N.Y. Comp. Codes R. & Regs. tit. 18 § 443.8

Current through Register Vol. 46, No. 45, November 2, 2024

Section 443.8 - Criminal history record check

(a) An authorized agency must perform criminal history record checks with the Division of Criminal Justice Services and the Federal Bureau of Investigation regarding any prospective foster parent and each person over the age of 18 who is currently residing in the home of such prospective foster parent before the foster parent is finally approved or certified for the placement of a foster child.

(b) At the time a foster parent applies for renewal of his or her approval or certification, an authorized agency must perform a State and national criminal history record check with the Division of Criminal Justice Services in accordance with subdivision (d) of this section regarding each person over the age of 18, other than a foster parent certified or approved prior to January 11, 2007, who is currently residing in the home of such foster parent who has not previously had such criminal history record checks completed.

(c) With the exception of the requirement that a criminal history record check must be completed by the Federal Bureau of Investigation, the provisions of this sectional so apply to persons who were certified or approved as foster parents on or before February 11, 1999.

(d)Fingerprinting.

(1) The authorized agency must obtain fingerprints of the prospective foster parent and each other person over the age of 18 who currently resides in the home of such prospective or existing foster parent in the form prescribed by the Office of Children and Family Services, and such other information as is required by the Office of Children and Family Services, the Division of Criminal Justice Services and the Federal Bureau of Investigation.

(2) The authorized agency must provide the applicant sufficient blank fingerprint cards and a description of how the completed fingerprint cards will be used upon submission to the authorized agency.

(3) The authorized agency or its designee must promptly transmit such fingerprint cards to the Office of Children and Family Services.

(4) The Office of Children and Family Services will promptly submit the fingerprint cards to the Division of Criminal Justice Services for its full search and retain processing in regard to the State criminal history record check and for the forwarding of the fingerprints to the Federal Bureau of Investigation. The Office of Children and Family Services will also include the applicable fee imposed by the Division of Criminal Justice Services and the Federal Bureau of Investigation.

(5) No part of the fee imposed for the processing of the fingerprints with the Division of Criminal Justice Services or the Federal Bureau of Investigation will be charged to the prospective or existing foster parent or any person over the age of 18 who currently resides in the home of such prospective or existing foster parent who submitted fingerprint cards pursuant to this subdivision.

(6) The Division of Criminal Justice Services and the Federal Bureau of Investigation will promptly provide the Office of Children and Family Services with a criminal history record, if any, on such person.

(7)

(i) The Office of Children and Family Services will review the criminal history record information provided by the Division of Criminal Justice Services and the Federal Bureau of Investigation and promptly provide the authorized agency, as defined in section 371 (10)(b) of the Social Services Law, with a summary of the criminal history record and notify the authorized agency of the actions that it must take regarding the person as set forth in subdivision (e) of this section.

(ii) The Office of Children and Family Services will review the criminal history record information provided by the Division of Criminal Justice Services and promptly provide the authorized agency, as defined in section 371 (10)(a) of the Social Services Law, with a summary of the criminal history record and notify the authorized agency of the actions it must take regarding the person as set forth in subdivision (e) of this section.

(iii) The Office of Children and Family Services will review the criminal history record information provided by the Federal Bureau of Investigation and evaluate such results in accordance with the standards set forth in subdivision (e) of this section. The Office of Children and Family Services will inform the authorized agency, as defined in section 371 (10)(a) of the Social Services Law, that the application for certification or approval of the prospective foster parent either:

(a) must be denied;

(b) must be held in abeyance pending subsequent notification from the Office of Children and Family Services; or

(c) that the Office of Children and Family Services has no objection, solely based on the Federal Bureau of Investigation 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, as set forth in this Part.

(e)

(1) Except as set forth in this section, the authorized agency must deny an application for certification or approval as a certified or approved foster parent or deny an application for renewal of the certification or approval of an existing foster parent submitted on or after October 1, 2008 or revoke the certification or approval of an existing foster parent when a criminal history record of the prospective or existing foster parent reveals a conviction for:

(i) a felony conviction at any time involving:

(a) child abuse or neglect;

(b) spousal abuse;

(c) a crime against a child, including child pornography; or

(d) a crime involving violence, including rape, sexual assault, or homicide, other than a crime involving physical assault or battery; or

(ii) a felony conviction within the past five years for physical assault, battery, or a drug-related offense.

Notwithstanding any other provision to the contrary, with regard to a foster parent fully certified or approved prior to October 1, 2008, the provisions of this paragraph only apply to mandatory disqualifying convictions that occur on or after October 1, 2008.

(2) The authorized agency must hold the final determination of an application for certification or approval of a prospective or existing foster parent in abeyance whenever the criminal history record of the prospective or existing foster parent reveals:

(i) a charge for a crime set forth in paragraph (1) of this subdivision which has not been finally resolved; or

(ii) a felony conviction that may be for a crime set forth in paragraph (1) of this subdivision. 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.

(3) The authorized agency may deny an application for certification or approval of a prospective foster parent or deny the renewal or reapproval of an existing certification or approval of an existing foster parent, consistent with the provisions of article 23-A of the Correction Law, when:

(i) a criminal history record of the prospective or existing foster parent reveals a charge or a conviction of a crime other than one set forth in paragraph (1) of this subdivision; or

(ii) a criminal history record of any other person over the age of 18 who resides in the home of the prospective or existing foster parent reveals a charge or a conviction of any crime.

(f)

(1) When an authorized agency, as defined in section 371 (10)(b) of the Social Services Law, denies an application or revokes a certificate or approval pursuant to this section, the authorized agency must provide the applicant or existing foster parent, to the extent authorized by Federal and State law, a written statement setting forth the reasons for such denial or revocation, including the summary of the criminal history provided by the Office of Children and Family Services in accordance with subdivision (c) of this section. The authorized agency must also provide a description of the Division of Criminal Justice Services' and the Federal Bureau of Investigation's record review process and any remedial processes provided by the Office of Children and Family Services to any prospective foster parent. If the applicant or existing foster parent is disqualified under clause (e)(1)(i)(b) of this section for a felony conviction of spousal abuse, then the applicant may apply to the Office of Children and Family Services for an administrative hearing in accordance with section 22 of the Social Services Law for relief from the disqualification based on the grounds that the offense was not spousal abuse as that term is defined in subdivision (i) of this section.

(2) When an authorized agency, as defined in section 371 (10)(a) of the Social Services Law, denies or revokes a certificate or approval pursuant to this section based on criminal history record information provided to the Office of Children and Family Services by the Division of Criminal Justice Services, the authorized agency must provide to the applicant or existing foster parent, to the extent authorized by Federal and State law, a written statement setting forth the reasons for such denial or revocation, including the summary of the criminal history provided by the Office of Children and Family Services in accordance with subdivision (c) of this section. The authorized agency must also provide a description of the Division of Criminal Justice Services"TM record review process and any remedial processes provided by the Office of Children and Family Services to any prospective foster parent. If the applicant is disqualified under clause (e)(1)(i)(b) of this section for a felony conviction of spousal abuse, then the applicant may apply to the Office of Children and Family Services for an administrative hearing in accordance with section 22 of the Social Services Law for relief from the disqualification based on the grounds that the offense was not spousal abuse as that term is defined in subdivision (i) of this section.

(3) Where the Office of Children and Family Services directs an authorized agency, as defined in section 371 (10)(a) of the Social Services Law, to deny or revoke a certificate or approval based on the review and evaluation of a criminal history record check by the Federal Bureau of Investigation, the Office of Children and Family Services must also notify the applicant, foster parent or other person over the age of 18 who currently resides in the home of the applicant or foster parent whose criminal history was the basis for the denial or revocation and must provide such prospective foster parent, foster parent or other person a copy of the results of the Federal Bureau of Investigation criminal history check and a written statement setting forth the reasons for such denial or revocation. If the applicant or foster parent is disqualified under clause (e)(1)(i)(b) of this section for a felony conviction for spousal abuse, the applicant or foster parent may apply to the Office of Children and Family Services through an administrative hearing held in accordance with section 22 of the Social Services Law for relief from the disqualification based on the grounds that the offense was not spousal abuse as that term is defined in subdivision (i) of this section.

(g)

(1) When a criminal history record of the foster parent or of any other person over the age of 18 who resides in the home of such foster parent reveals a charge or conviction of any crime, the authorized agency must perform a safety assessment of the conditions in the household. Such assessment must include:

(i) whether the subject of the charge or conviction resides in the household;

(ii) the extent to which such person may have contact with foster children or other children residing in the household; and

(iii) the status, date and nature of the criminal charge or conviction.

(2) The authorized agency thereafter must 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. The authorized agency must document the safety assessment and the steps and actions taken by the authorized agency to protect the health and safety of the child.

(3) Where the authorized agency denies the application or revokes the certification or approval of the foster parent in accordance with the standards set forth in this section, such authorized agency must remove any foster child or children from the home of the foster parent.

(h) Confidentiality.

(1) Any criminal history record information provided by the Division of Criminal Justice Services or the Federal Bureau of Investigation, and any summary of the criminal history record provided by the Office of Children and Family Services to an authorized agency pursuant to this section, is confidential and is not available for public inspection.

(2) Nothing in this subdivision prevents an authorized agency, the Office of Children and Family Services or other State agency referenced in paragraph (a) of subdivision two of section 378-a of the Social Services Law from disclosing criminal history information to any administrative or judicial proceeding relating to the denial or revocation of a foster parent's certification or approval or the foster child's removal from the home.

(3) 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 must provide a copy of such summary to the Family Court or Surrogate's Court.

(i) For the purposes of this section spousal abuse is an offense defined in section 120.05 or 120.10 of the Penal Law where the victim of such offense was the defendant's spouse; provided, however, spousal abuse does not include a crime in which the prospective or existing foster parent, who was the defendant, has received notice pursuant to this section and the Office of Children and Family Services finds after an administrative hearing held pursuant to section 22 of the Social Services Law, 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 or existing foster parent to commit such offense.

(j) The authorized agency must inform the Office of Children and Family Services either through CONNECTIONS and any other means as prescribed by the Office of Children and Family Services when a person is no longer certified or approved as a foster parent.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 443.8

Amended New York State Register December 23, 2015/Volume XXXVII, Issue 51, eff. 12/23/2015

Amended New York State Register January 25, 2017/Volume XXXIX, Issue 04, eff. 1/25/2017