Section 378-A. Access to conviction records by authorized agencies

1.
  Subject to rules and regulations of the  division  of  criminal  justice
  services,  an  authorized agency shall have access to conviction records
  maintained by state law enforcement agencies pertaining to  persons  who
  have  applied  for  and are under active consideration for employment by
  such authorized agency in positions where such persons will  be  engaged
  directly in the care and supervision of children.
    2. (a) Notwithstanding any other provision of law to the contrary, and
  subject  to  rules  and  regulations of the division of criminal justice
  services, an authorized agency, as defined in subdivision ten of section
  three hundred seventy-one of this  article,  shall  perform  a  criminal
  history  record  check  with  the  division of criminal justice services
  regarding any prospective foster parent or prospective  adoptive  parent
  and any person over the age of eighteen who is currently residing in the
  home  of  such  prospective foster parent or prospective adoptive parent
  before the foster parent or adoptive  parent  is  finally  certified  or
  approved  for  the placement of a child. Persons who are over the age of
  eighteen residing in the home of a certified or approved  foster  parent
  and  who  previously  did  not  have  a  criminal  history  record check
  performed in accordance with this subdivision shall have such a criminal
  history record check  performed  when  the  foster  parent  applies  for
  renewal  of his or her certification or approval as a foster parent. The
  division  of  criminal  justice  services  is   authorized   to   submit
  fingerprints to the federal bureau of investigation for the purpose of a
  nationwide criminal history record check pursuant to and consistent with
  public  law  92-544 to determine whether such prospective foster parent,
  prospective adoptive parent or person over the age of eighteen currently
  residing in the home of such prospective parent has a  criminal  history
  in  any  state or federal jurisdiction. The provisions and procedures of
  this section, including the criminal history  record  check  of  persons
  over  the  age of eighteen who are currently residing in the home of the
  foster parent, also shall apply to prospective foster parents  certified
  by  the  office  of  children  and  family  services and to family homes
  certified by any other state agency where such  family  homes  care  for
  foster  children  in  accordance with a memorandum of understanding with
  the office of children and family services.
    (b) Every authorized agency shall obtain  a  set  of  the  prospective
  foster parent or prospective adoptive parent's fingerprints and those of
  any person over the age of eighteen who currently resides in the home of
  such  prospective foster parent or prospective adoptive parent, and such
  other information as is required by the office of  children  and  family
  services  and  the division of criminal justice services. The authorized
  agency shall provide to the applicant  blank  fingerprint  cards  and  a
  description  of  how  the  completed fingerprint cards will be used upon
  submission  to  the  authorized  agency.  The  authorized  agency  shall
  promptly  transmit  such fingerprint cards to the office of children and
  family services. The  office  of  children  and  family  services  shall
  promptly  submit  such  fingerprint cards and the processing fee imposed
  pursuant to subdivision eight-a of section eight hundred thirty-seven of
  the executive law to the division of criminal justice services  for  its
  full  search  and retain processing. Notwithstanding any other provision
  of law to the contrary, the processing fee shall  be  submitted  by  the
  office  of  children  and  family  services and no part thereof shall be
  charged to the prospective foster parent or prospective adoptive  parent
  or any person over the age of eighteen who currently resides in the home
  of  such  prospective  foster  parent or prospective adoptive parent who
  submitted a fingerprint card pursuant to this subdivision.

    (c) The division of criminal justice services shall  promptly  provide
  to the office of children and family services a criminal history record,
  if  any,  with  respect  to the prospective foster parent or prospective
  adoptive parent and any other  person  over  the  age  of  eighteen  who
  resides  in  the  home  of  the prospective foster parent or prospective
  adoptive parent, or a statement that  the  individual  has  no  criminal
  history record.
    (d)  Notwithstanding  any  other provision of law to the contrary, the
  office of children and family  services,  upon  receipt  of  a  criminal
  history  record  from  the  division  of  criminal justice services, may
  request, and is entitled  to  receive,  information  pertaining  to  any
  offense  contained  in  such  criminal  history record from any state or
  local law enforcement agency or court for the  purposes  of  determining
  whether  any  ground  relating  to  such  criminal conviction or pending
  criminal charge exists for denying an application.
    (e) After reviewing any criminal history record  information  provided
  by the division of criminal justice services, the office of children and
  family  services  shall  promptly  notify the authorized agency or other
  state agency that:
    (1) Notwithstanding any other provision of law  to  the  contrary,  an
  application for certification or approval of a prospective foster parent
  or  prospective adoptive parent shall be denied where a criminal history
  record of the prospective foster parent or prospective  adoptive  parent
  reveals a conviction for:
    (A)  a  felony  conviction  at  any time involving: (i) child abuse or
  neglect; (ii) spousal abuse; (iii) a crime against  a  child,  including
  child  pornography;  or (iv) a crime involving violence, including rape,
  sexual assault, or homicide,  other  than  a  crime  involving  physical
  assault or battery; or
    (B)  a  felony  conviction  within  the  past  five years for physical
  assault, battery, or a drug-related offense; or
    (2) Notwithstanding any other provision of  law  to  the  contrary,  a
  final determination of an application for certification or approval of a
  prospective  foster  parent or prospective adoptive parent shall be held
  in abeyance whenever the criminal  history  record  of  the  prospective
  foster parent or prospective adoptive parent reveals:
    (A)  a  charge  for  a  crime  set  forth  in subparagraph one of this
  paragraph which has not been finally resolved; or
    (B) a felony  conviction  that  may  be  for  a  crime  set  forth  in
  subparagraph  one  of  this  paragraph. An authorized agency may proceed
  with a determination of such application, 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; or
    (3)  an  application  for  certification  or approval of a prospective
  foster parent or prospective adoptive parent may,  consistent  with  the
  provisions  of  article  twenty-three-A of the correction law, be denied
  where:
    (A) a criminal history record of  the  prospective  foster  parent  or
  prospective  adoptive parent reveals a charge or a conviction of a crime
  other than one set forth in subparagraph one of this paragraph; or
    (B) a criminal history record of any other  person  over  the  age  of
  eighteen  who  resides  in  the home of the prospective foster parent or
  prospective adoptive parent reveals a charge  or  a  conviction  of  any
  crime; or
    (4)  Notwithstanding  any  other  provision of law to the contrary, an
  application for renewal of the certification or  approval  of  a  foster
  parent  submitted on or after October first, two thousand eight shall be

  denied based on the conviction of the foster parent of a crime set forth
  in subparagraph one of this paragraph where such conviction occurred  on
  or after October first, two thousand eight; or
    (5)  Notwithstanding  any  other provision of law to the contrary, the
  certification or approval of a foster parent,  or  the  approval  of  an
  adoptive  parent  who  has  not completed the adoption process, shall be
  revoked based on the conviction of the foster  parent  or  the  adoptive
  parent of a crime set forth in subparagraph one of this paragraph; or
    (6)  the  prospective foster parent or prospective adoptive parent and
  any person over the age of eighteen who is residing in the home  of  the
  prospective foster parent or prospective adoptive parent has no criminal
  history record.
    (f)  Except as otherwise set forth in this paragraph, any notification
  by the office of children and family services pursuant to paragraph  (e)
  of  this  subdivision  shall  include  a summary of the criminal history
  record provided by the division of criminal justice services, including,
  but not  limited  to,  the  specific  crime  or  crimes  for  which  the
  prospective  foster or adoptive parent or parents or any adults over the
  age of eighteen living in the home have been charged  or  convicted,  as
  applicable.  When  responding  to an inquiry from a voluntary authorized
  agency or other non-public agency with  respect  to  the  results  of  a
  national  criminal  history  check  performed  by  the federal bureau of
  investigation, the office of children and family services  shall  advise
  the  voluntary  authorized  agency  or  other  non-public  agency of the
  category or categories of crime or crimes  and  shall  not  provide  the
  voluntary authorized agency or other non-public agency with the specific
  crime  or  crimes  absent the written consent of the person for whom the
  national criminal history check was performed.
    (g) When an authorized agency has denied an  application  pursuant  to
  paragraph  (e)  of this subdivision, the authorized agency shall provide
  to the applicant a written statement setting forth the reasons for  such
  denial,  including,  as authorized by paragraph (f) of this subdivision,
  the summary of the criminal history record provided  to  the  authorized
  agency  by  the  office  of children and family services. The authorized
  agency shall also provide a description  of  the  division  of  criminal
  justice  services'  record  review  process  and  any remedial processes
  provided  by  the  office  of  children  and  family  services  to   any
  prospective  foster  parent  or  prospective  adoptive  parent.  If  the
  applicant is disqualified under item (ii) of clause (A) of  subparagraph
  one  of  paragraph (e) of this subdivision, then the applicant may apply
  for relief from the mandatory disqualification based on the grounds that
  the offense was not spousal abuse as that term is defined  in  paragraph
  (j) of this subdivision.
    (h)  Where  a  criminal  history  record  of the certified or approved
  foster parent, prospective adoptive parent or of any other  person  over
  the age of eighteen who resides in the home of the certified or approved
  foster  parent  or  prospective  adoptive  parent  reveals  a  charge or
  conviction of any crime, the authorized agency shall  perform  a  safety
  assessment  of  the  conditions  in the household. Such assessment shall
  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 shall 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. Where the
  authorized agency denies the application  or  revokes  the  approval  or
  certification of the foster parent or the prospective adoptive parent in

  accordance  with  the  standards  set  forth  in  paragraph  (e) of this
  subdivision, such authorized agency shall remove  any  foster  child  or
  children  from the home of the foster parent or the prospective adoptive
  parent.
    (i)  Any  criminal history record provided by the division of criminal
  justice services,  and  any  summary  of  the  criminal  history  record
  provided  by the office of children and family services to an authorized
  agency pursuant to this subdivision, is confidential and  shall  not  be
  available for public inspection; provided, however, nothing herein shall
  prevent an authorized agency, the office of children and family services
  or  other  state  agency referenced in paragraph (a) of this subdivision
  from disclosing criminal history information to  any  administrative  or
  judicial   proceeding   relating  to  the  denial  or  revocation  of  a
  certification or approval of a foster parent or 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, shall
  provide a copy of such summary to the family court or surrogate's court.
    (j) For the purposes of this subdivision "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  shall  not include a crime in which the prospective foster parent
  or prospective adoptive parent, who  was  the  defendant,  has  received
  notice  pursuant  to paragraph (g) of this subdivision and the office of
  children and family services finds after a fair hearing held pursuant to
  section twenty-two of this chapter, 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 foster parent  or
  prospective adoptive parent to commit such offense.
    (k)  The  office  of  children  and  family  services shall inform the
  division of criminal  justice  services  when  a  person  is  no  longer
  certified  or  approved as a foster parent or is no longer a prospective
  adoptive parent so that the division of criminal  justice  services  may
  terminate  its  retain  processing  with  regard  to such person and any
  person over the age of eighteen who is  residing  in  the  home  of  the
  foster  parent or prospective adoptive parent. At least once a year, the
  office of children and family services will be  required  to  conduct  a
  validation of the records maintained by the division of criminal justice
  services.
    (l)  The  office of children and family services, in consultation with
  the division of criminal justice services, shall promulgate  regulations
  for  the  purpose  of  implementing  the  provisions of this subdivision
  relating to the standards for the certification or  approval  of  foster
  parents or adoptive parents.