KS
Kansas House Bill HB2772

Kansas 2023-2024 Regular Session

Kansas House Bill HB2772 Compare Versions

Only one version of the bill is available at this time.
OldNewDifferences
11 Session of 2024
22 HOUSE BILL No. 2772
33 By Committee on Child Welfare and Foster Care
44 Requested by Representative Haswood
55 2-8
66 AN ACT concerning children and minors; establishing the Kansas Indian
77 child welfare act; providing additional requirements for child custody
88 proceedings involving Indian children; defining terms used in such act;
99 granting jurisdiction over proceedings that involved an Indian child to
1010 such child's Indian tribe; requiring the secretary to notify Indian tribes
1111 if a proceeding involves an Indian child, to seek placement of an Indian
1212 child with an Indian custodian or person committed to such child's
1313 culture; declaring standards for proceedings involving an Indian child;
1414 providing for notice requirement of such proceedings; identifying when
1515 to notify and duties of the United States secretary of the interior.
1616 Be it enacted by the Legislature of the State of Kansas:
1717 Section 1. (a) The provisions of sections 1 through 17, and
1818 amendments thereto, shall be known and may be cited as the Kansas
1919 Indian child welfare act.
2020 (b) The purpose of the Kansas Indian child welfare act is to clarify
2121 state policies and procedures regarding the implementation by Kansas of
2222 the federal Indian child welfare act. It shall be the policy of the state to
2323 cooperate fully with Indian tribes in Kansas in order to ensure that the
2424 intent and provisions of the federal Indian child welfare act are enforced.
2525 This cooperation includes recognition by the state that Indian tribes have a
2626 continuing and compelling governmental interest in an Indian child
2727 whether or not the Indian child is in the physical or legal custody of a
2828 parent, an Indian custodian or an Indian extended family member at the
2929 commencement of an Indian child custody proceeding or the Indian child
3030 has resided or is domiciled on an Indian reservation. The state shall be
3131 committed to protecting the essential tribal relations and best interests of
3232 an Indian child by promoting practices consistent with the federal Indian
3333 child welfare act and other applicable law designed to prevent the Indian
3434 child's out-of-home placement.
3535 Sec. 2. For the purposes of the Kansas Indian child welfare act:
3636 (a) "Active efforts" means and includes, but is not limited to:
3737 (1) A concerted level of casework, both prior to and after the removal
3838 of an Indian child, exceeding the level that is required under reasonable
3939 efforts to preserve and reunify the family in a manner consistent with the
4040 1
4141 2
4242 3
4343 4
4444 5
4545 6
4646 7
4747 8
4848 9
4949 10
5050 11
5151 12
5252 13
5353 14
5454 15
5555 16
5656 17
5757 18
5858 19
5959 20
6060 21
6161 22
6262 23
6363 24
6464 25
6565 26
6666 27
6767 28
6868 29
6969 30
7070 31
7171 32
7272 33
7373 34
7474 35 HB 2772 2
7575 prevailing social and cultural conditions and way of life of the Indian
7676 child's tribe or tribes to the extent possible under the circumstances;
7777 (2) a request to the Indian child's tribe or tribes and extended family
7878 known to the secretary to convene traditional and customary support and
7979 services;
8080 (3) actively engaging, assisting, and monitoring the family's access to
8181 and progress in culturally appropriate and available resources of the Indian
8282 child's extended family members, tribal service area, Indian tribe or tribes
8383 and individual Indian caregivers;
8484 (4) identification and provision of information to the Indian child's
8585 extended family members known to the secretary concerning appropriate
8686 community, state and federal resources that may be able to offer housing,
8787 financial and transportation assistance and actively assisting the family in
8888 accessing such community, state and federal resources;
8989 (5) identification of and attempts to engage tribally designated
9090 Kansas Indian child welfare act representatives;
9191 (6) consultation with extended family members known to the
9292 secretary, or a tribally designated Kansas Indian child welfare act
9393 representative if an extended family member cannot be located, to identify
9494 family or tribal support services that could be provided by extended family
9595 members or other tribal members if extended family members cannot be
9696 located;
9797 (7) exhaustion of all available tribally appropriate family preservation
9898 alternatives; and
9999 (8) when the secretary is involved in a proceeding under the act, the
100100 secretary shall provide a written report of its attempt to provide active
101101 efforts to the court at every hearing involving an Indian child. This report
102102 shall be sent to the Indian child's tribe or tribes within three days after
103103 being filed with the court and shall be deemed to be admissible evidence
104104 of active efforts in proceedings conducted under the act.
105105 (b) "Best interests of the Indian child" means and includes, but is not
106106 limited to:
107107 (1) Using practices in compliance with the federal Indian child
108108 welfare act, the Kansas Indian child welfare act and other applicable laws
109109 that are designed to prevent the Indian child's voluntary or involuntary out-
110110 of-home placement; and
111111 (2) whenever an out-of-home placement is necessary, placing the
112112 child, to the greatest extent possible, in a family foster home, adoptive
113113 placement or other type of custodial placement that reflects the unique
114114 values of the Indian child's tribal culture and is best able to assist the child
115115 in establishing, developing and maintaining a political, cultural and social
116116 relationship with the Indian child's tribe or tribes and tribal community.
117117 (c) "Child custody proceeding" means an action that involves the
118118 1
119119 2
120120 3
121121 4
122122 5
123123 6
124124 7
125125 8
126126 9
127127 10
128128 11
129129 12
130130 13
131131 14
132132 15
133133 16
134134 17
135135 18
136136 19
137137 20
138138 21
139139 22
140140 23
141141 24
142142 25
143143 26
144144 27
145145 28
146146 29
147147 30
148148 31
149149 32
150150 33
151151 34
152152 35
153153 36
154154 37
155155 38
156156 39
157157 40
158158 41
159159 42
160160 43 HB 2772 3
161161 following:
162162 (1) Removing an Indian child from the child's parent or Indian
163163 custodian for temporary or emergency placement in a family foster home
164164 or with a guardian or conservator if the parent or Indian custodian cannot
165165 have the child returned upon demand and parental rights have not been
166166 terminated;
167167 (2) termination of parental rights;
168168 (3) the temporary placement of an Indian child in a foster home or
169169 institution after the termination of parental rights, but prior to or in lieu of
170170 adoptive placement;
171171 (4) the permanent placement of an Indian child for adoption,
172172 including any action resulting in a final decree of adoption; and
173173 (5) a non-court-involved proceeding in which the secretary is
174174 facilitating a voluntary out-of-home placement or in-home services to
175175 families at risk of entering the custody of the secretary. An Indian child,
176176 parent or tribe involved in a voluntary out-of-home placement shall only
177177 be provided protections as provided in sections 3(d), 4 and 6, and
178178 amendments thereto. "Child custody proceeding" does not include a
179179 placement based upon an act that, if committed by an adult, would be
180180 deemed a crime, or, in a divorce proceeding, an award of custody to one of
181181 the parents.
182182 (d) "Secretary" means the secretary for children and families or the
183183 secretary's designee.
184184 (e) "Extended family member" means the same as defined in the law
185185 or custom of the Indian child's primary tribe or, in the absence of such
186186 laws or customs of the primary tribe, the law or custom of the Indian
187187 child's other tribes. In the absence of such law or custom, "extended family
188188 member" means a person who has reached 18 years of age and is the
189189 Indian child's parent, grandparent, aunt or uncle, clan member, band
190190 member, sibling, brother-in-law or sister-in-law, niece or nephew, cousin
191191 or stepparent.
192192 (f) "Indian" means any person having origins in the original peoples
193193 of North America and who maintains cultural identification through tribal
194194 affiliation or community recognition.
195195 (g) "Indian child" means any unmarried person who is under 18 years
196196 of age and is either:
197197 (1) A member of an Indian tribe; or
198198 (2) eligible for membership in an Indian tribe and is the biological
199199 child of a member of an Indian tribe.
200200 (h) "Indian child's primary tribe" means the primary tribe in the case
201201 of an Indian child, if such child is a member or eligible for membership in
202202 multiple tribes.
203203 (i) "Indian child's tribe" means the Indian tribe or tribes in which an
204204 1
205205 2
206206 3
207207 4
208208 5
209209 6
210210 7
211211 8
212212 9
213213 10
214214 11
215215 12
216216 13
217217 14
218218 15
219219 16
220220 17
221221 18
222222 19
223223 20
224224 21
225225 22
226226 23
227227 24
228228 25
229229 26
230230 27
231231 28
232232 29
233233 30
234234 31
235235 32
236236 33
237237 34
238238 35
239239 36
240240 37
241241 38
242242 39
243243 40
244244 41
245245 42
246246 43 HB 2772 4
247247 Indian child is a member or eligible for membership.
248248 (j) "Indian custodian" means any Indian person who has legal custody
249249 of an Indian child under tribal law or custom or under state law or to
250250 whom temporary physical care, custody, and control has been transferred
251251 by the parent of such child.
252252 (k) "Indian organization" means any group, association, partnership,
253253 limited liability company, corporation or other legal entity owned or
254254 controlled by Indians or a majority of whose members are Indians.
255255 (l) "Indian tribe" means any Indian tribe, band, nation or other
256256 organized group or community of Indians recognized as eligible for the
257257 services provided to Indians by the secretary of the United States
258258 department of the interior because of their status as Indians, including any
259259 Alaska native village as defined in 43 U.S.C. § 1602(c).
260260 (m) "Parent" means any biological parent or parents of an Indian
261261 child or any Indian person who has lawfully adopted an Indian child,
262262 including adoptions under tribal law or custom. "Parent" does not include
263263 the unwed father if paternity has not been acknowledged or established.
264264 (n) "Qualified expert witness" means one of the following persons, in
265265 descending order of priority, except that a court may assess the credibility
266266 of individual witnesses:
267267 (1) A member of the Indian child's tribe or tribes who is recognized
268268 by the tribal community as knowledgeable in tribal customs as they pertain
269269 to family and child-rearing practices;
270270 (2) a member of another tribe who is recognized to be a qualified
271271 expert witness by the Indian child's tribe or tribes based on such Indian
272272 child's tribe or tribes knowledge of the delivery of child and family
273273 services to Indians and the Indian child's tribe or tribes;
274274 (3) a lay expert witness that possesses substantial experience in the
275275 delivery of child and family services to Indian persons and extensive
276276 knowledge of prevailing social and cultural standards and child-rearing
277277 practices within the Indian child's tribe or tribes;
278278 (4) a professional person having substantial education and experience
279279 in the area of such professional's specialty who can demonstrate
280280 knowledge of the prevailing social and cultural standards and child-rearing
281281 practices within the Indian child's tribe or tribes; or
282282 (5) any other professional person having substantial education in the
283283 area of such person's specialty.
284284 (o) "Reservation" means Indian country as defined in 18 U.S.C. §
285285 1151 and any lands not covered under such section for which the title is
286286 either held by the United States in trust for the benefit of any Indian tribe
287287 or individual subject to a restriction by the United States against alienation
288288 or a federally designated or established service area that means a
289289 geographic area designated by the United States where federal services
290290 1
291291 2
292292 3
293293 4
294294 5
295295 6
296296 7
297297 8
298298 9
299299 10
300300 11
301301 12
302302 13
303303 14
304304 15
305305 16
306306 17
307307 18
308308 19
309309 20
310310 21
311311 22
312312 23
313313 24
314314 25
315315 26
316316 27
317317 28
318318 29
319319 30
320320 31
321321 32
322322 33
323323 34
324324 35
325325 36
326326 37
327327 38
328328 39
329329 40
330330 41
331331 42
332332 43 HB 2772 5
333333 and benefits furnished to Indians and Indian tribes are provided or that is
334334 otherwise designated to constitute an area on or near a reservation.
335335 (p) "Tribal court" means a court with jurisdiction over child custody
336336 proceedings that is either a court of Indian offenses or a court established
337337 and operated under the code or custom of an Indian tribe or any other
338338 administrative body of a tribe that has authority over child custody
339339 proceedings.
340340 (q) "Tribal service area" means a geographic area, as defined by the
341341 applicable Indian tribe or tribes, wherein tribal services and programs are
342342 provided to Indian persons, the Indian tribe that an Indian child is a
343343 member or eligible for membership or, in the case of an Indian child who
344344 is a member of or eligible for membership in more than one tribe, the
345345 Indian tribe that the Indian child has more significant contacts.
346346 Sec. 3. (a) An Indian tribe shall have exclusive jurisdiction over any
347347 child custody proceeding involving an Indian child who resides or is
348348 domiciled within the reservation of such tribe in this state, except when
349349 such jurisdiction is otherwise vested in the state by existing federal law.
350350 When an Indian child is a ward of a tribal court, the Indian tribe shall
351351 retain exclusive jurisdiction, notwithstanding the residence or domicile of
352352 the child.
353353 (b) In any state court proceeding for the out-of-home placement of or
354354 termination of parental rights to an Indian child not domiciled or residing
355355 within the reservation of the Indian child's tribe, the state court, in the
356356 absence of good cause to the contrary, shall transfer such proceeding to the
357357 jurisdiction of the primary tribe, absent objection by either parent, upon
358358 the petition of either parent or the Indian custodian or the Indian child's
359359 tribe, except that such transfer shall be subject to declination by the tribal
360360 court of the primary tribe.
361361 (c) In any state court proceeding for the placement or termination of
362362 parental rights to an Indian child, the Indian custodian of the child and the
363363 Indian child's tribe or tribes shall have a right to intervene at any point in
364364 the proceeding regardless of whether the intervening party is represented
365365 by legal counsel. The Indian child's tribe or tribes and the tribe's counsel
366366 may associate with local counsel. Such counsel shall not pay a fee to
367367 appear pro hac vice in a child custody proceeding under the Kansas Indian
368368 child welfare act. Representatives from the Indian child's tribe or tribes
369369 have the right to fully participate in every court proceeding held under the
370370 act.
371371 (d) If the Indian child is eligible for membership or enrolled in
372372 multiple Indian tribes and more than one Indian tribe intervenes in a state
373373 court proceeding for the out-of-home placement of or termination of
374374 parental rights to an Indian child, the Indian child's primary tribe shall be
375375 determined in the following manner:
376376 1
377377 2
378378 3
379379 4
380380 5
381381 6
382382 7
383383 8
384384 9
385385 10
386386 11
387387 12
388388 13
389389 14
390390 15
391391 16
392392 17
393393 18
394394 19
395395 20
396396 21
397397 22
398398 23
399399 24
400400 25
401401 26
402402 27
403403 28
404404 29
405405 30
406406 31
407407 32
408408 33
409409 34
410410 35
411411 36
412412 37
413413 38
414414 39
415415 40
416416 41
417417 42
418418 43 HB 2772 6
419419 (1) The applicable Indian tribes shall enter into a unanimous
420420 agreement designating which Indian tribe is the Indian child's primary
421421 tribe for the underlying state court proceeding within 30 days after
422422 intervention by one or more additional Indian tribes and consultation, if
423423 practicable, with the parents of the Indian child and the Indian child if such
424424 child is 12 years of age or older; or
425425 (2) if unanimous agreement is not possible within the 30-day period,
426426 the state court in which the proceeding is pending shall determine the
427427 Indian child's primary tribe based upon the amount and significance of the
428428 contacts between each Indian tribe and the Indian child.
429429 (e) The state of Kansas shall give full faith and credit to the public
430430 acts, records and judicial proceedings of any Indian tribe applicable to
431431 Indian child custody proceedings to the same extent that the state gives full
432432 faith and credit to the public acts, records and judicial proceedings of any
433433 other entity.
434434 Sec. 4. (a) In any involuntary proceeding in a state court, when the
435435 court knows or has reason to know that an Indian child is involved, the
436436 party seeking the out-of-home placement of or termination of parental
437437 rights to an Indian child shall send a notice pursuant to 25 C.F.R. § 23.11
438438 to the parents, the Indian custodian and the Indian child's tribe or tribes, by
439439 registered mail with return receipt requested, of the pending proceedings
440440 and their right of intervention. If the identity or location of the parent or
441441 Indian custodian and the tribe or tribes cannot be determined, such notice
442442 shall be given to the secretary of the United States department of the
443443 interior in a similar manner, who may provide the requisite notice to the
444444 parent or Indian custodian and the tribe or tribes. No out-of-home
445445 placement or termination of parental rights proceeding shall be held until
446446 at least 10 days after receipt of notice by the parent or Indian custodian
447447 and the tribe or tribes or the secretary of the United States department of
448448 the interior. The parent or Indian custodian or the tribe or tribes shall, upon
449449 request, be granted up to 20 additional days to prepare for such
450450 proceeding.
451451 (b) In any case in which the court determines the parent or Indian
452452 custodian is indigent, such parent or custodian shall have the right to court-
453453 appointed counsel in any removal, placement or termination proceeding.
454454 The court may, in its discretion, appoint a guardian ad litem or counsel for
455455 the child upon a finding that such appointment is in the best interests of the
456456 Indian child. The court shall promptly notify the secretary of the United
457457 States department of the interior upon appointment of counsel and request
458458 from the secretary of the United States department of the interior, upon
459459 certification of the presiding judge, payment of reasonable attorney fees.
460460 (c) Each party to a out-of-home placement or termination of parental
461461 rights proceeding under state law involving an Indian child shall have the
462462 1
463463 2
464464 3
465465 4
466466 5
467467 6
468468 7
469469 8
470470 9
471471 10
472472 11
473473 12
474474 13
475475 14
476476 15
477477 16
478478 17
479479 18
480480 19
481481 20
482482 21
483483 22
484484 23
485485 24
486486 25
487487 26
488488 27
489489 28
490490 29
491491 30
492492 31
493493 32
494494 33
495495 34
496496 35
497497 36
498498 37
499499 38
500500 39
501501 40
502502 41
503503 42
504504 43 HB 2772 7
505505 right to examine all reports or other documents filed with the court upon
506506 which any decision is based regarding such action.
507507 (d) Any party seeking out-of-home placement or termination of
508508 parental rights to an Indian child under state law shall report to the court
509509 that active efforts have been made to provide remedial services and
510510 rehabilitative programs designed to prevent the breakup of the Indian
511511 family or unite the parent or Indian custodian with the Indian child, and
512512 that such efforts have been determined unsuccessful. Any written evidence
513513 showing that such active efforts have been made shall be admissible in a
514514 proceeding under the Kansas Indian child welfare act. Prior to the court
515515 ordering placement of the child in the custody of the secretary or
516516 termination of parental rights, the court shall make a determination if
517517 active efforts have been made or that the party seeking placement or
518518 termination has demonstrated attempts at active efforts to the greatest
519519 extent possible under the circumstances.
520520 (e) The court shall not order out-of-home placement under this
521521 section in the absence of a determination by the court, supported by clear
522522 and convincing evidence, including testimony of qualified expert
523523 witnesses, that the continued custody of the child by the parent or Indian
524524 custodian is likely to result in serious emotional or physical damage to the
525525 child.
526526 (f) The court shall not order termination of parental rights under this
527527 section in the absence of a determination by the court, supported by
528528 evidence beyond a reasonable doubt, including testimony of qualified
529529 expert witnesses, that the continued custody of the child by the parent or
530530 Indian custodian is likely to result in serious emotional or physical damage
531531 to the child.
532532 Sec. 5. (a) Notice of an involuntary proceeding in state court
533533 involving an Indian child shall conform with the requirements of 25 C.F.R.
534534 § 23.11 and contain the following information, if known, and if unknown,
535535 a statement indicating what attempts have been made to locate the
536536 information:
537537 (1) The name and last known address of the Indian child;
538538 (2) the name and address of the Indian child's parents, paternal and
539539 maternal grandparents and Indian custodians, if any;
540540 (3) the tribal affiliation of the parents of the Indian child or, if
541541 applicable, the Indian custodians;
542542 (4) a statement as to whether the Indian child's residence or domicile
543543 is on the tribe's reservation;
544544 (5) an identification of any tribal court order affecting the custody of
545545 the Indian child so that a state court may be required to accord full faith
546546 and credit; and
547547 (6) a copy of the motion for out-of-home placement of the Indian
548548 1
549549 2
550550 3
551551 4
552552 5
553553 6
554554 7
555555 8
556556 9
557557 10
558558 11
559559 12
560560 13
561561 14
562562 15
563563 16
564564 17
565565 18
566566 19
567567 20
568568 21
569569 22
570570 23
571571 24
572572 25
573573 26
574574 27
575575 28
576576 29
577577 30
578578 31
579579 32
580580 33
581581 34
582582 35
583583 36
584584 37
585585 38
586586 39
587587 40
588588 41
589589 42
590590 43 HB 2772 8
591591 child and any accompanying affidavits in support of such motion, if such
592592 documents exist.
593593 (b) A copy of the notice of an involuntary proceeding in state court
594594 involving an Indian child, as described in subsection (a), shall be filed with
595595 the court within three days after the date the notice was issued.
596596 Sec. 6. (a) When any parent or Indian custodian voluntarily consents
597597 to an out-of-home placement or relinquishment or termination of parental
598598 rights, such consent shall not be valid unless executed in writing and
599599 recorded before a judge of a court of competent jurisdiction and
600600 accompanied by the presiding judge's certificate that such terms and
601601 consequences of the consent were fully explained, in detail, and were fully
602602 understood by the parent or Indian custodian. The court shall also certify
603603 that either the parent or Indian custodian fully understood the explanation
604604 in English or that it was translated to a language that the parent or Indian
605605 custodian understood. Any consent given prior to, or within 10 days after,
606606 the birth of the Indian child shall not be valid.
607607 (b) When the secretary offers the parent, Indian child or Indian
608608 custodian services through a voluntary out-of-home placement or in-home
609609 services and the secretary knows or has reason to know that an Indian
610610 child is involved, the secretary shall notify the parent or Indian custodian
611611 and the Indian child's tribe or tribes by telephone call, fax, email or
612612 registered mail, with return receipt requested, of the provision of services
613613 and any pending child custody proceeding. If the identity or location of the
614614 parent or Indian custodian and the tribe or tribes cannot be determined,
615615 such notice shall be given to the secretary of the United States department
616616 of the interior and the appropriate area director listed in 25 C.F.R. § 23.11
617617 in a similar manner, who may provide the notice to the parent or Indian
618618 custodian and the tribe or tribes. Such notice shall be provided within five
619619 days after the initiation of voluntary services.
620620 (c) When the secretary offers the parent or Indian custodian services
621621 through a voluntary out-of-home placement or in-home services, the
622622 parent or Indian custodian of the child and the Indian child's tribe or tribes
623623 have a right to participate in, provide or consult with the secretary's
624624 provision of services.
625625 (d) When the secretary offers the parent or Indian custodian services
626626 through a voluntary out-of-home placement or in-home services, the
627627 secretary shall provide remedial services and rehabilitative programs
628628 designed to prevent the breakup of the Indian family or unite the parent or
629629 Indian custodian with the Indian child until these efforts have been
630630 determined unsuccessful.
631631 (e) Prior to any voluntary relinquishment or termination of parental
632632 rights proceeding that the secretary is a party or was providing assistance
633633 to a parent or Indian custodian, the secretary shall submit to the court the
634634 1
635635 2
636636 3
637637 4
638638 5
639639 6
640640 7
641641 8
642642 9
643643 10
644644 11
645645 12
646646 13
647647 14
648648 15
649649 16
650650 17
651651 18
652652 19
653653 20
654654 21
655655 22
656656 23
657657 24
658658 25
659659 26
660660 27
661661 28
662662 29
663663 30
664664 31
665665 32
666666 33
667667 34
668668 35
669669 36
670670 37
671671 38
672672 39
673673 40
674674 41
675675 42
676676 43 HB 2772 9
677677 following information, in writing, if it has not previously been provided:
678678 (1) The jurisdictional authority of the court in the proceeding;
679679 (2) the date of the Indian child's birth and the date of any voluntary
680680 consent to relinquishment or termination;
681681 (3) the age of the Indian child at the time voluntary consent was
682682 given;
683683 (4) the date the parent appeared in court and was informed by the
684684 judge of the terms and consequences of any voluntary consent to
685685 relinquishment or termination;
686686 (5) that the parent fully understood the explanation of such terms and
687687 consequences in English or, when necessary, the explanation was
688688 translated into a language that the parent understood and the parent fully
689689 understood the explanation as it was translated;
690690 (6) the name and address of any prospective adoptive parent whose
691691 identity is known to the consenting parent;
692692 (7) the promises, if any, made to the parent, as a condition of the
693693 parent's consent, including promises regarding the tribal affiliation or
694694 health, ethnic, religious, economic or other personal characteristics of any
695695 adoptive family with that the child would be placed; and
696696 (8) the details, if any, of an enforceable communication or contact
697697 agreement.
698698 (f) Any parent or Indian custodian may withdraw consent to a out-of-
699699 home or voluntary out-of-home placement under state law at any time,
700700 and, upon such withdrawal, the child shall be returned to the parent or
701701 Indian custodian.
702702 (g) In any voluntary proceedings for termination of parental rights to
703703 or adoptive placement of an Indian child, the consent of the parent may be
704704 withdrawn for any reason at any time prior to the entry of a final decree of
705705 termination or adoption, and the secretary shall return the child to the
706706 parent.
707707 (h) After the entry of a final decree of adoption of an Indian child, the
708708 parent may withdraw consent of such adoption if the consent was obtained
709709 through fraud or duress and petition the court to vacate such decree. Upon
710710 a finding that such consent was obtained through fraud or duress, the court
711711 shall vacate such decree and return the child to the parent. No adoption
712712 that has been effective for at least two years may be invalidated under the
713713 provisions of this subsection unless otherwise permitted under state law.
714714 Sec. 7. Any Indian child who is the subject of any proceeding for out-
715715 of-home placement or termination of parental rights under state law, any
716716 parent or Indian custodian from whose custody such child was removed
717717 and the Indian child's primary tribe may petition to invalidate such action
718718 upon a showing that such action violated any provision of sections 3
719719 through 6, and amendments thereto.
720720 1
721721 2
722722 3
723723 4
724724 5
725725 6
726726 7
727727 8
728728 9
729729 10
730730 11
731731 12
732732 13
733733 14
734734 15
735735 16
736736 17
737737 18
738738 19
739739 20
740740 21
741741 22
742742 23
743743 24
744744 25
745745 26
746746 27
747747 28
748748 29
749749 30
750750 31
751751 32
752752 33
753753 34
754754 35
755755 36
756756 37
757757 38
758758 39
759759 40
760760 41
761761 42
762762 43 HB 2772 10
763763 Sec. 8. (a) In any adoptive placement of an Indian child under state
764764 law, preference shall be given, in the absence of good cause to the
765765 contrary, to placement with the following, in descending order of priority:
766766 (1) A member of the Indian child's extended family;
767767 (2) other members of the Indian child's tribe or tribes;
768768 (3) other Indian families; or
769769 (4) a non-Indian family committed to enabling the child to have time
770770 with such child's extended family and participation in the cultural and
771771 ceremonial events of the Indian child's tribe or tribes.
772772 (b) Any Indian child accepted for out-of-home or preadoptive
773773 placement or a voluntary out-of-home placement shall be placed in the
774774 least restrictive setting with a family that meets, if any, such child's special
775775 needs. The child shall be placed within reasonable proximity to such
776776 child's home, taking into account any special needs of the child. In any
777777 out-of-home or preadoptive placement, a preference shall be given, in the
778778 absence of good cause to the contrary, to a placement with one of the
779779 following, in descending order of priority:
780780 (1) A member of the Indian child's extended family;
781781 (2) other members of the Indian child's tribe or tribes;
782782 (3) a foster home that is licensed, approved or specified by the Indian
783783 child's tribe or tribes;
784784 (4) an Indian foster home that is licensed or approved by an
785785 authorized non-Indian licensing authority;
786786 (5) a non-Indian family that is committed to enabling the child to
787787 have time with such child's extended family and participation in the
788788 cultural and ceremonial events of the Indian child's tribe or tribes;
789789 (6) an Indian facility or program for children that is approved by an
790790 Indian tribe or operated by an Indian organization and that has a program
791791 suitable to meet the Indian child's needs; or
792792 (7) non-Indian facility or program for children that is approved by an
793793 Indian tribe.
794794 (c) In the case of a placement under subsection (a) or (b), if the Indian
795795 child's primary tribe establishes a different order of preference by
796796 resolution or in the absence of such resolution, the agency or court
797797 deciding the placement shall follow such order of preference if the
798798 placement is the least restrictive setting appropriate to the particular needs
799799 of the child, as provided in subsection (b). When appropriate, the
800800 preference of the Indian child or parent shall be considered, except when a
801801 consenting parent would like to be anonymous, in which case, the court or
802802 agency shall give weight to such preferences of the parent.
803803 (d) The standards to be applied in meeting the preference
804804 requirements of this section shall be the prevailing social and cultural
805805 standards of the Indian community wherein the parent or extended family
806806 1
807807 2
808808 3
809809 4
810810 5
811811 6
812812 7
813813 8
814814 9
815815 10
816816 11
817817 12
818818 13
819819 14
820820 15
821821 16
822822 17
823823 18
824824 19
825825 20
826826 21
827827 22
828828 23
829829 24
830830 25
831831 26
832832 27
833833 28
834834 29
835835 30
836836 31
837837 32
838838 33
839839 34
840840 35
841841 36
842842 37
843843 38
844844 39
845845 40
846846 41
847847 42
848848 43 HB 2772 11
849849 resides or with which the parent or extended family members maintain
850850 social and cultural ties. Good cause to deviate from the placement
851851 preferences in subsections (a) through (c) includes:
852852 (1) The request of the biological parents of the Indian child or the
853853 Indian child when the child has reached 12 years of age;
854854 (2) any extra physical or emotional needs of the Indian child as
855855 established by testimony of a qualified expert witness; or
856856 (3) the unavailability of suitable families for placement after a
857857 diligent search has been completed for families meeting the preference
858858 criteria.
859859 (e) The burden of establishing good cause to deviate from the
860860 placement preferences shall be by clear and convincing evidence on the
861861 party urging such deviation from preferences.
862862 (f) A record of each such placement of an Indian child shall be
863863 maintained by the secretary evidencing the efforts to comply with the
864864 preferences specified in this section. Such record shall be made available
865865 at any time upon the request of the secretary or the Indian child's tribe or
866866 tribes.
867867 Sec. 9. (a) Notwithstanding any other state law to the contrary,
868868 whenever a final decree of adoption of an Indian child has been vacated or
869869 set aside or the adoptive parents voluntarily consent to the termination of
870870 their parental rights to the child, a biological parent or prior Indian
871871 custodian may petition for return of custody of the Indian child, and the
872872 court shall grant such petition unless the court determines that such return
873873 of custody is not in the best interests of the Indian child.
874874 (b) Whenever an Indian child is removed from an out-of-home
875875 placement for the purpose of another placement, preadoptive or adoptive
876876 placement, such placement shall be in accordance with the Kansas Indian
877877 child welfare act, except when the Indian child is being returned to the
878878 parent or Indian custodian from whose custody the child was originally
879879 removed.
880880 Sec. 10. Upon application by an Indian person who has reached 18
881881 years of age and was the subject of an adoptive placement, the court that
882882 entered the final decree shall inform such individual of the tribal
883883 affiliation, if any, of the person's biological parents and provide other
884884 information as may be necessary to protect any rights flowing from the
885885 person's tribal relationship.
886886 Sec. 11. (a) The secretary is authorized to enter into agreements
887887 with Indian tribes respecting care and custody of Indian children as well as
888888 jurisdiction over child custody proceedings, including agreements that may
889889 provide for the orderly transfer of jurisdiction on a case-by-case basis and
890890 agreements that provide for concurrent jurisdiction between the secretary
891891 and Indian tribes.
892892 1
893893 2
894894 3
895895 4
896896 5
897897 6
898898 7
899899 8
900900 9
901901 10
902902 11
903903 12
904904 13
905905 14
906906 15
907907 16
908908 17
909909 18
910910 19
911911 20
912912 21
913913 22
914914 23
915915 24
916916 25
917917 26
918918 27
919919 28
920920 29
921921 30
922922 31
923923 32
924924 33
925925 34
926926 35
927927 36
928928 37
929929 38
930930 39
931931 40
932932 41
933933 42
934934 43 HB 2772 12
935935 (b) Such agreements may be revoked by either party after 180 days
936936 from when the other party received such written notice. Such revocation
937937 shall not affect any action or proceeding over which a court has already
938938 assumed jurisdiction, unless the agreement provides otherwise.
939939 Sec. 12. When the secretary in an Indian child custody proceeding
940940 before a state court has improperly removed the child from the custody of
941941 the parent or Indian custodian or has improperly retained custody after a
942942 visit or other temporary relinquishment of custody, the court shall decline
943943 jurisdiction over such petition and return the child to the child's parent or
944944 Indian custodian unless returning the child to the child's parent or
945945 custodian would subject the child to a substantial and immediate danger or
946946 threat of such danger.
947947 Sec. 13. In any case when federal law applicable to a child custody
948948 proceeding provides a higher standard of protection to the rights of the
949949 parent or Indian custodian of an Indian child than the rights provided
950950 under the Kansas Indian child welfare act, the court shall apply the federal
951951 standard.
952952 Sec. 14. (a) Nothing in the Kansas Indian child welfare act shall be
953953 construed to prevent the emergency removal of an Indian child who is a
954954 resident of or is domiciled on a reservation but who is temporarily located
955955 off the reservation from the child's parent or Indian custodian or the
956956 emergency placement of such child in an out-of-home placement, under
957957 applicable state law, in order to prevent imminent physical damage or
958958 harm to the child. The secretary or law enforcement agency involved shall
959959 ensure that such emergency removal or placement terminates immediately
960960 when such removal or placement is no longer necessary to prevent
961961 imminent physical damage or harm to the child and expeditiously initiate a
962962 child custody proceeding subject to the provisions of the Kansas Indian
963963 child welfare act, transfer the child to the jurisdiction of the appropriate
964964 Indian tribe or tribes or restore the child to the parent or Indian custodian,
965965 as may be appropriate.
966966 (b) During the course of each report received by the secretary, the
967967 secretary shall inquire as to whether the person reporting abuse or neglect
968968 believes one of the parties involved may be an Indian child or Indian
969969 person. If the secretary has any reason to believe that an Indian child or
970970 Indian person is involved in the report, the secretary shall immediately
971971 document the information.
972972 Sec. 15. No provision of the Kansas Indian child welfare act, except
973973 section 3(a) and section 12, and amendments thereto, shall affect a
974974 proceeding under state law for out-of-home placement, termination of
975975 parental rights, preadoptive placement or adoptive placement that was
976976 initiated or completed prior to 180 days after November 8, 1978. All
977977 provisions of the Kansas Indian child welfare act shall apply to any
978978 1
979979 2
980980 3
981981 4
982982 5
983983 6
984984 7
985985 8
986986 9
987987 10
988988 11
989989 12
990990 13
991991 14
992992 15
993993 16
994994 17
995995 18
996996 19
997997 20
998998 21
999999 22
10001000 23
10011001 24
10021002 25
10031003 26
10041004 27
10051005 28
10061006 29
10071007 30
10081008 31
10091009 32
10101010 33
10111011 34
10121012 35
10131013 36
10141014 37
10151015 38
10161016 39
10171017 40
10181018 41
10191019 42
10201020 43 HB 2772 13
10211021 proceeding affecting the custody or placement of the same child
10221022 subsequent to November 8, 1978.
10231023 Sec. 16. (a) Any state court entering a final decree or order in any
10241024 Indian child adoptive placement after September 6, 1985, shall provide the
10251025 secretary of the United States department of the interior with a copy of
10261026 such decree or order together with:
10271027 (1) The name and tribal affiliation of the child;
10281028 (2) the names and addresses of the child's biological parents;
10291029 (3) the names and addresses of the adoptive parents; and
10301030 (4) the identity of any agency having records or information relating
10311031 to such adoptive placement.
10321032 (b) When the court records contain an affidavit of the biological
10331033 parent or parents that requires their identity remain confidential, the court
10341034 shall include such affidavit with the other information.
10351035 Sec. 17. The secretary, in consultation with Indian tribes, shall adopt
10361036 and promulgate rules and regulations to establish standards and procedures
10371037 for the secretary's review of cases subject to the Kansas Indian child
10381038 welfare act and methods for monitoring the secretary's compliance with
10391039 the federal Indian child welfare act and the Kansas Indian child welfare
10401040 act. The standards and procedures and monitoring methods shall be
10411041 integrated into the secretary's structure and plan for the federal
10421042 government's child and family service review process and any program
10431043 improvement plan resulting from that process.
10441044 Sec. 18. This act shall take effect and be in force from and after its
10451045 publication in the statute book.
10461046 1
10471047 2
10481048 3
10491049 4
10501050 5
10511051 6
10521052 7
10531053 8
10541054 9
10551055 10
10561056 11
10571057 12
10581058 13
10591059 14
10601060 15
10611061 16
10621062 17
10631063 18
10641064 19
10651065 20
10661066 21
10671067 22
10681068 23
10691069 24
10701070 25