Ala. Admin. Code r. 660-5-39-.04

Current through Register Vol. 43, No. 1, October 31, 2024

Section 660-5-39-.04 - Character And Suitability

(1) Applicants/licensees (see II Legal Authority, Section B, Definitions, Page 6), household members, caregivers (see II Legal Authority, Section B, Definitions, Page 6), substitutes, domestic workers, volunteers, or other persons who have contact with the children in care or unsupervised access to the children in care shall be of good moral character. Information regarding the character and suitability of applicants for a license shall be reviewed by the Department at the time of the initial application for a license. Subsequent character and suitability reviews shall be conducted at the discretion of the Department. Evidence that an applicant/licensee, caregiver, substitute, domestic worker, volunteer, or other person who has contact with the children or unsupervised access to the children, is of unsuitable character may be the basis for the denial of an initial application, denial of an application for renewal of a license, suspension of a license/permit, or revocation of a license or six-month permit.

(2) The applicant/licensee shall conduct a character and suitability review, as set forth below, of substitutes, caregivers, domestic workers, volunteers, and other persons have contact with the children or unsupervised access to the children.

(3) Factors to be considered in determining character and suitability shall include but need not be limited to:

(a)References.

1. At the time of initial application, each applicant for a license shall provide the Department with the names, addresses, and telephone numbers of at least three persons who are unrelated to the applicant or household member by blood, marriage, or adoption. These persons shall be contacted by the Department to determine the applicant character, community reputation, work history, and suitability to care for children or to have contact with children. The Department may, at its discretion, contact additional sources that can attest to the applicant/character and suitability to care for children or to have contact with children.

2. The applicant/licensee shall obtain at least three written references for each current and prospective caregiver, substitute, domestic worker, volunteer, or other person who has contact with the children or unsupervised access to the children. References shall attest to the person's character, community reputation, work history, suitability to care for children or to have contact with the children. Reference contacts shall not be related to the person by blood, marriage, or adoption. Written references shall be kept on file at the child placing agency office.)

(b)Clearance of State Central Registry on Child Abuse/Neglect.

1. At the time of initial application, a completed REQUEST FOR CLEARANCE OF STATE CENTRAL REGISTRY ON CHILD ABUSE/NEGLECT (DHR-DFC-1598) shall be submitted by the applicant. Results shall be kept in the Department's files.

2. The applicant shall obtain a completed REQUEST FOR CLEARANCE OF STATE CENTRAL REGISTRY ON CHILD ABUSE/NEGLECT (DHR-DFC-1598) for each caregiver, substitute, volunteer, domestic worker, and any other person who has contact with the children or unsupervised access to the children. Completed forms shall be submitted to the Department. Results shall be kept on file in the approving agency's office.

3. A subsequent REQUEST FOR CLEARANCE OF STATE CENTRAL REGISTRY ON CHILD ABUSE/NEGLECT (DHR-DFC-1598) may be requested by the Department at any time.

(c)Criminal History Background Information Checks.

1. In accordance with Alabama law, (Act 2000-775, effective November 1, 2000, see Appendix M, page 118), for a copy of the law), the criminal history of each applicant for a license, each licensee, substitute, caregiver, volunteer, and domestic worker, as well as any other person who has contact with the children or unsupervised access to the children shall be reviewed.

2. Each licensee, substitute, caregiver, volunteer, domestic worker, as well as any other person who has contact with the children or unsupervised access to the children, licensed, employed, or performing volunteer services prior to November 1, 2000, shall submit, to the Alabama Bureau of Investigation, Department of Public Safety, as instructed by the Department, a request for a criminal history background information check accompanied by the following:

(i) Fingerprints, properly executed by a law enforcement agency or an individual properly trained in fingerprinting techniques.

(ii) Written consent from the licensee, substitute, caregiver, volunteer, domestic worker, as well as any other person who has contact with the children or unsupervised access to the children, for the release of the criminal history background information to the Department of Human Resources. A copy shall be submitted to the Department of Human Resources Criminal History Checks Unit. A copy shall be kept on file in the approving agency's office. The required fee, unless fee is to be paid by the Department.

(iii) Identification verification of name, date of birth, race, sex, and Social Security number in the form of a photo identification from any governmental agency, such as a driver's license, non-driver's identification, or program participation card. A copy of the identification verification shall be kept on file in the approving agency's office.

3. At the time of initial application, an applicant for a license and shall submit, to the Alabama Bureau of Investigation, Department of Public Safety, a request for a criminal history background information check accompanied by the following:

(i) MANDATORY CRIMINAL HISTORY CHECK NOTICE: (See Appendix B., page 75, for copy of form.) Alabama law requires that a criminal history background information check be conducted on all persons who hold a license or work in a Department of Human Resources licensed child care or adult care facility, a foster or adoptive home approved by the Department of Human Resources, or a licensed child placing agency, including all officers and agents of the entity. You are required to provide full, complete, and accurate information on your criminal conviction history upon application for a license or employment (whether paid or unpaid, including volunteers). This information shall be used to determine your suitability to provide care to children, the elderly, or disabled individuals. Unless a criminal history background information check report and suitability determination have previously been obtained, you must complete a written request and consent for a criminal history background information check with fingerprints at the time of application for employment. Refusal to complete these documents or providing false information shall result in refusal of employment, approval, or licensure. The term conviction includes a determination of guilt by a trial, by a plea of guilty, or a plea of nolo contendere. You are required to notify your employer, licensing agency, or entity where you are performing volunteer work of any criminal conviction occurring subsequent to the date of completion of this notice. Any individual determined to have submitted false information shall be referred to the district attorney or law enforcement for investigation and possible prosecution. An individual who intentionally falsifies or provides any misleading information on the statement is guilty of a Class A misdemeanor, punishable by a fine of not more than two thousand dollars ($2,000) and imprisonment for not more than one year. Convictions for any crimes listed in Section (4), shall make an individual unsuitable for licensure, employment, or volunteer work.

(ii) The Mandatory Criminal History Check Notice shall include the following criminal history statement:

(I) Have you ever had a suitability determination made by the Department of Human Resources in connection with a previous criminal history information background check? Yes (__) No (__).

(II) Have you ever been convicted of a crime? Yes (__) No (__). If yes, state the date, crime, location, punishment imposed, and whether the victim was a child or an elderly or disabled individual.

(iii) A signed statement, which includes the mandatory statement above, indicating whether he or she has ever been convicted of a crime, and if so, fully disclosing all convictions. The mandatory statement shall be submitted to the Department of Human Resources Criminal History Checks Unit. A copy shall be kept on file in the approving agency's office.

(iv) Two complete sets of fingerprints, properly executed by a law enforcement agency or an individual properly trained in fingerprinting techniques.

(v) Written consent from the applicant for the release of the criminal history background information to the Department of Human Resources. A copy shall be submitted to the Department of Human Resources Criminal History Checks Unit. A copy shall kept on file in the approving agency's office.

(vi) The required fee.

(vii) Identification verification of name, date of birth, race, sex, and Social Security number in the form of a photo identification from any governmental agency, such as a driver's license, non-driver's identification, or program participation card. A copy of the identification verification shall be kept on file in the approving agency's office.

4. Each substitute, caregiver, and domestic worker, volunteer, and any other person who has contact with the children or unsupervised access to the children, initially employed, or performing volunteer services on or after November 1, 2000, shall submit, to the Alabama Bureau of Investigation Department of Public Safety, a request for a criminal history background information check accompanied by the following:

(i) Prior to or on the first day of employment, a statement shall be signed, which includes the mandatory statement above, indicating whether he or she has ever been convicted of a crime, and if so, fully disclosing all convictions. The mandatory statement shall be submitted to the Department of Human Resources Criminal History Checks Unit. A copy shall be kept on file in the approving agency's office.

(ii) A substitute, caregiver, volunteer, domestic worker and any other person who has contact with the children or unsupervised access to the children, who fails or refuses to sign the required Mandatory Criminal History Check Notice and complete the questions shall not be employed, or allowed to perform volunteer services.

(iii) If an licensee/applicant fails or refuses to sign the required Mandatory Criminal History Check Notice and complete the questions, the Department shall revoke or refuse to renew the license.

(iv) Upon receipt of a signed Mandatory Criminal History Check Notice, revealing no disqualifying convictions, a substitute, caregiver, volunteer, domestic worker and any other person who has contact with the children or unsupervised access to the children, may be employed, perform volunteer services provisionally at the discretion of the licensee, pending receipt of a suitability determination from the Department.

(v) Within five business days of moving into the home, being employed, or beginning volunteer service the following shall be submitted to the Alabama Bureau of Investigation, Department of Public Safety:

(I) Fingerprints, properly executed by a law enforcement agency or an individual properly trained in fingerprinting techniques.

(II) Written consent from each, substitute, caregiver, volunteer, domestic worker, or any other person who has contact with the children or unsupervised access to the children, for the release of the criminal history background information to the Department of Human Resources. A copy shall be submitted to the Department of Human Resources Criminal History Checks Unit. A copy shall be kept on file in the approving agency's office.

(III) The required fee.

(IV) Identification verification of name, date of birth, race, sex, and Social Security number in the form of a photo identification from any governmental agency, such as a driver's license, non-driver's identification, or program participation card. A copy of the identification verification shall be kept on file in the approving agency's office.

(vi) Fingerprints may be collected through the use of inkpads and fingerprint cards or through the use of ink-less "live scan" fingerprinting devices to collect and print fingerprints on cards or transmits the fingerprints electronically to the Department of Public Safety. When no copy of the fingerprint card is available because of the electronic transmission of live scan fingerprints, written documentation from the individual or law enforcement agency that the fingerprints have been collected and transmitted shall be maintained on file in the approving agency's office, and sent to the Department's Criminal History Check Unit.

(vii) Fingerprints are not required when a disability prevents an individual from being fingerprinted. Disabilities preventing fingerprinting include the loss of both hands, severe scarring of all fingers, closed paralytic hands, and similar disabilities. In situations involving a covered disability, a completed Criminal History Information Consent and Release form is required. The Department of Public Safety shall conduct a criminal history background information check by name and Social Security number in such cases. Documentation or verification of that the disability prevents fingerprinting shall be obtained from law enforcement or from an individual trained in fingerprinting techniques and shall be submitted to the Department of Public Safety and the Department of Human Resources.

5. Criminal history background information checks shall be performed by the Alabama Department of Public Safety. National criminal history background checks shall be requested by the Department of Public Safety from the Federal Bureau of Investigation. Criminal history background reports shall be sent to the Department of Human Resources.

6. The Department of Human Resources shall review the report and determine whether the applicant or other person meets the suitability requirement based on the criminal history background report. The Department shall issue a suitability determination and maintain a confidential file on individuals for whom a criminal history background information report or report updates have been received.

7. Upon receipt of a determination of unsuitability, the affected individual shall be terminated from employment or volunteer work.

8. The Department shall suspend or revoke the license or deny the initial application or the application for renewal if the applicant/licensee, receives a determination of unsuitable character.

9. The Department shall send a copy of the letter determining suitability status to the individual affected and to the child-placing agency. The individual has thirty (30) days from the date of notification to request in writing a reversal of the determination of suitability if the disqualifying conviction is not for a sex crime, or a crime against a child, an elderly individual, or an individual with disabilities. The affected individual shall show clear and convincing evidence of successful rehabilitation.

10. The Department shall send a copy of the report received from the Department of Public Safety to the affected individual. The affected individual shall have the opportunity to challenge the accuracy of the report.

11. If a suitability determination letter is received by the licensee from the Department's Criminal History Check Unit stating an individual is suitable for employment based on the absence of any disqualifying convictions, the licensee shall make his or her own determination regarding employment or volunteer work. No right to employment is created by the issuance of a letter stating an individual is suitable for employment.

12. Only one criminal history background check shall be required per individual. If the individual certifies on the Mandatory Criminal History Check Notice statement that a criminal history check has been performed by the Department or by the Department of Education, the Department will issue a determination of suitability based on the criminal history report received. If the previous report cannot be obtained, a new criminal history check shall be required.

13. The licensee shall inform the Department of any criminal convictions and current criminal charges involving the licensee, substitutes, caregivers, domestic workers, and other persons who have contact with the children or unsupervised access to the children, which occur after a license/permit is obtained. Such reports shall be made within 24 hours and followed by a written report within five (5) days. (See Section F., 2., Reports to the Department for details.) This information shall be kept on file by the Department.

(d)Evidence of Unsuitable Character.

1. Convictions for any of the following crimes shall make an applicant/licensee, caregiver, substitute, domestic worker, volunteer, or any other person unsuitable to hold a license/permit or have contact with the children or unsupervised access to children

(i) Murder, manslaughter, or criminally negligent homicide.

(ii) A sex crime, including the following:

(I) Enticing a child to enter a vehicle, room, house, office, or any other space for immoral purposes, as proscribed by Section 13A-6-69 of the Code of Ala. 1975.

(II) Incest, when the offender is an adult and the victim is a minor, as proscribed by Section 13A-13-3 of the Code of Ala. 1975.

(III) Kidnapping of a minor, except by a parent, in the first or second degree, as proscribed by Section 13A-6-43 or Section 13A-6-44 of the Code of Ala. 1975.

(IV) Promoting prostitution in the first or second degree, as proscribed by Section 13A-12-111 or Section 13A-12-112 of the Code of Ala. 1975.

(V) Rape in the first or second degree, as proscribed by Section 13A-6-61 or Section 13A-6-62 of the Code of Ala. 1975.

(VI) Sexual misconduct, as proscribed by Section 13A-6-65 of the Code of Ala. 1975.

(VII) Sexual torture, as proscribed by Section 13A-6-65 of the Code of Ala. 1975.

(VIII) Sexual abuse in the first or second degree, as proscribed by Section 13A-6-66 or Section 13A-6-67 of the Code of Ala. 1975.

(IX) Sodomy in the first or second degree, as proscribed by Section 13A-6-63 or Section 13A-6-64 of the Code of Ala. 1975.

(X) Soliciting a child by computer for the purposes of committing a sexual act and transmittal of obscene material to a child by computer as proscribed by Sections 13A-6-110 and 13A-6-111 of the Code of Ala. 1975.

(XI) Violation of the Alabama Child Pornography Act, as proscribed by Section 13A-12-191, 13A-12-192, 13A-12-196, or 13A-12-197 of the Code of Ala. 1975.

(XII) Any solicitation, attempt, or conspiracy to commit any of the offenses listed in paragraphs i through xi, inclusive.

(XIII) A crime listed in the Community Notification Act, Chapter 20 of Title 15 of the Code of Ala. 1975.

(iii) A crime that involves the physical or mental injury or maltreatment of a child, the elderly, or an individual with disabilities.

(iv) A crime committed against a child.

(v) A crime involving the sale or distribution of a controlled substance.

(vi) Robbery.

(vii) A crime listed in the federal Adoption and Safe Families Act as prohibiting a person from being unsuitable for employment, volunteer work, or approval, or licensure.

(viii) A violation or attempted violation of an offense committed outside the State of Alabama or under federal law is a sex crime or any other crime listed in this notice if the offense would be a crime listed in this notice in Alabama.

(ix) Reports of adult or child abuse/neglect (with or without criminal convictions), related to crimes listed in ((1)) through ((8)) above, with a final disposition of indicated, in this or any other state.

2. Examples of evidence which may make an applicant/licensee, caregiver, substitute, domestic worker, volunteer, or any other person, unsuitable to hold a license/permit or have contact with the children or unsupervised access to children, include but are not limited to the following:

(i) any felony conviction in this or any other state;

(ii) theft and other financial crimes related to business activities

(iii) misdemeanor convictions in this or any other state;

(iv) operating a motor vehicle while under the influence of or while impaired by the use of intoxicating liquor or drugs;

(v) offenses involving the reckless operation of a motor vehicle at an excessive speed;

(vi) a crime involving the possession of a controlled substance;

(vii) operating a child care facility without a license/permit/exemption;

(viii) refusal to cease operations of an unlicensed child care facility;

(ix) a history of consistent failure to maintain minimum standards while operating a child care facility;

(x) refusal or failure to cooperate in any Department investigation or inspection;

(xi) making false or misleading statements or reports to the Department;

(xii) past history of the individual regarding his/her truthfulness;

(xiii) the individual's ability to care for children; or

(xiv) reports of adult or child abuse/neglect (with or without criminal convictions), other than those listed in (a)((2)) above, with a final disposition of indicated, in this or any other state.

3. Evidence in item (b)((1)) through ((14)) above, will be evaluated to determine whether or not it constitutes a danger to the children based on the seriousness of the crime, the existence of extenuating circumstances, the propensity to recommit the crime, and evidence of rehabilitation since the crime was committed.

4. An application for a license shall be denied or a license or permit shall be suspended or revoked if the applicant/licensee, substitute, caregiver, domestic worker, volunteer, or any other person who has contact with the children or unsupervised access to the children, is determined to be of unsuitable character to work with children, to have contact with children or to have unsupervised access to children.

Author: Jerome Webb

Ala. Admin. Code r. 660-5-39-.04

Effective October 16, 1989. Repealed and New Rule: Filed October 7, 2002; effective November 11, 2002.

Statutory Authority:Code of Ala. 1975, Title 38, Chapter 13, §§1-12