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An Act to amend and reenact §§
63.2-901.1
,
63.2-1721
, and
63.2-1722
of the Code of Virginia, relating to foster and adoptive homes; barrier crimes; exceptions.
Be it enacted by the General Assembly of Virginia:
1. That §§
63.2-901.1
,
63.2-1721
, and
63.2-1722
of the Code of Virginia are amended and reenacted as follows:
§
63.2-901.1
. Criminal history and central registry check for placements of children.
A. Each local board and licensed child-placing agency shall obtain, in accordance with regulations adopted by the Board, criminal history record information from the Central Criminal Records Exchange and the Federal Bureau of Investigation through the Central Criminal Records Exchange and the results of a search of the child abuse and neglect central registry of any individual with whom the local board or licensed child-placing agency is considering placing a child on an emergency, temporary or permanent basis, including the birth parent of a child in foster care placement, unless the birth parent has revoked an entrustment agreement pursuant to §
63.2-1223
or
63.2-1817
or a local board or birth parent revokes a placement agreement while legal custody remains with the parent, parents, or guardians pursuant to §
63.2-900
. The local board or licensed child-placing agency shall also obtain such background checks on all adult household members residing in the home of the individual with whom the child is to be placed pursuant to subsection B. Such state criminal records or registry search shall be at no cost to the individual. The local board or licensed child-placing agency shall pay for the national fingerprint criminal history record check or may require such individual to pay the cost of the fingerprinting or the national fingerprinting criminal history record check or both. In addition to the fees assessed by the Federal Bureau of Investigation, the designated state agency may assess a fee for responding to requests required by this section.
B. Background checks pursuant to this section require the following:
1. A sworn statement or affirmation disclosing whether or not the individual has a criminal conviction or is the subject of any pending criminal charges within or outside the Commonwealth and whether or not the individual has been the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth;
2. That the individual submit to fingerprinting and provide personal descriptive information to be forwarded along with the individual's fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal history record information. The local board or licensed child-placing agency shall inform the individual that he is entitled to obtain a copy of any background check report and to challenge the accuracy and completeness of any such report and obtain a prompt resolution before a final decision is made of the individual's fitness to have responsibility for the safety and well-being of children.
The Central Criminal Records Exchange, upon receipt of an individual's record or notification that no record exists, shall forward it to the designated state agency. The state agency shall, upon receipt of an individual's record lacking disposition data, conduct research in whatever state and local recordkeeping systems are available in order to obtain complete data. The state agency shall report to the local board or licensed child-placing agency whether the individual meets the criteria for having responsibility for the safety and well-being of children based on whether or not the individual has ever been convicted of or is the subject of pending charges for any barrier crime as defined in §
19.2-392.02
. Copies of any information received by a local board or licensed child-placing agency pursuant to this section shall be available to the state agency that regulates or operates such a child-placing agency but shall not be disseminated further; and
3. A search of the central registry maintained pursuant to §
63.2-1515
for any founded complaint of child abuse or neglect. In addition, a search of the child abuse and neglect registry maintained by any other state pursuant to the Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
109-248
, in which a prospective parent or other adult in the home has resided in the preceding five years.
C. In emergency circumstances, each local board may obtain, from a criminal justice agency, criminal history record information from the Central Criminal Records Exchange and the Federal Bureau of Investigation through the Virginia Criminal Information Network (VCIN) for the criminal records search authorized by this section. Within three days of placing a child, the local board shall require the individual for whom a criminal history record information check was requested to submit to fingerprinting and provide personal descriptive information to be forwarded along with the fingerprints through the Central Criminal Records Exchange to the Federal Bureau of Investigation for the purpose of obtaining criminal record history information, pursuant to subsection B. The child shall be removed from the home immediately if any adult resident fails to provide such fingerprints and written permission to perform a criminal history record check when requested.
D. Any individual with whom the local board is considering placing a child on an emergency basis shall submit to a search of the central registry maintained pursuant to §
63.2-1515
and the Adam Walsh Child Protection and Safety Act of 2006, Pub. L.
109-248
for any founded complaint of child abuse or neglect. The search of the central registry must occur prior to emergency placement. Such central registry search shall be at no cost to the individual. Prior to emergency placement, the individual shall provide a written statement of affirmation disclosing whether he has ever been the subject of a founded case of child abuse or neglect within or outside the Commonwealth. Child-placing agencies shall not approve individuals with a founded complaint of child abuse as foster or adoptive parents.
E.
The
A local board or
child-placing agency shall not approve a foster or adoptive home
, including a kinship foster home,
if any individual has been convicted of any barrier crime as defined in §
19.2-392.02
or is the subject of a founded complaint of abuse or neglect as maintained in registries pursuant to §
63.2-1515
and 42
U.S.C.S.
U.S.C.
16901 et seq.
F.
A
local board or
child-placing agency may approve
as
a foster
parent
or adoptive home, including a kinship foster home, where
an applicant
who has
and any adult household member have each
been convicted of not more than one misdemeanor as set out in §
18.2-57
, or any substantially similar offense under the laws of another jurisdiction, not involving the abuse, neglect, or moral turpitude of a minor, provided that 10 years have elapsed following the conviction.
F.
G.
A local board or child-placing agency may approve
as
a kinship foster
care parent
home where
an applicant
who has
and any adult household member have
been convicted of the following offenses, provided that the local board or child-placing agency makes a specific finding that approving the kinship foster care placement would not adversely affect the safety and well-being of the child: (i) any offense set forth in the definition of barrier crime in §
19.2-392.02
clause (iv), provided that five years have elapsed from the date of the conviction; (ii) any misdemeanor offense under §
18.2-57
or
18.2-57.2
, or any substantially similar offense under the laws of another jurisdiction, not involving a minor, provided that five years have elapsed from the date of the conviction; or (iii) any misdemeanor offense under §
18.2-80
,
18.2-81
,
18.2-83
,
18.2-87
,
18.2-87.1
, or
18.2-88
or any substantially similar offense under the laws of another jurisdiction provided that 10 years have elapsed from the date of the conviction.
H. A local board or child-placing agency may approve a foster or adoptive home, including a kinship foster home, where an applicant and any adult household member have been convicted of any offense set forth in clause (iv) of the definition of barrier crime in §
19.2-392.02
, so long as (i) the individual has had their civil rights restored by the Governor or other appropriate authority and 10 years have elapsed following the conviction or (ii) eight years have elapsed following the conviction and the individual (a) has complied with all obligations imposed by the criminal court, (b) has completed a substance abuse treatment program, (c) has completed a drug test administered by a laboratory or medical professional within 90 days prior to being approved and such test returned with a negative result, and (d) complies with any other obligations as determined by the Department.
I. A local board or child-placing agency may approve a foster or adoptive home, including a kinship foster home, where an applicant and any adult household member have been convicted of any offense set forth in clause (iii) of the definition of barrier crime in §
19.2-392.02
, so long as the individual has had their civil rights restored by the Governor or other appropriate authority and 20 years have elapsed following the conviction.
G.
J.
Any individual participating in the Fostering Futures program, which allows local departments to continue to provide foster care services to individuals who are 18 years of age or older but have not reached 21 years of age, who is placed in a foster home shall be subject to the background check requirements set forth in subsection B. The results of such background check shall be used for the sole purpose of determining whether other children should be placed or remain in the same foster home as the individual subject to the background check. The results of the background check shall not be used to terminate or suspend the approval of the foster home pursuant to subsection E. For purposes of this subsection, "individual participating in the Fostering Futures program" means a person who is 18 years of age or older but has not reached 21 years of age and is receiving foster care services through the Fostering Futures program.
§
63.2-1721
. Background check upon application for licensure as a child-placing agency, etc.; penalty.
A. Upon application for licensure as a child-placing agency or independent foster home, (i) all applicants and (ii) agents at the time of application who are or will be involved in the day-to-day operations of the child-placing agency or independent foster home or who are or will be alone with, in control of, or supervising one or more of the children shall undergo a background check pursuant to subsection B. Upon application for licensure as an assisted living facility, all applicants shall undergo a background check pursuant to subsection B. In addition,
all applicants and adult household members of applicants for
foster or adoptive
parents
homes, including kinship foster homes,
requesting approval by child-placing agencies shall undergo background checks pursuant to subsection B prior to
their
the home's
approval.
B. Background checks pursuant to subsection A require:
1. A sworn statement or affirmation disclosing whether the person has a criminal conviction or is the subject of any pending criminal charges within or outside the Commonwealth and whether or not the person has been the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth;
2. A criminal history records check through the Central Criminal Records Exchange pursuant to §
19.2-389
; and
3. In the case of child-placing agencies, independent foster homes, or adoptive or foster parents, a search of the central registry maintained pursuant to §
63.2-1515
for any founded complaint of child abuse and neglect.
C. The person required to have a background check pursuant to subsection A shall submit the background check information required in subsection B to the Commissioner's representative prior to issuance of a license, registration or approval. The applicant, other than an applicant for licensure as an assisted living facility, shall provide an original criminal record clearance with respect to any barrier crime as defined in §
19.2-392.02
or an original criminal history record from the Central Criminal Records Exchange. An applicant for licensure as an assisted living facility shall provide an original criminal record clearance with respect to any offense set forth in clause (i) of the definition of barrier crime in §
19.2-392.02
or an original criminal history record from the Central Criminal Records Exchange. Any person making a materially false statement regarding the sworn statement or affirmation provided pursuant to subdivision B 1 is guilty of a Class 1 misdemeanor. If any person specified in subsection A, other than an applicant for licensure as an assisted living facility, required to have a background check (i) has been convicted of any barrier crime as defined in §
19.2-392.02
or (ii) is the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth, and such person has not been granted a waiver by the Commissioner pursuant to §
63.2-1723
or is not subject to an exception in subsection
E,
F, G,
or
H,
or I of §
63.2-901.1
(a) the Commissioner shall not issue a license to a child-placing agency or independent foster home or (b) a child-placing agency shall not approve an adoptive or foster home. If any applicant for licensure as an assisted living facility required to have a background check has been convicted of any offense set forth in clause (i) of the definition of barrier crime in §
19.2-392.02
, the Commissioner shall not issue a license to an assisted living facility.
D. No person specified in subsection A shall be involved in the day-to-day operations of a licensed child-placing agency or independent foster home; be alone with, in control of, or supervising one or more children receiving services from a licensed child-placing agency or independent foster home; or be permitted to work in a position that involves direct contact with a person receiving services without first having completed background checks pursuant to subsection B unless such person is directly supervised by another person for whom a background check has been completed in accordance with the requirements of this section.
E. Notwithstanding any provision to the contrary contained in this section, a child-placing agency may approve as an adoptive or foster parent an applicant who has been convicted of not more than one misdemeanor offense as set out in §
18.2-57
, or any substantially similar offense under the laws of another jurisdiction, not involving abuse, neglect, moral turpitude, or a minor, provided that 10 years have elapsed following the conviction.
F. Notwithstanding any provision to the contrary contained in this section, a child-placing agency may approve as a foster parent an applicant who has been convicted of statutory burglary for breaking and entering a dwelling home or other structure with intent to commit larceny, or any substantially similar offense under the laws of another jurisdiction, who has had his civil rights restored by the Governor or other appropriate authority, provided that 25 years have elapsed following the conviction.
G. Notwithstanding any provision to the contrary contained in this section, a child-placing agency may approve as an adoptive or foster parent an applicant convicted of any offense set forth in clause (iv) of the definition of barrier crime in §
19.2-392.02
who has had his civil rights restored by the Governor or other appropriate authority, provided that 10 years have elapsed following the conviction, or eight years have elapsed following the conviction and the applicant (i) has complied with all obligations imposed by the criminal court; (ii) has completed a substance abuse treatment program; (iii) has completed a drug test administered by a laboratory or medical professional within 90 days prior to being approved, and such test returned with a negative result; and (iv) complies with any other obligations as determined by the Department.
H. Notwithstanding any provision to the contrary contained in this section, a child-placing agency may approve as an adoptive or foster parent an applicant convicted of any offense set forth in clause (iii) of the definition of barrier crime in §
19.2-392.02
who has had his civil rights restored by the Governor or other appropriate authority, provided that 20 years have elapsed following the conviction.
I.
E.
If an applicant is denied licensure, registration or approval because of information from the central registry or convictions appearing on his criminal history record, the Commissioner shall provide a copy of the information obtained from the central registry or the Central Criminal Records Exchange or both to the applicant.
J.
F.
Further dissemination of the background check information is prohibited other than to the Commissioner's representative or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination.
§
63.2-1722
. Revocation or denial of renewal based on background checks; failure to obtain background check.
A. The Commissioner may revoke or deny renewal of a license of a child welfare agency, assisted living facility, or adult day center and a child-placing agency may revoke the approval of a foster home if the assisted living facility, adult day center, child welfare agency, or foster home has knowledge that a person specified in §
63.2-1720
or
63.2-1721
required to have a background check (i) has been convicted of any barrier crime as defined in §
19.2-392.02
or (ii) in the case of a child welfare agency or foster home, is the subject of a founded complaint of child abuse or neglect within or outside the Commonwealth, and such person has not been granted a waiver by the Commissioner pursuant to §
63.2-1723
or is not subject to the exceptions in subsection B of §
63.2-1720
or subsection
E,
F, G,
or
H
, or I
of §
63.2-1721
63.2-901.1
, and the facility, center, or agency refuses to separate such person from employment or service or allows the household member to continue to reside in the home.
B. Failure to obtain background checks pursuant to §§
63.2-1720
and
63.2-1721
shall be grounds for denial, revocation, or termination of a license, registration, or approval or any contract with the Department or a local department to provide child care services to clients of the Department or local department. No violation shall occur if the assisted living facility, adult day center, child-placing agency, or independent foster home has applied for the background check timely and it has not been obtained due to administrative delay. The provisions of this section shall be enforced by the Department.