2023 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.