SESSION OF 2023
SUPPLEMENTAL NOTE ON SENATE SUBSTITUTE FOR
HOUSE BILL NO. 2070
As Recommended by Senate Committee on
Judiciary
Brief*
Senate Sub. for HB 2070 would enact the Child
Advocate Act (Act) on and after July 1, 2023, which would
establish the Office of the Child Advocate (OCA) as an
independent state agency. The bill would also amend law in
the Revised Kansas Code for Care of Children (CINC Code)
and the Revised Kansas Juvenile Justice Code (Juvenile
Code) concerning various related provisions.
[Note: The amendments to current law would be
effective upon publication in the Kansas Register unless a
different effective date is specified.]
Child Advocate Act (Sections 1–6)
The bill would state the Act’s provisions would be
effective on and after July 1, 2023.
Definitions
The Act would define the following terms:
●“Office” would mean the OCA and would include
the Child Advocate and staff;
●“Child” would mean an individual less than 18
years of age at the time such individual:
____________________
*Supplemental notes are prepared by the Legislative Research
Department and do not express legislative intent. The supplemental
note and fiscal note for this bill may be accessed on the Internet at
http://www.kslegislature.org ○Is in the custody of the Secretary for Children
and Families (Secretary);
○Was previously in the custody of the
Secretary;
○Is alleged to be a child in need of care; or
○Is or was receiving services from the
Department for Children and Families (DCF)
or any contracting agency, for whom DCF has
an open case file, or who has been, or whose
siblings, parents, or other caretakers have
been the subject of a report of abuse or
neglect to DCF within the previous five years.
Establishment of Office of the Child Advocate; Selection and
Appointment of Child Advocate
The Child Advocate would be established as the
independent head of the OCA, and the bill would specify
nothing in the Act would be construed to permit any
governmental agency to exercise control or supervision over
the Child Advocate or the OCA. The Child Advocate would be
appointed by the Governor and subject to confirmation by the
Senate.
The bill would require the Child Advocate to be selected
without regard to political affiliation and on the basis of
integrity and capacity for effectively carrying out the duties of
the OCA. The bill would prohibit any former or current
executive or manager of any program or agency or
contracting agency subject to oversight by the OCA from
being appointed as Child Advocate within 12 months of such
individual’s period of service within the program or agency.
The Child Advocate would serve a term of five years or
until a successor has been appointed and confirmed. The
Child Advocate would be in the unclassified service and
receive an annual salary equal to that of a district court judge.
2- 2070 The bill would require the Child Advocate exercise
independent judgment in carrying out the duties of the office.
The bill would specify the Child Advocate would have
general managerial control over the OCA and would be
required to establish the organizational structure of the OCA
as appropriate to carry out the responsibilities and functions
of the OCA.
The bill would provide that all budgeting, purchasing,
personnel, and related administrative functions of the OCA
would be administered under the direction and supervision of
the Child Advocate.
Within the limits of appropriations, the Child Advocate
could hire unclassified employees necessary to administer
the OCA who would serve at the pleasure of the Child
Advocate. The Child Advocate could obtain the services of
other professionals necessary to independently perform the
functions of the OCA, including obtaining legal services from
the Attorney General as provided elsewhere in statute. The
Child Advocate could enter into agreements with the
Secretary of Administration for the provision of personnel,
facility management, and information technology services.
Purpose of the Child Advocate
The bill would identify the purpose of the Child Advocate
is to ensure that children and families receive adequate
coordination of child welfare services for child maltreatment
prevention, protection, and care through services offered by:
●DCF or its contracting agencies;
●Kansas Department for Aging and Disability
Services (KDADS);
●Kansas Department of Corrections (KDOC);
3- 2070 ●Kansas Department of Health and Environment
(KDHE); and
●Juvenile courts.
Duties and Powers of the OCA and the Child Advocate
The bill would require the OCA to:
●Receive and resolve complaints that allege that
DCF or DCF’s contracting agencies by act or
omission have:
○Provided inadequate protection or care of
children;
○Failed to protect the physical or mental health,
safety, or welfare of any child; or
○Failed to follow established laws, rules, and
regulations or written policies.
The bill would require the Child Advocate to:
●Establish and implement procedures for receiving,
processing, responding to, and resolving
complaints made by or on behalf of children that
adversely or may adversely affect the health,
safety, and welfare of such children that relate to:
○State agencies;
○Service providers, including contractors and
subcontractors; and
○Any juvenile court.
●Provide DCF with a notice of availability that
describes the OCA and how to contact the OCA,
which DCF would be required to prominently
display in DCF offices and facilities receiving public
moneys for the care and placement of children;
4- 2070 ●Maintain a public website;
●Publicize and notify individuals of the OCA’s
services, purpose, and contact information;
●Compile, collect, and preserve a record of
complaints received and processed, which may
reveal concerning patterns to be addressed; and
●Recommend changes to policies, procedures, or
adopted or proposed rules and regulations of any
state or local agency that adversely affect or may
adversely affect the health, safety, and welfare of
any child.
OCA Investigations
The OCA would be required to independently investigate
complaints received if the OCA reasonably believes the
complaint’s allegations may be independently verified through
an investigation. In conducting such investigations, the OCA
would be required to:
●Establish and implement procedures for
investigating complaints;
●Have access to the following information:
○Names and physical locations of all children in
protective services, treatment, or other
program under the jurisdiction of DCF or
KDOC;
○All written reports of child abuse and neglect;
○All records of any public or private agency or
institution having custody of the child under
court order, providing education, medical or
mental health services to the child, or any
placement or potential placement provider
determined by the Secretary; and
5- 2070 ○All current records required to be maintained
as provided in the CINC Code and the
Juvenile Code;
●Communicate privately with:
○Any child or child’s siblings, after consultation
with treatment professionals and service
providers; and
○Anyone working the child, including the family,
relatives, employees of DCF, employees of
KDOC, and other persons or entities providing
treatment and services;
●Have access to, including the right to inspect and
copy, relevant child records held by:
○Law enforcement agencies;
○The clerk of any Kansas court;
○Juvenile officers;
○Public or private institutions; and
○Other agencies with whom a particular child
has been voluntarily or otherwise placed for
care or has received treatment within Kansas
or in another state;
●Work in conjunction with:
○Juvenile intake and assessment workers;
○Juvenile community corrections officers;
○Guardians ad litem; and
○Court-appointed special advocates; and
●Subpoena materials or witnesses, take statements
under oath, serve interrogatories, and obtain
judicial enforcement of compulsory processes.
6- 2070 Complaint Resolution by the OCA
The bill would require the OCA to resolve complaints by:
●Establishing and implementing procedures to
resolve the complaints;
●Independently reviewing the complaint and
accompanying documents;
●Recommending the appropriate agency or
department do one of the following:
○Review the matter further;
○Modify or cancel the actions;
○Change a rule, order, or internal policy;
○Explain the action further; or
○Within a reasonable amount of time, provide
the OCA information as to the implementation
or not of the recommendation by the
appropriate agency or department;
●Submitting any findings and recommendations to
DCF or KDOC as appropriate;
●Making referrals of child abuse or neglect to law
enforcement agencies if there is reason to believe
a criminal investigation is warranted and notifying
the Abuse, Neglect, and Exploitation Unit of the
Office of the Attorney General; and
●Producing reports of findings of fact or conclusions
of law regarding any complaint, and if appropriate,
the Attorney General could file such reports in any
pending CINC case on behalf of the OCA.
7- 2070 Child Welfare System Oversight Assistance
The bill would outline the actions the OCA may take to
assist the Legislature in oversight of the child welfare system.
The OCA could:
●Meet and discuss any matter in the scope of the
Act with the Joint Committee on Child Welfare
System Oversight in regular or executive session
under applicable duties of confidentiality;
●Review relevant statutes, rules and regulations,
policies and procedures for the health, safety, and
welfare of children;
●Evaluate the effectiveness of and recommend
changes to procedures for reports of child abuse
and neglect for child protective services, including,
but not limited to, the involvement of DCF, service
providers, guardians ad litem, court appointed
special advocates, and law enforcement agencies;
and
●Review and recommend changes to law
enforcement investigative procedures for and
emergency responses to reports of abuse and
neglect.
Annual Report
The bill would require the Child Advocate, on or before
the beginning of each regular Legislative Session, to submit
an annual report to the Governor, Chief Justice of the
Supreme Court and the Office of Judicial Administration,
Secretary for Children and Families, President of the Senate,
Speaker of the House of Representatives, Joint Committee
on Child Welfare Oversight, House Committee on Child
Welfare and Foster Care (or successor committee), Senate
Committee on Public Health and Welfare (or successor
committee), and any other relevant legislative committee.
8- 2070 The reports would be required to include the following
items:
●The number of complaints received by the OCA;
●The disposition of the complaints;
●The number of children involved in such
complaints;
●The outcome of such complaints;
●Recommendations for changes in statute, policies,
procedures, or rules and regulations;
●The OCA’s proposed annual budget; and
●Any other topics the OCA deems appropriate to
properly perform the powers, duties, and functions
provided by the Act.
Cooperation by State Agencies With the OCA
The bill would require DCF and its contracting agencies,
KDOC, juvenile intake and assessment workers, juvenile
community corrections officers, guardians ad litem, and court
appointed special advocates to cooperate with the OCA and:
●Work diligently, promptly, and in good faith to assist
the OCA in performing its powers, duties, and
functions provided by the Act;
●Provide full access to and production of records
and information requested by the OCA. Such
access would not be a violation of confidentiality if
provided and produced in good faith for the
purposes of the Act;
9- 2070 ●Require employees and contractors of such
department or agency to comply with requests from
the OCA;
●Allow employees of such department or agency to
file a complaint with or provide records or
information to the OCA without supervisory
approval;
●Not willfully interfere with or obstruct any of the
OCA’s duties; and
●Promptly meet and consult with the OCA upon
request.
Confidentiality
The bill would state the OCA would be subject to the
same state and federal statutory disclosure restrictions and
confidentiality requirements applicable to the state agency or
other entity providing information to the OCA, with regard to
the information received from the agency or other entity.
Any files maintained by the OCA would be confidential
and disclosed only at the discretion of the Child Advocate,
except that the identity of any complainant or child would not
be disclosed by the OCA unless the complainant or child, or
either’s legal representative, consents in writing to such
disclosure; or such disclosure is required by court order.
The bill would provide that any statement or
communication made by the OCA relevant to a complaint
being investigated by the OCA and any complaint or
information made or provided in good faith by any person
would be absolutely privileged, and the person would be
immune from suit.
The bill would prohibit a representative of the OCA
conducting or participating in any investigation of a complaint
from knowingly disclosing to any person other than the OCA,
10- 2070 or a person authorized by the OCA, the name of any witness
examined or any information obtained or given during such
investigation. Such disclosure would be a class A nonperson
misdemeanor.
The bill would require the OCA, after conducting or
participating in any investigation of a complaint, to disclose
the final result of the investigation with the consent of the
child or the child’s legal representative.
The OCA could not be required to testify in any court
with respect to matters held to be confidential in this section,
except as the court may deem necessary to enforce the
provisions of the Act or when otherwise required by court
order.
The bill would state the provisions providing for
confidentiality of records would expire on July 1, 2028, unless
the Legislature reviews and reenacts the provisions, pursuant
to the Kansas Open Records Act (KORA), prior to July 1,
2028.
Retaliation; Prohibited Actions
Any person who knowingly takes “retaliatory action,” as
defined in the bill, against a child, DCF employee, an
employee of contracting agencies of DCF, or KDOC
employee for any communication made or information given
to the OCA would be guilty of a class A nonperson
misdemeanor, except when an employee discloses:
●Information the employee knows to be false or
information without regard for the truth or falsity of
the information; or
●Without lawful authority, information that is
confidential as provided by any other provision of
law.
11- 2070 Employees of the OCA would be prohibited from
knowingly disclosing false information or disclosing
confidential information without legal authority.
Amendments to CINC Code (Sections 7–14)
Jurisdiction of ICWA (Section 7)
The bill would amend law governing jurisdiction of
proceedings under the CINC Code to specify if orders
granting custody for adoption involve a child who is Indian,
the federal Indian Child Welfare Act (ICWA) would apply
instead of the CINC Code.
Access to Information (Section 8–10)
The bill would amend statutes to add the OCA to the list
of entities with access to official files, social files, information
from agency records, information in law enforcement records,
records of law enforcement officers and agencies, records of
municipal courts, and records, reports, and information
obtained as part of the juvenile intake and assessment
process for juveniles. [Note: Such access would be subject to
continuing limits based on relevancy and other factors
contained in these statutes.]
The bill also would make technical amendments to these
statues to ensure consistency in statutory phrasing and
update a reference to the Commissioner of Juvenile Justice
to reflect agency reorganization.
Custody Orders For Adoption Proceedings (Section 11)
The bill would amend law governing orders granting
custody for adoption when parental rights have been
terminated, as follows. The bill would specify the provisions in
this section would be required to be construed and applied
12- 2070 retroactively to all proceedings pending before a court on the
effective date of the bill.
Orders granting custody to proposed adoptive
parents. In an order granting custody to proposed adoptive
parents, the bill would require the court to be guided by the
best interests of the child. The bill would also specify in this
type of order, any prior custody order would cease upon the
granting of custody of the child to the proposed adoptive
parents.
Orders granting custody to the Secretary or
corporation. In an order granting custody to the Secretary or
to a corporation organized to care for and surrender children
for adoption as specified by CINC Code, the bill would specify
that the Secretary or corporation must be guided by the best
interests of the child when making adoption decisions.
Adoption selection preference. The bill would further
specify when a child is placed in the custody of the Secretary
for the purposes of adoption when parental rights have been
terminated or relinquished, the Secretary would be required
to give preference, subject to the best interests of the child, in
the following manner:
●If a child has been in the custody of the Secretary
for less than one cumulative year:
○First to a relative;
○Second to a person with whom the child has
close and healthy attachments;
●If a child has been in the custody of the Secretary
for one cumulative year or more:
○To a placement that maintains the child’s
close and healthy attachments.
The bill would allow a foster parent who is not selected
by the Secretary for the adoptive placement, but who meets
the criteria above, to request direct placement of the child by
13- 2070 the court and appeal such decision to the Kansas Court of
Appeals.
The bill would require the Secretary to consider a foster
parent as a prospective adoptive parent when:
●The child has lived more than half of the child’s
lifetime with the foster parent;
●The child has lived more than two years with the
foster parent; or
●The Secretary otherwise determines it is in the best
interests of the child.
Adoption selection policies, training, and data
collection. To implement the provisions of the bill, the
Secretary would be required to:
●Develop and enforce adoption selection policies
that comply with the bill and ensure caregiver and
sibling attachments are appropriately considered;
●Review and update policies to reduce time to
adoption permanency;
●Apply adoption selection policies consistently;
●Develop and provide training for contractors and
employees;
●Collect data regarding best interest staffing
conducted pursuant to the statute, including, but
not limited to, data on the number of:
○Prospective adoptive parents who request the
Secretary to reconsider an initial adoptive
placement decision;
○Initial adoptive placement decisions that the
Secretary overturns after reconsidering the
initial adoptive placement decision; and
14- 2070 ○Prospective adoptive parents who request the
court to review the Secretary’s adoptive
placement decision.
Annual report to the Legislature. The bill would
require the Secretary to prepare a report on compliance with
the provisions above, to be submitted to the Legislature on or
before the first day of the 2024 Legislative Session and each
session thereafter.
Appeals (Section 12)
The bill would amend law governing orders that may be
appealed under the CINC Code to add any order of a
placement of a child, including but not limited to, an order
entered after termination of parental rights. The bill would
state the amendments made to this section are procedural in
nature and would be required to be applied retroactively to
any order issued on or after February 1, 2022.
Amendments to Juvenile Justice Code (Sections 13–14)
[Note: The bill would make the same changes with
respect to access to files in the Juvenile Justice Code as in
the CINC Code, described previously in Sections 8–10 of this
Supplemental Note.]
Background
The Senate Committee on Judiciary recommended a
substitute bill incorporating provisions originally contained in
Sub. for SB 232, as recommended by the Senate Committee
on Judiciary. [Note: Sub. for SB 232 was received by the
House and subsequently referred to the House Committee
Child Welfare and Foster Care on March 1, 2023.]
HB 2070, as passed by the House, would have
expanded eligibility for certain offenders for the nonprison
chance of placement in a certified drug abuse treatment (SB
123) program. [Note: The provisions of HB 2070 were not
retained in the substitute bill but are contained in Senate Sub.
15- 2070 for HB 2010, as recommended by the Senate Committee on
Judiciary].
Sub. for SB 232
The bill was introduced by the Senate Committee on
Judiciary at the request of Senator Baumgardner.
Senate Committee on Judiciary
In the Senate Committee hearing on February 16, 2023,
Senator Masterson testified as a proponent of the bill, stating
that the bill would provide independent oversight to an
essential government function. Proponent testimony was also
provided by representatives of Kansas Appleseed and
Children’s Alliance of Kansas, who generally were in favor of
the establishment of an independent office of the Child
Advocate but offered some amendments to assist in
operations of the OCA.
The Senate Committee recommended a substitute bill
be passed and incorporated amendments to:
●Expand the definition of a child;
●Lengthen the term of the Child Advocate to five
years and to provide for a successor to be selected
prior to the incumbent vacating the position;
●Provide legal authority for OCA operations;
●Clarify the purpose of the OCA;
●Require the OCA to resolve complaints;
●Expand the complaints to be investigated to
include inadequate protection by the OCA;
●Enhance the procedures required of the OCA;
●Add reporting responsibilities of the OCA;
16- 2070 ●Expand the affected parties list who are protected
from retaliatory actions to include an employee of
DCF contracting agencies;
●Expand the disclosure of information
responsibilities of the OCA;
●Add clarification that the OCA is an independent
agency;
●Add orders granting custody for adoption to the
jurisdiction of ICWA;
●Add provisions regarding orders granting custody
for adoption proceedings; and
●Add an appeals process for a placement of a child.
Fiscal Information
Sub. for SB 232
According to the fiscal note prepared by the Division of
the Budget on the bill, as introduced, the Office of the
Attorney General states that its Abuse, Neglect, and
Exploitation (ANE) Unit would be required to file findings of
fact or conclusions of law regarding the complaints and assist
in investigations of child abuse. Because of these
requirements, the agency would require $887,556 from the
State General Fund for FY 2024 for 3.0 FTE attorney
positions, 3.0 FTE investigator positions, and 4.0 FTE
program consultant positions along with related operating
expenditures for the positions. Of the total, salary and
benefits would be $818,544 and operating expenditures
would be $69,012.
According to KDADS, enactment of the bill would require
the agency to have a dedicated staff to research, track down,
and timely respond to complaint inquiries received from the
OCA regarding children who have crossed over from DCF
17- 2070 into KDADS licensed facilities or have been placed by a court
into KDADS’ custody for care and treatment. The agency
estimates that starting in FY 2024 it would need 1.0 FTE
position for these purposes at a cost of $93,000 from the
State General Fund annually for salaries and wages,
including fringe benefits.
The Judicial Branch indicates that the bill could increase
the number of cases filed in district courts because it creates
a new crime, which would in turn increase the time spent by
judicial and nonjudicial personnel in processing, researching,
and hearing cases. Since the crime carries a misdemeanor
penalty, there could also be more supervision of offenders by
court services officers. In addition, the bill could result in the
collection of docket fees, fines, and supervision fees that
would be deposited into the State General Fund.
According to the State Department of Education,
enactment of the bill would not have a fiscal effect on school
districts. The Kansas Bureau of Investigation, Kansas
Highway Patrol, DCF, and KDOC report that enactment of the
bill would have no fiscal effect on their agencies. The KDHE
indicates that enactment of the bill would have no direct effect
on the agency as any requests for data or records would be
handled from within existing resources.
Any fiscal effect associated with the bill is not reflected
in The FY 2024 Governor’s Budget Report.
According to the Kansas Association of Counties, the bill
could have a fiscal effect on counties depending on how often
county law enforcement and prosecutors would work with the
OCA, but a precise fiscal effect cannot be estimated.
The League of Kansas Municipalities indicates that
enactment of the bill could have a negligible fiscal effect on
Kansas cities.
Child Advocate Act; Office of the Child Advocate; Revised Kansas Code for Care of
Children; appeal; children and minors; parental rights termination; adoption
18- 2070