Session of 2023
Substitute for SENATE BILL No. 232
By Committee on Judiciary
2-22
AN ACT concerning children and minors; establishing the office of the
child advocate as an independent state agency and prescribing certain
powers, duties and functions therefor; authorizing access to certain
records; relating to children in need of care; making orders granting
custody for adoption subject to the federal Indian child welfare act;
directing the secretary for children and families to consider foster
parents as prospective adoptive parents under certain circumstances;
requiring the secretary to report certain data on adoptions; authorizing
the appeal of any order of placement of a child; providing for
retroactivity; amending K.S.A. 38-2203, 38-2213, 38-2270, 38-2273,
38-2309 and 38-2310 and K.S.A. 2022 Supp. 38-2211 and 38-2212 and
repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) Sections 1 through 6, and amendments thereto,
shall be known and may be cited as the child advocate act.
(b) As used in the child advocate act:
(1) "Office" means the office of the child advocate and includes the
child advocate and staff; and
(2) "child" means an individual less than 18 years of age at the time
such individual:
(A) Is in the custody of the secretary for children and families;
(B) was previously in the custody of the secretary for children and
families;
(C) is alleged to be a child in need of care as defined by K.S.A. 38-
2202, and amendments thereto; or
(D) is or was receiving services from the Kansas department for
children and families or any entity contracting with the department, for
whom the Kansas department of children and families has an open case
file, or who has been, or whose siblings, parents or other caretakers have
been the subject of a report of abuse or neglect to the Kansas department
for children and families within the previous five years.
(c) This section shall be effective on and after July 1, 2023.
New Sec. 2. (a) There is hereby established the office of the child
advocate, the head of which shall be the child advocate. In the
performance of the powers, duties and functions prescribed by law, the
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office shall be an independent state agency. The child advocate shall be
appointed by the governor and subject to confirmation by the senate as
provided by K.S.A. 75-4315b, and amendments thereto.
(b) (1) Except as provided by K.S.A. 46-2601, and amendments
thereto, no person appointed to the position of the child advocate shall
exercise any power, duty or function of the child advocate until confirmed
by the senate. The child advocate shall be selected without regard to
political affiliation and on the basis of integrity and capacity for effectively
carrying out the duties of the office.
(2) No former or current executive or manager of any program or
agency or contracting entity subject to oversight by the office may be
appointed to the position of the child advocate within 12 months of that
individual's period of service with such program or agency.
(3) A person appointed to the position of the child advocate shall
serve for a term of five years or until a successor has been appointed and
confirmed.
(4) The child advocate shall be in the unclassified service and shall
receive an annual salary in an amount equal to the annual salary paid by
the state to a district court judge.
(5) The child advocate shall exercise independent judgment in
carrying out the duties of the office.
(c) (1) Subject to this subsection, the child advocate shall have
general managerial control over the office of the child advocate and shall
establish the organizational structure of the office as the child advocate
deems appropriate to carry out the responsibilities and functions of the
office.
(2) All budgeting, purchasing, personnel and related administrative
functions of the office shall be administered under the direction and
supervision of the child advocate.
(3) Within the limits of appropriations therefor, the child advocate
may hire such employees in the unclassified service as are necessary to
administer the office. Such employees shall serve at the pleasure of the
child advocate. Subject to appropriations and this subsection, the child
advocate may obtain the services of other professionals necessary to
independently perform the functions of the office, including obtaining
legal services as provided by K.S.A. 75-769, and amendments thereto.
(4) The child advocate may enter into agreements with the secretary
of administration for the provision of personnel, facility management and
information technology services.
(d) This section shall be effective on and after July 1, 2023.
New Sec. 3. (a) The purpose of the office of the child advocate is to
ensure that children and families receive adequate coordination of child
welfare services for child maltreatment prevention, protection and care
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through services offered by the Kansas department for children and
families or the department's contracting entities, the department for aging
and disability services, the department of corrections, the department of
health and environment and juvenile courts.
(b) The office shall receive and resolve complaints that allege the
Kansas department for children and families or an entity contracting with
the department, by act or omission, has provided inadequate protection or
care of children, failed to protect the physical or mental health, safety or
welfare of any child or failed to follow established laws, rules and
regulations or written policies. The child advocate shall:
(1) Establish and implement procedures for receiving, processing,
responding to and resolving complaints made by or on behalf of children
that relate to state agencies, service providers, including contractors and
subcontractors, and any juvenile court that adversely affect or may
adversely affect the health, safety and welfare of such children;
(2) provide the Kansas department for children and families with a
notice of availability that describes the office and procedures for
contacting the office. The department shall ensure such notice is
prominently posted in department offices and facilities receiving public
moneys for the care and placement of children;
(3) maintain a publicly available website;
(4) publicize and notify individuals of the office's services, purpose
and contact information;
(5) compile, collect and preserve a record of complaints received and
processed that may reveal concerning patterns to be addressed; and
(6) make recommendations for changes to policies, procedures or
adopted or proposed rules and regulations of any state or local agency that
adversely affect or may adversely affect the health, safety and welfare of
any child.
(c) The office shall independently investigate complaints received
pursuant to subsection (b) if the office reasonably believes the complaint's
allegations may be independently verified through an investigation. To
investigate, the office shall:
(1) Establish and implement procedures for investigating complaints;
(2) have access to the following information:
(A) The names and physical location of all children in protective
services, treatment or other programs under the jurisdiction of the Kansas
department for children and families or the department of corrections;
(B) all written reports of child abuse and neglect;
(C) all records of any public or private agency or institution having
custody of the child under court order, providing education, medical or
mental health services to the child or any placement or potential placement
provider determined by the secretary for children and families; and
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(D) all current records required to be maintained pursuant to articles
22 and 23 of chapter 38 of the Kansas Statutes Annotated, and
amendments thereto;
(3) communicate privately with:
(A) Any child or child's siblings, after consultation with treatment
professionals and service providers; and
(B) anyone working with the child, including the family, relatives,
employees of the Kansas department for children and families or the
department of corrections and other persons or entities providing treatment
and services;
(4) have access to, including the right to inspect and copy, relevant
child records held by law enforcement agencies, the clerk of any Kansas
court, juvenile officers, public or private institutions and other agencies or
persons with whom a particular child has been either voluntarily or
otherwise placed for care or from whom the child has received treatment
within this state or in another state;
(5) work in conjunction with juvenile intake and assessment workers,
juvenile community corrections officers, guardians ad litem and court-
appointed special advocates; and
(6) subpoena materials or witnesses, take statements under oath, serve
interrogatories and obtain judicial enforcement of compulsory processes.
(d) To resolve complaints received pursuant to subsection (b), the
office shall:
(1) Establish and implement procedures to resolve the complaints;
(2) independently review the subject of the complaint and after the
initial review of the complaint and any accompanying material, the child
advocate may recommend that a department or contracting entity:
(A) Consider the matter further;
(B) modify or cancel the department or contracting entity's actions;
(C) alter a rule, order or internal policy;
(D) explain the action further; or
(E) within a reasonable time after receiving a recommendation,
provide the office information concerning the department or contracting
entity action to implement or not implement recommendations made by
the office pursuant to this paragraph;
(3) submit any findings or recommendations pursuant to paragraph
(2) to the secretary for children and families or the secretary of corrections
as appropriate;
(4) upon reason to believe a criminal investigation is warranted, make
a referral of child abuse or neglect to an appropriate law enforcement
agency with jurisdiction over the matter and notify the abuse, neglect and
exploitation unit of the office of the attorney general; and
(5) produce reports of findings of fact or conclusions of law regarding
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any complaint, and, if appropriate, the attorney general may file such
reports in any pending child in need of care case on behalf of the office.
(e) To assist the legislature in oversight of the child welfare system,
the office may:
(1) Meet and discuss any matter in the scope of the child advocate act
with the joint committee on child welfare system oversight in regular or
executive session under the same duties of confidentiality provided for the
child advocate;
(2) review relevant statutes, rules and regulations, policies and
procedures for the health, safety and welfare of children;
(3) evaluate the effectiveness of and recommend changes to
procedures for reports of child abuse and neglect for child protective
services, including, but not limited to, the involvement of the Kansas
department for children and families, service providers, guardians ad
litem, court appointed special advocates and law enforcement agencies;
and
(4) review and recommend changes to law enforcement investigative
procedures for and emergency responses to reports of abuse and neglect.
(f)(1) On or before the beginning of each regular session of the
legislature, the office shall prepare and submit a report to the governor, the
chief justice of the supreme court and the office of judicial administration,
the secretary for children and families, the president of the senate, the
speaker of the house of representatives, the joint committee on child
welfare oversight, the house of representatives standing committee on
child welfare and foster care, the senate standing committee on public
health and welfare, or their successor committees, and any other relevant
legislative committee.
(2) Such report shall include:
(A) The number of complaints received by the office;
(B) the disposition of such complaints;
(C) the number of children involved in such complaints;
(D) the outcome of such complaints;
(E) any recommendations for changes in statute, policies, procedures
or rules and regulations;
(F) the office's proposed annual budget; and
(G) any other topics that the office deems appropriate to properly
perform the powers, duties and functions provided by the child advocate
act.
(g) The annual budget request of the office shall be prepared by the
child advocate. The child advocate shall submit an annual budget request
to the division of budget. Such budget request shall be prepared and
submitted in the manner provided by K.S.A. 75-3716 and 75-3717, and
amendments thereto.
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(h) To assist the office in the office's duties under the child advocate
act, employees of the Kansas department for children and families, the
department's contracting agencies, the department of corrections, juvenile
intake and assessment workers, juvenile community corrections officers,
guardians ad litem and court appointed special advocates shall:
(1) Work diligently, promptly and in good faith to assist the office in
performing the office's powers, duties and functions provided by the child
advocate act;
(2) provide full access to and production of records and information
requested by the office in the office's duties provided by the act. Such
access shall not be a violation of confidentiality of such records if
provided and produced in good faith for the purposes of the act;
(3) require employees and contractors of such department or agency
to comply with requests from the office in such office's duties provided by
the act;
(4) allow employees of such department or agency to file a complaint
with or provide records or information to the office without supervisory
approval;
(5) not willfully interfere with or obstruct any of the office's duties
provided by the act; and
(6) promptly meet and consult with the office upon request of the
office.
(i) This section shall be effective on and after July 1, 2023.
New Sec. 4. (a) For any information obtained from a state agency or
other entity under the child advocate act, the office shall be subject to the
same state and federal statutory disclosure restrictions and confidentiality
requirements that are applicable to the state agency or other entity
providing such information to the office.
(b) Any files maintained by the office shall be confidential and
disclosed only at the discretion of the child advocate, except that the
identity of any complainant or child shall not be disclosed by the office
unless:
(1) The complainant or child, respectively, or the complainant's or
child's legal representative, consents in writing to such disclosure; or
(2) such disclosure is required by court order.
(c) Any statement or communication made by the office relevant to a
complaint being investigated by the office and any complaint or
information made or provided in good faith by any person shall be
absolutely privileged, and such person shall be immune from suit.
(d) A representative of the office conducting or participating in any
investigation of a complaint shall not knowingly disclose to any person
other than the office, or a person authorized by the office, the name of any
witness examined or any information obtained or given during such
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investigation. Violation of this subsection is a class A nonperson
misdemeanor.
(e) The office conducting or participating in any investigation of a
complaint shall disclose the final result of the investigation with the
consent of the child or child's legal representative.
(f) The office shall not be required to testify in any court with respect
to matters held to be confidential in this section, except as the court may
deem necessary to enforce the provisions of the child advocate act or when
otherwise required by court order.
(g) The provisions of this section providing for confidentiality of
records shall expire on July 1, 2028, unless the legislature acts to continue
such provisions. The legislature shall review this section pursuant to
K.S.A. 45-229, and amendments thereto, prior to July 1, 2028.
(h) This section shall be effective on and after July 1, 2023.
New Sec. 5. (a) (1) Except as provided by paragraph (2), no
retaliatory action shall knowingly be taken against any child or employee
of the Kansas department for children and families, an employee of the
department's contracting agencies or the department of corrections for any
communication made or information given to the office. Violation of this
paragraph is a class A nonperson misdemeanor.
(2) Paragraph (1) shall not apply to an employee who discloses:
(A) Information that such employee knows to be false or information
without regard for the truth or falsity of the information; or
(B) without lawful authority, information that is confidential as
provided by any other provision of law.
(b) An employee of the office of the child advocate shall not
knowingly disclose false information or disclose confidential information
without lawful authority.
(c) As used in this section, "retaliatory action" includes, but is not
limited to:
(1) Letters of reprimand or unsatisfactory performance evaluations;
(2) transfer;
(3) demotion;
(4) reduction in pay;
(5) denial of promotion;
(6) suspension;
(7) dismissal; and
(8) denial of employment.
(d) This section shall be effective on and after July 1, 2023.
New Sec. 6. (a) Nothing in this act shall be construed to permit any
governmental agency to exercise control or supervision over the child
advocate or the office of the child advocate.
(b) This section shall be effective on and after July 1, 2023.
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Sec. 7. On and after July 1, 2023, 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; orders granting custody
for adoption, K.S.A. 38-2270, 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
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) 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. When the court
acquires jurisdiction over a child in need of care, jurisdiction may continue
until the child has: (1) 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) been adopted; or
(3) been discharged by the court. 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.
(d) When it is no longer appropriate for the court to exercise
jurisdiction over a child, 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
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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 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. 8. On and after July 1, 2023, K.S.A. 2022 Supp. 38-2211 is
hereby amended to read as follows: 38-2211. (a) Access to the official file.
The following persons or entities shall have access to the official file of a
child in need of care proceeding pursuant to this code:
(1) The court having jurisdiction over the proceedings, including the
presiding judge and any court personnel designated by the judge.
(2) The parties to the proceedings and their attorneys.
(3) The guardian ad litem for a child who is the subject of the
proceeding.
(4) A court appointed special advocate for a child who is the subject
of the proceeding or a paid staff member of a court appointed special
advocate program.
(5) Any individual, or any public or private agency or institution,
having custody of the child under court order or providing educational,
medical or mental health services to the child or any placement provider or
potential placement provider as determined by the secretary or court
services officer.
(6) A citizen review board.
(7) The secretary of corrections or any agents designated by the
secretary of corrections.
(8) Any county or district attorney from another jurisdiction with a
pending child in need of care matter regarding any of the same parties.
(9) The office of the child advocate pursuant to the child advocate
act.
(10) Any other person when authorized by a court order, subject to
any conditions imposed by the order.
(10)(11) The commission on judicial performance in the discharge of
the commission's duties pursuant to article 32 of chapter 20 of the Kansas
Statutes Annotated, and amendments thereto.
(11)(12) An investigating law enforcement agency.
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(b) Access to the social file. The following persons or entities shall
have access to the social file of a child in need of care proceeding pursuant
to this code:
(1) The court having jurisdiction over the proceeding, including the
presiding judge and any court personnel designated by the judge.
(2) The attorney for a party to the proceeding or the person or persons
designated by an Indian tribe that is a party.
(3) The guardian ad litem for a child who is the subject of the
proceeding.
(4) A court appointed special advocate for a child who is the subject
of the proceeding or a paid staff member of a court appointed special
advocate program.
(5) A citizen review board.
(6) The secretary.
(7) The secretary of corrections or any agents designated by the
secretary of corrections.
(8) Any county or district attorney from another jurisdiction with a
pending child in need of care matter regarding any of the same parties or
interested parties.
(9) The office of the child advocate pursuant to the child advocate
act.
(10) Any other person when authorized by a court order, subject to
any conditions imposed by the order.
(10)(11) An investigating law enforcement agency.
(c) Preservation of records. The Kansas state historical society shall
be allowed to take possession for preservation in the state archives of any
court records related to proceedings under the Kansas code for care of
children whenever such records otherwise would be destroyed. No such
records in the custody of the Kansas state historical society shall be
disclosed directly or indirectly to anyone for 70 years after creation of the
records, except as provided in subsections (a) and (b). Pursuant to
subsections (a)(9) and (b)(9) (a)(10) and (b)(10), a judge of the district
court may allow inspection for research purposes of any court records in
the custody of the Kansas state historical society related to proceedings
under the Kansas code for care of children.
Sec. 9. On and after July 1, 2023, K.S.A. 2022 Supp. 38-2212 is
hereby amended to read as follows: 38-2212. (a) Principle of appropriate
access. Information contained in confidential agency records concerning a
child alleged or adjudicated to be in need of care may be disclosed as
provided in this section and shall be disclosed as provided in subsection
(e). Disclosure shall in all cases be guided by the principle of providing
access only to persons or entities with a need for information that is
directly related to achieving the purposes of this code.
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(b) Free exchange of information. Pursuant to K.S.A. 38-2210, and
amendments thereto, the secretary and juvenile intake and assessment
agencies shall participate in the free exchange of information concerning a
child who is alleged or adjudicated to be in need of care.
(c) Necessary access. The following persons or entities shall have
access to information from agency records. Access shall be limited to
information reasonably necessary to carry out their lawful responsibilities,
to maintain their personal safety and the personal safety of individuals in
their care, or to educate, diagnose, treat, care for or protect a child alleged
to be in need of care. Information authorized to be disclosed pursuant to
this subsection shall not contain information that identifies a reporter of a
child who is alleged or adjudicated to be a child in need of care.
(1) A child named in the report or records, a guardian ad litem
appointed for the child and the child's attorney.
(2) A parent or other person responsible for the welfare of a child, or
such person's legal representative.
(3) A court-appointed special advocate for a child, a citizen review
board or other advocate that reports to the court.
(4) A person licensed to practice the healing arts or mental health
profession in order to diagnose, care for, treat or supervise:
(A) A child whom such service provider reasonably suspects may be
in need of care;
(B) a member of the child's family; or
(C) a person who allegedly abused or neglected the child.
(5) A person or entity licensed or registered by the secretary of health
and environment or approved by the secretary for children and families to
care for, treat or supervise a child in need of care.
(6) A coroner or medical examiner when such person is determining
the cause of death of a child.
(7) The state child death review board established under K.S.A. 22a-
243, and amendments thereto.
(8) An attorney for a private party who files a petition pursuant to
K.S.A. 38-2233(b), and amendments thereto.
(9) A foster parent, prospective foster parent, permanent custodian,
prospective permanent custodian, adoptive parent or prospective adoptive
parent. In order to assist such persons in making an informed decision
regarding acceptance of a particular child, to help the family anticipate
problems that may occur during the child's placement, and to help the
family meet the needs of the child in a constructive manner, the secretary
shall seek and shall provide the following information to such persons as
the information becomes available to the secretary:
(A) Strengths, needs and general behavior of the child;
(B) circumstances that necessitated placement;
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(C) information about the child's family and the child's relationship to
the family that may affect the placement;
(D) important life experiences and relationships that may affect the
child's feelings, behavior, attitudes or adjustment;
(E) medical history of the child, including third-party coverage that
may be available to the child; and
(F) education history, to include present grade placement, special
strengths and weaknesses.
(10) The state protection and advocacy agency as provided by K.S.A.
65-5603(a)(10) or K.S.A. 74-5515(a)(2)(A) and (B), and amendments
thereto.
(11) Any educational institution to the extent necessary to enable the
educational institution to provide the safest possible environment for its
pupils and employees.
(12) Any educator to the extent necessary to enable the educator to
protect the personal safety of the educator and the educator's pupils.
(13) The office of the child advocate pursuant to the child advocate
act.
(14) Any other federal, state or local government executive branch
entity or any agent of such entity, having a need for such information in
order to carry out such entity's responsibilities under the law to protect
children from abuse and neglect.
(d) Specified access. The following persons or entities shall have
access to information contained in agency records as specified.
Information authorized to be disclosed pursuant to this subsection shall not
contain information that identifies a reporter of a child who is alleged or
adjudicated to be a child in need of care.
(1) Information from confidential agency records of the Kansas
department for children and families, a law enforcement agency or any
juvenile intake and assessment worker of a child alleged or adjudicated to
be in need of care shall be available to members of the standing house or
senate committee on judiciary, house committee on corrections and
juvenile justice, house committee on appropriations, senate committee on
ways and means, legislative post audit committee and any joint committee
with authority to consider children's and families' issues, when carrying
out such member's or committee's official functions in accordance with
K.S.A. 75-4319, and amendments thereto, in a closed or executive
meeting. Except in limited conditions established by
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such committee, records and reports received by the committee shall not
be further disclosed. Unauthorized disclosure may subject such member to
discipline or censure from the house of representatives or senate. The
secretary for children and families shall not summarize the outcome of
department actions regarding a child alleged to be a child in need of care
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in information available to members of such committees.
(2) The secretary for children and families may summarize the
outcome of department actions regarding a child alleged to be a child in
need of care to a person having made such report.
(3) Information from confidential reports or records of a child alleged
or adjudicated to be a child in need of care may be disclosed to the public
when:
(A) The individuals involved or their representatives have given
express written consent; or
(B) the investigation of the abuse or neglect of the child or the filing
of a petition alleging a child to be in need of care has become public
knowledge, provided, however, that the agency shall limit disclosure to
confirmation of procedural details relating to the handling of the case by
professionals.
(e) Law enforcement access. The secretary shall disclose confidential
agency records of a child alleged or adjudicated to be a child in need of
care, as described in K.S.A. 38-2209, and amendments thereto, to the law
enforcement agency investigating the alleged or substantiated report or
investigation of abuse or neglect, regardless of the disposition of such
report or investigation. Such records shall include, but not be limited to,
any information regarding such report or investigation, records of past
reports or investigations concerning such child and such child's siblings
and the perpetrator or alleged perpetrator and the name and contact
information of the reporter or persons alleging abuse or neglect and case
managers, investigators or contracting agency entity employees assigned to
or investigating such report. Such records shall only be used for the
purposes of investigating the alleged or substantiated report or
investigation of abuse or neglect.
(f) Court order. Notwithstanding the provisions of this section, a
court of competent jurisdiction, after in camera inspection, may order
disclosure of confidential agency records pursuant to a determination that
the disclosure is in the best interests of the child who is the subject of the
reports or that the records are necessary for the proceedings of the court.
The court shall specify the terms of disclosure and impose appropriate
limitations.
(g) (1) Notwithstanding any other provision of law to the contrary,
except as provided in paragraph (6), in the event that child abuse or
neglect results in a child fatality or near fatality, reports or records of a
child alleged or adjudicated to be in need of care received by the secretary,
a law enforcement agency or any juvenile intake and assessment worker
shall become a public record and subject to disclosure pursuant to K.S.A.
45-215, and amendments thereto.
(2) Within seven days of receipt of a request in accordance with the
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procedures adopted under K.S.A. 45-220, and amendments thereto, the
secretary shall notify any affected individual that an open records request
has been made concerning such records. The secretary or any affected
individual may file a motion requesting the court to prevent disclosure of
such record or report, or any select portion thereof. Notice of the filing of
such motion shall be provided to all parties requesting the records or
reports, and such party or parties shall have a right to hearing, upon
request, prior to the entry of any order on such motion. If the affected
individual does not file such motion within seven days of notification, and
the secretary has not filed a motion, the secretary shall release the reports
or records. If such motion is filed, the court shall consider the effect such
disclosure may have upon an ongoing criminal investigation, a pending
prosecution, or the privacy of the child, if living, or the child's siblings,
parents or guardians, and the public's interest in the disclosure of such
records or reports. The court shall make written findings on the record
justifying the closing of the records and shall provide a copy of the journal
entry to the affected parties and the individual requesting disclosure
pursuant to the Kansas open records act, K.S.A. 45-215 et seq., and
amendments thereto.
(3) Notwithstanding the provisions of paragraph (2), in the event that
child abuse or neglect results in a child fatality, the secretary shall release
the following information in response to an open records request made
pursuant to the Kansas open records act, within seven business days of
receipt of such request, as allowed by applicable law:
(A) Age and sex of the child;
(B) date of the fatality;
(C) a summary of any previous reports of abuse or neglect received
by the secretary involving the child, along with the findings of such
reports; and
(D) any department recommended services provided to the child.
(4) Notwithstanding the provisions of paragraph (2), in the event that
a child fatality occurs while such child was in the custody of the secretary
for children and families, the secretary shall release the following
information in response to an open records request made pursuant to the
Kansas open records act, within seven business days of receipt of such
request, as allowed by applicable law:
(A) Age and sex of the child;
(B) date of the fatality; and
(C) a summary of the facts surrounding the death of the child.
(5) For reports or records requested pursuant to this subsection, the
time limitations specified in this subsection shall control to the extent of
any inconsistency between this subsection and K.S.A. 45-218, and
amendments thereto. As used in this section, "near fatality" means an act
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that, as certified by a person licensed to practice medicine and surgery,
places the child in serious or critical condition.
(6) Nothing in this subsection shall allow the disclosure of reports,
records or documents concerning the child and such child's biological
parents that were created prior to such child's adoption. Nothing herein is
intended to require that an otherwise privileged communication lose its
privileged character.
Sec. 10. On and after July 1, 2023, K.S.A. 38-2213 is hereby
amended to read as follows: 38-2213. (a) Principle of limited disclosure.
Information contained in confidential law enforcement records concerning
a child alleged or adjudicated to be in need of care may be disclosed as
provided in this section. Disclosure shall in all cases be guided by the
principle of providing access only to persons or entities with a need for
information that is directly related to achieving the purposes of this code.
(b) Free exchange of information. Pursuant to K.S.A. 38-2210, and
amendments thereto, a law enforcement agency shall participate in the free
exchange of information concerning a child who is alleged or adjudicated
to be in need of care.
(c) Access to information in law enforcement records. In order to
discharge their official duties, the following persons or entities shall have
access to confidential law enforcement records concerning a child alleged
or adjudicated to be in need of care.
(1) The court having jurisdiction over the proceedings, including the
presiding judge and any court personnel designated by the judge.
(2) The secretary.
(3) The commissioner of juvenile justice secretary of corrections.
(4) Law enforcement officers or county or district attorneys or their
staff.
(5) Any juvenile intake and assessment worker.
(6) Members of a court-appointed multidisciplinary team.
(7) The office of the child advocate pursuant to the child advocate
act.
(8) Any other federal, state or local government executive branch
entity, or any agent of such entity, having a need for such information in
order to carry out such entity's responsibilities under law to protect
children from abuse and neglect.
(8)(9) Persons or entities allowed access pursuant to subsection (f) of
K.S.A. 38-2212(f), and amendments thereto.
(d) Necessary access. The following persons or entities shall have
access to information from law enforcement records when reasonably
necessary to carry out their lawful responsibilities, to maintain their
personal safety and the personal safety of individuals in their care, or to
educate, diagnose, treat, care for or protect a child alleged or adjudicated
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to be in need of care. Information authorized to be disclosed in this
subsection shall not contain information which that identifies a reporter of
a child alleged or adjudicated to be a child in need of care.
(1) Any individual, or public or private agency authorized by a
properly constituted authority to diagnose, care for, treat or supervise a
child who is the subject of a report or record of child abuse or neglect,
including physicians, psychiatrists, nurses, nurse practitioners,
psychologists, licensed social workers, child development specialists,
physician assistants, community mental health workers, alcohol and drug
abuse counselors, and licensed or registered child care providers.
(2) School administrators shall have access to but shall not copy law
enforcement records and may disclose information to teachers,
paraprofessionals and other school personnel as necessary to meet the
educational needs of the child or to protect the safety of students and
school employees.
(3) The department of health and environment or persons authorized
by the department of health and environment pursuant to K.S.A. 65-512,
and amendments thereto, for the purposes of carrying out responsibilities
relating to licensure or registration of child care providers as required by
article 5 of chapter 65 of the Kansas Statutes Annotated, and amendments
thereto.
(e) Legislative access. Information from law enforcement records of a
child alleged or adjudicated to be in need of care shall be available to
members of the standing house or senate committee on judiciary, house
committee on corrections and juvenile justice, house committee on
appropriations, senate committee on ways and means, legislative post audit
committee and any joint committee with authority to consider children's
and families' issues, when carrying out such member's or committee's
official functions in accordance with K.S.A. 75-4319, and amendments
thereto, in a closed or executive meeting. Except in limited conditions
established by
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received by the committee shall not be further disclosed. Unauthorized
disclosure may subject such member to discipline or censure from the
house of representatives or senate.
(f) Court order. Notwithstanding the provisions of this section, a
court of competent jurisdiction, after in camera inspection, may order
disclosure of confidential law enforcement records pursuant to a
determination that the disclosure is in the best interests of the child who is
the subject of the reports or that the records are necessary for the
proceedings of the court and otherwise admissible as evidence. The court
shall specify the terms of disclosure and impose appropriate limitations.
Sec. 11. K.S.A. 38-2270 is hereby amended to read as follows: 38-
2270. (a) When parental rights have been terminated and it appears that
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adoption is a viable alternative, the court shall enter one of the following
orders:
(1) An order granting custody of the child, for adoption proceedings,
to the secretary or a corporation organized under the laws of the state of
Kansas authorized to care for and surrender children for adoption as
provided in K.S.A. 38-112 et seq., and amendments thereto. The person,
secretary or corporation shall have authority to place the child in a family
home, and give consent for the legal adoption of the child which shall be
the only consent required to authorize the entry of an order or decree of
adoption. When deciding who will adopt the child, the secretary or
corporation shall be guided by the best interests of the child.
(2) An order granting custody of the child to proposed adoptive
parents and consenting to the adoption of the child by the proposed
adoptive parents. The court shall be guided by the best interests of the
child. Any prior custody order, including, but not limited to, custody of the
secretary or corporation, shall cease upon the court granting custody of
the child to the proposed adoptive parents under this subsection.
(b) In making an order under subsection (a), the court shall give
preference, to the extent that the court finds it is in the best interests of the
child, first to granting such custody for adoption to a relative of the child
and second to granting such custody to a person with whom the child has
close emotional ties. (1) When a child is placed in the custody of the
secretary for purposes of adoption under subsection (a)(1) or when a
parent has relinquished such parent's rights to the secretary for adoption
purposes, the secretary shall give preference, subject to the best interests
of the child, according to paragraphs (2) and (3).
(2) If a child has been in the custody of the secretary for less than one
cumulative year, the secretary shall give preference, first, to granting such
custody for adoption to a relative of the child and second, to granting such
custody to a person with whom the child has close and healthy
attachments.
(3) If a child has been in the custody of the secretary for one
cumulative year or more, the secretary shall give preference to a
placement that maintains the child's close and healthy attachments. The
secretary shall consider the foster parent as a prospective adoptive parent
when:
(A) The child has lived more than half of the child's lifetime with the
foster parent;
(B) the child has lived more than two years with the foster parent; or
(C) the secretary otherwise determines it is in the best interests of the
child.
(c) If a foster parent considered by the secretary under subsection (b)
is not selected by the secretary, the foster parent may request direct
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placement of the child by the court under subsection (a)(2) and may
appeal that decision to the court of appeals.
(d) To implement the provisions of this section, the secretary shall:
(1) Develop and enforce adoption selection policies that comply with
subsection (b) and ensure caregiver and sibling attachments are
appropriately considered;
(2) review policies and update to reduce time to adoption
permanency;
(3) apply adoption selection policies consistently;
(4) develop and provide training for contractors and employees;
(5) collect data regarding best interest staffing conducted under this
section, including, but not limited to, data on the number of:
(A) Prospective adoptive parents who request the secretary to
reconsider an initial adoptive placement decision;
(B) initial adoptive placement decisions that the secretary overturns
after reconsidering the initial adoptive placement decision; and
(C) prospective parents who request the court to review the
secretary's adoptive placement decision; and
(6) on or before the first day of the regular legislative session of
2024, and every year thereafter, prepare and submit a report to the
legislature on compliance with this subsection.
(e) Discharge upon adoption. When an adoption decree has been filed
with the court in the child in need of care case, the secretary's custody shall
cease, the court's jurisdiction over the child shall cease and the court shall
enter an order to that effect.
(f) The amendments made to this section by this act shall be
construed and applied retroactively to all proceedings pending before a
court on the effective date of this act.
Sec. 12. K.S.A. 38-2273 is hereby amended to read as follows: 38-
2273. (a) An appeal may be taken by any party or interested party from
any order of:
(1) Temporary custody, adjudication, disposition, finding of unfitness
or termination of parental rights; or
(2) a placement of a child, including, but not limited to, an order
entered after termination of parental rights.
(b) An appeal from an order entered by a district magistrate judge
who is not regularly admitted to practice law in Kansas shall be to a
district judge. The appeal shall be heard on the basis of the record within
30 days from the date the notice of appeal is filed. If no record was made
of the proceedings, the trial shall be de novo.
(c) Procedure on appeal shall be governed by article 21 of chapter 60
of the Kansas Statutes Annotated, and amendments thereto.
(d) Notwithstanding any other provision of law to the contrary,
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appeals under this section shall have priority over all other cases.
(e) Every notice of appeal, docketing statement and brief shall be
verified by the appellant if the appellant has been personally served at any
time during the proceedings. Failure to have the required verification shall
result in the dismissal of the appeal.
(f) While a case is on appeal from the district court, the district court
or magistrate court shall continue to have jurisdiction over all issues not
specifically appealed and shall conduct timely permanency hearings.
(g) The amendments made to this section by this act are procedural
in nature and shall be construed and applied retroactively to any order
issued on or after February 1, 2022.
Sec. 13. On and after July 1, 2023, K.S.A. 38-2309 is hereby
amended to read as follows: 38-2309. (a) Official file. The official file of
proceedings pursuant to this code shall consist of the complaint, process,
service of process, orders, writs and journal entries reflecting hearings
held, judgments and decrees entered by the court. The official file shall be
kept separate from other records of the court.
(b) The official file shall be open for public inspection, unless the
judge determines that opening the official file for public inspection is not
in the best interests of a juvenile who is less than 14 years of age.
Information identifying victims and alleged victims of sex offenses, as
defined in article 35 of chapter 21 of the Kansas Statutes Annotated, prior
to their repeal, or article 55 of chapter 21 of the Kansas Statutes
Annotated, or K.S.A. 2022 Supp. 21-6419 through 21-6422, and
amendments thereto, or human trafficking or aggravated human
trafficking, as defined in K.S.A. 21-3446 or 21-3447, prior to their repeal,
or K.S.A. 2022 Supp. 21-5426, and amendments thereto, shall not be
disclosed or open to public inspection under any circumstances. Nothing in
this section shall prohibit the victim or alleged victim of any sex offense
from voluntarily disclosing such victim's identity. An official file closed
pursuant to this section and information identifying the victim or alleged
victim of any sex offense shall be disclosed only to the following:
(1) A judge of the district court and members of the staff of the court
designated by the judge;
(2) parties to the proceedings and their attorneys;
(3) any individual or any public or private agency or institution: (A)
Having custody of the juvenile under court order; or (B) providing
educational, medical or mental health services to the juvenile;
(4) the juvenile's court appointed special advocate;
(5) any placement provider or potential placement provider as
determined by the commissioner or court services officer;
(6) law enforcement officers or county or district attorneys, or their
staff, when necessary for the discharge of their official duties;
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(7) the Kansas racing commission, upon written request of the
commission chairperson, for the purpose provided by K.S.A. 74-8804, and
amendments thereto, except that information identifying the victim or
alleged victim of any sex offense shall not be disclosed pursuant to this
subsection;
(8) juvenile intake and assessment workers;
(9) the commissioner secretary of corrections;
(10) the office of the child advocate pursuant to the child advocate
act;
(11) any other person when authorized by a court order, subject to any
conditions imposed by the order; and
(11)(12) the commission on judicial performance in the discharge of
the commission's duties pursuant to article 32 of chapter 20 of the Kansas
Statutes Annotated, and amendments thereto.
(c) Social file. (1) Reports and information received by the court,
other than the official file, shall be privileged and open to inspection only
by the following:
(A) Attorneys for the parties,;
(B) juvenile intake and assessment workers,;
(C) court appointedcourt-appointed special advocates,;
(D) juvenile community corrections officers,;
(E) the juvenile's guardian ad litem, if any,;
(F) the office of the child advocate pursuant to the child advocate
act; or upon
(G) any other person when authorized by the order of a judge of the
district court or appellate court.
(2) The reports shall not be further disclosed without approval of the
court or by being presented as admissible evidence.
(d) Preservation of records. The Kansas state historical society shall
be allowed to take possession for preservation in the state archives of any
court records related to proceedings under the Kansas juvenile justice code
or the revised Kansas juvenile justice code whenever such records
otherwise would be destroyed. The Kansas state historical society shall
make available for public inspection any unexpunged docket entry or
official file in its custody concerning any juvenile 14 or more years of age
at the time an offense is alleged to have been committed by the juvenile.
No other such records in the custody of the Kansas state historical society
shall be disclosed directly or indirectly to anyone for 70 years after
creation of the records, except as provided in subsections (b) and (c). A
judge of the district court may allow inspection for research purposes of
any court records in the custody of the Kansas state historical society
related to proceedings under the Kansas juvenile justice code or the
revised Kansas juvenile justice code.
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(e) Relevant information, reports and records, shall be made available
to the department of corrections upon request, and a showing that the
former juvenile has been convicted of a crime and placed in the custody of
the secretary of corrections.
Sec. 14. On and after July 1, 2023, K.S.A. 38-2310 is hereby
amended to read as follows: 38-2310. (a) All records of law enforcement
officers and agencies and municipal courts concerning an offense
committed or alleged to have been committed by a juvenile under 14 years
of age shall be kept readily distinguishable from criminal and other records
and shall not be disclosed to anyone except:
(1) The judge of the district court and members of the staff of the
court designated by the judge;
(2) parties to the proceedings and their attorneys;
(3) the Kansas department for children and families;
(4) the juvenile's court appointed special advocate, any officer of a
public or private agency or institution or any individual having custody of
a juvenile under court order or providing educational, medical or mental
health services to a juvenile;
(5) any educational institution, to the extent necessary to enable the
educational institution to provide the safest possible environment for its
pupils and employees;
(6) any educator, to the extent necessary to enable the educator to
protect the personal safety of the educator and the educator's pupils;
(7) law enforcement officers or county or district attorneys, or their
staff, when necessary for the discharge of their official duties;
(8) the central repository, as defined by K.S.A. 22-4701, and
amendments thereto, for use only as a part of the juvenile offender
information system established under K.S.A. 38-2326, and amendments
thereto;
(9) juvenile intake and assessment workers;
(10) the department of corrections;
(11) juvenile community corrections officers;
(12) the interstate compact for juveniles compact administrator for
the purpose of carrying out the responsibilities related to the interstate
compact for juveniles;
(13) the office of the child advocate pursuant to the child advocate
act;
(14) any other person when authorized by a court order, subject to any
conditions imposed by the order; and
(14)(15) as provided in subsection (c).
(b) The provisions of this section shall not apply to records
concerning:
(1) A violation, by a person 14 or more years of age, of any provision
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of chapter 8 of the Kansas Statutes Annotated, and amendments thereto, or
of any city ordinance or county resolution which relates to the regulation
of traffic on the roads, highways or streets or the operation of self-
propelled or nonself-propelled vehicles of any kind;
(2) a violation, by a person 16 or more years of age, of any provision
of chapter 32 of the Kansas Statutes Annotated, and amendments thereto;
or
(3) an offense for which the juvenile is prosecuted as an adult.
(c) All records of law enforcement officers and agencies and
municipal courts concerning an offense committed or alleged to have been
committed by a juvenile 14 or more years of age shall be subject to the
same disclosure restrictions as the records of adults. Information
identifying victims and alleged victims of sex offenses, as defined in
article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their
repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated, and
amendments thereto, K.S.A. 2022 Supp. 21-6419 through 21-6422, and
amendments thereto, or human trafficking or aggravated human
trafficking, as defined in K.S.A. 21-3446 or 21-3447, prior to their repeal,
or K.S.A. 2022 Supp. 21-5426, and amendments thereto, shall not be
disclosed or open to public inspection under any circumstances. Nothing in
this section shall prohibit the victim or any alleged victim of any sex
offense from voluntarily disclosing such victim's identity.
(d) Relevant information, reports and records, shall be made available
to the department of corrections upon request and a showing that the
former juvenile has been convicted of a crime and placed in the custody of
the secretary of corrections.
(e) All records, reports and information obtained as a part of the
juvenile intake and assessment process for juveniles shall be confidential,
and shall not be disclosed except as provided by statutory law and rules
and regulations promulgated by the secretary.
(1) Any court of record may order the disclosure of such records,
reports and other information to any person or entity.
(2) The head of any juvenile intake and assessment program, certified
by the secretary, may authorize disclosure of such records, reports and
other information to:
(A) A person licensed to practice the healing arts who has before that
person a juvenile whom the person reasonably suspects may be abused or
neglected;
(B) a court-appointed special advocate for a juvenile or an agency
having the legal responsibility or authorization to care for, treat or
supervise a juvenile;
(C) a parent or other person responsible for the welfare of a juvenile,
or such person's legal representative, with protection for the identity of
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persons reporting and other appropriate persons;
(D) the juvenile, the attorney and a guardian ad litem, if any, for such
juvenile;
(E) the police or other law enforcement agency;
(F) an agency charged with the responsibility of preventing or
treating physical, mental or emotional abuse or neglect or sexual abuse of
children, if the agency requesting the information has standards of
confidentiality as strict or stricter than the requirements of the Kansas code
for care of children or the revised Kansas juvenile justice code, whichever
is applicable;
(G) members of a multidisciplinary team under this code;
(H) an agency authorized by a properly constituted authority to
diagnose, care for, treat or supervise a child who is the subject of a report
or record of child abuse or neglect;
(I) any individual, or public or private agency authorized by a
properly constituted authority to diagnose, care for, treat or supervise a
juvenile who is the subject of a report or record of child abuse or neglect,
specifically including the following: Physicians, psychiatrists, nurses,
nurse practitioners, psychologists, licensed social workers, child
development specialists, physician assistants, community mental health
workers, addiction counselors and licensed or registered child care
providers;
(J) a citizen review board pursuant to K.S.A. 38-2207, and
amendments thereto;
(K) an educational institution to the extent necessary to enable such
institution to provide the safest possible environment for pupils and
employees of the institution;
(L) any educator to the extent necessary for the protection of the
educator and pupils;
(M) any juvenile intake and assessment worker of another certified
juvenile intake and assessment program; and
(N) the interstate compact for juveniles compact administrator for the
purpose of carrying out the responsibilities related to the interstate
compact for juveniles; and
(O) the office of the child advocate pursuant to the child advocate
act.
Sec. 15. K.S.A. 38-2270 and 38-2273 are hereby repealed.
Sec. 16. On and after July 1, 2023, K.S.A. 38-2203, 38-2213, 38-
2309 and 38-2310 and K.S.A. 2022 Supp. 38-2211 and 38-2212 are hereby
repealed.
Sec. 17. This act shall take effect and be in force from and after its
publication in the Kansas register.
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