Text of KY SB 174 (2021)

UNOFFICIAL COPY 21 RS BR 1509 Page 1 of 15 XXXX Jacketed AN ACT relating to abuse or neglect of a child. 1 Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2 Section 1. KRS 600.020 is amended to read as follows: 3 As used in KRS Chapters 600 to 645, unless the context otherwise requires: 4 (1) (a) "Abused or neglected child" means a child whose health or welfare is harmed 5 or threatened with harm when: 6 1.[(a)] His or her parent, guardian, person in a position of authority or 7 special trust, as defined in KRS 532.045, or other person exercising 8 custodial control or supervision of the child: 9 a.[1.] Inflicts or allows to be inflicted upon the child physical or 10 emotional injury as defined in this section by other than accidental 11 means; 12 b.[2.] Creates or allows to be created a risk of physical or emotional 13 injury as defined in this section to the child by other than 14 accidental means; 15 c.[3.] Engages in a pattern of conduct that renders the parent incapable of 16 caring for the immediate and ongoing needs of the child, including 17 but not limited to parental incapacity due to a substance use 18 disorder as defined in KRS 222.005; 19 d.[4.] Continuously or repeatedly fails or refuses to provide essential 20 parental care and protection for the child, considering the age of 21 the child; 22 e.[5.] Commits or allows to be committed an act of sexual abuse, sexual 23 exploitation, or prostitution upon the child; 24 f.[6.] Creates or allows to be created a risk that an act of sexual abuse, 25 sexual exploitation, or prostitution will be committed upon the 26 child; 27 UNOFFICIAL COPY 21 RS BR 1509 Page 2 of 15 XXXX Jacketed g.[7.] Abandons or exploits the child; 1 h.[8.] Does not provide the child with adequate care, supervision, food, 2 clothing, shelter, and education or medical care necessary for the 3 child's well-being. A parent or other person exercising custodial 4 control or supervision of the child legitimately practicing the 5 person's religious beliefs shall not be considered a negligent parent 6 solely because of failure to provide specified medical treatment for 7 a child for that reason alone. This exception shall not preclude a 8 court from ordering necessary medical services for a child; 9 i.[9.] Fails to make sufficient progress toward identified goals as set 10 forth in the court-approved case plan to allow for the safe return of 11 the child to the parent that results in the child remaining 12 committed to the cabinet and remaining in foster care for fifteen 13 (15) cumulative months out of forty-eight (48) months; or 14 j.[10.] Commits or allows female genital mutilation as defined in 15 KRS 508.125 to be committed; or 16 2.[(b)] A person twenty-one (21) years of age or older commits or allows 17 to be committed an act of sexual abuse, sexual exploitation, or 18 prostitution upon a child less than sixteen (16) years of age. 19 (b) "Abused or neglected child" does not mean a child whose parent or 20 guardian: 21 1. Is legitimately practicing religious beliefs and who, for that reason, 22 does not provide specified medical treatment for a child; 23 2. Makes a health care decision for a child, unless the state or other 24 party to a proceeding shows, by clear and convincing evidence, that 25 the health care decision is not reasonable and informed; 26 3. Exercises the right to obtain a second medical opinion, unless the 27 UNOFFICIAL COPY 21 RS BR 1509 Page 3 of 15 XXXX Jacketed child faces an immediate threat of death or serious and irreparable 1 harm and there is insufficient time to safely allow a second opinion to 2 be obtained; or 3 4. Permits a child, whose basic needs are met and who is of sufficient 4 age and maturity to avoid harm or unreasonable risk of harm, to 5 engage in independent activities, including: 6 a. Traveling to and from school, including by walking, running, or 7 bicycling; 8 b. Traveling to and from nearby commercial or recreational 9 facilities; 10 c. Engaging in outdoor play; 11 d. Remaining in a vehicle unattended, except under the conditions 12 described in KRS 507.040; 13 e. Remaining at home unattended; or 14 f. Engaging in another appropriate independent activity; 15 (2) "Age or developmentally appropriate" has the same meaning as in 42 U.S.C. sec. 16 675(11); 17 (3) "Aggravated circumstances" means the existence of one (1) or more of the 18 following conditions: 19 (a) The parent has not attempted or has not had contact with the child for a period 20 of not less than ninety (90) days; 21 (b) The parent is incarcerated and will be unavailable to care for the child for a 22 period of at least one (1) year from the date of the child's entry into foster care 23 and there is no appropriate relative placement available during this period of 24 time; 25 (c) The parent has sexually abused the child and has refused available treatment; 26 (d) The parent has been found by the cabinet to have engaged in abuse of the 27 UNOFFICIAL COPY 21 RS BR 1509 Page 4 of 15 XXXX Jacketed child that required removal from the parent's home two (2) or more times in 1 the past two (2) years; or 2 (e) The parent has caused the child serious physical injury; 3 (4) "Beyond the control of parents" means a child who has repeatedly failed to follow 4 the reasonable directives of his or her parents, legal guardian, or person exercising 5 custodial control or supervision other than a state agency, which behavior results in 6 danger to the child or others, and which behavior does not constitute behavior that 7 would warrant the filing of a petition under KRS Chapter 645; 8 (5) "Beyond the control of school" means any child who has been found by the court to 9 have repeatedly violated the lawful regulations for the government of the school as 10 provided in KRS 158.150, and as documented in writing by the school as a part of 11 the school's petition or as an attachment to the school's petition. The petition or 12 attachment shall describe the student's behavior and all intervention strategies 13 attempted by the school; 14 (6) "Boarding home" means a privately owned and operated home for the boarding and 15 lodging of individuals which is approved by the Department of Juvenile Justice or 16 the cabinet for the placement of children committed to the department or the 17 cabinet; 18 (7) "Cabinet" means the Cabinet for Health and Family Services; 19 (8) "Certified juvenile facility staff" means individuals who meet the qualifications of, 20 and who have completed a course of education and training in juvenile detention 21 developed and approved by, the Department of Juvenile Justice after consultation 22 with other appropriate state agencies; 23 (9) "Child" means any person who has not reached his or her eighteenth birthday, 24 unless otherwise provided; 25 (10) "Child-caring facility" means any facility or group home other than a state facility, 26 Department of Juvenile Justice contract facility or group home, or one certified by 27 UNOFFICIAL COPY 21 RS BR 1509 Page 5 of 15 XXXX Jacketed an appropriate agency as operated primarily for educational or medical purposes, 1 providing residential care on a twenty-four (24) hour basis to children not related by 2 blood, adoption, or marriage to the person maintaining the facility; 3 (11) "Child-placing agency" means any agency, other than a state agency, which 4 supervises the placement of children in foster family homes or child-caring facilities 5 or which places children for adoption; 6 (12) "Clinical treatment facility" means a facility with more than eight (8) beds 7 designated by the Department of Juvenile Justice or the cabinet for the treatment of 8 mentally ill children. The treatment program of such facilities shall be supervised by 9 a qualified mental health professional; 10 (13) "Commitment" means an order of the court which places a child under the custodial 11 control or supervision of the Cabinet for Health and Family Services, Department of 12 Juvenile Justice, or another facility or agency until the child attains the age of 13 eighteen (18) unless otherwise provided by law; 14 (14) "Community-based facility" means any nonsecure, homelike facility licensed, 15 operated, or permitted to operate by the Department of Juvenile Justice or the 16 cabinet, which is located within a reasonable proximity of the child's family and 17 home community, which affords the child the opportunity, if a Kentucky resident, to 18 continue family and community contact; 19 (15) "Complaint" means a verified statement setting forth allegations in regard to the 20 child which contain sufficient facts for the formulation of a subsequent petition; 21 (16) "Court" means the juvenile session of District Court unless a statute specifies the 22 adult session of District Court or the Circuit Court; 23 (17) "Court-designated worker" means that organization or individual delegated by the 24 Administrative Office of the Courts for the purposes of placing children in 25 alternative placements prior to arraignment, conducting preliminary investigations, 26 and formulating, entering into, and supervising diversion agreements and 27 UNOFFICIAL COPY 21 RS BR 1509 Page 6 of 15 XXXX Jacketed performing such other functions as authorized by law or court order; 1 (18) "Deadly weapon" has the same meaning as it does in KRS 500.080; 2 (19) "Department" means the Department for Community Based Services; 3 (20) "Dependent child" means any child, other than an abused or neglected child, who is 4 under improper care, custody, control, or guardianship that is not due to an 5 intentional act of the parent, guardian, or person exercising custodial control or 6 supervision of the child; 7 (21) "Detention" means the safe and temporary custody of a juvenile who is accused of 8 conduct subject to the jurisdiction of the court who requires a restricted or closely 9 supervised environment for his or her own or the community's protection; 10 (22) "Detention hearing" means a hearing held by a judge or trial commissioner within 11 twenty-four (24) hours, exclusive of weekends and holidays, of the start of any 12 period of detention prior to adjudication; 13 (23) "Diversion agreement" means a mechanism designed to hold a child accountable for 14 his or her behavior and, if appropriate, securing services to serve the best interest of 15 the child and to provide redress for that behavior without court action and without 16 the creation of a formal court record; 17 (24) "Eligible youth" means a person who: 18 (a) Is or has been committed to the cabinet as dependent, neglected, or abused; 19 (b) Is eighteen (18) years of age to nineteen (19) years of age; and 20 (c) Is requesting to extend or reinstate his or her commitment to the cabinet in 21 order to participate in state or federal educational programs or to establish 22 independent living arrangements; 23 (25) "Emergency shelter" is a group home, private residence, foster home, or similar 24 homelike facility which provides temporary or emergency care of children and 25 adequate staff and services consistent with the needs of each child; 26 (26) "Emotional injury" means an injury to the mental or psychological capacity or 27 UNOFFICIAL COPY 21 RS BR 1509 Page 7 of 15 XXXX Jacketed emotional stability of a child as evidenced by a substantial and observable 1 impairment in the child's ability to function within a normal range of performance 2 and behavior with due regard to his or her age, development, culture, and 3 environment as testified to by a qualified mental health professional; 4 (27) "Evidence-based practices" means policies, procedures, programs, and practices 5 proven by scientific research to reliably produce reductions in recidivism; 6 (28) "Fictive kin" means an individual who is not related by birth, adoption, or marriage 7 to a child, but who has an emotionally significant relationship with the child; 8 (29) "Firearm" shall have the same meaning as in KRS 237.060 and 527.010; 9 (30) "Foster family home" means a private home in which children are placed for foster 10 family care under supervision of the cabinet or a licensed child-placing agency; 11 (31) "Graduated sanction" means any of a continuum of accountability measures, 12 programs, and sanctions, ranging from less restrictive to more restrictive in nature, 13 that may include but are not limited to: 14 (a) Electronic monitoring; 15 (b) Drug and alcohol screening, testing, or monitoring; 16 (c) Day or evening reporting centers; 17 (d) Reporting requirements; 18 (e) Community service; and 19 (f) Rehabilitative interventions such as family counseling, substance abuse 20 treatment, restorative justice programs, and behavioral or mental health 21 treatment; 22 (32) "Habitual runaway" means any child who has been found by the court to have been 23 absent from his or her place of lawful residence without the permission of his or her 24 custodian for at least three (3) days during a one (1) year period; 25 (33) "Habitual truant" means any child who has been found by the court to have been 26 reported as a truant as defined in KRS 159.150(1) two (2) or more times during a 27 UNOFFICIAL COPY 21 RS BR 1509 Page 8 of 15 XXXX Jacketed one (1) year period; 1 (34) "Hospital" means, except for purposes of KRS Chapter 645, a licensed private or 2 public facility, health care facility, or part thereof, which is approved by the cabinet 3 to treat children; 4 (35) "Independent living" means those activities necessary to assist a committed child to 5 establish independent living arrangements; 6 (36) "Informal adjustment" means an agreement reached among the parties, with 7 consultation, but not the consent, of the victim of the crime or other persons 8 specified in KRS 610.070 if the victim chooses not to or is unable to participate, 9 after a petition has been filed, which is approved by the court, that the best interest 10 of the child would be served without formal adjudication and disposition; 11 (37) "Intentionally" means, with respect to a result or to conduct described by a statute 12 which defines an offense, that the actor's conscious objective is to cause that result 13 or to engage in that conduct; 14 (38) "Least restrictive alternative" means, except for purposes of KRS Chapter 645, that 15 the program developed on the child's behalf is no more harsh, hazardous, or 16 intrusive than necessary; or involves no restrictions on physical movements nor 17 requirements for residential care except as reasonably necessary for the protection 18 of the child from physical injury; or protection of the community, and is conducted 19 at the suitable available facility closest to the child's place of residence to allow for 20 appropriate family engagement; 21 (39) "Motor vehicle offense" means any violation of the nonfelony provisions of KRS 22 Chapters 186, 189, or 189A, KRS 177.300, 304.39-110, or 304.39-117; 23 (40) "Near fatality" means an injury that, as certified by a physician, places a child in 24 serious or critical condition; 25 (41) "Needs of the child" means necessary food, clothing, health, shelter, and education; 26 (42) "Nonoffender" means a child alleged to be dependent, neglected, or abused and who 27 UNOFFICIAL COPY 21 RS BR 1509 Page 9 of 15 XXXX Jacketed has not been otherwise charged with a status or public offense; 1 (43) "Nonsecure facility" means a facility which provides its residents access to the 2 surrounding community and which does not rely primarily on the use of physically 3 restricting construction and hardware to restrict freedom; 4 (44) "Nonsecure setting" means a nonsecure facility or a residential home, including a 5 child's own home, where a child may be temporarily placed pending further court 6 action. Children before the court in a county that is served by a state operated secure 7 detention facility, who are in the detention custody of the Department of Juvenile 8 Justice, and who are placed in a nonsecure alternative by the Department of 9 Juvenile Justice, shall be supervised by the Department of Juvenile Justice; 10 (45) "Out-of-home placement" means a placement other than in the home of a parent, 11 relative, or guardian, in a boarding home, clinical treatment facility, community- 12 based facility, detention facility, emergency shelter, fictive kin home, foster family 13 home, hospital, nonsecure facility, physically secure facility, residential treatment 14 facility, or youth alternative center; 15 (46) "Parent" means the biological or adoptive mother or father of a child; 16 (47) "Person exercising custodial control or supervision" means a person or agency that 17 has assumed the role and responsibility of a parent or guardian for the child, but that 18 does not necessarily have legal custody of the child; 19 (48) "Petition" means a verified statement, setting forth allegations in regard to the child, 20 which initiates formal court involvement in the child's case; 21 (49) "Physical injury" means substantial physical pain or any impairment of physical 22 condition; 23 (50) "Physically secure facility" means a facility that relies primarily on the use of 24 construction and hardware such as locks, bars, and fences to restrict freedom; 25 (51) "Public offense action" means an action, excluding contempt, brought in the interest 26 of a child who is accused of committing an offense under KRS Chapter 527 or a 27 UNOFFICIAL COPY 21 RS BR 1509 Page 10 of 15 XXXX Jacketed public offense which, if committed by an adult, would be a crime, whether the same 1 is a felony, misdemeanor, or violation, other than an action alleging that a child 2 sixteen (16) years of age or older has committed a motor vehicle offense; 3 (52) "Qualified mental health professional" means: 4 (a) A physician licensed under the laws of Kentucky to practice medicine or 5 osteopathy, or a medical officer of the government of the United States while 6 engaged in the performance of official duties; 7 (b) A psychiatrist licensed under the laws of Kentucky to practice medicine or 8 osteopathy, or a medical officer of the government of the United States while 9 engaged in the practice of official duties, and who is certified or eligible to 10 apply for certification by the American Board of Psychiatry and Neurology, 11 Inc.; 12 (c) A psychologist with the health service provider designation, a psychological 13 practitioner, a certified psychologist, or a psychological associate licensed 14 under the provisions of KRS Chapter 319; 15 (d) A licensed registered nurse with a master's degree in psychiatric nursing from 16 an accredited institution and two (2) years of clinical experience with mentally 17 ill persons, or a licensed registered nurse with a bachelor's degree in nursing 18 from an accredited institution who is certified as a psychiatric and mental 19 health nurse by the American Nurses Association and who has three (3) years 20 of inpatient or outpatient clinical experience in psychiatric nursing and who is 21 currently employed by a hospital or forensic psychiatric facility licensed by 22 the Commonwealth or a psychiatric unit of a general hospital or a regional 23 comprehensive care center; 24 (e) A licensed clinical social worker licensed under the provisions of KRS 25 335.100, or a certified social worker licensed under the provisions of KRS 26 335.080 with three (3) years of inpatient or outpatient clinical experience in 27 UNOFFICIAL COPY 21 RS BR 1509 Page 11 of 15 XXXX Jacketed psychiatric social work and currently employed by a hospital or forensic 1 psychiatric facility licensed by the Commonwealth or a psychiatric unit of a 2 general hospital or a regional comprehensive care center; 3 (f) A marriage and family therapist licensed under the provisions of KRS 335.300 4 to 335.399 with three (3) years of inpatient or outpatient clinical experience in 5 psychiatric mental health practice and currently employed by a hospital or 6 forensic psychiatric facility licensed by the Commonwealth, a psychiatric unit 7 of a general hospital, or a regional comprehensive care center; 8 (g) A professional counselor credentialed under the provisions of KRS 335.500 to 9 335.599 with three (3) years of inpatient or outpatient clinical experience in 10 psychiatric mental health practice and currently employed by a hospital or 11 forensic facility licensed by the Commonwealth, a psychiatric unit of a general 12 hospital, or a regional comprehensive care center; or 13 (h) A physician assistant licensed under KRS 311.840 to 311.862, who meets one 14 (1) of the following requirements: 15 1. Provides documentation that he or she has completed a psychiatric 16 residency program for physician assistants; 17 2. Has completed at least one thousand (1,000) hours of clinical experience 18 under a supervising physician, as defined by KRS 311.840, who is a 19 psychiatrist and is certified or eligible for certification by the American 20 Board of Psychiatry and Neurology, Inc.; 21 3. Holds a master's degree from a physician assistant program accredited 22 by the Accreditation Review Commission on Education for the 23 Physician Assistant or its predecessor or successor agencies, is 24 practicing under a supervising physician as defined by KRS 311.840, 25 and: 26 a. Has two (2) years of clinical experience in the assessment, 27 UNOFFICIAL COPY 21 RS BR 1509 Page 12 of 15 XXXX Jacketed evaluation, and treatment of mental disorders; or 1 b. Has been employed by a hospital or forensic psychiatric facility 2 licensed by the Commonwealth or a psychiatric unit of a general 3 hospital or a private agency or company engaged in the provision 4 of mental health services or a regional community program for 5 mental health and individuals with an intellectual disability for at 6 least two (2) years; or 7 4. Holds a bachelor's degree, possesses a current physician assistant 8 certificate issued by the board prior to July 15, 2002, is practicing under 9 a supervising physician as defined by KRS 311.840, and: 10 a. Has three (3) years of clinical experience in the assessment, 11 evaluation, and treatment of mental disorders; or 12 b. Has been employed by a hospital or forensic psychiatric facility 13 licensed by the Commonwealth or a psychiatric unit of a general 14 hospital or a private agency or company engaged in the provision 15 of mental health services or a regional community program for 16 mental health and individuals with an intellectual disability for at 17 least three (3) years; 18 (53) "Reasonable and prudent parent standard" has the same meaning as in 42 U.S.C. 19 sec. 675(10); 20 (54) "Residential treatment facility" means a facility or group home with more than eight 21 (8) beds designated by the Department of Juvenile Justice or the cabinet for the 22 treatment of children; 23 (55) "Retain in custody" means, after a child has been taken into custody, the continued 24 holding of the child by a peace officer for a period of time not to exceed twelve (12) 25 hours when authorized by the court or the court-designated worker for the purpose 26 of making preliminary inquiries; 27 UNOFFICIAL COPY 21 RS BR 1509 Page 13 of 15 XXXX Jacketed (56) "Risk and needs assessment" means an actuarial tool scientifically proven to 1 identify specific factors and needs that are related to delinquent and noncriminal 2 misconduct; 3 (57) "School personnel" means those certified persons under the supervision of the local 4 public or private education agency; 5 (58) "Secretary" means the secretary of the Cabinet for Health and Family Services; 6 (59) "Secure juvenile detention facility" means any physically secure facility used for the 7 secure detention of children other than any facility in which adult prisoners are 8 confined; 9 (60) "Serious physical injury" means physical injury which creates a substantial risk of 10 death or which causes serious and prolonged disfigurement, prolonged impairment 11 of health, or prolonged loss or impairment of the function of any bodily member or 12 organ; 13 (61) "Sexual abuse" includes but is not necessarily limited to any contacts or interactions 14 in which the parent, guardian, person in a position of authority or special trust, as 15 defined in KRS 532.045, or other person having custodial control or supervision of 16 the child or responsibility for his or her welfare, uses or allows, permits, or 17 encourages the use of the child for the purposes of the sexual stimulation of the 18 perpetrator or another person; 19 (62) "Sexual exploitation" includes but is not limited to a situation in which a parent, 20 guardian, person in a position of authority or special trust, as defined in KRS 21 532.045, or other person having custodial control or supervision of a child or 22 responsible for his or her welfare, allows, permits, or encourages the child to engage 23 in an act which constitutes prostitution under Kentucky law; or a parent, guardian, 24 person in a position of authority or special trust, as defined in KRS 532.045, or 25 other person having custodial control or supervision of a child or responsible for his 26 or her welfare, allows, permits, or encourages the child to engage in an act of 27 UNOFFICIAL COPY 21 RS BR 1509 Page 14 of 15 XXXX Jacketed obscene or pornographic photographing, filming, or depicting of a child as provided 1 for under Kentucky law; 2 (63) "Social service worker" means any employee of the cabinet or any private agency 3 designated as such by the secretary of the cabinet or a social worker employed by a 4 county or city who has been approved by the cabinet to provide, under its 5 supervision, services to families and children; 6 (64) "Staff secure facility for residential treatment" means any setting which assures that 7 all entrances and exits are under the exclusive control of the facility staff, and in 8 which a child may reside for the purpose of receiving treatment; 9 (65) (a) "Status offense action" is any action brought in the interest of a child who is 10 accused of committing acts, which if committed by an adult, would not be a 11 crime. Such behavior shall not be considered criminal or delinquent and such 12 children shall be termed status offenders. Status offenses shall include: 13 1. Beyond the control of school or beyond the control of parents; 14 2. Habitual runaway; 15 3. Habitual truant; and 16 4. Alcohol offenses as provided in KRS 244.085. 17 (b) Status offenses shall not include violations of state or local ordinances which 18 may apply to children such as a violation of curfew; 19 (66) "Take into custody" means the procedure by which a peace officer or other 20 authorized person initially assumes custody of a child. A child may be taken into 21 custody for a period of time not to exceed two (2) hours; 22 (67) "Transitional living support" means all benefits to which an eligible youth is 23 entitled upon being granted extended or reinstated commitment to the cabinet by the 24 court; 25 (68) "Transition plan" means a plan that is personalized at the direction of the youth that: 26 (a) Includes specific options on housing, health insurance, education, local 27 UNOFFICIAL COPY 21 RS BR 1509 Page 15 of 15 XXXX Jacketed opportunities for mentors and continuing support services, and workforce 1 supports and employment services; and 2 (b) Is as detailed as the youth may elect; 3 (69) "Valid court order" means a court order issued by a judge to a child alleged or found 4 to be a status offender: 5 (a) Who was brought before the court and made subject to the order; 6 (b) Whose future conduct was regulated by the order; 7 (c) Who was given written and verbal warning of the consequences of the 8 violation of the order at the time the order was issued and whose attorney or 9 parent or legal guardian was also provided with a written notice of the 10 consequences of violation of the order, which notification is reflected in the 11 record of the court proceedings; and 12 (d) Who received, before the issuance of the order, the full due process rights 13 guaranteed by the Constitution of the United States; 14 (70) "Violation" means any offense, other than a traffic infraction, for which a sentence 15 of a fine only can be imposed; 16 (71) "Youth alternative center" means a nonsecure facility, approved by the Department 17 of Juvenile Justice, for the detention of juveniles, both prior to adjudication and 18 after adjudication, which meets the criteria specified in KRS 15A.320; and 19 (72) "Youthful offender" means any person regardless of age, transferred to Circuit 20 Court under the provisions of KRS Chapter 635 or 640 and who is subsequently 21 convicted in Circuit Court. 22