Session of 2023
HOUSE BILL No. 2189
By Representative Thomas
1-26
AN ACT concerning children and minors; relating to children in the
custody of the secretary for children and families; providing for an
extension or re-entry of custody for persons up to 21 years of age;
amending K.S.A. 38-2202 and 38-2203 and repealing the existing
sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 38-2202 is hereby amended to read as follows: 38-
2202. As used in the revised Kansas code for care of children, unless the
context otherwise indicates:
(a) "Abandon" or "abandonment" means to forsake, desert or, without
making appropriate provision for substitute care, cease providing care for
the child.
(b) "Adult correction facility" means any public or private facility,
secure or nonsecure, that is used for the lawful custody of accused or
convicted adult criminal offenders.
(c) "Aggravated circumstances" means the abandonment, torture,
chronic abuse, sexual abuse or chronic, life threatening life-threatening
neglect of a child.
(d) "Child in need of care" means a person less than 18 years of age
at the time of filing of the petition or issuance of an ex parte protective
custody order pursuant to K.S.A. 38-2242, and amendments thereto, who:
(1) Is without adequate parental care, control or subsistence and the
condition is not due solely to the lack of financial means of the child's
parents or other custodian;
(2) is without the care or control necessary for the child's physical,
mental or emotional health;
(3) has been physically, mentally or emotionally abused or neglected
or sexually abused;
(4) has been placed for care or adoption in violation of law;
(5) has been abandoned or does not have a known living parent;
(6) is not attending school as required by K.S.A. 72-3421 or 72-3120,
and amendments thereto;
(7) except in the case of a violation of K.S.A. 41-727, K.S.A. 74-
8810(j), K.S.A. or 79-3321(m) or (n), and amendments thereto, or K.S.A.
2022 Supp. 21-6301(a)(14), and amendments thereto, or, except as
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provided in paragraph (12), does an act which, when committed by a
person under 18 years of age, is prohibited by state law, city ordinance or
county resolution, but which is not prohibited when done by an adult;
(8) while less than 10 years of age, commits any act that, if done by
an adult, would constitute the commission of a felony or misdemeanor as
defined by K.S.A. 2022 Supp. 21-5102, and amendments thereto;
(9) is willfully and voluntarily absent from the child's home without
the consent of the child's parent or other custodian;
(10) is willfully and voluntarily absent at least a second time from a
court ordered or designated placement, or a placement pursuant to court
order, if the absence is without the consent of the person with whom the
child is placed or, if the child is placed in a facility, without the consent of
the person in charge of such facility or such person's designee;
(11) has been residing in the same residence with a sibling or another
person under 18 years of age, who has been physically, mentally or
emotionally abused or neglected, or sexually abused;
(12) while less than 10 years of age commits the offense defined in
K.S.A. 2022 Supp. 21-6301(a)(14), and amendments thereto;
(13) has had a permanent custodian appointed and the permanent
custodian is no longer able or willing to serve; or
(14) has been subjected to an act that would constitute human
trafficking or aggravated human trafficking, as defined by K.S.A. 2022
Supp. 21-5426, and amendments thereto, or commercial sexual
exploitation of a child, as defined by K.S.A. 2022 Supp. 21-6422, and
amendments thereto, or has committed an act which, if committed by an
adult, would constitute selling sexual relations, as defined by K.S.A. 2022
Supp. 21-6419, and amendments thereto.
(e) "Citizen review board" is a group of community volunteers
appointed by the court and whose duties are prescribed by K.S.A. 38-2207
and 38-2208, and amendments thereto.
(f) "Civil custody case" includes any case filed under chapter 23 of
the Kansas Statutes Annotated, and amendments thereto, the Kansas
family law code, article 11 of chapter 38 of the Kansas Statutes Annotated,
and amendments thereto, determination of parentage, article 21 of chapter
59 of the Kansas Statutes Annotated, and amendments thereto, adoption
and relinquishment act, or article 30 of chapter 59 of the Kansas Statutes
Annotated, and amendments thereto, guardians and conservators.
(g) "Court-appointed special advocate" means a responsible adult
other than an attorney guardian ad litem who is appointed by the court to
represent the best interests of a child, as provided in K.S.A. 38-2206, and
amendments thereto, in a proceeding pursuant to this code.
(h) "Custody" whether temporary, protective or legal, means the
status created by court order or statute that vests in a custodian, whether an
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individual or an agency, the right to physical possession of the child and
the right to determine placement of the child, subject to restrictions placed
by the court.
(i) "Extended out of home placement" means a child has been in the
custody of the secretary and placed with neither parent for 15 of the most
recent 22 months beginning 60 days after the date at which a child in the
custody of the secretary was removed from the child's home.
(j) "Educational institution" means all schools at the elementary and
secondary levels.
(k) "Educator" means any administrator, teacher or other professional
or paraprofessional employee of an educational institution who has
exposure to a pupil specified in K.S.A. 72-6143(a), and amendments
thereto.
(l) "Harm" means physical or psychological injury or damage.
(m) "Interested party" means the grandparent of the child, a person
with whom the child has been living for a significant period of time when
the child in need of care petition is filed, and any person made an
interested party by the court pursuant to K.S.A. 38-2241, and amendments
thereto, or Indian tribe seeking to intervene that is not a party.
(n) "Jail" means:
(1) An adult jail or lockup; or
(2) a facility in the same building or on the same grounds as an adult
jail or lockup, unless the facility meets all applicable standards and
licensure requirements under law and there is: (A) Total separation of the
juvenile and adult facility spatial areas such that there could be no
haphazard or accidental contact between juvenile and adult residents in the
respective facilities; (B) total separation in all juvenile and adult program
activities within the facilities, including recreation, education, counseling,
health care, dining, sleeping and general living activities; and (C) separate
juvenile and adult staff, including management, security staff and direct
care staff such as recreational, educational and counseling.
(o) "Juvenile detention facility" means any secure public or private
facility used for the lawful custody of accused or adjudicated juvenile
offenders that must not be a jail.
(p) "Juvenile intake and assessment worker" means a responsible
adult authorized to perform intake and assessment services as part of the
intake and assessment system established pursuant to K.S.A. 75-7023, and
amendments thereto.
(q) "Kinship care placement" means the placement of a child in the
home of an adult with whom the child or the child's parent already has
close emotional ties.
(r) "Law enforcement officer" means any person who by virtue of
office or public employment is vested by law with a duty to maintain
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public order or to make arrests for crimes, whether that duty extends to all
crimes or is limited to specific crimes.
(s) "Multidisciplinary team" means a group of persons, appointed by
the court under K.S.A. 38-2228, and amendments thereto, that has
knowledge of the circumstances of a child in need of care.
(t) "Neglect" means acts or omissions by a parent, guardian or person
responsible for the care of a child resulting in harm to a child, or
presenting a likelihood of harm, and the acts or omissions are not due
solely to the lack of financial means of the child's parents or other
custodian. Neglect may include, but shall not be limited to:
(1) Failure to provide the child with food, clothing or shelter
necessary to sustain the life or health of the child;
(2) failure to provide adequate supervision of a child or to remove a
child from a situation that requires judgment or actions beyond the child's
level of maturity, physical condition or mental abilities and that results in
bodily injury or a likelihood of harm to the child; or
(3) failure to use resources available to treat a diagnosed medical
condition if such treatment will make a child substantially more
comfortable, reduce pain and suffering, or correct or substantially diminish
a crippling condition from worsening. A parent legitimately practicing
religious beliefs who does not provide specified medical treatment for a
child because of religious beliefs shall, not for that reason, be considered a
negligent parent; however, this exception shall not preclude a court from
entering an order pursuant to K.S.A. 38-2217(a)(2), and amendments
thereto.
(u) "Non-minor dependent" means an individual who is least 18
years of age but less than 21 years of age and, except for the age
requirement, meets the definition of a child in need of care in subsection
(d).
(v) "Parent" when used in relation to a child or children, includes a
guardian and every person who is by law liable to maintain, care for or
support the child.
(v)(w) "Party" means the state, the petitioner, the child, any parent of
the child and an Indian child's tribe intervening pursuant to the Indian
child welfare act.
(w)(x) "Permanency goal" means the outcome of the permanency
planning process, which may be reintegration, adoption, appointment of a
permanent custodian or another planned permanent living arrangement.
(x)(y) "Permanent custodian" means a judicially approved permanent
guardian of a child pursuant to K.S.A. 38-2272, and amendments thereto.
(y)(z) "Physical, mental or emotional abuse" means the infliction of
physical, mental or emotional harm or the causing of a deterioration of a
child and may include, but shall not be limited to, maltreatment or
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exploiting a child to the extent that the child's health or emotional well-
being is endangered.
(z)(aa) "Placement" means the designation by the individual or
agency having custody of where and with whom the child will live.
(aa)(bb) "Qualified residential treatment program" means a program
designated by the secretary for children and families as a qualified
residential treatment program pursuant to federal law.
(bb)(cc) "Reasonable and prudent parenting standard" means the
standard characterized by careful and sensible parental decisions that
maintain the health, safety and best interests of a child while at the same
time encouraging the emotional and developmental growth of the child,
that a caregiver shall use when determining whether to allow a child in
foster care under the responsibility of the state to participate in
extracurricular, enrichment, cultural and social activities.
(cc)(dd) "Relative" means a person related by blood, marriage or
adoption.
(dd)(ee) "Runaway" means a child who is willfully and voluntarily
absent from the child's home without the consent of the child's parent or
other custodian.
(ee)(ff) "Secretary" means the secretary for children and families or
the secretary's designee.
(ff)(gg) "Secure facility" means a facility, other than a staff secure
facility or juvenile detention facility, that is operated or structured so as to
ensure that all entrances and exits from the facility are under the exclusive
control of the staff of the facility, whether or not the person being detained
has freedom of movement within the perimeters of the facility, or that
relies on locked rooms and buildings, fences or physical restraint in order
to control behavior of its residents. No secure facility shall be in a city or
county jail.
(gg)(hh) "Sexual abuse" means any contact or interaction with a child
in which the child is being used for the sexual stimulation of the
perpetrator, the child or another person. Sexual abuse shall include, but is
not limited to, allowing, permitting or encouraging a child to:
(1) Be photographed, filmed or depicted in pornographic material; or
(2) be subjected to aggravated human trafficking, as defined in
K.S.A. 2022 Supp. 21-5426(b), and amendments thereto, if committed in
whole or in part for the purpose of the sexual gratification of the offender
or another, or be subjected to an act that would constitute conduct
proscribed by article 55 of chapter 21 of the Kansas Statutes Annotated or
K.S.A. 2022 Supp. 21-6419 or 21-6422, and amendments thereto.
(hh)(ii) "Shelter facility" means any public or private facility or
home, other than a juvenile detention facility or staff secure facility, that
may be used in accordance with this code for the purpose of providing
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either temporary placement for children in need of care prior to the
issuance of a dispositional order or longer term care under a dispositional
order.
(ii)(jj) "Staff secure facility" means a facility described in K.S.A. 65-
535, and amendments thereto: (1) That does not include construction
features designed to physically restrict the movements and activities of
juvenile residents who are placed therein; (2) that may establish reasonable
rules restricting entrance to and egress from the facility; and (3) in which
the movements and activities of individual juvenile residents may, for
treatment purposes, be restricted or subject to control through the use of
intensive staff supervision. No staff secure facility shall be in a city or
county jail.
(jj)(kk) "Transition plan" means, when used in relation to a youth in
the custody of the secretary, an individualized strategy for the provision of
medical, mental health, education, employment and housing supports as
needed for the adult and, if applicable, for any minor child of the adult, to
live independently and specifically provides for the supports and any
services for which an adult with a disability is eligible including, but not
limited to, funding for home and community based services waivers.
(kk)(ll) "Youth residential facility" means any home, foster home or
structure that provides 24-hour-a-day care for children and that is licensed
pursuant to article 5 of chapter 65 of the Kansas Statutes Annotated, and
amendments thereto.
Sec. 2. K.S.A. 38-2203 is hereby amended to read as follows: 38-
2203. (a) Proceedings concerning any child who may be a child in need of
care shall be governed by this code, except in those instances when the
court knows or has reason to know that an Indian child is involved in the
proceeding, in which case, the Indian child welfare act of 1978, 25 U.S.C.
§ 1901 et seq., applies. The Indian child welfare act may apply to: The
filing to initiate a child in need of care proceeding, K.S.A. 38-2234, and
amendments thereto; ex parte custody orders, K.S.A. 38-2242, and
amendments thereto; temporary custody hearing, K.S.A. 38-2243, and
amendments thereto; adjudication, K.S.A. 38-2247, and amendments
thereto; burden of proof, K.S.A. 38-2250, and amendments thereto;
disposition, K.S.A. 38-2255, and amendments thereto; permanency
hearings, K.S.A. 38-2264, and amendments thereto; termination of
parental rights, K.S.A. 38-2267, 38-2268 and 38-2269, and amendments
thereto; establishment of permanent custodianship, K.S.A. 38-2268 and
38-2272, and amendments thereto; the placement of a child in any foster,
pre-adoptive and adoptive home and the placement of a child in a
guardianship arrangement under article 30 of chapter 59 of the Kansas
Statutes Annotated, and amendments thereto.
(b) Subject to the uniform child custody jurisdiction and enforcement
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act, K.S.A. 2022 Supp. 23-37,101 through 23-37,405, and amendments
thereto, the district court shall have original jurisdiction of proceedings
pursuant to this code.
(c) (1) The court acquires jurisdiction over a child by the filing of a
petition pursuant to this code or upon issuance of an ex parte order
pursuant to K.S.A. 38-2242, and amendments thereto. Except as provided
in paragraphs (3) and (4), when the court acquires jurisdiction over a child
in need of care, jurisdiction may continue until the child has:
(1)(A) Become 18 years of age, or until June 1 of the school year
during which the child became 18 years of age if the child is still attending
high school unless there is no court approved transition plan, in which
event jurisdiction may continue until a transition plan is approved by the
court or until the child reaches the age of 21;
(2)(B) been adopted; or
(3)(C) been discharged by the court.
(2) Any child 18 years of age or over may request, in writing to the
court, that the jurisdiction of the court cease. The court shall give notice of
the request to all parties and interested parties and 30 days after receipt of
the request, jurisdiction will cease.
(3) Upon written request by the child to the court, the court shall not
issue an order terminating jurisdiction over such child:
(A) Before June 1 of the school year during which the child becomes
18 years of age if the child is in an out-of-home placement, is still
attending high school and has not completed a high school education; or
(B) who is a non-minor dependent in the custody of the secretary
while in out-of-home placement and is transitioning to adulthood.
(4) (A) Such non-minor dependent shall participate in case planning,
attend school or work and make efforts toward independence as
determined by the secretary and receive independent living services from
the independent living program administered by the secretary. If such non-
minor dependent fails to comply with the provisions of this paragraph, the
secretary may petition the court to terminate jurisdiction.
(B) The court shall not have jurisdiction over such non-minor
dependent after such non-minor dependent either been absent from
placement for 30 calendar days or attains 21 years of age.
(d) When it is no longer appropriate for the court to exercise
jurisdiction over a child pursuant to subsection (c), the court, upon its own
motion or the motion of a party or interested party at a hearing or upon
agreement of all parties or interested parties, shall enter an order
discharging the child. Except upon request of the child pursuant to
subsection (c), the court shall not enter an order discharging a child until
June 1 of the school year during which the child becomes 18 years of age
if the child is in an out-of-home placement, is still attending high school
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and has not completed the child's high school education.
(e) When a petition is filed under this code, a person who is alleged to
be under 18 years of age shall be presumed to be under that age for the
purposes of this code, unless the contrary is proved.
(f) A court's order issued in a proceeding pursuant to this code, shall
take precedence over such orders in a civil custody case, a proceeding
under article 31 of chapter 60 of the Kansas Statutes Annotated, and
amendments thereto, protection from abuse act, or a comparable case in
another jurisdiction, except as provided by K.S.A. 2022 Supp. 23-37,101
through 23-37,405, and amendments thereto, uniform child custody
jurisdiction and enforcement act.
Sec. 3. K.S.A. 38-2202 and 38-2203 are hereby repealed.
Sec. 4. This act shall take effect and be in force from and after its
publication in the statute book.
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