2012 New York Consolidated Laws
SOS - Social Services
Article 6 - CHILDREN
Title 1 - (371 - 392) CARE AND PROTECTION OF CHILDREN
378-A - Access to conviction records by authorized agencies.

 
    §  378-a.  Access  to  conviction records by authorized agencies. * 1.
  Subject to rules and regulations of the  division  of  criminal  justice
  services,  an  authorized agency shall have access to conviction records
  maintained by state law enforcement agencies pertaining to  persons  who
  have  applied  for  and are under active consideration for employment by
  such authorized agency in positions where such persons will  be  engaged
  directly in the care and supervision of children.
    * NB Effective until June 30, 2013
    * 1.  Every authorized agency which operates a residential program for
  children and the office of children and family  services  shall  request
  that  the justice center for the protection of people with special needs
  check, and upon such request, such  justice  center  shall  request  and
  shall  be  authorized  to  receive from the division of criminal justice
  services criminal history information, as  such  phrase  is  defined  in
  paragraph  (c)  of subdivision one of section eight hundred forty-five-b
  of the executive law concerning each prospective operator,  employee  or
  volunteer  of  such  residential  program  who  will  have  regular  and
  substantial unsupervised or unrestricted physical contact with  children
  in  such  program.  For  the  purposes of this section, "operator" shall
  include any natural person with an ownership interest in the  authorized
  agency.  Access  to and the use of such information shall be governed by
  the provisions of section eight hundred forty-five-b  of  the  executive
  law.
    * NB Effective June 30, 2013
    2. (a) Notwithstanding any other provision of law to the contrary, and
  subject  to  rules  and  regulations of the division of criminal justice
  services, an authorized agency, as defined in subdivision ten of section
  three hundred seventy-one of this  article,  shall  perform  a  criminal
  history  record  check  with  the  division of criminal justice services
  regarding any prospective foster parent or prospective  adoptive  parent
  and any person over the age of eighteen who is currently residing in the
  home  of  such  prospective foster parent or prospective adoptive parent
  before the foster parent or adoptive  parent  is  finally  certified  or
  approved  for  the placement of a child. Persons who are over the age of
  eighteen residing in the home of a certified or approved  foster  parent
  and  who  previously  did  not  have  a  criminal  history  record check
  performed in accordance with this subdivision shall have such a criminal
  history record check  performed  when  the  foster  parent  applies  for
  renewal  of his or her certification or approval as a foster parent. The
  division  of  criminal  justice  services  is   authorized   to   submit
  fingerprints to the federal bureau of investigation for the purpose of a
  nationwide criminal history record check pursuant to and consistent with
  public  law  92-544 to determine whether such prospective foster parent,
  prospective adoptive parent or person over the age of eighteen currently
  residing in the home of such prospective parent has a  criminal  history
  in  any  state or federal jurisdiction. The provisions and procedures of
  this section, including the criminal history  record  check  of  persons
  over  the  age of eighteen who are currently residing in the home of the
  foster parent, also shall apply to prospective foster parents  certified
  by  the  office  of  children  and  family  services and to family homes
  certified by any other state agency where such  family  homes  care  for
  foster  children  in  accordance with a memorandum of understanding with
  the office of children and family services.
    (b) Every authorized agency shall obtain  a  set  of  the  prospective
  foster parent or prospective adoptive parent's fingerprints and those of
  any person over the age of eighteen who currently resides in the home of
  such  prospective foster parent or prospective adoptive parent, and such
  other information as is required by the office of  children  and  family

  services  and  the division of criminal justice services. The authorized
  agency shall provide to the applicant  blank  fingerprint  cards  and  a
  description  of  how  the  completed fingerprint cards will be used upon
  submission  to  the  authorized  agency.  The  authorized  agency  shall
  promptly transmit such fingerprint cards to the office of  children  and
  family  services.  The  office  of  children  and  family services shall
  promptly submit such fingerprint cards and the  processing  fee  imposed
  pursuant to subdivision eight-a of section eight hundred thirty-seven of
  the  executive  law to the division of criminal justice services for its
  full search and retain processing. Notwithstanding any  other  provision
  of  law  to  the  contrary, the processing fee shall be submitted by the
  office of children and family services and  no  part  thereof  shall  be
  charged  to the prospective foster parent or prospective adoptive parent
  or any person over the age of eighteen who currently resides in the home
  of such prospective foster parent or  prospective  adoptive  parent  who
  submitted a fingerprint card pursuant to this subdivision.
    (c)  The  division of criminal justice services shall promptly provide
  to the office of children and family services a criminal history record,
  if any, with respect to the prospective  foster  parent  or  prospective
  adoptive  parent  and  any  other  person  over  the age of eighteen who
  resides in the home of the  prospective  foster  parent  or  prospective
  adoptive  parent,  or  a  statement  that the individual has no criminal
  history record.
    (d) Notwithstanding any other provision of law to  the  contrary,  the
  office  of  children  and  family  services,  upon receipt of a criminal
  history record from the  division  of  criminal  justice  services,  may
  request,  and  is  entitled  to  receive,  information pertaining to any
  offense contained in such criminal history  record  from  any  state  or
  local  law  enforcement  agency or court for the purposes of determining
  whether any ground relating  to  such  criminal  conviction  or  pending
  criminal charge exists for denying an application.
    (e)  After  reviewing any criminal history record information provided
  by the division of criminal justice services, the office of children and
  family services shall promptly notify the  authorized  agency  or  other
  state agency that:
    (1)  Notwithstanding  any  other  provision of law to the contrary, an
  application for certification or approval of a prospective foster parent
  or prospective adoptive parent shall be denied where a criminal  history
  record  of  the prospective foster parent or prospective adoptive parent
  reveals a conviction for:
    (A) a felony conviction at any time  involving:  (i)  child  abuse  or
  neglect;  (ii)  spousal  abuse; (iii) a crime against a child, including
  child pornography; or (iv) a crime involving violence,  including  rape,
  sexual  assault,  or  homicide,  other  than  a crime involving physical
  assault or battery; or
    (B) a felony conviction  within  the  past  five  years  for  physical
  assault, battery, or a drug-related offense; or
    (2)  Notwithstanding  any  other  provision  of law to the contrary, a
  final determination of an application for certification or approval of a
  prospective foster parent or prospective adoptive parent shall  be  held
  in  abeyance  whenever  the  criminal  history record of the prospective
  foster parent or prospective adoptive parent reveals:
    (A) a charge for a  crime  set  forth  in  subparagraph  one  of  this
  paragraph which has not been finally resolved; or
    (B)  a  felony  conviction  that  may  be  for  a  crime  set forth in
  subparagraph one of this paragraph. An  authorized  agency  may  proceed
  with  a  determination  of such application, in a manner consistent with
  this subdivision, only upon receiving subsequent notification  from  the

  office  of  children  and  family  services regarding the status of such
  charge or the nature of such conviction; or
    (3)  an  application  for  certification  or approval of a prospective
  foster parent or prospective adoptive parent may,  consistent  with  the
  provisions  of  article  twenty-three-A of the correction law, be denied
  where:
    (A) a criminal history record of  the  prospective  foster  parent  or
  prospective  adoptive parent reveals a charge or a conviction of a crime
  other than one set forth in subparagraph one of this paragraph; or
    (B) a criminal history record of any other  person  over  the  age  of
  eighteen  who  resides  in  the home of the prospective foster parent or
  prospective adoptive parent reveals a charge  or  a  conviction  of  any
  crime; or
    (4)  Notwithstanding  any  other  provision of law to the contrary, an
  application for renewal of the certification or  approval  of  a  foster
  parent  submitted on or after October first, two thousand eight shall be
  denied based on the conviction of the foster parent of a crime set forth
  in subparagraph one of this paragraph where such conviction occurred  on
  or after October first, two thousand eight; or
    (5)  Notwithstanding  any  other provision of law to the contrary, the
  certification or approval of a foster parent,  or  the  approval  of  an
  adoptive  parent  who  has  not completed the adoption process, shall be
  revoked based on the conviction of the foster  parent  or  the  adoptive
  parent of a crime set forth in subparagraph one of this paragraph; or
    (6)  the  prospective foster parent or prospective adoptive parent and
  any person over the age of eighteen who is residing in the home  of  the
  prospective foster parent or prospective adoptive parent has no criminal
  history record.
    (f)  Except as otherwise set forth in this paragraph, any notification
  by the office of children and family services pursuant to paragraph  (e)
  of  this  subdivision  shall  include  a summary of the criminal history
  record provided by the division of criminal justice services, including,
  but not  limited  to,  the  specific  crime  or  crimes  for  which  the
  prospective  foster or adoptive parent or parents or any adults over the
  age of eighteen living in the home have been charged  or  convicted,  as
  applicable.  When  responding  to an inquiry from a voluntary authorized
  agency or other non-public agency with  respect  to  the  results  of  a
  national  criminal  history  check  performed  by  the federal bureau of
  investigation, the office of children and family services  shall  advise
  the  voluntary  authorized  agency  or  other  non-public  agency of the
  category or categories of crime or crimes  and  shall  not  provide  the
  voluntary authorized agency or other non-public agency with the specific
  crime  or  crimes  absent the written consent of the person for whom the
  national criminal history check was performed.
    (g) When an authorized agency has denied an  application  pursuant  to
  paragraph  (e)  of this subdivision, the authorized agency shall provide
  to the applicant a written statement setting forth the reasons for  such
  denial,  including,  as authorized by paragraph (f) of this subdivision,
  the summary of the criminal history record provided  to  the  authorized
  agency  by  the  office  of children and family services. The authorized
  agency shall also provide a description  of  the  division  of  criminal
  justice  services'  record  review  process  and  any remedial processes
  provided  by  the  office  of  children  and  family  services  to   any
  prospective  foster  parent  or  prospective  adoptive  parent.  If  the
  applicant is disqualified under item (ii) of clause (A) of  subparagraph
  one  of  paragraph (e) of this subdivision, then the applicant may apply
  for relief from the mandatory disqualification based on the grounds that

  the offense was not spousal abuse as that term is defined  in  paragraph
  (j) of this subdivision.
    (h)  Where  a  criminal  history  record  of the certified or approved
  foster parent, prospective adoptive parent or of any other  person  over
  the age of eighteen who resides in the home of the certified or approved
  foster  parent  or  prospective  adoptive  parent  reveals  a  charge or
  conviction of any crime, the authorized agency shall  perform  a  safety
  assessment  of  the  conditions  in the household. Such assessment shall
  include: whether the subject of the charge or conviction resides in  the
  household;  the extent to which such person may have contact with foster
  children or other children residing in the household;  and  the  status,
  date  and  nature  of  the criminal charge or conviction. The authorized
  agency shall thereafter take all appropriate steps to protect the health
  and safety of such child or children, including, when  appropriate,  the
  removal  of  any  foster  child  or  children  from  the home. Where the
  authorized agency denies the application  or  revokes  the  approval  or
  certification of the foster parent or the prospective adoptive parent in
  accordance  with  the  standards  set  forth  in  paragraph  (e) of this
  subdivision, such authorized agency shall remove  any  foster  child  or
  children  from the home of the foster parent or the prospective adoptive
  parent.
    (i) Any criminal history record provided by the division  of  criminal
  justice  services,  and  any  summary  of  the  criminal  history record
  provided by the office of children and family services to an  authorized
  agency  pursuant  to  this subdivision, is confidential and shall not be
  available for public inspection; provided, however, nothing herein shall
  prevent an authorized agency, the office of children and family services
  or other state agency referenced in paragraph (a)  of  this  subdivision
  from  disclosing  criminal  history information to any administrative or
  judicial  proceeding  relating  to  the  denial  or  revocation   of   a
  certification  or  approval  of a foster parent or an adoptive parent or
  the removal of the foster child from the home. Where there is a  pending
  court  case,  the  authorized agency which received the criminal history
  record summary from the office of children and  family  services,  shall
  provide a copy of such summary to the family court or surrogate's court.
    (j) For the purposes of this subdivision "spousal abuse" is an offense
  defined  in  section  120.05,  120.10, 121.12 or 121.13 of the penal law
  where the victim of such offense was the defendant's  spouse;  provided,
  however,   spousal  abuse  shall  not  include  a  crime  in  which  the
  prospective foster parent or prospective adoptive parent,  who  was  the
  defendant,  has  received  notice  pursuant  to  paragraph  (g)  of this
  subdivision and the office of children and family services finds after a
  fair hearing held pursuant to section twenty-two of this  chapter,  that
  he  or  she was the victim of physical, sexual or psychological abuse by
  the victim of such offense and such abuse was a factor  in  causing  the
  prospective  foster parent or prospective adoptive parent to commit such
  offense.
    (k) The office of  children  and  family  services  shall  inform  the
  division  of  criminal  justice  services  when  a  person  is no longer
  certified or approved as a foster parent or is no longer  a  prospective
  adoptive  parent  so  that the division of criminal justice services may
  terminate its retain processing with  regard  to  such  person  and  any
  person  over  the  age  of  eighteen  who is residing in the home of the
  foster parent or prospective adoptive parent. At least once a year,  the
  office  of  children  and  family services will be required to conduct a
  validation of the records maintained by the division of criminal justice
  services.

    (l) The office of children and family services, in  consultation  with
  the  division of criminal justice services, shall promulgate regulations
  for the purpose of  implementing  the  provisions  of  this  subdivision
  relating  to  the  standards for the certification or approval of foster
  parents or adoptive parents.