N.Y. Comp. Codes R. & Regs. tit. 18 § 421.27

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

Section 421.27 - Criminal history record check

(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.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 421.27

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