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Kansas House Bill HB2369

Kansas 2023-2024 Regular Session

Kansas House Bill HB2369 Compare Versions

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11 Session of 2023
22 HOUSE BILL No. 2369
33 By Representative Haswood
44 2-8
55 AN ACT concerning children and minors; enacting the Kansas Indian
66 child welfare act; providing additional requirements for child custody
77 proceedings involving Indian children.
88 Be it enacted by the Legislature of the State of Kansas:
99 Section 1. (a) Sections 1 through 7, and amendments thereto, shall be
1010 known and may be cited as the Kansas Indian child welfare act.
1111 (b) The purpose of the Kansas Indian child welfare act is to
1212 implement the provisions of the federal Indian child welfare act of 1978,
1313 25 U.S.C. § 1901 et seq.
1414 (c) It is hereby declared the policy of the state to: (1) Recognize that
1515 Indian tribes and nations have a valid governmental interest in Indian
1616 children regardless of whether such children are in the physical or legal
1717 custody of an Indian parent or Indian custodian when state proceedings are
1818 initiated; and (2) cooperate fully with Indian tribes to ensure that the intent
1919 and provisions of the federal Indian child welfare act of 1978 are enforced.
2020 Sec. 2. (a) As used in the Kansas Indian child welfare act:
2121 (1) "Indian" means a person who is a member of an Indian tribe.
2222 (2) "Indian child" means any unmarried or unemancipated person
2323 who is 18 years of age or younger and is either:
2424 (A) A member of an Indian tribe; or
2525 (B) eligible for membership in an Indian tribe and the biological child
2626 of a member of an Indian tribe.
2727 (3) "Indian custodian" means any Indian person who has legal
2828 custody of an Indian child under tribal law or custom or under state law or
2929 to whom temporary physical care, custody and control has been transferred
3030 by the parent of such child.
3131 (4) "Indian tribe" means the same as defined in K.S.A. 50-6a07, and
3232 amendments thereto.
3333 (5) "Secretary" means the same as defined in K.S.A. 38-2202, and
3434 amendments thereto.
3535 Sec. 3. (a) The Kansas Indian child welfare act, in accordance with
3636 the federal Indian child welfare act of 1978, applies to all child custody
3737 proceedings involving an Indian child, except a child custody proceeding
3838 arising from:
3939 (1)  A divorce proceeding; or
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7676 (2) an adjudication pursuant to the revised Kansas juvenile justice
7777 code, K.S.A. 38-2301 et seq., and amendments thereto, unless there has
7878 been a request for termination of parental rights.
7979 (b) Except as provided in subsection (a), the Kansas Indian child
8080 welfare act applies to all voluntary and involuntary state child custody
8181 proceedings involving Indian children regardless of whether or not the
8282 children involved are in the physical or legal custody of an Indian parent
8383 or Indian custodian at the time state proceedings are initiated.
8484 (c) The determination of the Indian status of a child shall be made as
8585 soon as practicable to meet notice requirements pursuant to section 4, and
8686 amendments thereto.
8787 (d) The court shall determine the Indian status of a child when:
8888 (1) The court has been informed by an interested party, an officer of
8989 the court, a tribe, an Indian organization or a public or private agency that
9090 the child who is the subject of the proceeding is an Indian child;
9191 (2) the child who is the subject of the proceeding gives the court
9292 reason to believe that the child is an Indian child; or
9393 (3) the court has reason to believe the residence or domicile of the
9494 child who is the subject of the proceeding is a predominantly Indian
9595 community.
9696 (e) The court shall verify the Indian status of the child with the Indian
9797 tribe of which the child is alleged to be a member or the United States
9898 bureau of Indian affairs. The court shall accept a determination of
9999 membership by an Indian tribe as conclusive. If there is no such
100100 determination, the court shall accept the determination of membership by
101101 the United States bureau of Indian affairs as conclusive.
102102 Sec. 4. (a) In all child custody proceedings subject to the Kansas
103103 Indian child welfare act, including review hearings, the district attorney,
104104 county attorney or any other person initiating the proceeding shall send
105105 notice pursuant to subsection (b) to:
106106 (1) The parent or to the Indian custodian, if any;
107107 (2) the tribe that is or may be the tribe of the Indian child; and
108108 (3) the appropriate United States bureau of Indian affairs area office.
109109 (b) Except as provided by subsection (c), such notice shall be mailed
110110 by certified mail with return receipt requested, written clearly and include:
111111 (1) The name and tribal affiliation of the Indian child who is the
112112 subject of the proceeding;
113113 (2) a copy of the petition for the proceeding;
114114 (3) the rights of the biological parent or Indian custodian, and the
115115 Indian tribe to:
116116 (A) Intervene in the proceeding;
117117 (B) petition the court to transfer the proceeding to the tribal court of
118118 the Indian child; and
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162162 (C) request an additional 20 days from receipt of the notice to prepare
163163 for the proceeding that may be granted by the court;
164164 (4) the potential legal consequences of an adjudication on the future
165165 custodial rights of the parent or Indian custodian; and
166166 (5) a statement that counsel will be appointed by the court to
167167 represent such parent or Indian custodian if such parent or custodian is
168168 unable to afford counsel.
169169 (c) Tribal officials shall maintain the confidentiality of the
170170 information in such notice.
171171 (d) Notice of review hearings shall be sent through regular first-class
172172 mail to the tribe of the Indian child, unless the tribe is present at the time
173173 the review hearing is set and consents to the date of the review. A tribe's
174174 right to notice pursuant to this subsection shall depend on whether such
175175 tribe intervenes in the case. Any person who sends a notice pursuant to this
176176 subsection shall file a certificate of mailing with the court prior to the
177177 review hearing.
178178 Sec. 5. (a) When a court order authorizes the temporary removal of an
179179 Indian child from the parent or Indian custodian of such child, such order
180180 shall be accompanied by an affidavit containing:
181181 (1) The names, tribal affiliations and addresses of the Indian child,
182182 the parent of the Indian child and the Indian custodian, if any;
183183 (2) a specific and detailed account of the circumstances that led the
184184 secretary to initiate the temporary custody; and
185185 (3) information whether any assistance was provided to the parent or
186186 Indian custodian for the safe return of the child to such parent's or Indian
187187 custodian's custody.
188188 (b) No order issued for temporary custody shall remain in force or in
189189 effect for more than 30 days without a determination by the court,
190190 supported by clear and convincing evidence and the testimony of at least
191191 one qualified expert witness, whether the custody of the child by the parent
192192 or Indian custodian is likely to result in serious emotional or physical
193193 damage to the child. For good cause, the court may extend the order for an
194194 additional period of 60 days.
195195 Sec. 6. (a) The placement preferences specified in 25 U.S.C. § 1915
196196 shall apply to all:
197197 (1) Temporary or emergency placements;
198198 (2) preadoptive placements;
199199 (3) adoptive placements; and
200200 (4) foster care placements.
201201 (b) In deciding placement for an Indian child, the secretary shall use
202202 to the maximum extent possible the services of the Indian tribe of the child
203203 in the placement of the child pursuant to the Kansas Indian child welfare
204204 act.
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248248 (c) Subsection (b) shall apply when a parent states a desire for
249249 anonymity when relinquishing parental rights. The court shall give weight
250250 to such statement in applying the preferences pursuant to subsection (a)
251251 after notice is given to the child's tribe and such tribe is provided 20 days
252252 to intervene and request a hearing on available tribal placement resources
253253 that may protect parental confidentiality. Notice of such hearing shall be
254254 given to the relinquishing parent.
255255 Sec. 7. (a) The secretary shall enter into agreements with Indian tribes
256256 in Kansas on behalf of the state regarding the care and custody of Indian
257257 children and jurisdiction over child custody proceedings. Such agreements
258258 shall include a procedure for the orderly transfer of jurisdiction on a case-
259259 by-case basis and concurrent jurisdiction between the state and the Indian
260260 tribe, as authorized by the federal Indian child welfare act, 25 U.S.C. §
261261 1919. Any agreement entered into pursuant to this section shall be
262262 enforceable in any case filed or pending at the time that an agreement
263263 vesting concurrent jurisdiction is entered into between the state and an
264264 Indian tribe.
265265 (b) When an Indian child in custody of the secretary is placed by
266266 either the secretary or the tribe having jurisdiction of the Indian child with
267267 a foster home licensed and approved by a tribe, the secretary shall pay the
268268 costs in the same manner and amount paid for the costs of state-licensed
269269 or secretary-approved foster homes. The licensing tribe shall cooperate
270270 with the secretary and comply with state law and policy that is required by
271271 federal funding laws.
272272 (c) The secretary shall maintain all records of each placement of any
273273 Indian child in the custody of the secretary in addition to records
274274 maintained by the secretary in the regular course of business. The secretary
275275 shall make such records available within seven days of a request by the
276276 tribe of the Indian child or by the United States secretary of the interior.
277277 Such records maintained pursuant to this subsection shall include, but not
278278 be limited to:
279279 (1) All reports of the assigned case manager;
280280 (2) documented efforts to rehabilitate the parents of the Indian child;
281281 (3) a list of the names and addresses of families and tribe-approved
282282 homes contacted regarding placement; and
283283 (4) the reason for the final placement decision.
284284 Sec. 8. This act shall take effect and be in force from and after its
285285 publication in the statute book.
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