[As Further Amended by Senate Committee of the
Whole]
Session of 2000
Substitute for SENATE BILL No. 652
By Committee on Federal and State Affairs
3-16
11 AN ACT
concerning infants; enacting the newborn infant protection act;
12 amending K.S.A.
21-3604 and 38-1529 and K.S.A. 1999 Supp. 38-1583
13 and 38-1585 and
repealing the existing sections.
14
15 Be it enacted by the Legislature of the
State of Kansas:
16 New Section
1. (a) This section shall be known and may be cited as
17 the newborn infant protection act.
18 (b) A parent or
other person having lawful custody of an infant which
19 is 45 days old or younger and which has not
suffered bodily harm may
20 surrender physical custody of the infant to
any employee who is on duty
21 at a fire station, city or county health
department or medical care facility
22 as defined by K.S.A.
65-445 [65-425], and amendments
thereto. Such
23 employee shall take physical custody of an
infant surrendered pursuant
24 to this section.
25 (c) As soon as
possible after a person takes physical custody of an
26 infant under this section, such person
shall notify a local law enforcement
27 agency that the person has taken physical
custody of an infant pursuant
28 to this section. Upon receipt of such
notice a law enforcement officer
29 from such law enforcement agency shall take
custody of the infant as an
30 abandoned child. The law enforcement agency
shall deliver the infant to
31 a facility or person designated by the
secretary of the department of social
32 and rehabilitation services pursuant to
K.S.A. 38-1528, and amendments
33 thereto.
34 (d) Any person,
city or county or agency thereof or medical care fa-
35 cility taking physical custody of an infant
surrendered pursuant to this
36 section shall perform any act necessary to
protect the physical health or
37 safety of the infant, and shall be immune
from liability for any injury to
38 the infant that may result therefrom.
39 Sec.
2. K.S.A. 21-3604 is hereby amended to read as follows:
21-
40 3604. (a) Abandonment of a child is
the leaving of a child under the age
41 of 16 years, in a place where such child
may suffer because of neglect,
42 by the parent, guardian or other person to
whom the care and custody of
43 such child shall have been entrusted, when
done with intent to abandon
2
1 such child.
2 Abandonment of a
child is a severity level 8, person felony.
3 (b) No
parent or other person having lawful custody of an infant
4 shall be prosecuted for a
violation of this section, if such parent or person
5 surrenders custody of an infant in
the manner provided by section 1, and
6 amendments thereto, and if such
infant has not suffered bodily harm.
7 Sec.
3. K.S.A. 38-1529 is hereby amended to read as follows:
38-
8 1529. (a) Whenever the state
department of social and rehabilitation serv-
9 ices or any other person refers a
case to the county or district attorney
10 for the purpose of filing a petition
alleging that a child is a child in need
11 of care, the county or district attorney
shall review the facts and recom-
12 mendations of the department and any other
evidence available and make
13 a determination whether or not the
circumstances warrant the filing of
14 the petition.
15 (b) Any
individual may file a petition alleging a child is a child in
need
16 of care and the individual may be
represented by the individual's own
17 attorney in the presentation of the
case.
18 (c) When a
petition is filed alleging an infant surrendered pursuant
19 to section 1, and amendments thereto, is
a child in need of care, the
20 petition shall include a request that
the court find that reintegration is
21 not a viable alternative. Such petition
also shall include a request to ter-
22 minate the parental rights of the
parents of such infant. An expedited
23 hearing shall be granted on any petition
filed pursuant to this subsection.
24 Sec.
4. K.S.A. 1999 Supp. 38-1583 is hereby amended to read as
25 follows: 38-1583. (a) When the child has
been adjudicated to be a child
26 in need of care, the court may terminate
parental rights when the court
27 finds by clear and convincing evidence that
the parent is unfit by reason
28 of conduct or condition which renders the
parent unable to care properly
29 for a child and the conduct or condition is
unlikely to change in the
30 foreseeable future.
31 (b) In making a
determination hereunder the court shall consider,
32 but is not limited to, the following, if
applicable:
33 (1) Emotional
illness, mental illness, mental deficiency or physical
34 disability of the parent, of such duration
or nature as to render the parent
35 unlikely to care for the ongoing physical,
mental and emotional needs of
36 the child;
37 (2) conduct
toward a child of a physically, emotionally or sexually
38 cruel or abusive nature;
39 (3) excessive use
of intoxicating liquors or narcotic or dangerous
40 drugs;
41 (4) physical,
mental or emotional neglect of the child;
42 (5) conviction of
a felony and imprisonment;
43 (6) unexplained
injury or death of another child or stepchild of the
3
1 parent;
2
(7) reasonable efforts by appropriate public or private child
caring
3 agencies have been unable to
rehabilitate the family; and
4 (8) lack of
effort on the part of the parent to adjust the parent's cir-
5 cumstances, conduct or conditions to
meet the needs of the child.
6 (c) In
addition to the foregoing, when a child is not in the physical
7 custody of a parent, the court, in
proceedings concerning the termination
8 of parental rights, shall also
consider, but is not limited to the following:
9 (1) Failure
to assure care of the child in the parental home when able
10 to do so;
11 (2) failure to
maintain regular visitation, contact or communication
12 with the child or with the custodian of the
child;
13 (3) failure to
carry out a reasonable plan approved by the court di-
14 rected toward the integration of the child
into the parental home; and
15 (4) failure to
pay a reasonable portion of the cost of substitute physical
16 care and maintenance based on ability to
pay.
17 In making the above
determination, the court may disregard incidental
18 visitations, contacts, communications or
contributions.
19 (d) The rights of
the parents may be terminated as provided in this
20 section if the court finds that the parents
have abandoned the child, the
21 custody of the child was surrendered
pursuant to section 1, and amend-
22 ments thereto, or the child was left
under such circumstances that the
23 identity of the parents is unknown and
cannot be ascertained, despite
24 diligent searching, and the parents have
not come forward to claim the
25 child within three months after the child
is found.
26 (e) The existence
of any one of the above standing alone may, but
27 does not necessarily, establish grounds for
termination of parental rights.
28 The determination shall be based on an
evaluation of all factors which
29 are applicable. In considering any of the
above factors for terminating the
30 rights of a parent, the court shall give
primary consideration to the phys-
31 ical, mental or emotional condition and
needs of the child. If presented
32 to the court and subject to the provisions
of K.S.A. 60-419, and amend-
33 ments thereto, the court shall consider as
evidence testimony from a
34 person licensed to practice medicine and
surgery, a licensed psychologist
35 or a licensed social worker expressing an
opinion relating to the physical,
36 mental or emotional condition and needs of
the child. The court shall
37 consider any such testimony only if the
licensed professional providing
38 such testimony is subject to
cross-examination.
39 (f) A termination
of parental rights under the Kansas code for care
40 of children shall not terminate the right
of the child to inherit from or
41 through the parent. Upon such termination,
all the rights of birth parents
42 to such child, including their right to
inherit from or through such child,
43 shall cease.
4
1 (g) If,
after finding the parent unfit, the court determines a compel-
2 ling reason why it is not in the best
interests of the child to terminate
3 parental rights or upon agreement of
the parents, the court may award
4 permanent guardianship to an
individual providing care for the child, a
5 relative or other person with whom
the child has a close emotional at-
6 tachment. Prior to awarding permanent
guardianship, the court shall re-
7 ceive and consider an assessment as
provided in K.S.A. 59-2132 and
8 amendments thereto of any potential
permanent guardian. Upon appoint-
9 ment of a permanent guardian, the
court shall enter an order discharging
10 the child from the court's
jurisdiction.
11 (h) If a parent
is convicted of an offense as provided in subsection
12 (7) of K.S.A. 38-1585 and amendments
thereto or is adjudicated a juvenile
13 offender because of an act which if
committed by an adult would be an
14 offense as provided in subsection (7) of
K.S.A. 38-1585 and amendments
15 thereto, and if the victim was the other
parent of a child, the court may
16 disregard such convicted or adjudicated
parent's opinions or wishes in
17 regard to the placement of such child.
18 Sec.
5. K.S.A. 1999 Supp. 38-1585 is hereby amended to read as
19 follows: 38-1585. (a) It is presumed in the
manner provided in K.S.A. 60-
20 414 and amendments thereto that a parent is
unfit by reason of conduct
21 or condition which renders the parent
unable to fully care for a child, if
22 the state establishes by clear and
convincing evidence that:
23 (1) A parent has
previously been found to be an unfit parent in pro-
24 ceedings under K.S.A. 38-1581 et
seq. and amendments thereto, or com-
25 parable proceedings under the laws of
another state, or the federal
26 government;
27 (2) a parent has
twice before been convicted of a crime specified in
28 article 34, 35, or 36 of chapter 21 of the
Kansas Statutes Annotated, or
29 comparable offenses under the laws of
another state, the federal govern-
30 ment or any foreign government, or an
attempt or attempts to commit
31 such crimes and the victim was under the
age of 18 years;
32 (3) on two or
more prior occasions a child in the physical custody of
33 the parent has been adjudicated a child in
need of care as defined by
34 subsection (a)(3) of K.S.A. 38-1502 and
amendments thereto;
35 (4) the parent
has been convicted of causing the death of another
36 child or stepchild of the parent;
37 (5) the child has
been in an out-of-home placement, other than kin-
38 ship care, under court order for a
cumulative total period of one year or
39 longer and the parent has substantially
neglected or willfully refused to
40 carry out a reasonable plan, approved by
the court, directed toward re-
41 integration of the child into the parental
home;
42 (6)
(1) (A) the child has been in an
out-of-home placement, other
43 than kinship care, under court order for a
cumulative total period of two
5
1 years or longer; (2)
(B) the parent has failed to carry out a reasonable
2 plan, approved by the court, directed
toward reintegration of the child
3 into the parental home; and
(3) (C) there is a substantial probability
that
4 the parent will not carry out such
plan in the near future; or
5 (7) a
parent has been convicted of capital murder, K.S.A. 21-3439
6 and amendments thereto, murder in the
first degree, K.S.A. 21-3401 and
7 amendments thereto, murder in the
second degree, K.S.A. 21-3402 and
8 amendments thereto or voluntary
manslaughter, K.S.A. 21-3403 and
9 amendments thereto, or if a juvenile
has been adjudicated a juvenile of-
10 fender because of an act which if committed
by an adult would be an
11 offense as provided in this subsection, and
the victim of such murder was
12 the other parent of the
child.; or
13 (8) the parent
has been granted immunity from prosecution for aban-
14 donment of such child under subsection
(b) of K.S.A. 21-3604, and amend-
15 ments thereto.
16 (b) The burden of
proof is on the parent to rebut the presumption.
17 If a parent has been convicted of capital
murder, K.S.A. 21-3439 and
18 amendments thereto or murder in the first
degree, K.S.A. 21-3401 and
19 amendments thereto as provided in
subsection (a)(7), the burden of proof
20 is on the parent to rebut the presumption
by clear and convincing evi-
21 dence. In the absence of proof that the
parent is presently fit and able to
22 care for the child or that the parent will
be fit and able to care for the
23 child in the foreseeable future, the court
shall now terminate the parents
24 parental rights in proceedings pursuant to
K.S.A. 38-1581 et seq. and
25 amendments thereto.
26 Sec. 6. K.S.A. 21-3604 and
38-1529 and K.S.A. 1999 Supp. 38-1583
27 and 38-1585 are hereby repealed.
28 Sec. 7. This act shall
take effect and be in force from and after its
29 publication in the Kansas register.