Foster Care Services and Child in Need of Care Proceedings

Foster Care

Foster care services in Kansas were privatized in 1997 due in part to long-standing concerns about the quality of services for children in state custody, in addition to a 1989 class action lawsuit alleging the Department of Social and Rehabilitation Services (SRS), now known as the Department for Children and Families (DCF), failed to care adequately for children who may have been victims of abuse or neglect. The court approved a settlement in 1993 containing 153 requirements with which SRS was required to comply within certain timeframes. SRS did not achieve compliance with many of the settlement requirements for handling cases, and in early 1996, SRS officials informed the Legislature they were moving toward privatization to improve the quality and efficiency of services. After what contractors conceded was a chaotic transition, SRS was found to have successfully completed its settlement terms in 2002.

In February 2019, DCF announced the state’s grants awarded in November 2018 for family preservation, with the goal to avoid foster care, would be terminated and rebid due to a lack of transparency in the awards process, and negotiations on the grants for foster care case management and adoptions would be reopened. [Note: Family preservation services have been provided since FY 1987, but services were not available statewide until the privatization of the child welfare system in 1996.¹] To allow time to complete the request for proposal (RFP) process and additional negotiations, the existing family preservation and foster care contracts set to expire on June 30, 2019, were extended by six months and three months, respectively.

Currently, DCF contracts for foster care placements and adoptions with four service providers in four regions divided into eight catchment areas: Saint Francis Ministries provides service to catchment area 1 in the West region, catchment area 2, and catchment area 7 in the Wichita region; KVC Health Systems, Inc. (now KVC Kansas) provides service to catchment area 3 in the East region and catchment area 6 in the Kansas City region; TFI Family Services, Inc., provides service in catchment area 4 in the East region and catchment area 8 in the Wichita region; and Cornerstones of Care provides service in catchment area 5 in the Kansas City region. The map of the catchment areas for foster care placement and adoption providers is located at https://www.dcf.ks.gov/services/Pages/MapFosterCare.aspx. The foster care case management grants were renewed for one additional year to June 30, 2024. A RFP for the foster care case management grant was released in May 2023 with new contracts to be awarded in December 2023 and effective on July 1, 2024.

The foster care placement and adoption service providers subcontract with other providers. Several other agencies throughout the state are involved with foster care, such as the Kansas Children’s Service League and the Children’s Alliance of Kansas. These agencies and others provide a variety of services, including information and resources for current and prospective foster parents.

In September 2019, family preservation grants were awarded to DCCCA to provide services in the Kansas City and Wichita regions, to TFI Family Services to provide services in the West region, and to Cornerstones of Care to provide services in the East region. The family preservation grant period runs January 1, 2020, through June 30, 2024. A family preservation services RFP was released on June 2, 2023, with new contracts to be awarded in December 2023 and effective on July 1, 2024.

Preliminary Issues for CINC Proceedings

CINC proceedings typically begin with a report to DCF, which may be made by anyone who suspects a child may be in need of care.

Additionally, the following are required to report any suspicion of abuse or neglect²:

• Persons providing medical care or treatment;
• Persons licensed by the State to provide mental health services;
• Teachers and other employees of educational institutions;
• Licensed child care providers;
• Firefighters, emergency medical services personnel, and law enforcement officers;
• Juvenile intake and assessment workers, court services officers, and community corrections officers;
• Case managers and mediators appointed to help resolve any contested issue of child custody, residency, visitation, parenting time, division of property, or other issue; and
• Persons employed by or working for an organization that provides social services to pregnant teenagers.

Reports can be made to local law enforcement when DCF is not open for business. Once a report is received, KSA 38-2226, as amended by 2023 HB 2024, requires DCF and law enforcement to investigate the validity of the claim and determine whether action is required to protect the child. When a report indicates there is serious physical harm to, serious deterioration of, or sexual abuse of the child and action may be required to protect the child, DCF and law enforcement conduct a joint investigation. When investigating a report of child abuse or neglect, the statute requires the Secretary for Children and Families (Secretary), the law enforcement agency, or such agency’s designee, that is conducting the investigation to visually observe the child who is the alleged victim of abuse or neglect. In joint investigations, visual observation of the child alleged to be the victim of abuse or neglect is required by both the Secretary and the investigating law enforcement agency, or the designees of the Secretary and such agency. If there are reasonable grounds to believe abuse or neglect exist, DCF must take immediate steps to protect the health and welfare of the child, as well as that of other children under the same care.

With the passage of 2023 HB 2024, the Legislature also amended KSA 38-2226 to provide that, upon investigation by law enforcement or assignment by the Secretary of any investigation of physical abuse or physical neglect pursuant to this statute concerning a child five years of age or younger, the Secretary or law enforcement agency, or the agency’s designee, is required to make a Child Abuse Review and Evaluation (CARE) referral for such child. The bill allows, in any other investigation of physical abuse, emotional abuse, medical neglect, or physical neglect conducted pursuant to this statute, the Secretary, law enforcement agency, or the agency’s designee to make a CARE referral for such child. The bill also requires a CARE provider who determines a child has been subjected to physical abuse, emotional abuse, medical neglect, or physical neglect to report such determination in a completed review and provide the review to the Secretary and the local law enforcement agency, or the agency’s designee. Upon receipt of such review, the Secretary is required to consider and include the completed review in making recommendations regarding the care, safety, and placement of the child and maintain the review in the case record. The reviews are confidential and disclosure is prohibited, except under certain conditions.

KSA 38-2231, as amended by 2023 HB 2021, requires law enforcement to place a child in protective custody when an officer reasonably believes the child will be harmed if not immediately removed from the situation where the child was found, the child is a victim of human trafficking, aggravated human trafficking, or commercial sexual exploitation, or the child is experiencing a behavioral health crisis and is likely to cause harm to self or others, or the officer has probable cause to believe the child is a runaway or missing person. A court that determines a child’s custody may not remove a child from parental custody unless it finds there is probable cause to believe the child is likely to be harmed if not immediately removed from the home; allowing the child to remain in the home is contrary to the welfare of the child; or immediate placement is in the child’s best interests. The court also must find there is probable cause to believe reasonable efforts have been made to maintain the family unit and prevent the unnecessary removal of the child from the child’s home, or an emergency exists that threatens the child’s safety.

To issue an ex parte³ order for protective custody, KSA 38-2242 requires the court also must find there is probable cause to believe the child is in need of care. An ex parte order must be served on the child’s parents and any other person having legal custody of the child. Along with the order, the court may enter an order restraining any alleged perpetrator of physical, sexual, mental, or emotional abuse from residing in the child’s home; visiting, contacting, harassing, or intimidating the child, another family member, or witness; or attempting to visit, contact, harass, or intimidate the child, another family member, or witness. A restraining order must be served on the alleged perpetrator.

The court may place the child in the protective custody of a parent or other person having custody of the child; another person, who is not required to be licensed under the Kansas law governing child care facilities; a youth residential facility; a shelter facility; or, under certain circumstances, the Secretary. Once issued, an ex parte order typically will remain in effect until the temporary custody hearing.

When a court evaluates what custody, visitation, or residency arrangements are in the best interests of a child no longer residing with a parent, KSA 38-2286 requires substantial consideration of a grandparent who requests custody, which must be included in the record. The court must consider the wishes of the parents, child, and grandparent; the extent to which the grandparent has cared for the child; the intent and circumstances under which the child is placed with the grandparent; and the physical and mental health of all involved individuals. If the court places the child in the custody of the Secretary for placement (rather than a grandparent), the law requires substantial consideration of a grandparent who requests placement in the evaluation for placement. If the grandparent is not selected, the Secretary must prepare and maintain a written report with specific reasons for the finding.

Court Proceedings

CINC Petition

If DCF determines it is not otherwise possible to provide services necessary to protect the interests of the child, it must recommend that the county or district attorney file a CINC petition. Pursuant to KSA 38-2233, the county or district attorney will then review the facts, recommendations, and any other evidence available and determine whether the circumstances warrant filing a petition. If warranted, KSA 38-2214 provides the county or district attorney prepares and files the petition, the contents of which are outlined in KSA 38-2234, and appears and presents evidence at all subsequent proceedings. KSA 38-2233 also allows an individual to file a CINC petition and be represented by the individual’s own attorney in the presentation of the case.

Once filed, if the child is in protective custody, KSA 38-2235 allows the court to serve a copy of the petition on all parties and interested parties in attendance at the temporary custody hearing or issue summons to all those persons if not present. KSA 38-2236 instructs the court to serve the guardian ad litem⁴ (GAL) appointed to the child, custodial parents, parent who may be ordered to pay child support by the court, persons with whom the child is residing, and any other person designated by the county or district attorney with a summons and a copy of the petition, scheduling a hearing within 30 days of when the petition was filed. Grandparents are sent a copy of the petition and notice of hearing by first class mail.

Interested Parties and Attendance at Court Proceedings

In addition to receiving notice of hearings, KSA 38-2241 gives parties and interested parties the right to present oral or written evidence and argument, call and cross-examine witnesses, and be represented by an attorney. Grandparents are interested parties in CINC proceedings and have participatory rights but must request such status, which is subject to the court’s restriction on participation if it is in the child’s best interests. Other interested parties may include persons with whom the child has resided or shares close emotional ties and other persons as the court allows based on the child’s best interests.

KSA 38-2247 allows anyone to attend CINC proceedings leading up to and including adjudication, unless the court determines closed proceedings or the exclusion of an individual would be in the child’s best interests or is necessary to protect the parents’ privacy rights. Dispositional proceedings for a child determined to be in need of care, however, may be attended only by the GAL, interested parties and their attorneys, officers of the court, a court-appointed special advocate, the custodian, and any other person the parties agree to or the court orders to admit. Likewise, the court may exclude a person if it determines it would be in the best interests of the child or the conduct of the proceedings.

Temporary Custody Hearing

KSA 38-2243 governs temporary custody hearings, which must be held within three business days of a child being placed in protective custody. Notice of the hearing must be provided to all parties and interested parties at least 24 hours prior to the hearing. After the hearing, the court may enter a temporary custody order if there is probable cause to believe the child is a danger to itself or others; is not likely to be available within the jurisdiction of the court for future proceedings; the child’s health or welfare may be endangered without further care; has been subjected to human trafficking, aggravated human trafficking, or commercial exploitation; is experiencing a behavioral health crisis (as defined by 2023 HB 2021) and is in need of treatment; or the child has committed an act which, if committed by an adult, would constitute the selling of sexual relations. The court may modify this order during the pendency of the proceedings to best serve the child’s welfare and can enter a restraining order against an alleged perpetrator of physical, sexual, mental, or emotional abuse. The court may place the child with a parent or other person having custody of the child; another person who is not required to be licensed under the Kansas law governing child care facilities; a youth residential facility; a shelter facility; a staff secure facility under certain circumstances; a juvenile crisis intervention center after written authorization by a community mental health center; or under certain circumstances, the Secretary.

Order of Informal Supervision

At any time after the petition is filed and prior to an adjudication, a court can enter an order for continuance and informal supervision pursuant to KSA 38-2244, placing conditions on the parties and entering restraining orders as needed. The order can continue for up to six months and may be extended for an additional six months. If the child is not placed with a parent, the court must give substantial consideration to a grandparent who requests custody, as discussed above.

Adjudication and Disposition

KSA 38-2251 requires the court to enter a final adjudication or dismissal of a CINC petition within 60 days of the filing of the petition, unless good cause for a continuance is shown on the record. KSA 38-2250 specifies the petitioner must prove by clear and convincing evidence the child is in need of care. Otherwise, KSA 38-2251 requires the court to dismiss the proceedings. If the child is found to be in need of care, however, pursuant to KSA 38-2253, the court will receive and consider information concerning the child’s safety and well-being and enter orders concerning custody and a case plan, which governs the responsibilities and time lines necessary to achieve permanency for the child.

Prior to entering an order of disposition, KSA 38-2255 requires the court to consider the child’s physical, mental, and emotional condition and need for assistance; the manner in which the parent participated in the abuse, neglect, or abandonment of the child; any relevant information from the intake and assessment process; and evidence received at disposition concerning the child’s safety and well-being. Based on these factors, the court may place the child with a parent; a relative of the child; another person who is not required to be licensed under the Kansas law governing child care facilities; any other suitable person; a shelter facility; a youth residential facility; a staff secure facility under certain circumstances; a juvenile crisis intervention center after written authorization by a community mental health center; or under certain circumstances, the Secretary. This placement will continue until further order of the court. Along with the dispositional order, the court may grant reasonable visitation rights upon finding visitation would be in the child’s best interests or may enter a restraining order against an alleged perpetrator of physical, sexual, mental, or emotional abuse.

Permanency

If the child is placed with a parent, KSA 38-2255 allows the court to impose terms and conditions to assure the proper care and protection of the child, including supervision of the child and parent, participation in available programs, and any special treatment the child requires. If permanency is achieved with one parent without terminating the other parent’s parental rights, the court may enter child custody orders, including residency and parenting time, determined to be in the child’s best interests and must complete a parenting plan pursuant to KSA 23-3213.

If the child is not placed with a parent, a permanency plan must be developed and submitted to the court within 30 days of the dispositional order by the person with custody of the child or a court services officer, ideally in consultation with the child’s parents. KSA 38-2263 outlines the required contents of the plan, including descriptions of the child’s needs and services to be provided in addition to whether the child can be “reintegrated” (i.e., reunited with a parent or parents). If there is disagreement among the persons necessary to the success of the plan, a hearing will be held to consider the merits of the plan.

KSA 38-2255 lists the relevant factors in determining whether reintegration is a viable alternative, including, among others, whether the parent has committed certain crimes, previously been found unfit, and worked towards reintegration. If reintegration is not a viable alternative, within 30 days, proceedings will be initiated to terminate parental rights, place the child for adoption, or appoint a permanent custodian. A hearing on the termination of parental rights or appointment of a permanent custodian will be held within 90 days. An exception exists when the parents voluntarily relinquish parental rights or consent to the appointment of a permanent custodian.

KSA 38-2269 allows courts to terminate parental rights if it finds by clear and convincing evidence the parent is unfit by reason of conduct or condition that renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future. Further, it lists factors the court can consider to determine parental unfitness and provides a parent may be found unfit if the court finds the parent has abandoned the child; custody of the child was surrendered or the child was left under such circumstances that the identity of the parents is unknown and cannot be determined, in spite of diligent searching; and the parents have not come forward to claim the child within three months after the child is found.

Finally, KSA 38-2271 outlines circumstances that create a presumption of unfitness, including a previous finding of unfitness; two or more occasions in which a child in the parent’s custody has been adjudicated a child in need of care; failure to comply with a reasonable reintegration plan; and conviction of certain crimes. Parents bear the burden of rebutting these presumptions by a preponderance of the evidence. When the court finds a parent is unfit, it can authorize an adoption if parental rights were terminated, appoint a permanent custodian, or continue permanency planning. Preference for placement is given to relatives and persons with whom the child has close emotional ties.

A permanency plan may be amended at any time upon agreement of the plan participants. If the permanency goal changes, however, a permanency hearing will be held within 30 days, as outlined in KSA 38-2264 and KSA 38-2265. Even without a change in the permanency goal, KSA 38-2264 requires a permanency hearing to be held within 12 months after a child is removed from the home and at least annually thereafter. If parental rights are terminated or relinquished, the requirements for permanency hearings will continue until the child is adopted or a permanent custodian is appointed. When permanency has been achieved with either a parent or non-parent to the satisfaction of the court, the court will close the case.

Fiscal Year 2023 Statewide Foster Care Statistics

An average of 247 children were removed from the home and placed into foster care each month, with a total number of 2,960 children placed during fiscal year (FY) 2023. An average of 259 children exited foster care placement outside of their home each month, with a total of 3,103 children exiting during FY 2023. In 61 percent of cases, the primary reason for removal was abuse or neglect. A majority of children in out-of-home settings were placed in family foster homes, and the most common permanency goal was reunification. The total average out-of-home placement length of stay was 25 months, with emancipation as the leading reason for ending placement. Further information on statistics for prior fiscal years, as well as current figures and regional data, can be found at https://www.dcf.ks.gov/services/PPS/Pages/FosterCareDemographicReports.aspx.

Recent Legislation and Reform Efforts

In addition to many existing work groups, task forces, and committees that consider possible reforms to the CINC process and the delivery of foster care services, standing and special legislative committees also have considered changes in recent years. Most recently, the 2023 Legislature amended the Newborn Infant Protection Act to provide an alternate means to legally surrender an infant (newborn safety devices), created the CARE program, and enacted the Representative Gail Finney Memorial Foster Care Bill of rights to enumerate and codify the rights of foster youth, foster parents, and kinship caregivers. More details regarding these efforts follow.

Legislation

Beginning in 2011, the Legislature made changes to the law to expand the rights of grandparents, designating them as interested parties (2011 House Sub for SB 23) and requiring substantial consideration of grandparents who request custody when a child is removed from parental custody (2012 SB 262).

In 2014, a foster parents’ bill of rights, Sub. for SB 394, was introduced, considered, and ultimately referred to the Judicial Council and to the Special Committee on Judiciary for interim study. The Special Committee recommended introduction of a bill proposed by the Judicial Council and that additional consideration be given to the grievance process. That bill was introduced in 2015 as SB 37, which was heard by the Senate Committee on Judiciary; however, the Committee did not take action on the bill.

In 2016, the House and Senate Committees on Judiciary discussed variations on legislation introduced in 2015 concerning use of a power of attorney to delegate care and custody of a child to another, which had been referred to the Judicial Council for further study. The 2016 Legislature ultimately passed SB 418, the Host Families Act, which allows a child placement agency or charitable organization to provide temporary care of children by placing a child with a host family. Host families are subject to screening and background checks and do not receive payment other than reimbursement for actual expenses. The Act also allows DCF to provide information about respite care, voluntary guardianship, and support services, including organizations operating programs under the Act, to families experiencing financial distress, unemployment, homelessness, or other crises and to parents or custodians during a child protective investigation that does not result in an out-of-home placement due to abuse of a child.

Placement must be voluntary and shall not be considered an out-of-home placement, supersede any court order, or preclude any investigation of suspected abuse or neglect. A parent may place a child by executing a power of attorney that delegates to a host family any powers regarding the care and custody of the child, except power to consent to marriage or adoption, performance or inducement of an abortion, or termination of parental rights. The power of attorney may not be executed without the consent of all individuals with legal custody of the child, and execution is not evidence of abandonment, abuse, or neglect.

The power of attorney may not exceed one year but may be renewed for one additional year. The bill includes an exception, however, for parents serving in the military, who may delegate powers for a period longer than one year if on active duty service, but no more than the term of active duty service plus 30 days. A parent executing a power of attorney under the Act can revoke or withdraw the power of attorney at any time. Upon such withdrawal or revocation, the child must be returned to the parent as soon as reasonably possible.

Additionally, 2016 SB 418 specified nothing in the CINC Code compels a parent to medicate a child if the parent is acting in accordance with a physician’s medical advice, and in these circumstances, absent a specific showing of a causal relation between the actions and harm to the child, a parent’s actions do not constitute a basis for determination that a child is a CINC, removal of custody of a child, or termination of parental rights. Further, the bill allowed county or district attorneys from another jurisdiction to access the official file and social file in a CINC proceeding when involved with a pending CINC case involving any of the same parties or interested parties.

In 2019, HB 2103 amended the CINC Code and created statutory provisions to meet the requirements of the federal Family Fist Prevention Services Act (FFPSA). The FFPSA allows for an enhanced federal match rate toward the use of Social Security Act Title IV-E funds for certain child welfare system evidence-based prevention services and programs to provide support to children at risk of entering foster care. FFPSA limits foster care maintenance payments to two weeks for placements that are not foster homes or qualified residential treatment programs (QRTPs). The bill established notice and hearing requirements when a child is placed in a QRTP, required certain action to be taken by the court when QRTP placement occurs, and places additional documentation requirements on the court in a permanency hearing involving a child placed in a QRTP. The bill also required that a copy of any prevention plan for a child be attached to a CINC petition.

The 2019 Legislature passed SB 28, Claire and Lola’s law, which prohibits state agencies and political subdivisions from initiating child removal proceedings or child protection actions or proceedings based solely upon the parent’s or child’s possession or use of certain cannabidiol treatment preparations for a debilitating medical condition in accordance with the affirmative defense established by the bill.

In 2019, the Legislature also passed SB 77, creating law in the CINC Code requiring DCF to take certain actions when reports of abuse or neglect are received, the subject of which is a “child with sexual behavior problems,” and DCF determines a joint investigation with law enforcement is required in accordance with the CINC Code. The required actions include referral to a child advocacy center or other mental health provider and offer of additional services to the child and the child’s family as needed. With the exception of certain circumstances set forth in the bill, the services are voluntary. The bill requires DCF to document specific action taken by the agency, attempts to provide voluntary services, reasons the services are important to reduce the risk of future sexual behavior problems by the child, whether services are accepted and provided, and the outcome for the child and family.

In 2021, the Legislature passed HB 2158 clarifying an exception to the confidentiality of information acquired by and records of the State Child Death Review Board (Board) for certain legislators and legislative committees and adding exceptions to confidentiality to allow the Board to disclose information and records to specified entities. The bill requires visual observation by either the DCF employee or the law enforcement agency investigating a report of child abuse or neglect (Adrian’s Law) and requires both the Secretary and law enforcement agency, or their designees, to make visual observation in the event of a joint investigation by DCF and law enforcement. The information required to be included in the investigation reports is outlined in the bill. The bill also establishes the Joint Committee on Child Welfare System Oversight, provides for membership and member compensation, outlines the topics for Joint Committee review, establishes the frequency of meetings, requires an annual report to designated House and Senate leadership positions and certain standing committees, allows for professional services, and authorizes the Joint Committee to make recommendations and introduce legislation. Further, the bill amends law governing eligibility for non-temporary assistance for needy families’ child care by adding an exemption to the 20-hour-per-week work participation requirement for adult caretakers of a child in the custody of the Secretary in out-of-home placement who need child care assistance. Additionally, the bill amends statutes governing restrictions on persons maintaining or residing, working, or volunteering at a child care facility by allowing the Secretary to license a family foster home when a person who has been adjudicated as a juvenile offender for certain otherwise disqualifying acts under continuing laws meets specific requirements. To grant such a license, the Secretary must determine there is no safety concern and that six months have passed since the date of adjudication.

The 2022 Legislature passed Senate Sub. for HB 2495 amending law governing access, exchange, and disclosure of information in the CINC Code. The bill requires the Secretary to disclose confidential agency records of a child alleged or adjudicated to be a CINC 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. The bill restricts the use of such records for the purposes of investigating the alleged or substantiated report or investigation of abuse or neglect. The bill clarifies that a law enforcement agency investigating or receiving a report of a child who is alleged or adjudicated to be in need of care may freely exchange information and the records outlined in the bill with persons or entities specified in continuing law. The bill also adds an investigating law enforcement agency to the list of persons or entities with access to the official and social files of a CINC proceeding.

In 2023, the Legislature passed HB 2024, amending several provisions in the CINC Code. The bill amends the Newborn Infant Protection Act (Act) to allow the use of newborn safety devices as an alternate means to legally surrender an infant who is not more than 60 days old and who has not suffered great bodily harm. The bill states the Act does not abridge the rights or obligations created by the Indian Child Welfare Act of 1978. A relinquishing parent who follows the procedure and meets requirements for the use of a newborn safety device is immune from civil or criminal liability for surrendering an infant. The bill identifies the locations where a newborn safety device may be installed and the device requirements, outlines the procedure for taking physical custody of a surrendered infant and the reporting requirements for such surrender, and provides for a method of determining the tribal status of the infant or either biological parent and the reporting of such information to the Secretary. The bill also addresses the disclosure of information requirements and prohibitions pertaining to the relinquishment of a child.

HB 2024 also requires an authorized facility receiving an infant pursuant to the Act to make the following information available, if possible, to the relinquishing parent: a notice regarding the proceedings for termination of parental rights; a list of providers that provide counseling services on grief, pregnancy, and adoption or other placement or care regarding an infant; a brochure on postpartum health; and the language of the Act, the rights of birth parents, and a questionnaire a birth parent may use to answer questions about medical or background information of the child, including any pertaining to tribal status. Additionally, the bill amends a provision in the Act governing the procedure for a non-relinquishing parent who seeks to establish parental rights after the surrender of an infant to require the person to submit, at such person’s own expense, to a genetic test to verify that person is a biological parent of the child.

HB 2024 creates a program within the Kansas Department of Health and Environment for the training of and payment for CARE providers who conduct CARE exams. The bill requires the Secretary or a law enforcement agency, upon investigation by law enforcement or assignment by the Secretary of any investigation of physical abuse or physical neglect, pursuant to this provision, that concerns a child five years of age or younger, to make a CARE referral for such child. In any other investigation of physical abuse, emotional abuse, medical neglect, or physical neglect conducted pursuant to the section, the Secretary, the law enforcement agency, or the agency’s designee may make a CARE referral for such child. A CARE provider is required to report a determination in a completed review that a child has been subject to physical abuse, emotional abuse, medical neglect, or physical neglect to the Secretary, the local law enforcement agency, or the agency’s designee, if such a determination is made. The Secretary, upon receipt of such review, is required to consider and include the review in making recommendations regarding the care, safety, and placement of the child and maintain the review in the case record. The review is to be confidential and not be disclosed, with certain exceptions.

HB 2024 also outlines the requirements to provide forensic evaluation services that include a CARE team related to specialized training and recommendations concerning the medical-based screening process and forensic evidence collection for a child. The bill sets out the responsibilities of the Secretary in implementing the bill’s provisions, which include the payment and management of a network referral system and to adopt rules and regulations as necessary, subject to available appropriations. The bill also requires the Secretary of Health and Environment to prepare and present, on or before January 31, 2024, a report containing specified items to the House Committee on Child Welfare and Foster Care and the Senate Committee on Public Health and Welfare, or their successor committees, of the activities and operations under the CARE program. Further, the bill establishes in the State Treasury the CARE Fund to be administered by the Secretary of Health and Environment, with expenditures from the fund to be for payments of CARE exams, training for CARE providers, and the implementation and administration of the CARE program.

Further, HB 2024 enacts the Representative Gail Finney Memorial Foster Care Bill of Rights (Bill of Rights), clarifies the Bill of Rights’ provisions may not apply when an Indian child is involved in a CINC proceeding, and states the Indian Child Welfare Act applies instead. The bill defines “kinship caregiver,” enumerates and codifies in statute the rights of foster youth, foster parents, and kinship caregivers, and requires the Secretary to provide written and oral notification of the Bill of Rights and information for filing complaints to such parties. Case management providers also are required to make available physical and digital copies of the Bill of Rights. The bill specifies the Bill of Rights does not create a private right of action independent of the CINC Code, but may be enforced through equitable relief in a corresponding CINC case.

Additionally, HB 2024 adds kinship care placement to the list of places where, if a foster child has been for six months or longer, written notice of any plan to move the child to a different placement must be given. There is an exception in existing law for such required notice when the move is to the selected pre-adoptive family for the purpose of facilitating adoption. The bill also adds kinship caregivers to those the Secretary is required to notify of their right to submit a report that shall be available to the parties and interested parties and made on a form created and provided by DCF.

In 2023, the Legislature also passed HB 2240, which amends the CINC Code to clarify and require the clerk of the district court to provide various parties with written notice when a child is placed in a QRTP, after receipt of such written notice from the Secretary. The specified entities who must be notified are the petitioner; the attorney for the parents, if any; each parent at the last known address; the child, if 12 years of age or older; the child’s GAL; any other party or interested party; and the child’s court-appointed special advocate.

Special Committee on Foster Care Adequacy

The Legislative Coordinating Council created a Special Committee on Foster Care Adequacy in 2015 and again in 2016 to study DCF oversight of foster care contractors; whether a working group would aid in addressing foster care concerns; and the selection, qualification, and responsibilities of foster parents. The 2015 Special Committee recommended evidence-based, peer-reviewed research on family structure be given high priority when considering best interests and making foster care placement decisions. Additionally, it recommended introduction of legislation creating a joint committee to oversee foster care or alternatively, that a Senate committee and a House committee be charged with reviewing the topic of foster care.

The 2016 Special Committee studied similar issues and considered a two-part report of DCF released by the Legislative Division of Post Audit (LPA). The 2016 Special Committee identified a number of concerns and recommended:

• Reintroduction of a bill establishing a foster care oversight task force;
• Expanded use of citizen review boards in CINC cases;
• Affirmation of the right of biological parents and grandparents to visitation;
• The Legislature address the LPA findings on foster care and adoption and concerns raised by the audit;
• DCF investigate the value of additional vendors for foster care programs;
• DCF report annually to Senate and House standing committees; and
• The Legislative Post Audit Committee consider addressing concerns regarding the low response rate to LPA’s survey of public employees and contractor employees.

LPA Report on Foster Care and Adoption

Parts 1, 2, and 3 of the report, entitled “Foster Care and Adoption in Kansas: Reviewing Various Issues Related to the State’s Foster Care and Adoption System,” published in 2016, are available on LPA’s website. Search “foster care” at https://www.kslpa.org/ to find the report. Several additional reports on foster care were published in 2017, 2020, 2021, and 2022 and are available at the same link.

Part 1 identified concerns and made recommendations related to ongoing efforts to improve child protective services; failure to consistently perform background checks for foster parents and to conduct monthly in-person visits; and foster homes with insufficient sleeping space and insufficient financial resources.

Part 2 looked at compliance with state and federal law and found DCF had not followed some of the safety and living condition requirements reviewed in Part 1. Further, it found DCF had materially complied with most, but not all, federal requirements in 2014 and 2015 and had exceeded half of the federal outcome requirements in FY 2016 but did not meet others. Finally, it found DCF must implement a program improvement plan to address issues identified by a 2015 federal review.

Part 3 examined whether the Kansas foster care system has had sufficient capacity to provide necessary foster care services, finding issues with staffing shortages, large caseloads, and low morale among caseworkers. Children in foster care received most of the physical and mental health services they needed, with exceptions. Many counties and cities did not appear to have enough licensed foster homes, although there were sufficient open beds statewide. DCF could be more proactive in monitoring and collecting management information about the foster care system, but has recently begun to expand its use of data in overseeing the foster care system. LPA identified several instances in which children were placed in foster homes that did not comply with licensing standards, but noted that DCF is making significant changes to the inspection process.

Part 3 also looked at Kansas’ performance on federal outcomes for children and families over time, finding no significant change from 2000 to 2013, and noting the significant limitations of these outcome measures, including for comparison between states.

Finally, Part 3 compared the cost of the State directly providing foster care and adoption services with maintaining the current privatized system, estimating such transition would incur up to $8 million more in ongoing costs and significant start-up costs. LPA also noted the other significant factors that would have to be considered in making such a transition.

Child Welfare System Task Force

The 2017 Legislature passed House Sub. for SB 126, which directed the Secretary for Children and Families to establish a Child Welfare System Task Force to study the child welfare system in the State of Kansas. The bill specified various entities and stakeholders to be represented on the Task Force (including six legislators) and directed the Task Force to convene working groups to study the following topics: the general administration of child welfare by DCF; protective services; family preservation; reintegration; foster care; and permanency placement. Additionally, the Task Force and each working group were directed to study the following topics:

• The level of oversight and supervision by DCF over each entity that contracts with DCF to provide reintegration, foster care, and adoption services;
• The duties, responsibilities, and contributions of state agencies, non-governmental entities, and service providers that provide child welfare services in the State of Kansas;
• The level of access to child welfare services, including, but not limited to, health and mental health services and community-based services, in the State of Kansas;
• The increasing number of children in the child welfare system and contributing factors;
• The licensing standards for case managers working in the child welfare system; and
• Any other topic the Task Force or working group deems necessary or appropriate.

The appointments of Task Force members were completed in July 2017, and the Task Force began meeting in August 2017. Working group appointments were completed in September 2017 and began meeting in October 2017.

In accordance with SB 126 requirements, the Task Force submitted a preliminary progress report to the 2018 Legislature. The Task Force and Working Groups continued meeting in 2018, with the working groups submitting their reports and recommendations to the Task Force in August and September 2018.

As required by SB 126, the Task Force submitted a final report to the 2019 Legislature. The Task Force adopted 23 recommendations, organized by priority into three tiers. The following were adopted by the Task Force as its highest priority recommendations:

• Workforce. The State of Kansas should invest in the child welfare system workforce by increasing funding for recruitment, retention, and support to effectively attract and retain high-quality staff;
• Data infrastructure. The State of Kansas should create a single, cross-system, web-based, integrated case management and data reporting system that can be used by DCF and all relevant agencies and stakeholders to efficiently and effectively share information (e.g., education, dental, medical, behavioral);
• FFPSA. The State of Kansas should fund and institute the federal FFPSA in Kansas and follow the federal guidelines;
• Access to care. The State of Kansas should require access to high-quality and consistent medical and behavioral health care for Medicaid-eligible high-risk youth through the Medicaid state plan or other appropriate sources of funding; and
• CINC Code. The Judicial Council should review the CINC Code, especially with regard to a) the way DCF’s definition of “non abuse neglect” relates to cases under the CINC Code and b) modifications to meet the child’s ongoing best interests for permanency.

The final report of the Task Force is available at https://www.kslegresearch.org/KLRD-web/Committees/2018Committees/Committees-ChildWelfareSysTF.html.

Crossover Youth Working Groups

The 2019 Omnibus Appropriations bill, House Sub. for SB 25 (Section 87), included two provisos requiring DCF to establish working groups to study the impact of 2016 SB 367, which included a prohibition on the placement of youth in a juvenile detention center in certain circumstances and removed juvenile detention facilities as a placement option under the CINC Code unless the child is also alleged to be a juvenile offender and the placement is authorized under the Juvenile Code.

The first proviso required DCF to establish a working group to gather data and issue a report by June 30, 2019, related to the impact of 2016 SB 367 on youth with offender behaviors entering into foster care placement or already in foster care placement and to evaluate the services being offered and identity needed services. The second proviso required DCF to study the impact of 2016 SB 367 on crossover youth, specifically youth at risk of being placed in foster care due in whole or in part to conduct that has resulted or could result in juvenile offender allegations, and youth placed in foster care engaging in conduct that has resulted or could result in juvenile offender allegations. DCF was required to establish a working group, with membership as outlined in the proviso, to assist with the production, data collection, and analysis of the report, which was to be submitted to select House and Senate standing committees and a joint committee by November 1, 2019.

Joint Committee on Child Welfare System Oversight

In 2021, the Legislature passed HB 2158, creating the Joint Committee on Child Welfare System Oversight (Joint Committee). The bill sets out the numerous topics for review by the Joint Committee. The bill authorizes the Joint Committee to make recommendations and introduce legislation it deems necessary in performing its functions. At the beginning of each regular session of the Legislature, the Joint Committee is required to submit a written report containing recommended changes to the current laws, rules and regulations, and policies regarding the safety and well-being of children in the child welfare system in the state to the President of the Senate, Speaker of the House of Representatives, House Committee on Children and Seniors, and Senate Committee on Public Health and Welfare.

The Report of the Joint Committee on Child Welfare System Oversight to the 2023 Legislature is available at https://www.kslegresearch.org/KLRD-web/Committees/2022Committees/Committees-Child-Welfare-TF.html.

The Joint Committee met in March, June, August, and October 2023. At the October 4, 2023, meeting, the Joint Committee made recommendations for inclusion in its report to the 2024 Legislature. The report will be available at https://www.kslegresearch.org/KLRD-web/Committees/Committees-Child-Welfare-Oversight.html when approved by the Joint Committee.

Division of the Child Advocate

In 2021, Governor Kelly signed Executive Order No. 21-28, which established the Division of the Child Advocate (Advocate) and provided for the Advocate’s duties. These duties include addressing complaints made by or on behalf of a child in the custody of the Secretary or alleged to be a CINC, submitting any findings and recommendations to DCF to improve the delivery of child welfare services, and recommending changes to policies, procedures, or adopted or proposed rules and regulations of any state or local agency that adversely affect the health, safety, welfare, or civil or human rights of any child. The Advocate is also required to submit an annual report to various agencies, offices, and committees in state government, including the Secretary for Children and Families, Joint Committee on Child Welfare Oversight, House Committee on Children and Seniors or other relevant House Committee, Senate Committee on Public Health or other relevant Senate Committee, and other relevant legislative committees.

Three bills considered during the 2023 Legislative Session would establish the Office of the Child Advocate (OCA) as an independent state agency. 2023 HB 2443 would establish the OCA, which would function similarly to the Division of the Child Advocate as an independent state agency and would establish the Child Advocate Advisory Board Board to oversee the OCA. At the end of the 2023 Legislative Session, HB 2443 remains in the Senate Committee on Judiciary. Sub. for SB 232 would also establish the OCA without establishing an oversight board. At the end of the 2023 Legislative Session, the bill remains in the House Committee on Child Welfare and Foster Care. Senate Sub. for HB 2070 incorporates the provisions originally contained in Sub. for SB 232, as recommended by the Senate Committee on Judiciary. At the end of the 2023 Legislative Session, the bill remains in Conference Committee with conferees from the House Committee on Child Welfare and Foster Care and the Senate Committee on Judiciary.

1. https://www.kslpa.org/wp-content/uploads/2019/08/r-91-36.pdf ↩︎
2. KSA 38-2223 ↩︎
3. Ex parte orders are issued involving one party, usually for temporary or emergency relief. ↩︎
4. For more information on the role of the GAL, see KSA 38-2205. ↩︎

by Iraida Orr, J.D.
Principal Research Analyst
785-296-4408