Current through Register Vol. 46, No. 39, September 25, 2024
(a) An authorized agency must perform a
criminal history record check with the Division of Criminal Justice Services
and the Federal Bureau of Investigation in accordance with subdivision (c) of
this section regarding any prospective adoptive parent and each person over the
age of 18 who is currently residing in the home of such prospective adoptive
parent before the adoptive parent is finally approved for the placement of a
child.
(b) Except for the
requirement that a criminal history record check must be completed by the
Federal Bureau of Investigation, the provisions of this section also apply to
persons who were approved as adoptive parents on or before February 11, 1999
but have not completed the adoption process.
(c)
(1) The
authorized agency must obtain fingerprints of the prospective adoptive parent
and each other person over the age of 18 who currently resides in the home of
such prospective adoptive 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 to the
prospective adoptive parent 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 Justices 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
adoptive parent or any person over the age of 18 who currently resides in the
home of such prospective adoptive parents who submitted fingerprints 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(s).
(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 subdivisions (d), (e), and (f) 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) or (c) 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 subdivisions (d), (e) and (f) 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 regarding an application for approval made to
an authorized agency, as defined in section 371 (10)(a) or (c) of the
Social Services Law, and evaluate such results in accordance with the standards
set forth in paragraph (d) of this section. The Office of Children and Family
Services will inform the authorized agency that the application for approval of
the prospective adoptive 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 record check, for the authorized agency to proceed with
a determination on such application based on the standards for approval of a
prospective adoptive parent, as set forth in this Part.
(d)
(1) Except as set forth in subdivision (h) of
this section, the authorized agency must deny an application to be an approved
adoptive parent or revoke the approval of an approved adoptive parent when a
criminal history record of the prospective or approved adoptive 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;
(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 five years
for physical assault, battery, or a drug-related offense.
Notwithstanding any other provision to the contrary, with
regard to an adoptive parent fully 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 approval of a prospective adoptive parent
or the final approval of the placement of a child with an approved adoptive
parent in abeyance when the criminal history record of the prospective or
approved adoptive 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 or the final approval of such placement, 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 approval of a prospective adoptive parent or revoke the
approval of an approved adoptive parent, consistent with the provisions of
article 23-A of the Correction Law, when:
(i)
a criminal history record of the prospective or approved adoptive 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
approved adoptive parent reveals a charge or a conviction of any
crime.
(4) A voluntary
authorized agency, as defined in section 371 (10)(a) or (c) of the
Social Services Law, must deny or hold in abeyance an application for approval
as an adoptive parent when the voluntary authorized agency is notified by the
Office of Children and Family Services to do so in accordance with a
determination made pursuant to subparagraph (c)(7)(iii) of this
section.
(e)
(1) When an authorized agency, as defined in
section 371 (10)(b) of the Social
Services Law, denies an application or revokes an approval pursuant to this
section, an authorized agency must provide to the prospective or approved
adoptive parent, to the extent authorized by Federal and State law, a written
statement setting forth the reasons for such denial, including the summary of
the criminal history record 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
of any prospective or approved adoptive parent. If the prospective or approved
adoptive parent is disqualified under clause (d)(1)(i)(b) of
this section for a felony conviction of spousal abuse, then the prospective or
approved adoptive 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 (h) of this section.
(2) When an authorized agency, as defined in
section 371 (10)(a) or (c) of the
Social Services Law, denies an application or revokes an 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, an authorized agency must provide the prospective or approved
adoptive parent, to the extent authorized by Federal or State law, a written
statement setting forth the reasons for such denial, including the summary of
the criminal history record 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 of any prospective or approved adoptive
parent. If the prospective or approved adoptive parent is disqualified under
clause (d)(1)(i)(b) of this section for a felony conviction of
spousal abuse, then the prospective or approved adoptive 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 (h) of this section.
(3) Where the Office of Children and Family
Services directs an authorizes agency, as defined in section 371 (10)(a) or (c) of the
Social Services Law, to deny an application of a prospective adoptive parent or
revoke the approval of an adoptive parent based on the review and evaluation of
a criminal history record check from the Federal Bureau of Investigation, the
Office of Children and Family Services must also notify the prospective
adoptive parent, the approved adoptive parent or other person over the age of
18 who currently resides in the home of the prospective or approved adoptive
parent whose criminal history was the basis for the denial and must provide
such prospective adoptive parent, approved adoptive 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. If the
applicant or approved adoptive parent is disqualified under clause
(d)(1)(i)(b) of this section for a felony conviction of
spousal abuse, then the applicant or approved adoptive 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 (h) of this section.
(f) When a criminal history record
of the prospective or approved adoptive parent or of any other person over the
age of 18 who currently resides in the home of the prospective or approved
adoptive 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: 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
must 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 and the revocation of the approval or
certification to be a foster parent and/or the approval to be an adoptive
parent, as applicable. 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. Where the authorized agency denies the
application or revokes the approval of the prospective adoptive 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 prospective
adoptive parent.
(g) Any criminal
history record information provided by the Division of Criminal Justice
Services and 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; provided, however, nothing herein 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 an approval of an adoptive
parent or the removal of the foster child from the home. 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 the Surrogate's Court.
(h) 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 approved adoptive parent, who was the defendant, has received
notice pursuant to subdivision (e) of 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 approved
adoptive parent to commit such offense.
(i) The authorized agency must inform the
Office of Children and Family Services either through CONNECTIONS or any other
means as prescribed by the Office of Children and Family Services when an
approved adoptive parent has completed the adoption.
(j) Notwithstanding any other provision of
this Part, for the purpose of this section, an authorized
agency, as defined in section 371 (10)(a) or (c) of the
Social Services Law includes any agency approved by the Office of Children and
Family Services to place out children for adoption in accordance with article
13 of the Not-for-Profit Corporation Law.
