Current through Register Vol. 35, No. 6, March 26, 2024
A. For the
purpose of these regulations, the following information shall result in a
conclusion that the applicant is an unreasonable risk:
(1) a conviction for a felony, or a
misdemeanor involving moral turpitude, and the criminal conviction directly
relates to whether the applicant can provide a safe, responsible and morally
positive setting for care recipients;
(2) a conviction for a felony, or a
misdemeanor involving moral turpitude, and the criminal conviction does not
directly relate to whether the applicant can provide a safe, responsible and
morally positive setting for care recipients if the department determines that
the applicant so convicted has not been sufficiently rehabilitated;
(3) a conviction, regardless of the degree of
the crime or the date of the conviction, of trafficking in controlled
substances, criminal sexual penetration or related sexual offenses or child
abuse;
(4) a substantiated
referral, regardless of the date, for sexual abuse or for a substantiation of
abuse or neglect relating to a failure to protect against sexual
abuse;
(5) the applicant's child is
in New Mexico's Children, Youth, and Families Department (CYFD) or another
state's custody; or
(6) a
registration, or a requirement to be registered, on a state sex offender
registry or repository or the national sex offender registry established under
the Adam Walsh Child Protection and Safety Act of 2006.
B. A disqualifying conviction may be proven
by:
(1) a copy of the judgment of conviction
from the court;
(2) a copy of a
plea agreement filed in court in which a defendant admits guilt;
(3) a copy of a report from the federal
bureau of investigation, criminal information services division, or the
national criminal information center, indicating a conviction;
(4) a copy of a report from the state of New
Mexico, department of public safety, or any other agency of any state or the
federal government indicating a conviction;
(5) any writing by the applicant indicating
that such person has been convicted of the disqualifying offense, provided,
however, that if this is the sole basis for denial, the applicant shall be
given an opportunity to show that the applicant has successfully completed or
is pending completion of a conditional discharge for the disqualifying
conviction.
C. If a
background check shows pending charges for a felony offense, any misdemeanor
offense involving domestic violence, child abuse, any other misdemeanor offense
of moral turpitude, or an arrest but no disposition for any such crime, there
shall be a determination of unreasonable risk if a conviction as charged would
result in a determination of unreasonable risk.
D. If a background check shows a pending CYFD
child protective services referral or any other investigation of abuse or
neglect by ECECD, CYFD, or any other state or federal agency with authority to
investigate, there shall be a determination of unreasonable risk.
E. If a background check shows that an
applicant has an outstanding warrant, there shall be a determination of
unreasonable risk.
