§ 378-A — Access to conviction records by authorized agencies

New York § 378-A

• Jurisdiction: New York
• Law SOS: Social Services
• Title 1: Care and Protection of Children
• Art. 6: Children

Text

§ 378-a. Access to conviction records by authorized agencies. 1.\nEvery authorized agency which operates a residential program for\nchildren licensed or certified by the office of children and family\nservices, and the office of children and family services in relation to\nany juvenile justice program it operates, shall request that the justice\ncenter for the protection of people with special needs check, and upon\nsuch request, such justice center shall request and shall be authorized\nto receive from the division of criminal justice services and the\nfederal bureau of investigation criminal history information, as such\nphrase is defined in paragraph (c) of subdivision one of section eight\nhundred forty-five-b of the executive law concerning each prospective\noperator, employee or volunteer of such a residential program who will\nhave regular and substantial unsupervised or unrestricted physical\ncontact with children in such program.\n (a) Provided however, any authorized agency required to request\ncriminal history information pursuant to this subdivision that operates\na residential program for foster children that is licensed or certified\nby the office of children and family services shall request that the\njustice center for the protection of people with special needs check,\nand upon such request, such justice center shall request and shall be\nauthorized to receive from the division of criminal justice services and\nthe federal bureau of investigation criminal history information, as\nsuch phrase is defined in paragraph (c) of subdivision one of section\neight hundred forty-five-b of the executive law, for every: (i)\nprospective employee of such program that is not already required to be\ncleared pursuant to the opening paragraph of this subdivision; and (ii)\nnotwithstanding any other provision of law to the contrary, prior to\nApril first, two thousand twenty and in accordance with a schedule\ndeveloped by the office of children and family services, any person who\nis employed in a residential foster care program that has not previously\nhad a clearance conducted pursuant to this section in connection to such\nemployment.\n (b) For the purposes of this section, "operator" shall include any\nnatural person with an ownership interest in the authorized agency.\n (c) Access to and the use of information obtained pursuant to this\nsubdivision shall be governed by the provisions of section eight hundred\nforty-five-b of the executive law.\n 1-a. Excluding the authorized agencies authorized to request and\nreceive criminal history information pursuant to subdivision one of this\nsection, and subject to the rules and regulations of the division of\ncriminal justice services, an authorized agency defined in subdivision\nten of section three hundred seventy-one of this title shall have access\nto criminal history information, as such phrase is defined in paragraph\n(c) of subdivision one of section eight hundred forty-five-b of the\nexecutive law, pertaining to persons who have applied for and are under\nactive consideration for employment by such authorized agency in\npositions where such persons will have the potential for regular and\nsubstantial unsupervised and unrestricted physical contact with children\nin the program. Upon receipt of such criminal history information, the\nauthorized agency shall provide the prospective employee with a copy of\nsuch criminal history information and a copy of article twenty-three-A\nof the correction law and inform such prospective employee of his or her\nright to seek correction of any incorrect information contained in such\ncriminal history information pursuant to the regulations and procedures\nestablished by the division of criminal justice services. The authorized\nagency shall designate one or two persons in its employ who shall be\nauthorized to request, receive and review the criminal history\ninformation pursuant to this subdivision, and only such persons and the\nprospective employee to which the criminal history information relates\nshall have access to such information; provided, however, that such\ncriminal history information may be disclosed to other personnel\nempowered by the agency to make decisions concerning prospective\nemployees. The authorized agency shall notify the division of criminal\njustice services of each person authorized to have access to such\ncriminal history information pursuant to this subdivision. Except as\notherwise provided in this subdivision, such criminal history\ninformation shall be confidential and any person who willfully permits\nthe release of such confidential criminal history information to persons\nnot permitted by this subdivision to receive such information shall be\nguilty of a misdemeanor.\n 2. (a) Notwithstanding any other provision of law to the contrary, and\nsubject to rules and regulations of the division of criminal justice\nservices, an authorized agency, as defined in subdivision ten of section\nthree hundred seventy-one of this title, shall perform a criminal\nhistory record check with the division of criminal justice services\nregarding any prospective foster parent or prospective adoptive parent\nor, a prospective successor guardian in accordance with paragraph (d) of\nsubdivision two of section four hundred fifty-eight-b of this article,\nand any person over the age of eighteen who is currently residing in the\nhome of such prospective foster parent, prospective adoptive parent or\nprospective successor guardian. Provided, however, that for prospective\nfoster parents and prospective adoptive parents and other persons over\nthe age of eighteen in their homes, the checks required by this\nparagraph shall be conducted before the foster parent or adoptive parent\nis finally certified or approved for the placement of a child. Persons\nwho are over the age of eighteen residing in the home of a certified or\napproved foster parent and who previously did not have a criminal\nhistory record check performed in accordance with this subdivision shall\nhave such a criminal history record check performed when the foster\nparent applies for renewal of his or her certification or approval as a\nfoster parent. The division of criminal justice services is authorized\nto submit fingerprints to the federal bureau of investigation for the\npurpose of a nationwide criminal history record check pursuant to and\nconsistent with public law 92-544 to determine whether such prospective\nfoster parent, prospective adoptive parent, prospective successor\nguardian or person over the age of eighteen currently residing in the\nhome of such prospective parent or guardian has a criminal history in\nany state or federal jurisdiction. The provisions and procedures of this\nsection, including the criminal history record check of persons over the\nage of eighteen who are currently residing in the home of the foster\nparent, also shall apply to prospective foster parents certified by the\noffice of children and family services and to family homes certified by\nany other state agency where such family homes care for foster children\nin accordance with a memorandum of understanding with the office of\nchildren and family services.\n (b) Every authorized agency shall obtain a set of the prospective\nfoster parent, prospective adoptive parent or prospective successor\nguardian's fingerprints and those of any person over the age of eighteen\nwho currently resides in the home of such prospective foster parent,\nprospective adoptive parent or prospective successor guardian, and such\nother information as is required by the office of children and family\nservices and the division of criminal justice services. The authorized\nagency shall provide to the applicant blank fingerprint cards and a\ndescription of how the completed fingerprint cards will be used upon\nsubmission to the authorized agency. The authorized agency shall\npromptly transmit such fingerprint cards to the office of children and\nfamily services. The office of children and family services shall\npromptly submit such fingerprint cards and the processing fee imposed\npursuant to subdivision eight-a of section eight hundred thirty-seven of\nthe executive law to the division of criminal justice services for its\nfull search and retain processing. Notwithstanding any other provision\nof law to the contrary, the processing fee shall be submitted by the\noffice of children and family services and no part thereof shall be\ncharged to the prospective foster parent, prospective adoptive parent,\nprospective successor guardian or any person over the age of eighteen\nwho currently resides in the home of such prospective foster parent,\nprospective adoptive parent or prospective successor guardian who\nsubmitted a fingerprint card pursuant to this subdivision.\n (c) The division of criminal justice services shall promptly provide\nto the office of children and family services a criminal history record,\nif any, with respect to the prospective foster parent, prospective\nadoptive parent or prospective successor guardian and any other person\nover the age of eighteen who resides in the home of the prospective\nfoster parent, prospective adoptive parent or prospective successor\nguardian, or a statement that the individual has no criminal history\nrecord.\n (d) Notwithstanding any other provision of law to the contrary, the\noffice of children and family services, upon receipt of a criminal\nhistory record from the division of criminal justice services, may\nrequest, and is entitled to receive, information pertaining to any\noffense contained in such criminal history record from any state or\nlocal law enforcement agency or court for the purposes of determining\nwhether any ground relating to such criminal conviction or pending\ncriminal charge exists for denying an application.\n (e) Except as set forth in paragraph (m) of this section, after\nreviewing any criminal history record information provided by the\ndivision of criminal justice services, the office of children and family\nservices shall promptly notify the authorized agency or other state\nagency that:\n (1) Notwithstanding any other provision of law to the contrary, an\napplication for certification or approval of a prospective foster parent\nor prospective adoptive parent shall be denied and, in the event of\ndeath or incapacity of a relative guardian, an agreement to provide\npayments to a prospective successor guardian pursuant to title ten of\nthis article shall not be approved pursuant to subparagraph (ii) of\nparagraph (b) of subdivision five of section four hundred fifty-eight-b\nof this article, as applicable, where a criminal history record of the\nprospective foster parent, prospective adoptive parent or prospective\nsuccessor guardian, as applicable, reveals a conviction for:\n (A) a felony conviction at any time involving: (i) child abuse or\nneglect; (ii) spousal abuse; (iii) a crime against a child, including\nchild pornography; or (iv) a crime involving violence, including rape,\nsexual assault, or homicide, other than a crime involving physical\nassault or battery; or\n (B) a felony conviction within the past five years for physical\nassault, battery, or a drug-related offense, unless such offense is\neligible for expungement pursuant to section 160.50 of the criminal\nprocedure law; or\n (2) Notwithstanding any other provision of law to the contrary, a\nfinal determination of an application for certification or approval of a\nprospective foster parent or prospective adoptive parent and, in\nrelation to prospective successor guardians, approval pursuant to\nsubparagraph (ii) of paragraph (b) of subdivision five of section four\nhundred fifty-eight-b of this article shall be held in abeyance whenever\nthe criminal history record of the prospective foster parent,\nprospective adoptive parent or prospective successor guardian, as\napplicable, reveals:\n (A) a charge for a crime set forth in subparagraph one of this\nparagraph which has not been finally resolved; or\n (B) a felony conviction that may be for a crime set forth in\nsubparagraph one of this paragraph. An authorized agency may proceed\nwith a determination of such application, in a manner consistent with\nthis subdivision, only upon receiving subsequent notification from the\noffice of children and family services regarding the status of such\ncharge or the nature of such conviction; or\n (3) consistent with the provisions of article twenty-three-A of the\ncorrection law, an application for certification or approval of a\nprospective foster parent or prospective adoptive parent may be denied,\nan agreement to provide payments to a prospective successor guardian\npursuant to title ten of this article may not be approved pursuant to\nsubparagraph (ii) of paragraph (b) of subdivision five of section four\nhundred fifty-eight-b of this article, as applicable, where:\n (A) a criminal history record of the prospective foster parent,\nprospective adoptive parent or prospective successor guardian reveals a\ncharge or a conviction of a crime other than one set forth in\nsubparagraph one of this paragraph; or\n (B) a criminal history record of any other person over the age of\neighteen who resides in the home of the prospective foster parent,\nprospective adoptive parent or prospective successor guardian reveals a\ncharge or a conviction of any crime; or\n (4) Notwithstanding any other provision of law to the contrary, an\napplication for renewal of the certification or approval of a foster\nparent submitted on or after October first, two thousand eight shall be\ndenied based on the conviction of the foster parent of a crime set forth\nin subparagraph one of this paragraph where such conviction occurred on\nor after October first, two thousand eight; or\n (5) Notwithstanding any other provision of law to the contrary, the\ncertification or approval of a foster parent, or the approval of an\nadoptive parent who has not completed the adoption process, shall be\nrevoked based on the conviction of the foster parent or the adoptive\nparent of a crime set forth in subparagraph one of this paragraph; or\n (6) the prospective foster parent, prospective adoptive parent or\nprospective successor guardian and any person over the age of eighteen\nwho is residing in the home of the prospective foster parent,\nprospective adoptive parent or prospective successor guardian has no\ncriminal history record.\n (f) Except as otherwise set forth in this paragraph, any notification\nby the office of children and family services pursuant to paragraph (e)\nof this subdivision shall include a summary of the criminal history\nrecord provided by the division of criminal justice services, including,\nbut not limited to, the specific crime or crimes for which the\nprospective foster parent or parents, adoptive parent or parents or\nprospective successor guardian or guardians or any adults over the age\nof eighteen living in the home have been charged or convicted, as\napplicable. When responding to an inquiry from a voluntary authorized\nagency or other non-public agency with respect to the results of a\nnational criminal history check performed by the federal bureau of\ninvestigation, the office of children and family services shall advise\nthe voluntary authorized agency or other non-public agency of the\ncategory or categories of crime or crimes and shall not provide the\nvoluntary authorized agency or other non-public agency with the specific\ncrime or crimes absent the written consent of the person for whom the\nnational criminal history check was performed.\n (g) When an authorized agency has denied an application or approval in\naccordance with the provisions of paragraph (e) of this subdivision, the\nauthorized agency shall provide to the applicant a written statement\nsetting forth the reasons for such denial, including, as authorized by\nparagraph (f) of this subdivision, the summary of the criminal history\nrecord provided to the authorized agency by the office of children and\nfamily services. The authorized agency shall also provide a description\nof the division of criminal justice services' record review process and\nany remedial processes provided by the office of children and family\nservices to any prospective foster parent, prospective adoptive parent\nor prospective successor guardian. If the applicant is disqualified\nunder item (ii) of clause (A) of subparagraph one of paragraph (e) of\nthis subdivision, then the applicant may apply for relief from the\nmandatory disqualification based on the grounds that the offense was not\nspousal abuse as that term is defined in paragraph (j) of this\nsubdivision.\n (h) Where a criminal history record of the certified or approved\nfoster parent, prospective adoptive parent or of any other person over\nthe age of eighteen who resides in the home of the certified or approved\nfoster parent or prospective adoptive parent reveals a charge or\nconviction of any crime, the authorized agency shall perform a safety\nassessment of the conditions in the household. Such assessment shall\ninclude: whether the subject of the charge or conviction resides in the\nhousehold; the extent to which such person may have contact with foster\nchildren or other children residing in the household; and the status,\ndate and nature of the criminal charge or conviction. The authorized\nagency shall thereafter take all appropriate steps to protect the health\nand safety of such child or children, including, when appropriate, the\nremoval of any foster child or children from the home. Where the\nauthorized agency denies the application or revokes the approval or\ncertification of the foster parent or the prospective adoptive parent in\naccordance with the standards set forth in paragraph (e) of this\nsubdivision, such authorized agency shall remove any foster child or\nchildren from the home of the foster parent or the prospective adoptive\nparent.\n (i) Any criminal history record provided by the division of criminal\njustice services, and any summary of the criminal history record\nprovided by the office of children and family services to an authorized\nagency pursuant to this subdivision, is confidential and shall not be\navailable for public inspection; provided, however, nothing herein shall\nprevent an authorized agency, the office of children and family services\nor other state agency referenced in paragraph (a) of this subdivision\nfrom disclosing criminal history information to any administrative or\njudicial proceeding relating to the denial or revocation of a\ncertification or approval of a foster parent or an adoptive parent or\nthe removal of the foster child from the home or the failure to approve\na prospective successor guardian pursuant to subparagraph (ii) of\nparagraph (b) of subdivision five of section four hundred fifty-eight-b\nof this article or the termination of an agreement for payments pursuant\nto title ten of this article that is made in accordance with paragraph\n(h) of subdivision four of section four hundred fifty-eight-b of this\narticle. Where there is a pending court case, the authorized agency\nwhich received the criminal history record summary from the office of\nchildren and family services, shall provide a copy of such summary to\nthe family court or surrogate's court.\n (j) For the purposes of this subdivision "spousal abuse" is an offense\ndefined in section 120.05, 120.10, 121.12 or 121.13 of the penal law\nwhere the victim of such offense was the defendant's spouse; provided,\nhowever, spousal abuse shall not include a crime in which the\nprospective foster parent, prospective adoptive parent or prospective\nsuccessor guardian, who was the defendant, has received notice pursuant\nto paragraph (g) of this subdivision and the office of children and\nfamily services finds after a fair hearing held pursuant to section\ntwenty-two of this chapter, that he or she was the victim of physical,\nsexual or psychological abuse by the victim of such offense and such\nabuse was a factor in causing the prospective foster parent, prospective\nadoptive parent or prospective successor guardian to commit such\noffense.\n (k) The office of children and family services shall inform the\ndivision of criminal justice services when a person is no longer\ncertified or approved as a foster parent or is no longer a prospective\nadoptive parent so that the division of criminal justice services may\nterminate its retain processing with regard to such person and any\nperson over the age of eighteen who is residing in the home of the\nfoster parent or prospective adoptive parent. At least once a year, the\noffice of children and family services will be required to conduct a\nvalidation of the records maintained by the division of criminal justice\nservices.\n (l) The office of children and family services, in consultation with\nthe division of criminal justice services, shall promulgate regulations\nfor the purpose of implementing the provisions of this subdivision\nrelating to the standards for the certification or approval of foster\nparents or adoptive parents.\n (m)(1) The office of children and family services shall not release\nthe content of the results of the nationwide criminal history record\ncheck conducted by the federal bureau of investigation in accordance\nwith this subdivision to an authorized agency, as defined in paragraphs\n(a) or (c) of subdivision ten of section three hundred seventy-one of\nthis title.\n (2) For any application made to such an authorized agency under this\nsubdivision, the office of children and family services shall:\n (A) review and evaluate the results of the nationwide criminal history\nrecord check of the prospective foster parent, prospective adoptive\nparent and any other person over the age of eighteen who resides in the\nhome of such applicant in accordance with the standards set forth in\nparagraph (e) of this subdivision relating to mandatory disqualifying\nconvictions, hold in abeyance charges or convictions, and discretionary\ncharges and convictions; and\n (B) based on the results of the nationwide criminal history record\ncheck, inform such authorized agency that the application for\ncertification or approval of the prospective foster parent or the\nprospective adoptive parent either: (i) must be denied; (ii) must be\nheld in abeyance pending subsequent notification from the office of\nchildren and family services; or (iii) that the office of children and\nfamily services has no objection, solely based on the nationwide\ncriminal history record check, for the authorized agency to proceed with\na determination on such application based on the standards for\ncertification or approval of a prospective foster parent or prospective\nadoptive parent, as set forth in the regulations of the office of\nchildren and family services.\n (3) Where the office of children and family services directs the\nauthorized agency to deny the application of a prospective foster parent\nor a prospective adoptive parent in accordance with this paragraph, the\noffice of children and family services shall also notify the prospective\nfoster parent, prospective adoptive parent or other person over the age\nof eighteen who resided in the home of the applicant whose criminal\nhistory was the basis for the denial and shall provide such prospective\nfoster parent, prospective adoptive parent or other person a copy of the\nresults of the nationwide criminal history record check upon which such\ndenial was based and a written statement setting forth the reasons for\nsuch denial. If the applicant is disqualified under item (ii) of clause\n(A) of subparagraph one of paragraph (e) of this subdivision, then the\napplicant may apply for relief from the mandatory disqualification based\non the grounds that the offense was not spousal abuse as that term is\ndefined in paragraph (j) of this subdivision.\n (4) This paragraph does not apply to nationwide criminal history\nrecord checks conducted by the federal bureau of investigation on behalf\nof state agencies or authorized agencies, as defined in paragraph (b) of\nsubdivision ten of section three hundred seventy-one of this title, or\nto the results of statewide criminal history record checks conducted by\nthe division of criminal justice services.\n