38-2260. Placement; order directing child to remain in present or future placement, application for determination that child has violated order; procedure; authorized dispositions; limitations on facilities used for placement; computation of time limitations.
(a) Valid court order. During proceedings under this code, the court may enter an order directing a child who is the subject of the proceedings to remain in a present or future placement if:
(1) The child and the child's guardian ad litem are present in court when the order is entered;
(2) the court finds that the child has been adjudicated a child in need of care pursuant to K.S.A. 2020 Supp. 38-2202(d)(6), (d)(7), (d)(8), (d)(9), (d)(10) or (d)(12), and amendments thereto, and that the child is not likely to be available within the jurisdiction of the court for future proceedings;
(3) the child and the guardian ad litem receive oral and written notice of the consequences of violation of the order; and
(4) a copy of the written notice is filed in the official case file.
(b) Application. Any person may file a verified application for determination that a child has violated an order entered pursuant to subsection (a) and for an order authorizing holding the child in a secure facility. The application shall state the applicant's belief that the child has violated the order entered pursuant to subsection (a) without good cause and the specific facts supporting the allegation.
(c) Ex parte order. After reviewing the application filed pursuant to subsection (b), the court may enter an ex parte order directing that the child be taken into custody and held in a secure facility designated by the court, if the court finds probable cause that the child violated the court's order to remain in placement without good cause. Pursuant to K.S.A. 2020 Supp. 38-2237, and amendments thereto, the order shall be served on the child's parents, the child's legal custodian and the child's guardian ad litem.
(d) Preliminary hearing. Within 24 hours following a child's being taken into custody pursuant to an order issued under subsection (c), the court shall hold a preliminary hearing to determine whether the child admits or denies the allegations of the application and, if the child denies the allegations, to determine whether probable cause exists to support the allegations.
(1) Notice of the time and place of the preliminary hearing shall be given orally or in writing to the child's parents, the child's legal custodian and the child's guardian ad litem.
(2) At the hearing, the child shall have the right to a guardian ad litem and shall be served with a copy of the application.
(3) If the child admits the allegations or enters a no contest statement and if the court finds that the admission or no contest statement is knowledgeable and voluntary, the court shall proceed without delay to the placement hearing pursuant to subsection (f).
(4) If the child denies the allegations, the court shall determine whether probable cause exists to hold the child in a secure facility pending an evidentiary hearing pursuant to subsection (e). After hearing the evidence, if the court finds that: (A) There is probable cause to believe that the child has violated an order entered pursuant to subsection (a) without good cause; and (B) placement in a secure facility is necessary for the protection of the child or to assure the presence of the child at the evidentiary hearing pursuant to subsection (e), the court may order the child held in a secure facility pending the evidentiary hearing.
(e) Evidentiary hearing. The court shall hold an evidentiary hearing on an application within 72 hours of the child's being taken into custody. Notice of the time and place of the hearing shall be given orally or in writing to the child's parents, the child's legal custodian and the child's guardian ad litem. At the evidentiary hearing, the court shall determine by a clear and convincing evidence whether the child has:
(1) Violated a court order entered pursuant to subsection (a) without good cause;
(2) been provided at the hearing with the rights enumerated in subsection (d)(2); and
(3) been informed of:
(A) The nature and consequences of the proceeding;
(B) the right to confront and cross-examine witnesses and present evidence;
(C) the right to have a transcript or recording of the proceedings; and
(D) the right to appeal.
(f) Placement. (1) If the child admits violating the order entered pursuant to subsection (a) or if, after an evidentiary hearing, the court finds that the child has violated such an order, the court shall immediately proceed to a placement hearing. The court may enter an order awarding custody of the child to:
(A) A parent or other legal custodian;
(B) a person other than a parent or other person having custody, who shall not be required to be licensed under article 5 of chapter 65 of the Kansas Statutes Annotated, and amendments thereto;
(C) a youth residential facility; or
(D) the secretary, if the secretary does not already have legal custody of the child.
(2) The court may authorize the custodian to place the child in a secure facility, if the court determines that all other placement options have been exhausted or are inappropriate, based upon a written report submitted by the secretary, if the child is in the secretary's custody, or submitted by a public agency independent of the court and law enforcement, if the child is in the custody of someone other than the secretary. The report shall detail the behavior of the child and the circumstances under which the child was brought before the court and made subject to the order entered pursuant to subsection (a).
(3) The authorization to place the child in a secure facility pursuant to this subsection shall expire 60 days, inclusive of weekend and legal holidays, after its issue. The court may grant extensions of such authorization for two additional periods, each not to exceed 60 days, upon rehearing pursuant to K.S.A. 2020 Supp. 38-2256, and amendments thereto.
(g) Payment. The secretary shall only pay for placement and services for a child placed in a secure facility pursuant to subsection (f) upon receipt of a valid court order authorizing secure care placement.
(h) Limitations on facilities used. Nothing in this section shall authorize placement of a child in an adult jail or lockup.
(i) Time limits, computation. Except as otherwise specifically provided by subsection (f), Saturdays, Sundays, legal holidays, and days on which the office of the clerk of the court is not accessible shall not be counted in computing any time limit imposed by this section.
History: L. 2006, ch. 200, § 55; L. 2008, ch. 169, § 15; L. 2010, ch. 11, § 7; L. 2016, ch. 46, § 27; July 1, 2019.