AR Code § 9-28-409 (2020)
2020 Arkansas Code|Title 9 - Family Law|Subtitle 3 - Minors|Chapter 28 - Placement or Detention|Subchapter 4 - Child Welfare Agency Licensing Act|§ 9-28-409. Criminal record and child maltreatment checks

 (a)  (1) Each of the following persons in a child welfare agency shall be checked with the Child Maltreatment Central Registry in his or her state of residence and any state of residence in which the person has lived for the past five (5) years and in the person's state of employment, if different, for reports of child maltreatment in compliance with policy and procedures promulgated by the Child Welfare Agency Review Board:  (A) An employee having direct and unsupervised contact with children;  (B) A volunteer having direct and unsupervised contact with children;  (C) A foster parent and all household members fourteen (14) years of age and older, excluding children in foster care;  (D) An adoptive parent and all household members fourteen (14) years of age and older, excluding children in foster care;  (E) An owner having direct and unsupervised contact with children; and  (F) A member of the agency's board of directors having direct and unsupervised contact with children.    (2) The Child Welfare Agency Review Board shall have the authority to deny a license or church-operated exemption to any applicant found to have any record of founded child maltreatment in the official record of the registry.  (3)  (A) Any person required to be checked under this section who is found to have any record of child maltreatment in the official record of the registry shall be reviewed by the owner or operator of the facility in consultation with the Child Welfare Agency Review Board to determine appropriate corrective action measures that would indicate, but are not limited to, training, probationary employment, or nonselection for employment.  (B) The Child Welfare Agency Review Board shall also have the authority to deny a license or church-operated exemption to an applicant who continues to employ a person with any record of founded child maltreatment.    (4) All persons required to be checked with the registry under this subsection shall repeat the check at a minimum of every two (2) years, including adoptive parents who reside in Arkansas pending court issuance of a final decree of adoption, at which point repeat checks shall no longer be required.    (b)  (1) Each of the following persons in a child welfare agency shall be checked with the Identification Bureau of the Division of Arkansas State Police to determine if the person has pleaded guilty or nolo contendere to or has been found guilty of the offenses listed in this subchapter in compliance with policy and procedures promulgated by the Child Welfare Agency Review Board:  (A) An employee having direct and unsupervised contact with children;  (B) A volunteer having direct and unsupervised contact with children;  (C) An owner having direct and unsupervised contact with children;  (D) A member of the agency's board of directors having direct and unsupervised contact with children;  (E) Foster parents, house parents, and each member of the household eighteen and one-half (18½) years of age and older, excluding children in foster care; and  (F)  (i) Adoptive parents and each member of the household eighteen and one-half (18½) years of age and older, excluding children in foster care.  (ii) Adoptive parents and each member of the household eighteen and one-half (18½) years of age and older, excluding children in foster care, who are not residents of Arkansas shall provide state-of-residence criminal records checks, if available.      (2) A child in the custody of the Department of Human Services shall not be placed in an approved home of any foster parent or adoptive parent unless all household members eighteen and one-half (18½) years of age and older, excluding children in foster care, have been checked with the Identification Bureau of the Division of Arkansas State Police to determine if any of the persons have pleaded guilty or nolo contendere to or been found guilty of the offenses listed in this subchapter in compliance with policy and procedures promulgated by the Child Welfare Agency Review Board at a minimum of every two (2) years.  (3)  (A) The owner or operator of a child welfare agency shall maintain on file, subject to inspection by the Child Welfare Agency Review Board, evidence that all persons required to be checked with the Identification Bureau of the Division of Arkansas State Police under this subsection have been approved or disqualified in accordance with the rules of the appropriate licensing or certifying agency.  (B) Failure to maintain that evidence on file will be prima facie grounds to revoke the license or church-operated exemption of the owner or operator of the child welfare agency.    (4) All persons required to be checked with the Division of Arkansas State Police under this subsection shall repeat the check at a minimum of every five (5) years, except that adoptive parents who reside in Arkansas shall repeat the check every two (2) years pending court issuance of a final decree of adoption, at which point repeat checks shall no longer be required.    (c)  (1) Each of the following persons in a child welfare agency who has not lived in Arkansas continuously for the past five (5) years shall have a fingerprint-based criminal background check performed by the Federal Bureau of Investigation in compliance with federal law and regulation to determine if the person has pleaded guilty or nolo contendere to or been found guilty of the offenses listed in this subchapter:  (A) An employee having direct and unsupervised contact with children;  (B) A volunteer having direct and unsupervised contact with children;  (C) An owner having direct and unsupervised contact with children;  (D) A member of the agency's board of directors having direct and unsupervised contact with children;  (E) Foster parents, house parents, and each member of the household eighteen and one-half (18½) years of age and older, excluding children in foster care; and  (F)  (i) Adoptive parents and each member of the household eighteen and one-half (18½) years of age and older, excluding children in foster care.  (ii) Adoptive parents and each member of the household eighteen and one-half (18½) years of age and older, excluding children in foster care, shall not be required to have a criminal background check performed by the Federal Bureau of Investigation if:  (a) The adoptive parents and each member of the household age eighteen and one-half (18½) years of age and older, excluding children in foster care, have continuously resided in a state for at least five (5) years before the adoption; and  (b) The state-of-residence criminal records check is available.        (2)  (A)  (i) A child in the custody of the Department of Human Services shall not be placed in an approved home of any foster or adoptive parent unless all household members eighteen and one-half (18½) years of age and older, excluding children in foster care, have a fingerprint-based criminal background check performed by the Federal Bureau of Investigation in compliance with federal law and regulation to determine if any of the persons has pleaded guilty or nolo contendere to or been found guilty of the offenses listed in this subchapter.  (ii) A household member who turns eighteen (18) years of age has up to six (6) months from the date of his or her eighteenth birthday to have a background check completed.    (B) The owner or operator of a child welfare agency shall maintain on file, subject to inspection by the Child Welfare Agency Review Board, evidence that all persons required to be checked with the Identification Bureau of the Division of Arkansas State Police under this subsection have been approved or disqualified in accordance with the rules of the appropriate licensing or certifying agency.  (C) Failure to maintain that evidence on file will be prima facie grounds to revoke the license or church-operated exemption of the owner or operator of the child welfare agency.      (d)  (1) Each person required to have a criminal records check under this subchapter shall complete a criminal records check form developed by the Department of Human Services and shall sign the form that contains the following under oath before a notary public:  (A) Certification that the subject of the check consents to the completion of the check;  (B) Certification that the subject of the check has not pleaded guilty or nolo contendere to or been found guilty of a crime and if the subject of the check has been convicted of a crime, contains a description of the crime and the particulars of the conviction;  (C) Notification that the subject of the check may challenge the accuracy and completeness of any information in any report and obtain a prompt determination as to the validity of the challenge before a final determination is made by the Child Welfare Agency Review Board with respect to his or her employment status or licensing status;  (D) Notification that the subject of the check may be denied a license or exemption to operate a child welfare agency or may be denied unsupervised access to children in the care of a child welfare agency due to information obtained by the check that indicates that the subject of the check has pleaded guilty or nolo contendere to or been found guilty of or is under pending indictment for a crime listed in this subchapter; and  (E) Notification that any background check and the results thereof shall be handled in accordance with the requirements of Pub. L. No. 92-544.    (2) The owner or operator of the child welfare agency shall submit the criminal records check form to the Division of Child Care and Early Childhood Education of the Department of Human Services for processing within ten (10) days of hiring the employee or volunteer, who shall remain under conditional employment or volunteerism until the registry check and criminal records checks required under this subchapter are completed.  (3) Nothing in this section shall be construed to prevent the Child Welfare Agency Review Board from denying a license or exemption to an owner or preventing an operator or employee in a child welfare agency from having unsupervised access to children by reason of the pending appeal of a criminal conviction or child maltreatment determination.  (4) In the event a legible set of fingerprints as determined by the Division of Arkansas State Police and the Federal Bureau of Investigation cannot be obtained after a minimum of two (2) attempts by qualified law enforcement personnel, the Child Welfare Agency Review Board shall determine eligibility based upon a name check by the Division of Arkansas State Police and the Federal Bureau of Investigation.  (5)  (A) An owner or operator of a child welfare agency shall not be liable during a conditional period of service for hiring any person required to have a background check pursuant to this subchapter who may be subject to a charge of false swearing upon completion of the registry and criminal records check.  (B)  (i) Pursuant to this subchapter, false swearing shall occur when a person while under oath provides false information or omits information that the person knew or reasonably should have known was material.  (ii) Lack of knowledge that information is material is not a defense to a charge of false swearing.    (C) For purposes of this subchapter, false swearing is a Class A misdemeanor.      (e)  (1) A report of a pleading of guilty or nolo contendere or a finding of guilt to any charge listed in this subsection shall be:  (A) Returned to the Division of Child Care and Early Childhood Education for review; and  (B) Considered regardless of whether or not the record is expunged, pardoned, or otherwise sealed.    (2) A person who is required to have a criminal records check under subdivision (b)(1) or subdivision (c)(1) of this section shall be absolutely and permanently prohibited from having direct and unsupervised contact with a child in the care of a child welfare agency if that person has pleaded guilty or nolo contendere to or been found guilty of any of the following offenses by any court in the State of Arkansas, of a similar offense in a court of another state, or of a similar offense by a federal court, unless the conviction is vacated or reversed:  (A) Abuse of an endangered or impaired person, if felony, § 5-28-103;  (B) Arson, § 5-38-301;  (C) Capital murder, § 5-10-101;  (D) Endangering the welfare of an incompetent person in the first degree, § 5-27-201;  (E) Kidnapping, § 5-11-102;  (F) Murder in the first degree, § 5-10-102;  (G) Murder in the second degree, § 5-10-103;  (H) Rape, § 5-14-103;  (I) Sexual assault in the first degree, § 5-14-124;  (J) Sexual assault in the second degree, § 5-14-125;  (K) Aggravated assault upon a law enforcement officer or an employee of a correctional facility, § 5-13-211, if a Class Y felony; and  (L) Trafficking of persons, § 5-18-103.    (3) Except as provided under subdivision (f)(1) of this section, a person who is required to have a criminal records check under subdivision (b)(1) or subdivision (c)(1) of this section shall not be eligible to have direct and unsupervised contact with a child in the care of a child welfare agency if that person has pleaded guilty or nolo contendere to or been found guilty of any of the following offenses by a court in the State of Arkansas, of a similar offense in a court of another state, or of a similar offense by a federal court, unless the conviction is vacated or reversed:  (A) Criminal attempt, § 5-3-201, to commit any offenses in subdivision (e)(2) or subdivision (e)(3) of this section;  (B) Criminal complicity, § 5-3-202, to commit any offenses in subdivision (e)(2) or subdivision (e)(3) of this section;  (C) Criminal conspiracy, § 5-3-401, to commit any offenses in subdivision (e)(2) or subdivision (e)(3) of this section;  (D) Criminal solicitation, § 5-3-301, to commit any offenses in subdivision (e)(2) or subdivision (e)(3) of this section;  (E) Assault in the first, second, or third degree, §§ 5-13-205 — 5-13-207;  (F) Aggravated assault, § 5-13-204;  (G) Aggravated assault on a family or household member, § 5-26-306;  (H) Battery in the first, second, or third degree, §§ 5-13-201 — 5-13-203;  (I) Breaking or entering, § 5-39-202;  (J) Burglary, § 5-39-201;  (K) Coercion, § 5-13-208;  (L) Computer crimes against minors, § 5-27-601 et seq.;  (M) Contributing to the delinquency of a juvenile, § 5-27-220;  (N) Contributing to the delinquency of a minor, § 5-27-209;  (O) Criminal impersonation, § 5-37-208;  (P) Criminal use of a prohibited weapon, § 5-73-104;  (Q) Communicating a death threat concerning a school employee or student, § 5-17-101;  (R) Domestic battery in the first, second, or third degree, §§ 5-26-303 — 5-26-305;  (S) Employing or consenting to the use of a child in a sexual performance, § 5-27-402;  (T) Endangering the welfare of a minor in the first or second degree, §§ 5-27-205 and 5-27-206;  (U) Endangering the welfare of an incompetent person in the second degree, § 5-27-202;  (V) Engaging children in sexually explicit conduct for use in visual or print media, § 5-27-303;  (W) False imprisonment in the first or second degree, §§ 5-11-103 and 5-11-104;  (X) Felony abuse of an endangered or impaired person, § 5-28-103;  (Y) Felony interference with a law enforcement officer, § 5-54-104;  (Z) Felony violation of the Uniform Controlled Substance Act, § 5-64-101 et seq., § 5-64-201 et seq., § 5-64-301 et seq., § 5-64-401 et seq., and § 5-64-501 et seq.;  (AA) (A)(A) Financial identity fraud, § 5-37-227;  (AB) (B)(B) Forgery, § 5-37-201;  (AC) (C)(C) Incest, § 5-26-202;  (AD) (D)(D) Interference with court ordered custody, § 5-26-502;  (AE) (E)(E) Interference with visitation, § 5-26-501;  (AF) (F)(F) Introduction of controlled substance into the body of another person, § 5-13-210;  (AG) (G)(G) Manslaughter, § 5-10-104;  (AH) (H)(H) Negligent homicide, § 5-10-105;  (AI) (I)(I) Obscene performance at a live public show, § 5-68-305;  (AJ) (J)(J) Offense of cruelty to animals, § 5-62-103;  (AK) (K)(K) Offense of aggravated cruelty to a dog, cat, or equine, § 5-62-104;  (AL) (L)(L) Pandering or possessing a visual or print medium depicting sexually explicit conduct involving a child, § 5-27-304;  (AM) (M)(M) Permanent detention or restraint, § 5-11-106;  (AN) (N)(N) Permitting abuse of a minor, § 5-27-221;  (AO) (O)(O) Producing, directing, or promoting a sexual performance by a child, § 5-27-403;  (AP) (P)(P) Promoting obscene materials, § 5-68-303;  (AQ) (Q)(Q) Promoting obscene performance, § 5-68-304;  (AR) (R)(R) Promoting prostitution in the first, second, or third degree, §§ 5-70-104 — 5-70-106;  (AS) (S)(S) Prostitution, § 5-70-102;  (AT) (T)(T) Public display of obscenity, § 5-68-205;  (AU) (U)(U) Resisting arrest, § 5-54-103;  (AV) (V)(V) Robbery, § 5-12-102;  (AW) (W)(W) Aggravated robbery, § 5-12-103;  (AX) (X)(X) Sexual extortion, § 5-14-113;  (AY) (Y)(Y) Sexual solicitation, § 5-70-103;  (AZ) (Z)(Z) Sexual offenses, § 5-14-101 et seq.;  (BA) (A) Simultaneous possession of drugs and firearms, § 5-74-106;  (BB) (B) Soliciting money or property from incompetents, § 5-27-229;  (BC) (C) Stalking, § 5-71-229;  (BD) (D) Terroristic act, § 5-13-310;  (BE) (E) Terroristic threatening, § 5-13-301;  (BF) (F) Theft by receiving, § 5-36-106;  (BG) (G) Theft of property, § 5-36-103;  (BH) (H) Theft of public benefits, § 5-36-202;  (BI) (I) Theft of services, § 5-36-104;  (BJ) (J) Transportation of minors for prohibited sexual conduct, § 5-27-305;  (BK) (K) Unlawful discharge of a firearm from a vehicle, § 5-74-107; and  (BL) (L) Voyeurism, § 5-16-102.    (4) A former or future law of this or any other state or of the federal government that is substantially equivalent to one (1) of the offenses listed in subdivision (e)(3) of this section shall be considered as prohibiting under subdivisions (e)(2) and (3) of this section.    (f)  (1) A person who is required to have a criminal records check under subdivision (b)(1) or subdivision (c)(1) of this section who has pleaded guilty or nolo contendere to or been found guilty of any of the offenses listed in subdivision (e)(3) of this section shall be absolutely disqualified from being an owner, operator, volunteer, foster parent, adoptive parent, member of a child welfare agency's board of directors, or employee in a child welfare agency during the period of the person's confinement, probation, or parole supervision unless the conviction is vacated or reversed.  (2) Except as provided under subdivision (f)(3) of this section, a person who has pleaded guilty or nolo contendere to or been found guilty of one (1) of the offenses listed in subdivision (e)(3) of this section shall not work in a child welfare agency unless:  (A) The date of a plea of guilty or nolo contendere, or the finding of guilt for a misdemeanor offense is at least five (5) years from the date of the records check; and  (B) There have been no criminal convictions or pleas of guilty or nolo contendere of any type or nature during the five-year period preceding the background check request.    (3)  (A) Except as provided under subdivision (f)(1) of this section, a person who is required to have a criminal records check under subdivision (b)(1) or subdivision (c)(1) of this section who has pleaded guilty or nolo contendere to or been found guilty of any of the offenses listed in subdivision (e)(3) of this section shall be presumed to be disqualified to be an owner, operator, volunteer, foster parent, adoptive parent, member of a child welfare agency's board of directors, or employee in a child welfare agency after the completion of his or her term of confinement, probation, or parole supervision unless the conviction is vacated or reversed.  (B) An owner, operator, volunteer, foster parent, adoptive parent, household member of a foster parent or adoptive parent, member of any child welfare agency's board of directors, or an employee in a child welfare agency shall not petition the Child Welfare Agency Review Board unless the agency supports the petition, which can be rebutted in the following manner:  (i) The applicant shall petition the Child Welfare Agency Review Board to make a determination that the applicant does not pose a risk of harm to any person;  (ii) The applicant shall bear the burden of making such a showing; and  (iii)  (a) The Child Welfare Agency Review Board may permit an applicant to be an owner, operator, volunteer, foster parent, adoptive parent, member of an agency's board of directors, or an employee in a child welfare agency notwithstanding having pleaded guilty or nolo contendere to or been found guilty of an offense listed in this section upon making a determination that the applicant does not pose a risk of harm to any person served by the facility.  (b) In making a determination, the Child Welfare Agency Review Board shall consider:  (1) The nature and severity of the crime;  (2) The consequences of the crime;  (3) The number and frequency of the crimes;  (4) The relation between the crime and the health, safety, and welfare of any person, such as the:  (A) Age and vulnerability of the crime victim;  (B) Harm suffered by the victim; and  (C) Similarity between the victim and the persons served by a child welfare agency;    (5) The time elapsed without a repeat of the same or similar event;  (6) Documentation of successful completion of training or rehabilitation related to the incident; and  (7) Any other information that relates to the applicant's ability to care for children or is deemed relevant.    (c) The Child Welfare Agency Review Board's decision to disqualify a person from being an owner, operator, volunteer, foster parent, adoptive parent, member of a child welfare agency's board of directors, or an employee in a child welfare agency under this section shall constitute the final administrative agency action of the Child Welfare Agency Review Board and is not subject to review.  (d) Information obtained from the criminal records check and the national fingerprint criminal background checks is confidential and shall not be disclosed by the Department of Human Services except:  (1) To the members of the Child Welfare Agency Review Board during a Child Welfare Agency Review Board meeting only if no redisclosure by a Child Welfare Agency Review Board member occurs and all copies shared with the Child Welfare Agency Review Board members are returned to the Department of Human Services; or  (2) To the applicant and his or her attorney during a Child Welfare Agency Review Board meeting only if no redisclosure by the applicant or his or her attorney occurs and all copies shared with the applicant and his or her attorney are returned to the Department of Human Services.