NY Soc Serv L § 378-A (2021)
2021 New York Laws SOS - Social Services Article 6 - Children Title 1 - Care and Protection of Children 378-A - Access to Conviction Records by Authorized Agencies.

§  378-a.  Access  to  conviction records by authorized agencies.   1. Every  authorized  agency  which  operates  a  residential  program  for children  licensed  or  certified  by  the office of children and family services, and the office of children and family services in relation  to any juvenile justice program it operates, 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 and the federal bureau of investigation 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 a residential program who will have regular  and  substantial  unsupervised  or  unrestricted  physical contact with children in such program.  (a)  Provided  however,  any  authorized  agency  required  to request criminal history information pursuant to this subdivision that  operates a  residential program for foster children that is licensed or certified by 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 and the  federal  bureau  of  investigation 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,  for  every:  (i) prospective employee of such program that is not already required to  be cleared  pursuant to the opening paragraph of this subdivision; and (ii) notwithstanding any other provision of law to  the  contrary,  prior  to April  first,  two  thousand  twenty  and  in accordance with a schedule developed by the office of children and family services, any person  who is employed in a residential foster care program that has not previously had a clearance conducted pursuant to this section in connection to such employment.  (b)  For  the  purposes  of this section, "operator" shall include any natural person with an ownership interest in the authorized agency.  (c) Access to and the use of information  obtained  pursuant  to  this subdivision shall be governed by the provisions of section eight hundred forty-five-b of the executive law.   1-a.  Excluding  the  authorized  agencies  authorized  to request and receive criminal history information pursuant to subdivision one of this section, and subject to the rules and regulations  of  the  division  of criminal  justice  services, an authorized agency defined in subdivision ten of section three hundred seventy-one of this title shall have access to 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, pertaining to persons who have applied for and are  under active  consideration  for  employment  by  such  authorized  agency  in positions where such persons will have the  potential  for  regular  and substantial unsupervised and unrestricted physical contact with children in  the  program. Upon receipt of such criminal history information, the authorized agency shall provide the prospective employee with a copy  of such  criminal  history information and a copy of article twenty-three-A of the correction law and inform such prospective employee of his or her right to seek correction of any incorrect information contained in  such criminal  history information pursuant to the regulations and procedures established by the division of criminal justice services. The authorized agency shall designate one or two persons in its  employ  who  shall  be authorized   to   request,  receive  and  review  the  criminal  history information pursuant to this subdivision, and only such persons and  the  prospective  employee  to which the criminal history information relates shall have access to such  information;  provided,  however,  that  such criminal  history  information  may  be  disclosed  to  other  personnel empowered  by  the  agency  to  make  decisions  concerning  prospective employees. The authorized agency shall notify the division  of  criminal justice  services  of  each  person  authorized  to  have access to such criminal history information pursuant to  this  subdivision.  Except  as otherwise   provided   in   this   subdivision,  such  criminal  history information shall be confidential and any person who  willfully  permits the release of such confidential criminal history information to persons not  permitted  by this subdivision to receive such information shall be guilty of a misdemeanor.   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  title,  shall  perform a criminal history record check with the  division  of  criminal  justice  services regarding  any  prospective foster parent or prospective adoptive parent or, a prospective successor guardian in accordance with paragraph (d) of subdivision two of section four hundred fifty-eight-b of  this  article, and any person over the age of eighteen who is currently residing in the home  of  such prospective foster parent, prospective adoptive parent or prospective successor guardian. Provided, however, that for  prospective foster  parents  and prospective adoptive parents and other persons over the age of  eighteen  in  their  homes,  the  checks  required  by  this paragraph shall be conducted 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,  prospective   successor guardian  or  person  over the age of eighteen currently residing in the home of such prospective parent or guardian 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,  prospective  adoptive  parent  or prospective successor guardian's fingerprints and those of any person over the age of eighteen who currently resides in the home of  such  prospective  foster  parent, prospective  adoptive parent or prospective successor guardian, 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, prospective adoptive parent, prospective successor guardian or any person over the  age  of  eighteen who  currently  resides  in  the home of such prospective foster parent, prospective  adoptive  parent  or  prospective  successor  guardian  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,  prospective adoptive  parent  or prospective successor guardian and any other person over the age of eighteen who resides in  the  home  of  the  prospective foster  parent,  prospective  adoptive  parent  or prospective successor guardian, 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) Except as set forth  in  paragraph  (m)  of  this  section,  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  and,  in  the  event  of death  or  incapacity  of  a  relative guardian, an agreement to provide payments to a prospective successor guardian pursuant to  title  ten  of this  article  shall  not  be  approved pursuant to subparagraph (ii) of paragraph (b) of subdivision five of section four hundred  fifty-eight-b of  this  article, as applicable, where a criminal history record of the prospective foster parent, prospective adoptive  parent  or  prospective successor guardian, as applicable, 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,  unless  such  offense  is eligible  for  expungement  pursuant  to  section 160.50 of the criminal procedure law; 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  and,  in relation  to  prospective  successor  guardians,  approval  pursuant  to subparagraph  (ii)  of paragraph (b) of subdivision five of section four hundred fifty-eight-b of this article shall be held in abeyance whenever  the  criminal  history  record  of  the   prospective   foster   parent, prospective  adoptive  parent  or  prospective  successor  guardian,  as applicable, 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)  consistent  with  the provisions of article twenty-three-A of the correction law, an  application  for  certification  or  approval  of  a prospective  foster parent or prospective adoptive parent may be denied, an agreement to provide payments to  a  prospective  successor  guardian pursuant  to  title  ten of this article may not be approved pursuant to subparagraph (ii) of paragraph (b) of subdivision five of  section  four hundred fifty-eight-b of this article, as applicable, where:  (A)  a  criminal  history  record  of  the  prospective foster parent, prospective adoptive parent or prospective successor guardian 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, prospective adoptive parent or prospective successor guardian 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,  prospective adoptive parent or prospective successor guardian and any person over the age  of  eighteen who   is  residing  in  the  home  of  the  prospective  foster  parent, prospective adoptive parent or prospective  successor  guardian  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  parent  or  parents,  adoptive parent or parents or prospective successor guardian or guardians 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 or approval in accordance with the provisions of 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, prospective  adoptive  parent or  prospective  successor  guardian.  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 or the failure to  approve a  prospective  successor  guardian  pursuant  to  subparagraph  (ii) of paragraph (b) of subdivision five of section four hundred  fifty-eight-b of this article or the termination of an agreement for payments pursuant to  title  ten of this article that is made in accordance with paragraph (h) of subdivision four of section four hundred  fifty-eight-b  of  this article.  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,  prospective adoptive parent or prospective successor guardian, 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, prospective adoptive  parent  or  prospective  successor  guardian  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.  (m)(1) The office of children and family services  shall  not  release the  content  of  the  results of the nationwide criminal history record check conducted by the federal bureau  of  investigation  in  accordance with  this subdivision to an authorized agency, as defined in paragraphs (a) or (c) of subdivision ten of section three  hundred  seventy-one  of this title.  (2)  For  any application made to such an authorized agency under this subdivision, the office of children and family services shall:  (A) review and evaluate the results of the nationwide criminal history record check of the  prospective  foster  parent,  prospective  adoptive parent  and any other person over the age of eighteen who resides in the home of such applicant in accordance with the  standards  set  forth  in paragraph  (e)  of  this subdivision relating to mandatory disqualifying convictions, hold in abeyance charges or convictions, and  discretionary charges and convictions; and  (B)  based  on  the  results of the nationwide criminal history record check,  inform  such  authorized  agency  that   the   application   for certification  or  approval  of  the  prospective  foster  parent or the prospective adoptive parent either: (i) must be  denied;  (ii)  must  be held  in  abeyance  pending  subsequent  notification from the office of children and family services; or (iii) that the office of  children  and family  services  has  no  objection,  solely  based  on  the nationwide criminal history record check, for the authorized agency to proceed with a  determination  on  such  application  based  on  the  standards   for certification  or approval of a prospective foster parent or prospective adoptive parent, as set forth  in  the  regulations  of  the  office  of children and family services.  (3)  Where  the  office  of  children  and family services directs the authorized agency to deny the application of a prospective foster parent or a prospective adoptive parent in accordance with this paragraph,  the  office of children and family services shall also notify the prospective foster  parent, prospective adoptive parent or other person over the age of eighteen who resided in the home  of  the  applicant  whose  criminal history  was the basis for the denial and shall provide such prospective foster parent, prospective adoptive parent or other person a copy of the results of the nationwide criminal history record check upon which  such denial  was  based and a written statement setting forth the reasons for such denial. 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.  (4)  This  paragraph  does  not  apply  to nationwide criminal history record checks conducted by the federal bureau of investigation on behalf of state agencies or authorized agencies, as defined in paragraph (b) of subdivision ten of section three hundred seventy-one of this  title,  or to  the results of statewide criminal history record checks conducted by the division of criminal justice services.