Mass. Gen. Laws ch. 119, sec. 26A — MA Code / Part I / Title XVII / Chapter 119 / Section 26A
Registration of interest for foster care placement; criminal record review; fingerprint-based checks; grounds for rejection
Status: in_force

Section 26A. (a) As part of the department's licensing and background record check process, the department shall conduct fingerprint-based checks of the state and national criminal history databases for all applicants filing a request to become adoptive or foster parents as authorized by 42 U.S.C. § 16962. All household members age 15 or older of any applicants filing a request to become adoptive or foster parents shall be subject to a fingerprint-based check of the state and national criminal history databases as authorized by Public Law 92–544. Only authorized department staff may receive the results of checks of state and national databases under said Public Law 92–544 and shall not further disseminate the results except as authorized under said Public Law 92–544. When the department obtains the results of checks of state and national criminal history databases, it shall treat the information according to sections 167 to 178, inclusive, of chapter 6 and the regulations thereunder regarding criminal offender record information. (b) Fingerprints, as referenced in subsection (a), shall be submitted to the identification section of the department of state police for a state criminal history check and forwarded to the Federal Bureau of Investigation for a national criminal history check according to the policies and procedures established by the state identification section and by the department of criminal justice information services. Fingerprint submissions may be retained by the Federal Bureau of Investigation, the state identification section and the department of criminal justice information services to assist the department in its review of suitability for initial or continued approval of pre-adoptive or foster parents. Pursuant to 42 U.S.C § 16962, the department of criminal justice information services may disseminate the results of a state and national criminal history check to authorized department of children and families staff to determine the suitability of adoptive and foster parent applicants. Pursuant to Public Law 92–544, the department of criminal justice information services may disseminate the results of a state and national criminal history check to authorized department of children and families staff to determine the suitability of the household members age 15 or older of adoptive and foster parent applicants. If the department of children and families receives information from a fingerprint-based check that does not include a final disposition or is otherwise incomplete, the department may request that an applicant provide additional information to assist the department in determining the suitability of the individual for approval. (c) The department shall, subject to appropriation and the approval of the secretary of administration and finance, pay all fees required to operate and administer the fingerprint-based criminal background check system established in this section. The secretary of administration and finance, in consultation with the secretary of public safety and the commissioner, shall determine the appropriate fees necessary to offset the costs of the program. Any fees required for fingerprinting activity pursuant to this section shall be deposited into the Fingerprint–Based Background Check Trust Fund established by section 2HHHH of chapter 29. (d) The department shall also obtain from the sex offender registry board all available sex offender registry information associated with the address of all persons filing a registration of interest for pre-adoptive or foster care placement and their household members age 15 or older. (e) The department shall promulgate regulations requiring: (i) applicants filing a request to become adoptive or foster parents to be subject to a fingerprint-based check of the state and national criminal history databases pursuant to 42 U.S.C. § 16962; (ii) the household members age 15 or older of any applicants, to be subject to a fingerprint-based check of the state and national criminal history databases pursuant to Public Law 92–544; and (iii) applicants and their household members age 15 or older to be subject to a sexual offender registry information check pursuant to sections 178I and 178J of chapter 6. The regulations shall incorporate all fees associated with conducting fingerprint-based checks under said 42 U.S.C. § 16962 and said Public Law 92–544 as set by the department. (f) If a record check pursuant to this section reveals a state felony conviction for: (1) assault and battery upon a child under section 13J of chapter 265; (2) assault with intent to rape under section 24 of chapter 265; (3) forcible rape of a child or assault with intent to rape a child under sections 22A, 22B, 22C, 23, or 24B of chapter 265; (4) rape and abuse of a child aggravated by age under section 23A of chapter 265; (5) rape and abuse of a child by previous offenders under section 23B of chapter 265; (6) posing or exhibiting a child under section 29A of chapter 272; (7) incest under section 17 of chapter 272; (8) indecent assault and battery under sections 13B, 13F or 13H of chapter 265; (9) inducing a minor into prostitution under section 4A of chapter 272; (10) murder under section 1 of chapter 265; (11) rape under section 22 of chapter 265; (12) unnatural acts with a child under 16 under section 35A of chapter 272; (13) enticement of a child under 18 to engage in prostitution under section 26D of chapter 265; or (14) human trafficking under sections 50 to 53, inclusive, of chapter 265 or similar conviction under the law of another state, the United States or a military, territorial or Native American tribal authority and a court of competent jurisdiction has determined that the felony was committed, the department shall reject the request for foster care placement, adoption or kinship care. (g) If a record check pursuant to this section reveals a felony conviction under state, federal or a military, territorial or Native American tribal authority law for physical assault, battery or a drug-related offense and a court of competent jurisdiction has determined that the felony was committed in the past 5 years, the department shall reject the request for foster care placement, adoption or kinship care. (h) If an applicant for foster care placement, adoption or kinship care was convicted for a crime other than those included in subsections (f) and (g), the department shall consider the following factors in making its decision whether to approve the request for foster care placement, adoption or kinship care: (1) the type of crime; (2) the number of crimes; (3) the nature of the offenses; (4) the age of the individual at the time of conviction; (5) the length of time that has elapsed since the last conviction; (6) the relationship of the crime and the capacity to care for children; (7) the current and future needs of the child to be placed and the probable effect that the misdemeanor would have on the applicant's ability to fulfill those needs; (8) the relationship between the individual and the child in question; (9) evidence of rehabilitation; and (10) opinions of community members concerning the individual in question. Prior to the approval of any such application, the department shall require screening and a written opinion by a mental health or criminal justice professional that the individual does not pose a risk of harm to the child.

Section 26A. (a) As part of the department's licensing and background record check process, the department shall conduct fingerprint-based checks of the state and national criminal history databases for all applicants filing a request to become adoptive or foster parents as authorized by 42 U.S.C. § 16962. All household members age 15 or older of any applicants filing a request to become adoptive or foster parents shall be subject to a fingerprint-based check of the state and national criminal history databases as authorized by Public Law 92–544. Only authorized department staff may receive the results of checks of state and national databases under said Public Law 92–544 and shall not further disseminate the results except as authorized under said Public Law 92–544. When the department obtains the results of checks of state and national criminal history databases, it shall treat the information according to sections 167 to 178, inclusive, of chapter 6 and the regulations thereunder regarding criminal offender record information.

(b) Fingerprints, as referenced in subsection (a), shall be submitted to the identification section of the department of state police for a state criminal history check and forwarded to the Federal Bureau of Investigation for a national criminal history check according to the policies and procedures established by the state identification section and by the department of criminal justice information services. Fingerprint submissions may be retained by the Federal Bureau of Investigation, the state identification section and the department of criminal justice information services to assist the department in its review of suitability for initial or continued approval of pre-adoptive or foster parents. Pursuant to 42 U.S.C § 16962, the department of criminal justice information services may disseminate the results of a state and national criminal history check to authorized department of children and families staff to determine the suitability of adoptive and foster parent applicants. Pursuant to Public Law 92–544, the department of criminal justice information services may disseminate the results of a state and national criminal history check to authorized department of children and families staff to determine the suitability of the household members age 15 or older of adoptive and foster parent applicants. If the department of children and families receives information from a fingerprint-based check that does not include a final disposition or is otherwise incomplete, the department may request that an applicant provide additional information to assist the department in determining the suitability of the individual for approval.

(c) The department shall, subject to appropriation and the approval of the secretary of administration and finance, pay all fees required to operate and administer the fingerprint-based criminal background check system established in this section. The secretary of administration and finance, in consultation with the secretary of public safety and the commissioner, shall determine the appropriate fees necessary to offset the costs of the program. Any fees required for fingerprinting activity pursuant to this section shall be deposited into the Fingerprint–Based Background Check Trust Fund established by section 2HHHH of chapter 29.

(d) The department shall also obtain from the sex offender registry board all available sex offender registry information associated with the address of all persons filing a registration of interest for pre-adoptive or foster care placement and their household members age 15 or older.

(e) The department shall promulgate regulations requiring: (i) applicants filing a request to become adoptive or foster parents to be subject to a fingerprint-based check of the state and national criminal history databases pursuant to 42 U.S.C. § 16962; (ii) the household members age 15 or older of any applicants, to be subject to a fingerprint-based check of the state and national criminal history databases pursuant to Public Law 92–544; and (iii) applicants and their household members age 15 or older to be subject to a sexual offender registry information check pursuant to sections 178I and 178J of chapter 6. The regulations shall incorporate all fees associated with conducting fingerprint-based checks under said 42 U.S.C. § 16962 and said Public Law 92–544 as set by the department.

(f) If a record check pursuant to this section reveals a state felony conviction for: (1) assault and battery upon a child under section 13J of chapter 265; (2) assault with intent to rape under section 24 of chapter 265; (3) forcible rape of a child or assault with intent to rape a child under sections 22A, 22B, 22C, 23, or 24B of chapter 265; (4) rape and abuse of a child aggravated by age under section 23A of chapter 265; (5) rape and abuse of a child by previous offenders under section 23B of chapter 265; (6) posing or exhibiting a child under section 29A of chapter 272; (7) incest under section 17 of chapter 272; (8) indecent assault and battery under sections 13B, 13F or 13H of chapter 265; (9) inducing a minor into prostitution under section 4A of chapter 272; (10) murder under section 1 of chapter 265; (11) rape under section 22 of chapter 265; (12) unnatural acts with a child under 16 under section 35A of chapter 272; (13) enticement of a child under 18 to engage in prostitution under section 26D of chapter 265; or (14) human trafficking under sections 50 to 53, inclusive, of chapter 265 or similar conviction under the law of another state, the United States or a military, territorial or Native American tribal authority and a court of competent jurisdiction has determined that the felony was committed, the department shall reject the request for foster care placement, adoption or kinship care.

(g) If a record check pursuant to this section reveals a felony conviction under state, federal or a military, territorial or Native American tribal authority law for physical assault, battery or a drug-related offense and a court of competent jurisdiction has determined that the felony was committed in the past 5 years, the department shall reject the request for foster care placement, adoption or kinship care.

(h) If an applicant for foster care placement, adoption or kinship care was convicted for a crime other than those included in subsections (f) and (g), the department shall consider the following factors in making its decision whether to approve the request for foster care placement, adoption or kinship care: (1) the type of crime; (2) the number of crimes; (3) the nature of the offenses; (4) the age of the individual at the time of conviction; (5) the length of time that has elapsed since the last conviction; (6) the relationship of the crime and the capacity to care for children; (7) the current and future needs of the child to be placed and the probable effect that the misdemeanor would have on the applicant's ability to fulfill those needs; (8) the relationship between the individual and the child in question; (9) evidence of rehabilitation; and (10) opinions of community members concerning the individual in question. Prior to the approval of any such application, the department shall require screening and a written opinion by a mental health or criminal justice professional that the individual does not pose a risk of harm to the child.