Current Through April 2016

Circumstances That Constitute Witnessing

This issue is not addressed in the statutes reviewed.

Consequences

This issue is not addressed in the statutes reviewed.

Current Through February 2016

Physical Abuse

Citation: Ann. Stat. § 38-2202  ‘Physical, mental, or emotional abuse’ means the infliction of physical, mental, or emotional harm, or the causing of a deterioration of a child, and may include, but shall not be limited to, maltreatment or exploiting a child to the extent that the child’s health or emotional well-being is endangered.

‘Harm’ means physical or psychological injury or damage.

Neglect

Citation: Ann. Stat. § 38-2202  ‘Neglect’ means acts or omissions by a parent, guardian, or person responsible for the care of a child that results in harm to a child or presents a likelihood of harm, and the acts or omissions are not due solely to the lack of financial means of the child’s parents or other custodian. Neglect may include but shall not be limited to:

• Failure to provide the child with food, clothing, or shelter necessary to sustain life or health
• Failure to provide adequate supervision of a child or to remove a child from a situation that requires judgment or actions beyond the child’s level of maturity, physical condition, or mental abilities and that results in bodily injury or a likelihood of harm to the child
• Failure to use resources available to treat a diagnosed medical condition if such treatment will make a child substantially more comfortable, reduce pain and suffering, or correct or substantially diminish a crippling condition from worsening

Sexual Abuse/Exploitation

Citation: Ann. Stat. § 38-2202  ‘Sexual abuse’ means any contact or interaction with a child in which the child is being used for the sexual stimulation of the perpetrator, the child, or another person. Sexual abuse includes allowing, permitting, or encouraging a child to engage in prostitution or to be photographed, filmed, or depicted in pornographic material. ‘Sexual abuse’ also shall include allowing, permitting, or encouraging a child to engage in aggravated human trafficking, as defined § 21-5426(b), if committed in whole or in part for the purpose of the sexual gratification of the offender or another.

Emotional Abuse

Citation: Ann. Stat. § 38-2202  The term ‘physical, mental, or emotional abuse’ includes the infliction of physical, mental, or emotional harm or the causing of a deterioration of a child and may include, but is not limited to, maltreatment or exploiting a child to the extent that the child’s health or emotional well-being is endangered.

‘Harm’ means physical or psychological injury or damage.

Abandonment

Citation: Ann. Stat. § 38-2202
‘Abandon’ or ‘abandonment’ means to forsake, desert, or cease providing care for the child without making appropriate provisions for substitute care.

Standards for Reporting

Citation: Ann. Stat. § 38-2223
A report is required when a mandatory reporter has reason to suspect that a child has been harmed as a result of physical, mental, or emotional abuse or neglect, or sexual abuse.

Persons Responsible for the Child

Citation: Ann. Stat. § 38-2202  A responsible person includes a parent, guardian, or person responsible for the care of a child.

The term ‘parent,’ when used in relation to a child or children, includes a guardian and every person who is by law liable to maintain, care for, or support the child.

Exceptions

Citation: Ann. Stat. § 38-2202  A parent legitimately practicing religious beliefs who does not provide specified medical treatment for a child because of religious beliefs shall not for that reason be considered a negligent parent. This exception shall not preclude a court from ordering medical treatment for the child.

Current Through August 2013

Defined in Domestic Violence Civil Laws

Citation: Ann. Stat. § 60-3102  ‘Abuse’ means the occurrence of one or more of the following acts between intimate partners or household members:

• Intentionally attempting to cause bodily injury, or intentionally or recklessly causing bodily injury
• Intentionally placing, by physical threat, another in fear of imminent bodily injury
• Engaging in any of the following acts with a minor under age 16 who is not the spouse of the offender:
  • The act of sexual intercourse
  • Any lewd fondling or touching of the person of either the minor or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the minor or the offender, or both

Defined in Child Abuse Reporting and Child Protection Laws

Citation:This issue is not addressed in the statutes reviewed.

Defined in Criminal Laws

Citation: Ann. Stat. § 21-5414  ‘Domestic battery’ is:

• Recklessly causing bodily harm by a family or household member against a family or household member
• Knowingly causing physical contact with a family or household member by a family or household member when done in a rude, insulting, or angry manner

Persons Included in the Definition

Citation: Ann. Stat. §§ 21-5414; 60-3102  In criminal law: ‘Family or household member’ means persons age 18 or older who are:

• Spouses or former spouses
• Parents or stepparents and children or stepchildren
• Persons who are residing together or who have resided together in the past
• Persons who have a child in common regardless of whether they have been married or have lived together at any time

‘Family or household member’ also includes a man and woman if the woman is pregnant and the man is alleged to be the father regardless of whether they have been married or have lived together at any time.

In civil law: ‘Intimate partners or household members’ means persons who are or have been in a dating relationship, persons who reside together or who have formerly resided together, or persons who have had a child in common.

‘Dating relationship’ means a social relationship of a romantic nature. A dating relationship shall be presumed if a plaintiff verifies that such relationship exists. In addition to any other factors the court deems relevant, the court shall consider the following factors in making a determination of whether a relationship exists or existed:

• The nature of the relationship
• The length of time the relationship existed
• The frequency of interaction between the parties
• The time since termination of the relationship, if applicable

Current Through March 2015

Citation: Ann. Stat. § 38-2223(f)

Anyone who, without malice, participates in making a report to the secretary [of Social and Rehabilitation Services] or a law enforcement agency that relates to a suspicion that a child may be a child in need of care, or who participates in any activity or investigation relating to the report, or who participates in any judicial proceeding resulting from the report, shall have immunity from any civil liability that might otherwise be incurred or imposed.

Current Through February 2013

Individual Responsibility to Report

Citation: Ann. Stat. § 38-2223When any mandated reporter has reason to suspect that a child has been harmed as a result of physical, mental, or emotional abuse or neglect or sexual abuse, the person shall report the matter promptly as provided below. The report may be made orally and shall be followed by a written report if requested.

Content of Reports

Citation: Ann. Stat. § 38-2223Every report shall contain, if known:

• The names and addresses of the child and the child’s parents or other persons responsible for the child’s care
• The location of the child if other than the child’s residence
• The child’s gender, race, and age
• The reasons the reporter suspects the child may be a child in need of care
• The nature and extent of the harm to the child, including any evidence of previous harm
• Any other information that the reporter believes might be helpful in establishing the cause of the harm and the identity of the persons responsible for the harm

When reporting a suspicion that a child may be in need of care, the reporter shall disclose protected health information freely and cooperate fully with the secretary and law enforcement throughout the investigation and any subsequent legal process.

Reporting Suspicious Deaths

Citation: Ann. Stat. §§ 38-2223; 22a-242A mandated reporter who has information relating to the death of a child shall immediately notify the coroner, as provided by § 22a-242.

When a child dies, a law enforcement officer, health-care provider, or any other person having knowledge of the death shall immediately notify the coroner of the known facts concerning the time, place, manner, and circumstances of the death.

Reporting Substance-Exposed Infants

Citation: Pol. Man. § 1650A report of a newborn child that involves alcohol or other drug abuse by the child’s mother shall be accepted for assessment when the report indicates the potential for failure or refusal of the parent to provide adequate care for the child. The assignment determination should focus on the situation of the child rather than solely on the substance abuse of the mother.

When a review of the child’s situation indicates the family may benefit from services, the report should be accepted for assessment. The report shall be assigned for a same day response to address any immediate needs of the family.

Agency Receiving the Reports

Citation: Ann. Stat. § 38-2223Reports shall be made to the secretary of Social and Rehabilitation Services, except as follows:

• When the Department of Social and Rehabilitation Services is not open for business, reports shall be made to the appropriate law enforcement agency. On the next day that the department is open for business, the law enforcement agency shall report to the department any report received and any investigation initiated pursuant to § 38-2226. The reports may be made orally or, on request of the secretary, in writing.
• Reports of child abuse or neglect occurring in an institution operated by the Department of Social and Rehabilitation Services or the Department of Juvenile Justice shall be made to the attorney general.
• Reports of child abuse or neglect committed by persons employed by the Department of Social and Rehabilitation Services, or the children of employees, shall be made to the appropriate law enforcement agency.

Initial Screening Decisions

Citation: Ann. Stat. § 38-2230; Pol. Man. §§ 1300; 1310Whenever any person furnishes information to the secretary that a child appears to be a child in need of care, the department shall make a preliminary inquiry to determine whether the interests of the child require further action. Whenever practicable, the inquiry shall include a preliminary investigation of the circumstances that were the subject of the information, including the home and environmental situation and the previous history of the child. If reasonable grounds exist to support the allegations of abuse or neglect, immediate steps shall be taken to protect the health and welfare of the abused or neglected child, as well as that of any other child under the same care who may be harmed by abuse or neglect. After the inquiry, if the secretary determines it is not otherwise possible to provide the services necessary to protect the interests of the child, the secretary shall recommend to the county or district attorney that a petition be filed.

In regulation: An initial assessment is made to determine whether there are reasonable grounds to believe abuse or neglect exists and immediate steps are needed to protect the health and welfare of the abused or neglected child. An initial assessment is made on all reports received by the agency. Following the initial assessment, the following criteria shall be used to determine whether the report may be completed with the decision to not assign for further assessment:

• The child has not been harmed or is not likely to be harmed.
• It concerns abuse or neglect that occurred in the past.
• It fails to provide the information necessary to locate the child.
• It is known to be fictitious and/or malicious.
• The incident has been or is being assessed by the department and/or law enforcement.

Agency Conducting the Assessment/Investigation

Citation: Ann. Stat. § 38-2226The department and law enforcement officers shall have the duty to receive and investigate reports of child abuse or neglect to determine whether the report is valid and whether action is required to protect the child from further abuse or neglect.

If the department and officers determine that no action is necessary to protect the child but that a criminal prosecution should be considered, the case shall be referred to the appropriate law enforcement agency.

Assessment/Investigation Procedures

Citation: Pol. Man. §§ 2010; 2020Investigatory activities may vary from case to case based on the specifics of the case and will commonly involve the following activities:

• Searching child abuse, criminal, and sex offense history records
• Interviewing the reporter and witnesses (if any) to the alleged maltreatment
• Interviewing the child victim, the child’s parents and other caregivers, and the suspected perpetrator
• Visiting the scene of the alleged maltreatment, documenting relevant environmental information, and requesting a law enforcement officer to seize physical evidence
• Obtaining relevant records from the department, law enforcement, medical practitioners, or other relevant entities
• Making and documenting behavioral observations such as the appearance and effect of witnesses and alleged perpetrators when presented with questions or information about the alleged maltreatment; the child’s behavior in the presence of caregivers or the alleged perpetrator; the type and quality of interaction of family members; statements; or behaviors of any person that indicate truthfulness or lying; any mental, emotional, or physical impairment of any other child or adult; behaviors indicating alcohol or other drug use, etc.

The activities of an assessment may vary from case to case and will commonly involve the following activities:

• Evaluating the quality and sufficiency of the evidence and the plausibility of explanations for the harm
• Considering alternative explanations for the injury
• Evaluating contributing factors according to the safety and risk assessment
• Considering abuse, criminal, and sex offense histories that indicate potential risk and safety concerns
• Reaching a tentative conclusion whether the alleged maltreatment occurred
• Assessing whether there is immediate danger to the child
• Considering alternative protection actions if necessary and selecting one
• Assessing long-term risk of reoccurrence

Timeframes for Completing Investigations

Citation: Pol. Man. § 1521When a report alleging child abuse or neglect is assigned for assessment, the supervisor shall determine the appropriate response time consistent with the facts reported and according to the following criteria:

• Same Day: When there is reason to believe that a child has been seriously injured or is in immediate serious danger
• 72 Hours: All other reports

Classification of Reports

Citation: Pol. Man. § 2502Reports may be classified as follows:

• Unsubstantiated: The facts or circumstances do not provide clear and convincing evidence to meet the statutory definition of abuse or neglect.
• Substantiated: The facts and circumstances provide clear and convincing evidence to conclude the alleged perpetrator’s actions or inactions do meet the statutory definition of abuse or neglect.

Current Through April 2015

Citation: Ann. Stat. § 21-5601(b)-(c)Aggravated endangering a child is:

• Recklessly causing or permitting a child under age 18 to be placed in a situation in which the child’s life, body, or health is endangered
• Causing or permitting the child to be in an environment in which the person knows or reasonably should know that any person is distributing, possessing with intent to distribute, manufacturing, or attempting to manufacture any methamphetamine or analog thereof
• Causing or permitting the child to be in an environment in which the person knows or reasonably should know that drug paraphernalia or volatile, toxic, or flammable chemicals are stored for the purpose of manufacturing or attempting to manufacture any methamphetamine or analog thereof

Aggravated endangering a child is a severity level 9 person felony. The sentence for a violation of aggravated endangering a child shall be served consecutively to any other term or terms of imprisonment imposed. The sentence shall not be considered a departure and shall not be subject to appeal.

Current Through August 2014

Making The Appointment

Citation: Ann. Stat. § 38-2205Upon the filing of a petition, the court shall appoint an attorney to serve as guardian ad litem (GAL) for a child who is the subject of the proceedings. When the child’s position is not consistent with the determination of the GAL as to the child’s best interests, a second attorney may be appointed to serve as attorney for the child.

The Use of Court-Appointed Special Advocates (CASAs)

Citation: Ann. Stat. § 38-2206The court at any stage of a proceeding may appoint a special advocate for the child who shall serve until discharged by the court and whose primary duties shall be to advocate the best interests of the child and assist the child in obtaining a permanent, safe, and homelike placement. The court-appointed special advocate (CASA) shall have such qualifications and perform such specific duties and responsibilities as prescribed by rule of the Supreme Court.

Qualifications/Training

Citation: Ann. Stat. § 38-2205; KS Sup. Ct. Admin. Order 100The GAL shall be an attorney.

In court rules: A GAL should participate in prerequisite education prior to appointment. Areas of education should include:

• Dynamics of abuse and neglect
• Roles and responsibilities
• Cultural awareness
• Communication and communication with children skills
• Information gathering and investigatory techniques
• Advocacy skills
• Child development
• Mental health and substance abuse issues
• Permanence and the law
• Community resources
• Professional responsibility
• Special education and school law
• The code for the care of children

Specific Duties

Citation: Ann. Stat. § 38-2205The GAL shall make an independent investigation of the facts upon which the petition is based and shall appear for and represent the best interests of the child. When the child’s position is not consistent with the determination of the GAL as to the child’s best interests, the GAL shall inform the court of the disagreement. The GAL or the child may request the court to appoint a second attorney to serve as attorney for the child, and the court, on good cause shown, may appoint such second attorney. The attorney for the child shall allow the child and the GAL to communicate with one another but may require such communications to occur in the attorney’s presence.

A GAL appointed to represent the best interests of a child or a second attorney appointed for a child shall continue to represent the child at all subsequent hearings in the proceedings, including any appellate proceedings, unless relieved by the court upon a showing of good cause or upon transfer of venue.

How the Representative Is Compensated

Citation: Ann. Stat. §§ 38-2205; 38-2215(b)An attorney appointed pursuant to this section shall be allowed a reasonable fee for services that may be assessed as an expense in the proceedings.

The expenses for proceedings under this code, including fees and expenses approved by the court for appointed attorneys, shall be paid by the board of county commissioners from the general fund of the county.

Current Through April 2014

When Case Plans Are Required

Citation: Ann. Stat. § 38-2263; Pol. & Proc. Man. § 3200Whenever a child is subject to the jurisdiction of the court pursuant to the code, an initial permanency plan shall be developed for the child and submitted to the court within 30 days of the initial order of the court.

From the Children and Family Services Policy and Procedure Manual: The initial case plan is developed within 20 calendar days of the date the services are initiated. The date services are initiated is defined as either the date the family agrees to work with the Department of Social and Rehabilitation Services (beyond 30 days) or the date of referral to a child welfare case management provider.

A child/family case planning conference shall be completed with the family when:

• There is an open family services case and the child is not in the custody of the department.
• There is an open family preservation case and no child in the family is in department custody.
• A youth, no longer in department custody, requests self-sufficiency/independent living services.
• A child is in department custody, regardless of placement setting.

Each child requires his or her own case plan. A case plan is required for all cases open for services.

Who May Participate in the Case Planning Process

Citation: Ann. Stat. § 38-2263; Pol. & Proc. Man. § 3207If the child is in the custody of the secretary or receiving services, the secretary shall prepare the plan. Otherwise, the plan shall be prepared by the person who has custody or, if directed by the court, by a court services officer.

From the Policy and Procedure Manual: Participants in the case planning process are selected based upon their involvement in the life of the child. Efforts shall be made to involve both parents when possible.

The following persons must be invited to participate in all case planning conferences:

• Parents or legal guardians
• The child, if age 7 or older, providing the child has the ability to understand the process
• The case management provider or social worker

In addition, if a child or children are in the custody of the secretary, the following persons shall be invited:

• The DCF staff assigned to the case
• The guardian ad litem
• The resource family, including relative and nonrelated kin providers, for a child in out-of-home placement
• The court-appointed special advocate, if applicable
• The Tribal representative for children when the Indian Child Welfare Act applies

Other persons who should be invited may include:

• Residential or institutional setting treatment staff, if applicable
• The prospective custodian, if permanent custodianship is the permanency plan
• The prospective adoptive parents
• Teachers
• The education advocate assigned to the child
• The youth’s positive adult connection
• Any other individuals important to the family or the child who can contribute to the case planning process
• The case management provider of a parent with a disability, if applicable
• The corrections counselor for an incarcerated parent or parole officer for a paroled parent
• The independent living coordinator for all youth in out-of-home placement starting at age 16, to begin preparation for self-sufficiency services if needed

Contents of a Case Plan

Ann. Stat. § 38-2263; Pol. & Proc. Man. §§ 3200; 3230The permanency plan:

• Describes the permanency goal that, if achieved, will most likely give the child a permanent and safe living arrangement
• Describes the child’s level of physical health, mental and emotional health, and educational functioning
• Provides an assessment of the needs of the child and family
• Describes the services to be provided the child, the child’s parents, and the child’s foster parents, if appropriate
• Includes a description of the tasks and responsibilities designed to achieve the plan and to whom assigned
• Includes measurable objectives and time schedules for achieving the plan

In addition to the requirements above, if the child is in an out-of-home placement, the permanency plan shall include:

• A plan for reintegration of the child’s parent or parents, or if reintegration is determined not to be a viable alternative, a statement for the basis of that conclusion and a plan for another permanent living arrangement
• A description of the available placement alternatives
• A justification for the placement selected, including a description of the safety and appropriateness of the placement
• A description of the programs and services that will help the child prepare to live independently as an adult

From the Policy and Procedure Manual: The plan contains specific services to be provided to meet the needs of the family. It identifies specific steps to be taken by the family, the social worker, child welfare case management provider, and any other service providers involved. The plan documents this participation for purposes of meeting the child’s protection objective of the plan, the goals for the family, and/or young adult working toward self-sufficiency, timeframes to meet goals, criteria for success, and permanency goals.

Case plans shall:

• Be relevant to the critical issues in the family situation
• Be realistic in terms of the emotional, physical, and intellectual capabilities of the family members
• Be written in language that is clear and understandable to the family and youth
• Address the issues identified in the family-based assessment
• Describe how success shall be determined
• Specify the timelines and review dates
• Describe possible outcomes as the case plan is implemented
• Have the signature of all case plan participants
• Document the participation of the family in family meetings
• Include any relevant orders from the court
• Include actions likely to be taken if conditions of the agreement are not carried out

A case plan shall:

• Contain timelines for reintegration or other permanency goal, or self-sufficiency, child protection objectives, and measurable tasks needed to be accomplished
• Include the visitation/interaction plan
• Document service delivery
• Document reasonable efforts made to make it possible for a child to safely return home
• Document if the court has found such efforts not to be a viable alternative
• Document steps taken to finalize the permanent custodianship

Current Through January 2016

Schedule of Hearings

Citation: Ann. Stat. § 38-2264; Pol. & Proc. Man. § 3205A permanency hearing shall be held:

• Within 12 months of the date the court authorized the child’s removal from the home and at least every 12 months thereafter
• Within 30 days of a determination that reintegration may not be a viable alternative for the child

In policy: A formal case planning review is conducted at least every 170 days. Any member of the case planning team may request a formal review of the case plan at any time. The purpose is to re-evaluate the case plan and modify it as needed to better meet the needs of the family and the child.

Persons Entitled to Attend Hearings

Citation: Ann. Stat. § 38-2265Notice of the time and place of the permanency hearing shall be given to the parties and interested parties. The notice shall state that the person receiving the notice shall have the right to be heard at the hearing. The notice shall be sent to the following:

• The child’s foster parents or permanent custodian
• Preadoptive parents for the child, if any
• The child’s grandparents or, if no grandparent is living, the closest relative of each of the child’s parents whose address is known
• The person having custody of the child
• Upon request, to any person having close emotional ties with the child and who is deemed by the court to be essential to the deliberations before the court

Individuals receiving notice shall not be made a party or interested party to the action solely on the basis of this notice and opportunity to be heard. Opportunity to be heard shall be at a time and in a manner determined by the court and does not confer an entitlement to appear in person.

Determinations Made at Hearings

Citation: Ann. Stat. § 38-2264The purpose of the permanency hearing is determining progress toward accomplishment of a permanency plan. The court shall enter a finding as to whether reasonable efforts have been made by appropriate public or private agencies to rehabilitate the family and achieve the permanency goal in place at the time of the hearing.

When the court finds that reintegration of the family continues to be a viable alternative, the court shall determine whether and, if applicable, when the child will be returned to the parent. The court may rescind any of its prior dispositional orders and enter any dispositional order authorized by this code or may order that a new plan for the reintegration be prepared and submitted to the court.

If the court finds reintegration is no longer a viable alternative, the court shall consider whether:

• The child is in a stable placement with a relative.
• Services set out in the case plan necessary for the safe return of the child have been made available to the parent with whom reintegration is planned.
• Compelling reasons are documented in the case plan to support a finding that neither adoption nor appointment of a permanent custodian are in the child’s best interests.

Permanency Options

Citation: Ann. Stat. § 38-2264The court will determine whether and, if applicable, when the child will be:

• Reintegrated with the child’s parents
• Placed for adoption
• Placed with a permanent custodian
• Placed in another planned permanent arrangement when there is documented evidence that there are compelling reasons why another permanent placement is not in the child’s best interests

Current Through March 2016

Citation: Ann. Stat. § 38-2201(b)The code shall be liberally construed to carry out the policies of the State, which are to:

• Consider the safety and welfare of a child to be paramount in all proceedings under the code
• Provide that each child who comes within the provisions of the code shall receive the care, custody, guidance, control, and discipline that will best serve the child’s welfare and the interests of the State, preferably in the child’s home and recognizing that the child’s relationship with such child’s family is important to the child’s well-being
• Make the ongoing physical, mental, and emotional needs of the child decisive considerations in proceedings under this code
• Acknowledge that the time perception of a child differs from that of an adult and to dispose of all proceedings under this code without unnecessary delay
• Encourage the reporting of suspected child abuse and neglect
• Investigate reports of suspected child abuse and neglect thoroughly and promptly
• Provide for the protection of children who have been subject to physical, mental, sexual, or emotional abuse or neglect
• Provide preventative and rehabilitative services, when appropriate, to abused and neglected children and their families so, if possible, the families can remain together without further threat to the children
• Provide stability in the life of a child who must be removed from the home of a parent
• Place children in permanent family settings, in the absence of compelling reasons to the contrary

Current Through January 2013

Circumstances That Are Grounds for Termination of Parental Rights

Citation: Ann. Stat. §§ 38-2269; 38-2271The court may terminate parental rights when it finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition that makes the parent unable to care properly for a child, and the conduct or condition is unlikely to change in the foreseeable future. In making a determination of unfitness, the court shall consider, but is not limited to, the following:

• Emotional illness, mental illness, mental deficiency, or physical disability of such duration or nature as to make the parent unable to care for the child
• Conduct toward a child of a physically, emotionally, sexually cruel, or abusive nature
• The use of intoxicating liquors or dangerous drugs that render the parent unable to care for a child
• Physical, mental, or emotional abuse; neglect; or sexual abuse of a child
• Conviction of a felony and imprisonment
• Unexplained injury or death of another child or stepchild of the parent
• Failure of reasonable efforts made by appropriate public or private agencies to rehabilitate the family
• Lack of effort on the part of the parent to adjust the parent’s circumstances, conduct, or conditions to meet the needs of the child
• Whether the child has been in extended out-of-home placement as a result of actions or inactions attributable to the parent and any of the factors listed below apply

In addition, when a child is not in the physical custody of a parent, the court shall consider, but is not limited to, the following:

• The parent has failed:
  • To assure care of the child when able to do so
  • To maintain regular visitation, contact, or communication with the child
  • To carry out a reasonable plan approved by the court directed toward the integration of the child into a parental home
  • To pay a reasonable portion of the cost of substitute physical care and maintenance based on ability to pay
• A parent has previously been found to be an unfit parent.
• A parent has twice before been convicted of a crime against the person or a sex offense, or the attempt to commit such a crime, and the victim was under age 18.
• On two or more prior occasions a child in the physical custody of the parent has been adjudicated a child in need of care.
• The parent has been convicted of causing the death of another child or stepchild of the parent.
• The child has been in out-of-home placement for a cumulative period of 1 year or longer, and the parent has substantially neglected or willfully refused to carry out a reasonable plan for reintegration of the child into the parental home.
• The child has been in out-of-home placement for a cumulative period of 2 years or longer, the parent has failed to carry out a reasonable plan for reintegration of the child into the parental home, and there is a substantial probability that the parent will not carry out such plan in the near future.
• A parent has been convicted of capital murder or voluntary manslaughter, or has been adjudicated a juvenile offender, and the victim of such murder was the other parent of the child.
• A parent abandoned or neglected the child after having knowledge of the child’s birth.
• A parent has made no reasonable efforts to support or communicate with the child after having knowledge of the child’s birth.
• A father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the 6 months prior to the child’s birth.
• A father abandoned the mother after having knowledge of the pregnancy.
• A parent has been convicted of rape resulting in the conception of the child.
• A parent has failed to assume the duties of a parent for 2 consecutive years prior to the filing of the petition. In making this determination the court may disregard incidental visitations, contacts, communications, or contributions.

Circumstances That Are Exceptions to Termination of Parental Rights

This issue is not addressed in the statutes reviewed.

Circumstances Allowing Reinstatement of Parental Rights

This issue is not addressed in the statutes reviewed.

Current Through February 2013

Infant’s Age

Citation: Ann. Stat. § 38-2282

An infant who is 45 days old or younger may be relinquished.

Who May Relinquish the Infant

Citation: Ann. Stat. § 38-2282

A parent or other person having lawful custody of an infant that has not suffered bodily harm may surrender physical custody of the infant.

Who May Receive the Infant

Citation: Ann. Stat. § 38-2282

Physical custody of the infant may be surrendered to any employee who is on duty at a fire station, city or county health department, or medical care facility.

Responsibilities of the Safe Haven Provider

Citation: Ann. Stat. § 38-2282

As soon as possible after an employee takes physical custody of an infant, such person shall notify a local law enforcement agency. Upon receipt of such notice, a law enforcement officer shall take custody of the infant as an abandoned child.

Any person, city or county agency, or medical care facility taking physical custody of an infant shall perform any act necessary to protect the physical health or safety of the infant.

Immunity for the Provider

Citation: Ann. Stat. § 38-2282

Any person, city or county agency, or medical care facility taking physical custody of an infant shall be immune from liability for any injury to the infant that may result from taking care of the infant.

Protection for Relinquishing Parent

Citation: Ann. Stat. § 21-5605

No parent or other person having lawful custody of an infant shall be prosecuted for abandonment of a child, if such parent or person surrenders custody of an infant in the manner provided by § 38-2282, and if such infant has not suffered bodily harm.

Effect on Parental Rights

Citation: Ann. Stat. § 38-2269(d)

At a hearing for termination of termination of parental rights, a finding of unfitness may be made if the court finds that the custody of the child was surrendered pursuant to § 38-2282, or the child was left under such circumstances that the identity of the parents is unknown and cannot be ascertained, despite diligent searching, and the parents have not come forward to claim the child within 3 months after the child is found.

Current Through December 2014

Definitions

Citation: Ann. Stat. § 38-2202The term ‘custody,’ whether temporary, protective, or legal, means the status created by court order or statute that vests in a custodian, whether an individual or an agency, the right to physical possession of the child and the right to determine placement of the child, subject to restrictions placed by the court.

‘Kinship care’ means the placement of a child in the home of the child’s relative or in the home of another adult with whom the child or the child’s parent already has a close emotional attachment.

The term ‘permanency goal’ means the outcome of the permanency planning process, which may be reintegration, adoption, appointment of a permanent custodian, or another planned permanent living arrangement.

The term ‘permanent custodian’ means a judicially approved permanent guardian of a child pursuant to § 38-2272.

Purpose of Guardianship

Citation: Pol. & Proc. Manual § 3231For youth for whom the court has determined that reintegration and adoption are not viable permanency options, permanent custodianship provides the child with the next preferable goal. Permanent custodianship enables the caregiver to exercise all the rights and responsibilities of a parent without the on-going oversight of the Department for Children and Families. Custodianship may be an option for youth with or without the termination of parental rights.

A Guardian’s Rights and Responsibilities

Citation: Ann. Stat. § 38-2272Subject to limitations included in the custodianship order, a permanent custodian shall stand in loco parentis and shall exercise all of the rights and responsibilities of a parent except the permanent custodian shall not:

• Consent to an adoption of the child
• Be subject to court-ordered child support or medical support

Unless there has been a judicial finding of unfitness or court-ordered limitations, a permanent custodian may share parental responsibilities with a parent of the child as the permanent custodian determines is in the child’s best interests. Sharing parental responsibilities does not relieve the permanent custodian of legal responsibility for the child.

If a permanent custodian is appointed after a judicial finding of parental unfitness without a termination of parental rights, the parent shall retain only the obligation to pay child support and medical support, the right to inherit from the child, and the right to consent to adoption of the child. All other parental rights transfer to the permanent custodian.

If a permanent custodian is appointed after termination of parental rights, the parent retains no right or responsibilities to the child.

Qualifying the Guardian

Citation: Ann. Stat. §§ 38-2272; 59-2132Prior to appointing a permanent custodian, the court shall receive and consider an assessment of any potential permanent custodian as provided in § 59-2132. In making an order appointing a permanent custodian, the court shall give preference, to the extent that the court finds it in the child’s best interests, first to appointing a permanent custodian who is a relative of the child and second to a person with whom the child has close emotional ties.

In making the assessment, the person authorized to perform assessments or the Department for Children and Families is authorized to observe the child in the petitioner’s home, verify financial information of the petitioner, and clarify any genetic and medical history filed with the petition. The assessment also must include checking the name of the petitioner with the child abuse and neglect registry through the department and, when appropriate, with a similar registry in another State or nation. Criminal history checks are required for determining whether the petitioner has been convicted of a felony for any act described in articles 54, 55, or 56 of chapter 21 of the Kansas Statutes or §§ 21-6104, 21-6325, 21-6326, or 21-6418 through 21-6421; of a felony violation of article 57 of chapter 21 of the Kansas Statutes within the last 5 years; or any felony violation of any provision of the uniform controlled substances act.

Procedures for Establishing Guardianship

Citation: Ann. Stat. § 38-2272A permanent custodian may be appointed:

• With the consent and agreement of the parents and approval by the court
• After a finding of parental unfitness pursuant to § 38-2269
• After termination of parental rights

Upon the appointment of a permanent custodian, the department’s custody of the child shall cease. The court’s jurisdiction over the child shall continue unless the court enters an order terminating jurisdiction.

Parental consent to the appointment of a permanent custodian shall be in writing and shall be acknowledged before a judge of a court of record or before an officer authorized by law to take acknowledgments. If the consent is acknowledged before a judge, it shall be the duty of the court to advise the consenting parent of the consequences of the consent, including the following:

• Do you understand that your parental rights are not being terminated and you can be ordered to pay child support and medical support for your child?
• Do you understand that to keep your rights, you must keep the court up to date about how to contact you?
• Do you understand that if your child is ever placed for adoption, the court will try to let you know by using the information you have given them?
• Do you understand that if you want information about your child’s health or education, the court will send the information to the latest address the court has?
• Do you understand that you may be able to have some contact with your child, but only if the permanent custodian decides it is in the child’s best interests and if the court allows the contact?
• Do you understand that unless the court orders differently, the permanent custodian has the right to make the following decisions about your child care and consent to the child’s marriage; medical treatment; mental health treatment; and make other critical health-care decisions?

Contents of a Guardianship Order

Citation: Ann. Stat. § 38-2272When the court retains jurisdiction after appointment of a permanent custodian, the court, in its order, may impose limitations or conditions upon the rights and responsibilities of the permanent custodian including, but not limited to, the right to:

• Determine contact with the biological parent
• Consent to marriage; psychosurgery, removal of a bodily organ, or amputation of a limb; sterilization; behavioral and medical experiments; withholding life-prolonging medical treatment; placement in a treatment facility; or placement in a psychiatric hospital or an institution for the developmentally disabled

Modification/Revocation of Guardianship

Citation: Ann. Stat. § 38-2272A parent’s consent to custodianship is final when executed, unless the parent whose consent is at issue, prior to issuance of the order appointing a permanent custodian, proves by clear and convincing evidence that the consent was not freely and voluntarily given. The burden of proving the consent was not freely and voluntarily given shall rest with that parent.

Eligibility for Guardianship Subsidy

Citation: Pol. & Proc. Man. § 6111Children may be considered for a permanent custodianship subsidy if they are age 14 or older, are part of a sibling group that has one child age 14 or older who are being placed together, or have other extenuating circumstances that make adoption not a reasonable option.

The permanent custodianship subsidy is not an entitlement program, and the child must meet all of the following criteria:

• The child is in the custody of the department with or without parental rights terminated at the time permanent custodianship is established.
• A court has issued an order appointing a permanent custodian.
• The child is not receiving Supplemental Security Income benefits.
• The permanent custodian meets eligibility to receive Temporary Assistance for Families (TAF).

Links to Agency Policies

Kansas Department for Children and Families, Policy and Procedure Manual, click on ‘6000, Permanent Custodianship & Adoption’

Current Through July 2013

Relative Placement for Foster Care and Guardianship

Citation: Ann. Stat. §§ 38-2202(q); 38-2255(d)The term ‘kinship care’ means the placement of a child in the home of the child’s relative or in the home of another adult with whom the child or the child’s parent already has a close emotional attachment.

If the court has ordered the child removed from the custody of his or her parent(s), the court shall enter an order awarding custody to:

• A relative of the child or to a person with whom the child has close emotional ties who shall not be required to be licensed
• Any other suitable person
• A shelter facility
• A youth residential facility
• A staff-secure facility, notwithstanding any other provision of law, if the child has been subjected to human trafficking, aggravated human trafficking, or commercial sexual exploitation of a child, or the child committed an act which, if committed by an adult, would constitute a violation of § 21-6419
• The Department for Children and Families if the child is age 15 or younger, or age 16 or 17 if the child has no identifiable parental or family resources or shows signs of physical, mental, emotional, or sexual abuse

Custody awarded under this subsection shall continue until further order of the court.

Requirements for Placement with Relatives

Citation: Ann. Stat. § 38-2255A relative of the child or to a person with whom the child has close emotional ties who receives custody of the child shall not be required to be licensed under Chapter 65, Article 5.

Requirements for Placement of Siblings

This issue is not addressed in the statutes and regulations reviewed.

Relatives Who May Adopt

Citation: Ann. Stat. § 38-2202(aa)The term ‘relative’ means a person related by blood, marriage, or adoption but, when referring to a relative of a child’s parent, does not include the child’s other parent.

Requirements for Adoption by Relatives

Citation: Ann. Stat. § 59-2132The adoption assessment and report required by this section may be waived by the court upon review of a petition requesting such a waiver by a relative of the child.

Current Through March 2016

What Are Reasonable Efforts

Citation: Ann. Stat. § 38-2255The court may place the child in the custody of either parent subject to terms and conditions that the court prescribes to assure the proper care and protection of the child that includes, but are not limited to:

• Supervision of the child and the parent by a court services officer
• Participation by the child and the parent in available programs operated by an appropriate individual or agency
• Any special treatment or care the child needs for his or her physical, mental, or emotional health and safety

When Reasonable Efforts Are Required

Citation: Ann. Stat. § 38-2255The court shall not enter an order removing a child from the custody of a parent pursuant to this section unless the court first finds probable cause that:

• The child is likely to sustain harm if not immediately removed from the home.
• Allowing the child to remain in home is contrary to his or her welfare.
• Immediate placement of the child is in his or her best interests, and reasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of the child from the child’s home.
• An emergency exists that threatens the safety of the child.

When Reasonable Efforts Are NOT Required

Citation: Ann. Stat. § 38-2255If custody of the child has been awarded to a person other than a parent, a permanency plan shall be prepared. If a permanency plan is provided at the dispositional hearing, the court may determine whether reintegration is a viable alternative. In determining whether reintegration is a viable alternative, the court shall consider whether:

• The parent has been found by a court to have committed one of the following crimes or to have aided and abetted, attempted, conspired, or solicited the commission of one of these crimes:
  • First- or second-degree murder
  • Capital murder
  • Voluntary manslaughter
  • Felony battery that resulted in bodily injury
• The parent has subjected the child or another child to aggravated circumstances.
• The parent has previously been found to be an unfit parent.
• The child has been in extended out-of-home placement.
• The parents have failed to work diligently toward reintegration.
• The secretary has provided the family with services necessary for the safe return of the child to the home.
• It is reasonable to expect reintegration to occur within a timeframe consistent with the child’s developmental needs.

Current Through February 2015

Who Can Nominate a Standby Guardian

Citation:This issue is not addressed in the statutes reviewed.

How to Establish a Standby Guardian

Citation:This issue is not addressed in the statutes reviewed.

How Standby Authority is Activated

Citation:This issue is not addressed in the statutes reviewed.

Involvement of the Noncustodial Parent

Citation:
This issue is not addressed in the statutes reviewed.

Authority Relationship of the Parent and the Standby

Citation:This issue is not addressed in the statutes reviewed.

Withdrawing Guardianship

Citation:This issue is not addressed in the statutes reviewed.