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Kansas House Bill HB2189

Kansas 2023-2024 Regular Session

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11 Session of 2023
22 HOUSE BILL No. 2189
33 By Representative Thomas
44 1-26
55 AN ACT concerning children and minors; relating to children in the
66 custody of the secretary for children and families; providing for an
77 extension or re-entry of custody for persons up to 21 years of age;
88 amending K.S.A. 38-2202 and 38-2203 and repealing the existing
99 sections.
1010 Be it enacted by the Legislature of the State of Kansas:
1111 Section 1. K.S.A. 38-2202 is hereby amended to read as follows: 38-
1212 2202. As used in the revised Kansas code for care of children, unless the
1313 context otherwise indicates:
1414 (a) "Abandon" or "abandonment" means to forsake, desert or, without
1515 making appropriate provision for substitute care, cease providing care for
1616 the child.
1717 (b) "Adult correction facility" means any public or private facility,
1818 secure or nonsecure, that is used for the lawful custody of accused or
1919 convicted adult criminal offenders.
2020 (c) "Aggravated circumstances" means the abandonment, torture,
2121 chronic abuse, sexual abuse or chronic, life threatening life-threatening
2222 neglect of a child.
2323 (d) "Child in need of care" means a person less than 18 years of age
2424 at the time of filing of the petition or issuance of an ex parte protective
2525 custody order pursuant to K.S.A. 38-2242, and amendments thereto, who:
2626 (1) Is without adequate parental care, control or subsistence and the
2727 condition is not due solely to the lack of financial means of the child's
2828 parents or other custodian;
2929 (2) is without the care or control necessary for the child's physical,
3030 mental or emotional health;
3131 (3) has been physically, mentally or emotionally abused or neglected
3232 or sexually abused;
3333 (4) has been placed for care or adoption in violation of law;
3434 (5) has been abandoned or does not have a known living parent;
3535 (6) is not attending school as required by K.S.A. 72-3421 or 72-3120,
3636 and amendments thereto;
3737 (7) except in the case of a violation of K.S.A. 41-727, K.S.A. 74-
3838 8810(j), K.S.A. or 79-3321(m) or (n), and amendments thereto, or K.S.A.
3939 2022 Supp. 21-6301(a)(14), and amendments thereto, or, except as
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7676 provided in paragraph (12), does an act which, when committed by a
7777 person under 18 years of age, is prohibited by state law, city ordinance or
7878 county resolution, but which is not prohibited when done by an adult;
7979 (8) while less than 10 years of age, commits any act that, if done by
8080 an adult, would constitute the commission of a felony or misdemeanor as
8181 defined by K.S.A. 2022 Supp. 21-5102, and amendments thereto;
8282 (9) is willfully and voluntarily absent from the child's home without
8383 the consent of the child's parent or other custodian;
8484 (10) is willfully and voluntarily absent at least a second time from a
8585 court ordered or designated placement, or a placement pursuant to court
8686 order, if the absence is without the consent of the person with whom the
8787 child is placed or, if the child is placed in a facility, without the consent of
8888 the person in charge of such facility or such person's designee;
8989 (11) has been residing in the same residence with a sibling or another
9090 person under 18 years of age, who has been physically, mentally or
9191 emotionally abused or neglected, or sexually abused;
9292 (12) while less than 10 years of age commits the offense defined in
9393 K.S.A. 2022 Supp. 21-6301(a)(14), and amendments thereto;
9494 (13) has had a permanent custodian appointed and the permanent
9595 custodian is no longer able or willing to serve; or
9696 (14) has been subjected to an act that would constitute human
9797 trafficking or aggravated human trafficking, as defined by K.S.A. 2022
9898 Supp. 21-5426, and amendments thereto, or commercial sexual
9999 exploitation of a child, as defined by K.S.A. 2022 Supp. 21-6422, and
100100 amendments thereto, or has committed an act which, if committed by an
101101 adult, would constitute selling sexual relations, as defined by K.S.A. 2022
102102 Supp. 21-6419, and amendments thereto.
103103 (e) "Citizen review board" is a group of community volunteers
104104 appointed by the court and whose duties are prescribed by K.S.A. 38-2207
105105 and 38-2208, and amendments thereto.
106106 (f) "Civil custody case" includes any case filed under chapter 23 of
107107 the Kansas Statutes Annotated, and amendments thereto, the Kansas
108108 family law code, article 11 of chapter 38 of the Kansas Statutes Annotated,
109109 and amendments thereto, determination of parentage, article 21 of chapter
110110 59 of the Kansas Statutes Annotated, and amendments thereto, adoption
111111 and relinquishment act, or article 30 of chapter 59 of the Kansas Statutes
112112 Annotated, and amendments thereto, guardians and conservators.
113113 (g) "Court-appointed special advocate" means a responsible adult
114114 other than an attorney guardian ad litem who is appointed by the court to
115115 represent the best interests of a child, as provided in K.S.A. 38-2206, and
116116 amendments thereto, in a proceeding pursuant to this code.
117117 (h) "Custody" whether temporary, protective or legal, means the
118118 status created by court order or statute that vests in a custodian, whether an
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162162 individual or an agency, the right to physical possession of the child and
163163 the right to determine placement of the child, subject to restrictions placed
164164 by the court.
165165 (i) "Extended out of home placement" means a child has been in the
166166 custody of the secretary and placed with neither parent for 15 of the most
167167 recent 22 months beginning 60 days after the date at which a child in the
168168 custody of the secretary was removed from the child's home.
169169 (j) "Educational institution" means all schools at the elementary and
170170 secondary levels.
171171 (k) "Educator" means any administrator, teacher or other professional
172172 or paraprofessional employee of an educational institution who has
173173 exposure to a pupil specified in K.S.A. 72-6143(a), and amendments
174174 thereto.
175175 (l) "Harm" means physical or psychological injury or damage.
176176 (m) "Interested party" means the grandparent of the child, a person
177177 with whom the child has been living for a significant period of time when
178178 the child in need of care petition is filed, and any person made an
179179 interested party by the court pursuant to K.S.A. 38-2241, and amendments
180180 thereto, or Indian tribe seeking to intervene that is not a party.
181181 (n) "Jail" means:
182182 (1) An adult jail or lockup; or
183183 (2) a facility in the same building or on the same grounds as an adult
184184 jail or lockup, unless the facility meets all applicable standards and
185185 licensure requirements under law and there is: (A) Total separation of the
186186 juvenile and adult facility spatial areas such that there could be no
187187 haphazard or accidental contact between juvenile and adult residents in the
188188 respective facilities; (B) total separation in all juvenile and adult program
189189 activities within the facilities, including recreation, education, counseling,
190190 health care, dining, sleeping and general living activities; and (C) separate
191191 juvenile and adult staff, including management, security staff and direct
192192 care staff such as recreational, educational and counseling.
193193 (o) "Juvenile detention facility" means any secure public or private
194194 facility used for the lawful custody of accused or adjudicated juvenile
195195 offenders that must not be a jail.
196196 (p) "Juvenile intake and assessment worker" means a responsible
197197 adult authorized to perform intake and assessment services as part of the
198198 intake and assessment system established pursuant to K.S.A. 75-7023, and
199199 amendments thereto.
200200 (q) "Kinship care placement" means the placement of a child in the
201201 home of an adult with whom the child or the child's parent already has
202202 close emotional ties.
203203 (r) "Law enforcement officer" means any person who by virtue of
204204 office or public employment is vested by law with a duty to maintain
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248248 public order or to make arrests for crimes, whether that duty extends to all
249249 crimes or is limited to specific crimes.
250250 (s) "Multidisciplinary team" means a group of persons, appointed by
251251 the court under K.S.A. 38-2228, and amendments thereto, that has
252252 knowledge of the circumstances of a child in need of care.
253253 (t) "Neglect" means acts or omissions by a parent, guardian or person
254254 responsible for the care of a child resulting in harm to a child, or
255255 presenting a likelihood of harm, and the acts or omissions are not due
256256 solely to the lack of financial means of the child's parents or other
257257 custodian. Neglect may include, but shall not be limited to:
258258 (1) Failure to provide the child with food, clothing or shelter
259259 necessary to sustain the life or health of the child;
260260 (2) failure to provide adequate supervision of a child or to remove a
261261 child from a situation that requires judgment or actions beyond the child's
262262 level of maturity, physical condition or mental abilities and that results in
263263 bodily injury or a likelihood of harm to the child; or
264264 (3) failure to use resources available to treat a diagnosed medical
265265 condition if such treatment will make a child substantially more
266266 comfortable, reduce pain and suffering, or correct or substantially diminish
267267 a crippling condition from worsening. A parent legitimately practicing
268268 religious beliefs who does not provide specified medical treatment for a
269269 child because of religious beliefs shall, not for that reason, be considered a
270270 negligent parent; however, this exception shall not preclude a court from
271271 entering an order pursuant to K.S.A. 38-2217(a)(2), and amendments
272272 thereto.
273273 (u) "Non-minor dependent" means an individual who is least 18
274274 years of age but less than 21 years of age and, except for the age
275275 requirement, meets the definition of a child in need of care in subsection
276276 (d).
277277 (v) "Parent" when used in relation to a child or children, includes a
278278 guardian and every person who is by law liable to maintain, care for or
279279 support the child.
280280 (v)(w) "Party" means the state, the petitioner, the child, any parent of
281281 the child and an Indian child's tribe intervening pursuant to the Indian
282282 child welfare act.
283283 (w)(x) "Permanency goal" means the outcome of the permanency
284284 planning process, which may be reintegration, adoption, appointment of a
285285 permanent custodian or another planned permanent living arrangement.
286286 (x)(y) "Permanent custodian" means a judicially approved permanent
287287 guardian of a child pursuant to K.S.A. 38-2272, and amendments thereto.
288288 (y)(z) "Physical, mental or emotional abuse" means the infliction of
289289 physical, mental or emotional harm or the causing of a deterioration of a
290290 child and may include, but shall not be limited to, maltreatment or
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334334 exploiting a child to the extent that the child's health or emotional well-
335335 being is endangered.
336336 (z)(aa) "Placement" means the designation by the individual or
337337 agency having custody of where and with whom the child will live.
338338 (aa)(bb) "Qualified residential treatment program" means a program
339339 designated by the secretary for children and families as a qualified
340340 residential treatment program pursuant to federal law.
341341 (bb)(cc) "Reasonable and prudent parenting standard" means the
342342 standard characterized by careful and sensible parental decisions that
343343 maintain the health, safety and best interests of a child while at the same
344344 time encouraging the emotional and developmental growth of the child,
345345 that a caregiver shall use when determining whether to allow a child in
346346 foster care under the responsibility of the state to participate in
347347 extracurricular, enrichment, cultural and social activities.
348348 (cc)(dd) "Relative" means a person related by blood, marriage or
349349 adoption.
350350 (dd)(ee) "Runaway" means a child who is willfully and voluntarily
351351 absent from the child's home without the consent of the child's parent or
352352 other custodian.
353353 (ee)(ff) "Secretary" means the secretary for children and families or
354354 the secretary's designee.
355355 (ff)(gg) "Secure facility" means a facility, other than a staff secure
356356 facility or juvenile detention facility, that is operated or structured so as to
357357 ensure that all entrances and exits from the facility are under the exclusive
358358 control of the staff of the facility, whether or not the person being detained
359359 has freedom of movement within the perimeters of the facility, or that
360360 relies on locked rooms and buildings, fences or physical restraint in order
361361 to control behavior of its residents. No secure facility shall be in a city or
362362 county jail.
363363 (gg)(hh) "Sexual abuse" means any contact or interaction with a child
364364 in which the child is being used for the sexual stimulation of the
365365 perpetrator, the child or another person. Sexual abuse shall include, but is
366366 not limited to, allowing, permitting or encouraging a child to:
367367 (1) Be photographed, filmed or depicted in pornographic material; or
368368 (2) be subjected to aggravated human trafficking, as defined in
369369 K.S.A. 2022 Supp. 21-5426(b), and amendments thereto, if committed in
370370 whole or in part for the purpose of the sexual gratification of the offender
371371 or another, or be subjected to an act that would constitute conduct
372372 proscribed by article 55 of chapter 21 of the Kansas Statutes Annotated or
373373 K.S.A. 2022 Supp. 21-6419 or 21-6422, and amendments thereto.
374374 (hh)(ii) "Shelter facility" means any public or private facility or
375375 home, other than a juvenile detention facility or staff secure facility, that
376376 may be used in accordance with this code for the purpose of providing
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420420 either temporary placement for children in need of care prior to the
421421 issuance of a dispositional order or longer term care under a dispositional
422422 order.
423423 (ii)(jj) "Staff secure facility" means a facility described in K.S.A. 65-
424424 535, and amendments thereto: (1) That does not include construction
425425 features designed to physically restrict the movements and activities of
426426 juvenile residents who are placed therein; (2) that may establish reasonable
427427 rules restricting entrance to and egress from the facility; and (3) in which
428428 the movements and activities of individual juvenile residents may, for
429429 treatment purposes, be restricted or subject to control through the use of
430430 intensive staff supervision. No staff secure facility shall be in a city or
431431 county jail.
432432 (jj)(kk) "Transition plan" means, when used in relation to a youth in
433433 the custody of the secretary, an individualized strategy for the provision of
434434 medical, mental health, education, employment and housing supports as
435435 needed for the adult and, if applicable, for any minor child of the adult, to
436436 live independently and specifically provides for the supports and any
437437 services for which an adult with a disability is eligible including, but not
438438 limited to, funding for home and community based services waivers.
439439 (kk)(ll) "Youth residential facility" means any home, foster home or
440440 structure that provides 24-hour-a-day care for children and that is licensed
441441 pursuant to article 5 of chapter 65 of the Kansas Statutes Annotated, and
442442 amendments thereto.
443443 Sec. 2. K.S.A. 38-2203 is hereby amended to read as follows: 38-
444444 2203. (a) Proceedings concerning any child who may be a child in need of
445445 care shall be governed by this code, except in those instances when the
446446 court knows or has reason to know that an Indian child is involved in the
447447 proceeding, in which case, the Indian child welfare act of 1978, 25 U.S.C.
448448 § 1901 et seq., applies. The Indian child welfare act may apply to: The
449449 filing to initiate a child in need of care proceeding, K.S.A. 38-2234, and
450450 amendments thereto; ex parte custody orders, K.S.A. 38-2242, and
451451 amendments thereto; temporary custody hearing, K.S.A. 38-2243, and
452452 amendments thereto; adjudication, K.S.A. 38-2247, and amendments
453453 thereto; burden of proof, K.S.A. 38-2250, and amendments thereto;
454454 disposition, K.S.A. 38-2255, and amendments thereto; permanency
455455 hearings, K.S.A. 38-2264, and amendments thereto; termination of
456456 parental rights, K.S.A. 38-2267, 38-2268 and 38-2269, and amendments
457457 thereto; establishment of permanent custodianship, K.S.A. 38-2268 and
458458 38-2272, and amendments thereto; the placement of a child in any foster,
459459 pre-adoptive and adoptive home and the placement of a child in a
460460 guardianship arrangement under article 30 of chapter 59 of the Kansas
461461 Statutes Annotated, and amendments thereto.
462462 (b) Subject to the uniform child custody jurisdiction and enforcement
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506506 act, K.S.A. 2022 Supp. 23-37,101 through 23-37,405, and amendments
507507 thereto, the district court shall have original jurisdiction of proceedings
508508 pursuant to this code.
509509 (c) (1) The court acquires jurisdiction over a child by the filing of a
510510 petition pursuant to this code or upon issuance of an ex parte order
511511 pursuant to K.S.A. 38-2242, and amendments thereto. Except as provided
512512 in paragraphs (3) and (4), when the court acquires jurisdiction over a child
513513 in need of care, jurisdiction may continue until the child has:
514514 (1)(A) Become 18 years of age, or until June 1 of the school year
515515 during which the child became 18 years of age if the child is still attending
516516 high school unless there is no court approved transition plan, in which
517517 event jurisdiction may continue until a transition plan is approved by the
518518 court or until the child reaches the age of 21;
519519 (2)(B) been adopted; or
520520 (3)(C) been discharged by the court.
521521 (2) Any child 18 years of age or over may request, in writing to the
522522 court, that the jurisdiction of the court cease. The court shall give notice of
523523 the request to all parties and interested parties and 30 days after receipt of
524524 the request, jurisdiction will cease.
525525 (3)  Upon written request by the child to the court, the court shall not
526526 issue an order terminating jurisdiction over such child:
527527 (A) Before June 1 of the school year during which the child becomes
528528 18 years of age if the child is in an out-of-home placement, is still
529529 attending high school and has not completed a high school education; or
530530 (B) who is a non-minor dependent in the custody of the secretary
531531 while in out-of-home placement and is transitioning to adulthood.
532532 (4) (A) Such non-minor dependent shall participate in case planning,
533533 attend school or work and make efforts toward independence as
534534 determined by the secretary and receive independent living services from
535535 the independent living program administered by the secretary. If such non-
536536 minor dependent fails to comply with the provisions of this paragraph, the
537537 secretary may petition the court to terminate jurisdiction.
538538 (B) The court shall not have jurisdiction over such non-minor
539539 dependent after such non-minor dependent either been absent from
540540 placement for 30 calendar days or attains 21 years of age.
541541 (d) When it is no longer appropriate for the court to exercise
542542 jurisdiction over a child pursuant to subsection (c), the court, upon its own
543543 motion or the motion of a party or interested party at a hearing or upon
544544 agreement of all parties or interested parties, shall enter an order
545545 discharging the child. Except upon request of the child pursuant to
546546 subsection (c), the court shall not enter an order discharging a child until
547547 June 1 of the school year during which the child becomes 18 years of age
548548 if the child is in an out-of-home placement, is still attending high school
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592592 and has not completed the child's high school education.
593593 (e) When a petition is filed under this code, a person who is alleged to
594594 be under 18 years of age shall be presumed to be under that age for the
595595 purposes of this code, unless the contrary is proved.
596596 (f) A court's order issued in a proceeding pursuant to this code, shall
597597 take precedence over such orders in a civil custody case, a proceeding
598598 under article 31 of chapter 60 of the Kansas Statutes Annotated, and
599599 amendments thereto, protection from abuse act, or a comparable case in
600600 another jurisdiction, except as provided by K.S.A. 2022 Supp. 23-37,101
601601 through 23-37,405, and amendments thereto, uniform child custody
602602 jurisdiction and enforcement act.
603603 Sec. 3. K.S.A. 38-2202 and 38-2203 are hereby repealed.
604604 Sec. 4. This act shall take effect and be in force from and after its
605605 publication in the statute book.
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