2006 Kansas Code - 38-1583

      38-1583.   Considerations in termination of parental rights; permanent guardianship. (a) When the child has been adjudicated to be a child in need of care, the court may terminate parental rights when the court finds by clear and convincing evidence that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.

      (b)   In making a determination hereunder the court shall consider, but is not limited to, the following, if applicable:

      (1)   Emotional illness, mental illness, mental deficiency or physical disability of the parent, of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental and emotional needs of the child;

      (2)   conduct toward a child of a physically, emotionally or sexually cruel or abusive nature;

      (3)   excessive use of intoxicating liquors or narcotic or dangerous drugs;

      (4)   physical, mental or emotional neglect of the child;

      (5)   conviction of a felony and imprisonment;

      (6)   unexplained injury or death of another child or stepchild of the parent;

      (7)   reasonable efforts by appropriate public or private child caring agencies have been unable to rehabilitate the family; and

      (8)   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.

      (c)   In addition to the foregoing, when a child is not in the physical custody of a parent, the court, in proceedings concerning the termination of parental rights, shall also consider, but is not limited to the following:

      (1)   Failure to assure care of the child in the parental home when able to do so;

      (2)   failure to maintain regular visitation, contact or communication with the child or with the custodian of the child;

      (3)   failure to carry out a reasonable plan approved by the court directed toward the integration of the child into the parental home; and

      (4)   failure to pay a reasonable portion of the cost of substitute physical care and maintenance based on ability to pay.

      In making the above determination, the court may disregard incidental visitations, contacts, communications or contributions.

      (d)   The rights of the parents may be terminated as provided in this section if the court finds that the parents have abandoned the child, the custody of the child was surrendered pursuant to K.S.A. 38-15,100, and amendments thereto, 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 three months after the child is found.

      (e)   The existence of any one of the above standing alone may, but does not necessarily, establish grounds for termination of parental rights. The determination shall be based on an evaluation of all factors which are applicable. In considering any of the above factors for terminating the rights of a parent, the court shall give primary consideration to the physical, mental or emotional condition and needs of the child. If presented to the court and subject to the provisions of K.S.A. 60-419, and amendments thereto, the court shall consider as evidence testimony from a person licensed to practice medicine and surgery, a licensed psychologist or a licensed social worker expressing an opinion relating to the physical, mental or emotional condition and needs of the child. The court shall consider any such testimony only if the licensed professional providing such testimony is subject to cross-examination.

      (f)   A termination of parental rights under the Kansas code for care of children shall not terminate the right of the child to inherit from or through the parent. Upon such termination, all the rights of birth parents to such child, including their right to inherit from or through such child, shall cease.

      (g)   If, after finding the parent unfit, the court determines a compelling reason why it is contrary to the welfare or not in the best interests of the child to terminate parental rights or upon agreement of the parents, the court may award permanent guardianship to an individual providing care for the child, a relative or other person with whom the child has a close emotional attachment. Prior to awarding permanent guardianship, the court shall receive and consider an assessment as provided in K.S.A. 59-2132 and amendments thereto of any potential permanent guardian. Upon appointment of a permanent guardian, the court shall discharge the child from the custody of the secretary.

      (h)   If a parent is convicted of an offense as provided in subsection (7) of K.S.A. 38-1585 and amendments thereto or is adjudicated a juvenile offender because of an act which if committed by an adult would be an offense as provided in subsection (7) of K.S.A. 38-1585 and amendments thereto, and if the victim was the other parent of a child, the court may disregard such convicted or adjudicated parent's opinions or wishes in regard to the placement of such child.

      (i)   If the secretary has documented to the court a compelling reason why custody for adoption, custody for permanent guardianship, nor custody for placement with a fit and willing relative are currently a viable option, the court may order custody to remain with the secretary for continued permanency planning and another planned permanent living arrangement.

      History:   L. 1982, ch. 182, § 54; L. 1983, ch. 140, § 27; L. 1991, ch. 115, § 1; L. 1993, ch. 195, § 1; L. 1994, ch. 301, § 7; L. 1998, ch. 139, § 8; L. 1999, ch. 156, § 10; L. 2000, ch. 150, § 19; L. 2001, ch. 211, § 12; July 1.