for a child because of
16 religious beliefs shall not for that reason
be considered a negligent parent;
17 however, this exception shall not preclude
a court from entering an order
18 pursuant to subsection (a)(2) of K.S.A.
38-1513 and amendments thereto.
19 (c) ``Sexual
abuse'' means any act committed with a child which is
20 described in article 35, chapter 21 of the
Kansas Statutes Annotated and
21 those acts described in K.S.A. 21-3602 or
21-3603, and amendments
22 thereto, regardless of the age of the
child.
23 (d) ``Parent,''
when used in relation to a child or children, includes a
24 guardian, conservator and every person who
is by law liable to maintain,
25 care for or support the child.
26 (e) ``Interested
party'' means the state, the petitioner, the child, any
27 parent and any person found to be an
interested party pursuant to K.S.A.
28 38-1541 and amendments thereto.
29 (f) ``Law
enforcement officer'' means any person who by virtue of
30 office or public employment is vested by
law with a duty to maintain
31 public order or to make arrests for crimes,
whether that duty extends to
32 all crimes or is limited to specific
crimes.
33 (g) ``Youth
residential facility'' means any home, foster home or struc-
34 ture which provides 24-hour-a-day care for
children and which is licensed
35 pursuant to article 5 of chapter 65 of the
Kansas Statutes Annotated.
36 (h) ``Shelter
facility'' means any public or private facility or home
37 other than a juvenile detention facility
that may be used in accordance
38 with this code for the purpose of providing
either temporary placement
39 for the care of children in need of care
prior to the issuance of a dispos-
40 itional order or longer term care under a
dispositional order.
41 (i) ``Juvenile
detention facility'' means any secure public or private
42 facility used for the lawful custody of
accused or adjudicated juvenile
43 offenders which must not be a jail.
3
1 (j) ``Adult
correction facility'' means any public or private facility, se-
2 cure or nonsecure, which is used for
the lawful custody of accused or
3 convicted adult criminal
offenders.
4
(k) ``Secure facility'' means a facility which is operated or
structured
5 so as to ensure that all entrances
and exits from the facility are under the
6 exclusive control of the staff of the
facility, whether or not the person
7 being detained has freedom of
movement within the perimeters of the
8 facility, or which relies on locked
rooms and buildings, fences or physical
9 restraint in order to control
behavior of its residents. No secure facility
10 shall be in a city or county jail.
11 (l) ``Ward of the
court'' means a child over whom the court has ac-
12 quired jurisdiction by the filing of a
petition pursuant to this code and
13 who continues subject to that jurisdiction
until the petition is dismissed
14 or the child is discharged as provided in
K.S.A. 38-1503 and amendments
15 thereto.
16 (m) ``Custody,''
whether temporary, protective or legal, means the
17 status created by court order or statute
which vests in a custodian,
18 whether an individual or an agency, the
right to physical possession of
19 the child and the right to determine
placement of the child, subject to
20 restrictions placed by the court.
21 (n) ``Placement''
means the designation by the individual or agency
22 having custody of where and with whom the
child will live.
23 (o) ``Secretary''
means the secretary of social and rehabilitation
24 services.
25 (p) ``Relative''
means a person related by blood, marriage or adoption
26 but, when referring to a relative of a
child's parent, does not include the
27 child's other parent.
28
(q) ``Court-appointed special advocate'' means a responsible
adult
29 other than an attorney guardian ad
litem who is appointed by the court
30 to represent the best interests of a child,
as provided in K.S.A. 38-1505a
31 and amendments thereto, in a proceeding
pursuant to this code.
32
(r) ``Multidisciplinary team'' means a group of persons,
appointed by
33 the court or by the state department of
social and rehabilitation services
34 under K.S.A. 38-1523a and amendments
thereto, which has knowledge
35 of the circumstances of a child in need of
care.
36 (s) ``Jail''
means:
37 (1) An adult jail
or lockup; or
38 (2) a facility in
the same building or on the same grounds as an adult
39 jail or lockup, unless the facility meets
all applicable standards and licen-
40 sure requirements under law and there is
(A) total separation of the ju-
41 venile and adult facility spatial areas
such that there could be no haphaz-
42 ard or accidental contact between juvenile
and adult residents in the
43 respective facilities; (B) total separation
in all juvenile and adult program
4
1 activities within the facilities,
including recreation, education, counseling,
2 health care, dining, sleeping, and
general living activities; and (C) separate
3 juvenile and adult staff, including
management, security staff and direct
4 care staff such as recreational,
educational and counseling.
5
(t) ``Kinship care'' means the placement of a child in the
home of the
6 child's relative or in the home of
another adult with whom the child or
7 the child's parent already has a
close emotional attachment.
8
(u) ``Juvenile intake and assessment worker'' means a
responsible
9 adult authorized to perform intake
and assessment services as part of the
10 intake and assessment system established
pursuant to K.S.A. 75-7023, and
11 amendments thereto.
12 (v) ``Abandon''
means to forsake, desert or cease providing care for
13 the child without making appropriate
provisions for substitute care.
14 (w) ``Permanent
guardianship'' means a judicially created relationship
15 between child and caretaker which is
intended to be permanent and self-
16 sustaining without ongoing state oversight
or intervention by the secre-
17 tary. The permanent guardian stands
in loco parentis and exercises all
18 the rights and responsibilities of a
parent. Upon appointment of a per-
19 manent guardian, the child in need
of care proceedings shall be dismissed.
20 A permanent guardian may be appointed after
termination of parental
21 rights or without termination of
parental rights, if the parents consent
22 and agree to the appointment of a
permanent guardian. Upon appoint-
23 ment of a permanent guardian, the court
shall continue to have jurisdic-
24 tion to review the placement and appoint
successor or replacement guard-
25 ian or guardians.
26 (x) ``Aggravated
circumstances'' means the abandonment, torture,
27 chronic abuse, sexual abuse or chronic,
life threatening neglect of a child.
28 (y) ``Permanency
hearing'' means a notice and opportunity to be
29 heard is provided to interested parties,
foster parents, preadoptive parents
30 or relatives providing care for the child.
The court, after consideration of
31 the evidence, shall determine whether
progress toward the case plan goal
32 is adequate or reintegration is a viable
alternative, or if the case should
33 be referred to the county or district
attorney for filing of a petition to
34 terminate parental rights or to appoint a
permanent guardian.
35 (z) ``Extended
out of home placement'' means a child has been in the
36 custody of the secretary and placed with
neither parent for 15 of the most
37 recent 22 months beginning 60 days after
the date at which a child in the
38 custody of the secretary was removed from
the home.
39
(aa) ``Educational institution'' means all schools at the
elementary and
40 secondary levels.
41 (bb) ``Educator''
means any administrator, teacher or other profes-
42 sional or paraprofessional employee of an
educational institution who has
43 exposure to a pupil specified in subsection
(a) of K.S.A. 1999 Supp. 72-
5
1 89b03 and amendments thereto.
2 Sec.
2. K.S.A. 1999 Supp. 38-1583 is hereby amended to read as
3 follows: 38-1583. (a) When the child
has been adjudicated to be a child
4 in need of care, the court may
terminate parental rights when the court
5 finds by clear and convincing
evidence that the parent is unfit by reason
6 of conduct or condition which renders
the parent unable to care properly
7 for a child and the conduct or
condition is unlikely to change in the
8 foreseeable future.
9 (b) In
making a determination hereunder the court shall consider,
10 but is not limited to, the following, if
applicable:
11 (1) Emotional
illness, mental illness, mental deficiency or physical
12 disability of the parent, of such duration
or nature as to render the parent
13 unlikely to care for the ongoing physical,
mental and emotional needs of
14 the child;
15 (2) conduct
toward a child of a physically, emotionally or sexually
16 cruel or abusive nature;
17 (3) excessive use
of intoxicating liquors or narcotic or dangerous
18 drugs;
19 (4) physical,
mental or emotional neglect of the child;
20 (5) conviction of
a felony and imprisonment;
21 (6) unexplained
injury or death of another child or stepchild of the
22 parent;
23 (7) reasonable
efforts by appropriate public or private child caring
24 agencies have been unable to rehabilitate
the family; and
25 (8) lack of
effort on the part of the parent to adjust the parent's cir-
26 cumstances, conduct or conditions to meet
the needs of the child.
27 (c) In addition
to the foregoing, when a child is not in the physical
28 custody of a parent, the court, in
proceedings concerning the termination
29 of parental rights, shall also consider,
but is not limited to the following:
30 (1) Failure to
assure care of the child in the parental home when able
31 to do so;
32 (2) failure to
maintain regular visitation, contact or communication
33 with the child or with the custodian of the
child;
34 (3) failure to
carry out a reasonable plan approved by the court di-
35 rected toward the integration of the child
into the parental home; and
36 (4) failure to
pay a reasonable portion of the cost of substitute physical
37 care and maintenance based on ability to
pay.
38 In making the above
determination, the court may disregard incidental
39 visitations, contacts, communications or
contributions.
40 (d) The rights of
the parents may be terminated as provided in this
41 section if the court finds that the parents
have abandoned the child or
42 the child was left under such circumstances
that the identity of the par-
43 ents is unknown and cannot be ascertained,
despite diligent searching,
6
1 and the parents have not come forward
to claim the child within three
2 months after the child is found.
3 (e) The
existence of any one of the above standing alone may, but
4 does not necessarily, establish
grounds for termination of parental rights.
5 The determination shall be based on
an evaluation of all factors which
6 are applicable. In considering any of
the above factors for terminating the
7 rights of a parent, the court shall
give primary consideration to the phys-
8 ical, mental or emotional condition
and needs of the child. If presented
9 to the court and subject to the
provisions of K.S.A. 60-419, and amend-
10 ments thereto, the court shall consider as
evidence testimony from a
11 person licensed to practice medicine and
surgery, a licensed psychologist
12 or a licensed social worker expressing an
opinion relating to the physical,
13 mental or emotional condition and needs of
the child. The court shall
14 consider any such testimony only if the
licensed professional providing
15 such testimony is subject to
cross-examination.
16 (f) A termination
of parental rights under the Kansas code for care
17 of children shall not terminate the right
of the child to inherit from or
18 through the parent. Upon such termination,
all the rights of birth parents
19 to such child, including their right to
inherit from or through such child,
20 shall cease.
21 (g) If, after
finding the parent unfit, the court determines a compel-
22 ling reason why it is not in the best
interests of the child to terminate
23 parental rights or upon agreement of the
parents, the court may award
24 permanent guardianship to an individual
providing care for the child, a
25 relative or other person with whom the
child has a close emotional at-
26 tachment. Prior to awarding permanent
guardianship, the court shall re-
27 ceive and consider an assessment as
provided in K.S.A. 59-2132 and
28 amendments thereto of any potential
permanent guardian. Upon appoint-
29 ment of a permanent guardian, the court
shall enter an order discharging
30 the child from the court's
jurisdiction continue to have jurisdiction to
31 review the placement and appoint
successor or replacement guardian or
32 guardians and shall discharge
the child from the custody of the
33 secretary.
34 (h) If a parent
is convicted of an offense as provided in subsection
35 (7) of K.S.A. 38-1585 and amendments
thereto or is adjudicated a juvenile
36 offender because of an act which if
committed by an adult would be an
37 offense as provided in subsection (7) of
K.S.A. 38-1585 and amendments
38 thereto, and if the victim was the other
parent of a child, the court may
39 disregard such convicted or adjudicated
parent's opinions or wishes in
40 regard to the placement of such child.
41 Sec.
3. K.S.A. 1999 Supp. 38-1587 is hereby amended to read as
42 follows: 38-1587. (a) A permanent guardian
may be appointed after a
43 finding of unfitness pursuant to K.S.A.
38-1583 and amendments thereto
7
1 or with the consent and agreement of
the parents.
2 (b) Upon
appointment of the permanent guardian, the child in
need
3 of care proceeding shall be
dismissed the court shall continue to have
4 jurisdiction to review the
placement and appoint successor or replacement
5 guardian or guardians
and shall discharge the child from the custody
6 of the
secretary.
7 Sec. 4. K.S.A. 1999 Supp.
38-1502, 38-1583 and 38-1587 are hereby
8 repealed.
9 Sec. 5. This act
shall take effect and be in force from and after its
10 publication in the statute book.