How Grandparents And Others Can Rescue Children From Foster Care

YourChild1st.com

Abuse and Neglect
How Grandparents And Others Can Rescue Children From Foster Care
By Trina Nudson
Sep 20, 2006, 11:24

There are various ways a child may become involved in the Kansas child in need of care courts. The most common is when the state believes a child living within its jurisdiction is being abused or neglected, or generally is “a child in need of care” as defined by Kansas law and the state intervenes by filing a child in need of care action. A less common, but increasingly more prevalent way a child comes before the child in need of care court, is when a private individual who believes a child he or she loves is being abused or neglected files a private action in the court to determine the child a “child in need of care.”

No matter how a child in need of care action is initiated whether by private individual or the state, grandparents, relatives, and other interested parties do have rights under these proceedings. Many are unaware of these rights.

The current Kansas Child in Need of Care Code currently acknowledges the importance of adults with whom a child has strong emotional bonds, particularly grandparents, by giving them certain rights. For example the Petitioner of a child in need of care action, whether it be the state or private individual, is required to give grandparents notice of the child in need of care proceeding.

Most recently, the Kansas legislature has revised its child in need of care code. Many of the revisions should be seen as a victory for third parties. It is the writer’s opinion that the revised code gives greater rights to grandparents and generally all adults who have close emotional bonds to a child in need. This new code goes into effect on January 1, 2007. Though not all the revisions to the code are advantageous to grandparents, relatives, and other third parties the majority of the recent revisions suggest a greater realization by the legislature of the importance of third parties in a child’s life.

The following chart compares the current Kansas Child in Need of Care Code and the Revised Child in Need of Care Code (effective January 1, 2007) as it relates to the rights of grandparents, relatives and other individuals with whom a child has close emotional ties. If you need additional help, please call us at (913) 438-4636, or write to me at Trina@yourchil1st.com .

ISSUE	Kansas CINC Code	Kansas Revised CINC Code	Discussion:
Interested Party Status	The child, the state, the petitioner, and the parent are automatic interested parties. Under K.S.A. 38-1541 any person with whom the child has been residing or who is within the fourth degree of relationship to the child and who desires to have standing to participate in the proceedings regarding the child may motion the court for interested party status. The court may order that the person may participate in the proceedings.	Under new section 36: (1) A grandparent shall be made an interested party if the grandparent notifies the court of such grandparent’s desire. (2) A person with whom a child has been residing for a significant period within six months of the date the child in need of care petition is filed shall be made an interested party, “if such person notifies the court of such person’s desire to become an interested party. (3) Any person with whom the child has resided at any time, who is within the fourth degree of relationship or with whom the child has close emotional ties may, upon motion be made an interested party if the court deems it is in the best interests of the child. (4) Any person, may upon motion, be made an interested party if the court determines that the person has a sufficient relationship with the child to warrant interested party status or that the person’s participation would be beneficial to the proceedings. The statute allows the court on its own motion to make any person an interested party if the court determines that interested party status would be in the best interest of the child.	The revised code allows the court to make any person an interested party if the court determines that interested party status would be in the best interest of the child, whereas the original code only allows for a select group of individuals to petition the court for interested party status.
Denial of Interested Party Status	Nothing	New Section 36 provides that a person who is denied interested party status or whose status as an interested party has been terminated may petition for review of the denial or termination by the chief judge of the district in which the court having jurisdiction over the child in need of care proceeding is located, or a judge designated by the chief judge. The chief judge or the chief judge’s designee shall review the denial or termination with 30 days of receiving the petition.”	The Revised code allows for review of denial of interested party status whereas previously such safeguard was not included.
Rights of an Interested Party	Nothing	Pursuant to new section 36 an interested party has the right to (1) notice (2) present oral or written evidence and argument, to call and cross-examine witnesses and (3) representation by an attorney. Note: the code does allow the court to restrict an interested party’s rights if the court finds it would be in the best interest of the child. BUT the revised code also provides that “a grandparent may not be prevented…from attending the proceedings, having access to the child’s official file in the court records or making a statement to the court.”	The old code did not outline an interested parties rights nor did it protect a grandparents rights, whereas the revised code accomplishes each of these.
Explanation of Proceedings	Nothing	New Section 5 provides that the court is required to distribute a pamphlet, designed by the court, to interested parties in proceedings involving a child alleged or adjudged to be a child in need of care, to advise interested parties of their rights in connection with all proceedings under the revised child in need of care code.	Child in need of care proceedings can be extremely overwhelming. The addition of the distribution of an educational pamphlet will hopefully better equipped interested parties with knowledge of their rights under the Revised CINC code.
Appointment of Counsel	Nothing	New Section 5 provides that if at any stage of the proceedings a person who is an interested party desires but is financially unable to employ an attorney, the court may appoint an attorney for the interested party.	In the old Kansas CINC code there was no provision to appoint counsel for interested parties. This addition will help insure that interested parties who do not have the means to hire an attorney are adequately represented.
Notice of Dispositional Hearings	K.S.A. 38-1562 provides that notice of the dispositional hearing shall be given to the grandparents at their last known addresses or, if no grandparent is living or if no living grandparent’s address is known, to the closest relative of each of the child’s parents whose address is known, and to the foster parent, pre-adoptive parent or relative providing care, by restricted mail before entering an order placing the child in the custody of a person other than the child’s parent	New Section 49 provides that notice and an opportunity to be heard shall be provided to the child’s foster parent or parents or permanent custodian providing care; preadoptive parents for the child if any; the child’s grandparents or closest living relative; and upon request any person having close emotional ties with the child and who is deemed by the court to be essential to the deliberations. Notice of the dispositional hearing is no longer required to be given by restricted mail and first class mail is sufficient.	The notice requirement was modified from the requirement of restricted mail delivery to a more lax requirement. Under the revised code sufficient notice of the dispositional hearing can be provided by first class mail.
Custody Orders	K.S.A. 38-1563 “In making a custody order, the court shall give preference, to the extent that the court finds it is in the best interests of the child, first to granting custody to a relative of the child and second to granting custody of the child to a person with whom the child has close emotional ties.”	Pursuant to new section 50 if the court has made the required findings “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, to any other suitable person, to a shelter facility, to a youth residential facility or to the secretary.”	Any preference in making custody orders is removed in the revised code. This on first glance appears tragic to relatives and others with whom a child may have a close emotional bond, but in reality the best interest standard has subsumed any preference and its removal from the revised code will make no real difference in practice.
Notice of Move	K.S.A. 38-1566 requires notice of move be given to the court, each parent, foster parent or custodian, the child and the GAL if the child is in the home of a parent or relative or has been in the same foster home or shelter facility for six months or longer.	New Section 53 eliminates the requirement of notice of move from a foster home or shelter facility where the child has resided for six months or longer, the home of a parent or relative IF the move is to the a selected pre-adoptive family for the purpose of facilitating adoption. If notice is required and a hearing is requested the statute states that the secretary shall not change the placement of the child, except for purpose of adoption, unless change is approved by the court.	The addition of the exception of the notice of move requirement under the revised code could be devastating to a placement in the event that the family with whom the child was removed was considering adoption.
Foster Parent Reports	K.S.A. 38-1565(b) & K.S.A. 38-1569 requires that a foster parent shall submit to the court, at least every six months, a report in regard to the child’s adjustment, progress and condition. Such report is confidential and shall only be reviewed by the court and the child’s GAL. K.S.A. 38-1569 outlines the form	New Section 56 provides that foster parents or parents have a right to submit a report to the court. It is no longer required. Copies of the report shall now be available to all parties and interested.	The revised code requires that foster parent report be made available to all parties. Such modification is in the best interest of justice. This new requirement will insure that no party is left without considered information.
Preference for Adoption Purposes	K.S.A. 38-1584 provides that when parental rights have been terminated and adoption appears to be a viable option “the court shall give preference, to the extent that the court finds it is in the best interest of the child, first to granting such custody for adoption to a relative of the child and second to granting such custody to a person with whom the child has close emotional ties.”	New Section 65 for the same preference as K.S.A> 38-1584.	See discussion as relates to custody orders, though preference is not removed under preferences for adoption purposes the reality is and case law suggests there is no preference, because said preference is subsumed by the “best interest requirement.”

To reach the author, please call Trina Nudson at (913) 438-4636

or send e-mail to Trina@yourchild1st.com.

To learn more about children in need of care, click here.

Visit our home page at www.yourchild1st.com .

This information is only for general educational purposes, and not for legal advice. Laws change, and their application may vary significantly depending on your circumstances. If you need legal advice, you must consult a licensed attorney. The choice of a lawyer is an important decision and should not be based solely upon advertisements.