K.S.A. Chapter 75
Article 76 Child Advocate Act
Current through end of 2024 Session
75-7601 Citation of act; definitions
75-7602 Office of the child advocate; appointment of the child advocate by governor; administration of office; powers and duties
75-7603 Purpose of office; duties of the child advocate; investigative procedures; resolution of complaints; report by the office
75-7604 Confidentiality of records and information; permitted disclosures; liability
75-7605 Prohibition on retaliation for cooperation with the office; exceptions; criminal penalty for violation thereof
75-7606 Statutory construction; office not subject to control by any governmental agency
75-7601. Citation of act; definitions.
(a) K.S.A. 2024 Supp. 75-7601 through 75-7606, and amendments thereto, shall be known and may be cited as the child advocate act.
(b) As used in the child advocate act:
(1) "Child" means any individual under 18 years of age who:
(A) Is in the custody of the secretary for children and families;
(B) may be alleged to be a child in need of care as provided in K.S.A. 38-2201 et seq., and amendments thereto;
(C) is alleged to be a child in need of care as provided in K.S.A. 38-2201 et seq.; or
(D) is currently or was receiving services or treatment from the department of corrections within the previous five years; and
(2) "office" means the office of the child advocate and includes the child advocate and staff.
History: L. 2024, ch. 73, § 1; July 1.
75-7602. Office of the child advocate; appointment of the child advocate by governor; administration of office; powers and duties.
(a) There is hereby established the office of the child advocate, the head of which shall be the child advocate. In the performance of the powers, duties and functions prescribed by law, the office shall be an independent state agency. The child advocate shall be appointed by the governor and subject to confirmation by the senate as provided by K.S.A. 75-4315b, and amendments thereto.
(b) (1) Except as provided by K.S.A. 46-2601, and amendments thereto, no person appointed to the position of the child advocate shall exercise any power, duty or function of the child advocate until confirmed by the senate. The child advocate shall be selected without regard to political affiliation and on the basis of integrity and capacity for effectively carrying out the duties of the office. The child advocate shall be an individual with extensive experience in the practice of case management, clinical services or legal services to children and families involved in the child welfare system.
(2) No former or current executive or manager of any program or agency or contracting entity subject to oversight by the office may be appointed to the position of the child advocate within 12 months of the end of that individual's period of service with such program or agency.
(3) A person appointed to the position of the child advocate shall serve for a term of five years or until a successor has been appointed and confirmed.
(4) The child advocate shall be in the unclassified service and shall receive an annual salary in an amount equal to the annual salary paid by the state to a district court judge.
(5) The child advocate shall exercise independent judgment in carrying out the duties of the office.
(c) (1) Subject to this subsection, the child advocate shall have general managerial control over the office of the child advocate and shall establish the organizational structure of the office as the child advocate deems appropriate to carry out the responsibilities and functions of the office.
(2) All budgeting, purchasing, personnel and related administrative functions of the office shall be administered under the direction and supervision of the child advocate.
(3) Within the limits of appropriations therefor, the child advocate may hire such employees in the unclassified service as are necessary to administer the office. Such employees shall serve at the pleasure of the child advocate. Subject to appropriations and this subsection, the child advocate may obtain the services of other professionals necessary to independently perform the functions of the office, including obtaining legal services as provided by K.S.A. 75-769, and amendments thereto.
(4) The child advocate may enter into agreements with the secretary of administration for the provision of personnel, facility management and information technology services.
History: L. 2024, ch. 73, § 2; July 1.
75-7603. Purpose of office; duties of the child advocate; investigative procedures; resolution of complaints; report by the office.
(a) The purpose of the office of the child advocate is to ensure that children and families receive adequate coordination of child welfare services for child protection and care through services offered by the Kansas department for children and families or the department's contracting entities, the department for aging and disability services, the department of corrections, the department of health and environment and juvenile courts.
(b) The office shall receive and resolve complaints that allege the Kansas department for children and families or an entity contracting with the department, by act or omission, has provided inadequate protection or care of children, failed to protect the physical or mental health, safety or welfare of any child or failed to follow established laws, rules and regulations or written policies. The child advocate shall:
(1) Establish and implement procedures for receiving, processing, responding to and resolving complaints made by or on behalf of children that relate to state agencies, service providers, including contractors and subcontractors, and any juvenile court that adversely affect or may adversely affect the health, safety and welfare of such children;
(2) provide the Kansas department for children and families with a notice of availability that describes the office and procedures for contacting the office. The department shall ensure such notice is prominently posted in department offices and facilities receiving public moneys for the care and placement of children;
(3) maintain a publicly available website;
(4) publicize and notify individuals of the office's services, purpose and contact information;
(5) compile, collect and preserve a record of complaints received and processed that may reveal concerning patterns to be addressed; and
(6) make recommendations for changes to policies, procedures or adopted or proposed rules and regulations of any state or local agency that adversely affect or may adversely affect the health, safety and welfare of any child.
(c) The office shall independently investigate complaints received pursuant to subsection (b) if the office reasonably believes the complaint's allegations may be independently verified through an investigation. To investigate, the office shall:
(1) Establish and implement procedures for investigating complaints;
(2) have access to the following information related to complaints received:
(A) The names and physical location of all children in protective services, treatment or other programs under the jurisdiction of the Kansas department for children and families or the department of corrections;
(B) all written reports of child abuse and neglect;
(C) all records as provided in K.S.A. 38-2201 et seq. and 38-2301 et seq., and amendments thereto; and
(D) all current records required to be maintained pursuant to articles 22 and 23 of chapter 38 of the Kansas Statutes Annotated, and amendments thereto;
(3) communicate privately with the following persons or entities, after consultation with treatment professionals and service providers:
(A) Any child or child's siblings; and
(B) anyone working with the child, including the family, relatives, employees of the Kansas department for children and families or the department of corrections and other persons or entities providing treatment and services;
(4) have access to, including the right to inspect and copy, relevant child records as identified for disclosure in K.S.A. 38-2201 et seq. and 38-2301 et seq., and amendments thereto;
(5) work in conjunction with juvenile intake and assessment workers, juvenile community corrections officers, guardians ad litem and court-appointed special advocates;
(6) take statements under oath and obtain judicial enforcement of compulsory processes; and
(7) subpoena materials and witnesses using the following procedures:
(A) When the office reasonably believes that materials or witnesses sought will assist in the investigation, the child advocate may issue a subpoena directing documents, reports or information to be delivered to the office at a specific time, date and place or directing a person to appear as a witness at a specific time, date and place. Such time and date shall not be sooner than seven days after the service of the subpoena, excluding Saturdays, Sundays, legal holidays and days on which the office of the clerk of the court is not accessible. The child advocate shall keep a copy of the subpoena in a special file maintained for that purpose;
(B) upon receiving service of a subpoena pursuant to this paragraph, the person or agency served shall give written notice of service to any person known to have a right to assert a privilege or assert a right of confidentiality in regard to the documents, reports or information sought at least five days before the date of delivery or appearance;
(C) any parent, child, guardian ad litem, person or entity subpoenaed or person or entity who claims a privilege or right of confidentiality may request in writing that the child advocate quash a subpoena issued pursuant to this paragraph. The request to quash the subpoena shall be filed with the office at least 24 hours prior to the specified time and date of delivery or appearance, excluding Saturdays, Sundays, legal holidays and days on which the office of the clerk of the court is not accessible, and a copy of the written request shall be given to the person subpoenaed at least 24 hours prior to the specified time and date of delivery or appearance; and
(D) if the child advocate does not quash the subpoena, the written request shall automatically stay the operation of the subpoena until the child advocate obtains a court order for the subpoena to be honored, and the documents, reports or information requested shall not be delivered and the witness shall not appear. An appropriate district court may issue an order for the subpoena to be honored after the court has held a hearing to determine if the documents, reports or information are subject to the claimed privilege or right of confidentiality, and whether it is in the best interests of the child for the subpoena to be honored.
(d) To resolve complaints received pursuant to subsection (b), the office shall:
(1) Establish and implement procedures to resolve the complaints;
(2) independently review the subject of the complaint and after the initial review of the complaint and any accompanying material, the child advocate may recommend that a department or contracting entity:
(A) Consider the matter further;
(B) modify or cancel the department or contracting entity's actions;
(C) alter a rule, order or internal policy;
(D) explain the action further; or
(E) within a reasonable time after receiving a recommendation, provide the office information concerning the department or contracting entity action to implement or not implement recommendations made by the office pursuant to this paragraph;
(3) submit any findings or recommendations pursuant to paragraph (2) to the secretary for children and families or the secretary of corrections as appropriate;
(4) upon reason to believe a criminal investigation is warranted, make a referral of child abuse or neglect to an appropriate law enforcement agency with jurisdiction over the matter and notify the abuse, neglect and exploitation unit of the office of the attorney general; and
(5) produce reports of findings of fact or conclusions of law regarding any complaint, and, if appropriate, the attorney general may file such reports in any pending child in need of care case on behalf of the office.
(e) To assist the legislature in oversight of the child welfare system, the office may:
(1) Meet and discuss any matter in the scope of the child advocate act with the joint committee on child welfare system oversight in regular or executive session under the same duties of confidentiality provided for the child advocate;
(2) review relevant statutes, rules and regulations, policies and procedures for the health, safety and welfare of children;
(3) evaluate the effectiveness of and recommend changes to procedures for reports of child abuse and neglect for child protective services, including, but not limited to, the involvement of the Kansas department for children and families, service providers, guardians ad litem, court appointed special advocates and law enforcement agencies; and
(4) review and recommend changes to law enforcement investigative procedures for and emergency responses to reports of abuse and neglect.
(f) (1) On or before the beginning of each regular session of the legislature, the office shall prepare and submit a report to the governor, the chief justice of the supreme court and the office of judicial administration, the secretary for children and families, the president of the senate, the speaker of the house of representatives, the joint committee on child welfare oversight, the house of representatives standing committee on child welfare and foster care, the senate standing committee on judiciary, or their successor committees, and any other relevant legislative committee.
(2) Such report shall include:
(A) The number of complaints received by the office;
(B) the disposition of such complaints;
(C) the number of children involved in such complaints;
(D) the outcome of such complaints;
(E) any recommendations for changes in statute, policies, procedures or rules and regulations;
(F) the office's proposed annual budget; and
(G) any other topics that the office deems appropriate to properly perform the powers, duties and functions provided by the child advocate act.
(g) The annual budget request of the office shall be prepared by the child advocate. The child advocate shall submit an annual budget request to the division of budget. Such budget request shall be prepared and submitted in the manner provided by K.S.A. 75-3716 and 75-3717, and amendments thereto.
(h) To assist the office in the office's duties under the child advocate act, employees of the Kansas department for children and families, the department's contracting agencies, the department of corrections, juvenile intake and assessment workers, juvenile community corrections officers, guardians ad litem and court appointed special advocates shall:
(1) Work diligently, promptly and in good faith to assist the office in performing the office's powers, duties and functions provided by the child advocate act;
(2) provide full access to and production of records and information requested by the office in the office's duties provided by the act. Such access shall not be a violation of confidentiality of such records if provided and produced in good faith for the purposes of the act;
(3) require employees and contractors of such department or agency to comply with requests from the office in such office's duties provided by the act;
(4) allow employees of such department or agency to file a complaint with or provide records or information to the office without supervisory approval;
(5) not willfully interfere with or obstruct any of the office's duties provided by the act; and
(6) promptly meet and consult with the office upon request of the office.
History: L. 2024, ch. 73, § 3; July 1.
75-7604. Confidentiality of records and information; permitted disclosures; liability.
(a) For any information obtained from a state agency or other entity under the child advocate act, the office shall be subject to the same state and federal statutory disclosure restrictions and confidentiality requirements that are applicable to the state agency or other entity providing such information to the office.
(b) Any files maintained by the office shall be confidential and disclosed only at the discretion of the child advocate, except that the identity of any complainant or child shall not be disclosed by the office unless:
(1) The complainant or child, respectively, or the complainant's or child's legal representative, consents in writing to such disclosure; or
(2) such disclosure is required by court order.
(c) (1) Any person who, without malice, participates in any complaint or information made or provided in good faith to the office shall have immunity from any civil liability that might otherwise be incurred or imposed. This paragraph shall not be construed to protect from suit or liability when caused by the intentional or willful or wanton misconduct of a person.
(2) The child advocate, the office and any employee of the office shall be immune from civil liability, either personally or in their official capacity, including, but not limited to, claims of damage to or loss of property or personal injury that are caused by or arising out of the performance of duties of the office. This paragraph shall not be construed to protect from suit or liability when caused by the intentional or willful or wanton misconduct of a person.
(3) Any statement or communication made by the child advocate, the office or any employee of the office relevant to a complaint being investigated by the office, whether oral or written, shall be privileged and shall not be disclosed to any person or entity, be admissible in any civil action, administrative proceeding or disciplinary board of this state, be subject to discovery, subpoena or other means of legal compulsion for their release to any person or entity or be admissible in evidence in any judicial or administrative proceeding, unless the child advocate is already a party to such proceedings.
(d) A representative of the office conducting or participating in any investigation of a complaint shall not knowingly disclose to any person other than the office, or a person authorized by the office, the name of any witness examined or any information obtained or given during such investigation. Violation of this subsection is a class A nonperson misdemeanor.
(e) When the office is conducting or has conducted an investigation of a complaint, the office shall disclose the final result of the investigation with the consent of the child or child's legal representative.
(f) The office shall not be required to testify in any court with respect to matters held to be confidential in this section, except as the court may deem necessary to enforce the provisions of the child advocate act or when otherwise required by court order.
(g) The provisions of this section providing for confidentiality of records shall expire on July 1, 2029, unless the legislature acts to continue such provisions. The legislature shall review this section pursuant to K.S.A. 45-229, and amendments thereto, prior to July 1, 2029.
History: L. 2024, ch. 73, § 4; July 1.
75-7605. Prohibition on retaliation for cooperation with the office; exceptions; criminal penalty for violation thereof.
(a) (1) Except as provided by paragraph (2), no retaliatory action shall knowingly be taken against any child or employee of the Kansas department for children and families, an employee of the department's contracting agencies or the department of corrections for any communication made or information given to the office. Violation of this paragraph is a class A nonperson misdemeanor.
(2) Paragraph (1) shall not apply to an employee who discloses:
(A) Information that such employee knows to be false or information without regard for the truth or falsity of the information; or
(B) without lawful authority, information that is confidential as provided by any other provision of law.
(b) An employee of the office of the child advocate shall not knowingly disclose false information or disclose confidential information without lawful authority.
(c) As used in this section, "retaliatory action" includes, but is not limited to:
(1) Letters of reprimand or unsatisfactory performance evaluations;
(2) transfer;
(3) demotion;
(4) reduction in pay;
(5) denial of promotion;
(6) suspension;
(7) dismissal; and
(8) denial of employment.
History: L. 2024, ch. 73, § 5; July 1.
75-7606. Statutory construction; office not subject to control by any governmental agency. Nothing in this act shall be construed to permit any governmental agency to exercise control or supervision over the child advocate or the office of the child advocate.
History: L. 2024, ch. 73, § 6; July 1.