§ 9-28-409 - Criminal record and child maltreatment checks.
9-28-409. Criminal record and child maltreatment checks.
(a) (1) Each of the following persons in a child welfare agency shall be checked with the Child Maltreatment Central Registry in his or her state of residence and any state of residence in which the person has lived for the past six (6) years and in the person's state of employment, if different, for reports of child maltreatment in compliance with policy and procedures promulgated by the Child Welfare Agency Review Board:
(A) An employee having direct and unsupervised contact with children;
(B) A volunteer having direct and unsupervised contact with children;
(C) A foster parent and all household members ten (10) years of age and older, excluding children in foster care;
(D) An adoptive parent and all household members ten (10) years of age and older, excluding children in foster care;
(E) An owner having direct and unsupervised contact with children; and
(F) A member of the agency's board of directors having direct and unsupervised contact with children.
(2) The board shall have the authority to deny a license or church-operated exemption to any applicant found to have any record of founded child maltreatment in the official record of the registry.
(3) (A) Any person required to be checked under this section who is found to have any record of child maltreatment in the official record of the registry shall be reviewed by the owner or operator of the facility in consultation with the board to determine appropriate corrective action measures that would indicate, but are not limited to, training, probationary employment, or nonselection for employment.
(B) The board shall also have the authority to deny a license or church-operated exemption to an applicant who continues to employ a person with any record of founded child maltreatment.
(4) All persons required to be checked with the registry under this subsection shall repeat the check at a minimum of every two (2) years, except that adoptive parents who reside in Arkansas shall repeat the check every year pending court issuance of a final decree of adoption, at which point repeat checks shall no longer be required.
(b) (1) Each of the following persons in a child welfare agency who has lived in Arkansas continuously for six (6) years or more shall be checked with the Identification Bureau of the Department of Arkansas State Police for convictions of the offenses listed in this subchapter in compliance with policy and procedures promulgated by the board:
(A) An employee having direct and unsupervised contact with children;
(B) A volunteer having direct and unsupervised contact with children;
(C) An owner having direct and unsupervised contact with children; and
(D) A member of the agency's board of directors having direct and unsupervised contact with children.
(2) A child in the custody of the Department of Human Services shall not be placed in an approved home of any foster parent or adoptive parent unless all household members eighteen (18) years of age and older, excluding children in foster care, have been checked with the Identification Bureau of the Department of Arkansas State Police for convictions of the offenses listed in this subchapter in compliance with policy and procedures promulgated by the board at a minimum of every two (2) years.
(3) (A) The owner or operator of a child welfare agency shall maintain on file, subject to inspection by the board, evidence that Department of Arkansas State Police criminal records checks have been initiated on all persons required to be checked and the results of the checks.
(B) Failure to maintain that evidence on file will be prima facie grounds to revoke the license or church-operated exemption of the owner or operator of the child welfare agency.
(4) All persons required to be checked with the Department of Arkansas State Police under this subsection shall repeat the check at a minimum of every five (5) years, except that adoptive parents who reside in Arkansas shall repeat the check every year pending court issuance of a final decree of adoption, at which point repeat checks shall no longer be required.
(c) (1) Each of the following persons in a child welfare agency who has not lived in Arkansas continuously for the past six (6) years shall have a fingerprint-based criminal background check performed by the Federal Bureau of Investigation in compliance with federal law and regulation for convictions of the offenses listed in this subchapter:
(A) An employee having direct and unsupervised contact with children;
(B) A volunteer having direct and unsupervised contact with children;
(C) An owner having direct and unsupervised contact with children; and
(D) A member of the agency's board of directors having direct and unsupervised contact with children.
(2) (A) A child in the custody of the Department of Human Services shall not be placed in an approved home of any foster or adoptive parent unless all household members eighteen (18) years of age and older, excluding children in foster care, have a fingerprint-based criminal background check performed by the Federal Bureau of Investigation in compliance with federal law and regulation for convictions of the offenses listed in this subchapter.
(B) The owner or operator of a child welfare agency shall maintain on file, subject to inspection by the board, evidence that the Federal Bureau of Investigation's criminal records checks have been initiated on all persons required to be checked and the results of the checks.
(C) Failure to maintain that evidence on file will be prima facie grounds to revoke the license or church-operated exemption of the owner or operator of the child welfare agency.
(d) (1) Each person required to have a criminal records check under this subchapter shall complete a criminal records check form developed by the Department of Human Services and shall sign the form that contains the following under oath before a notary public:
(A) Certification that the subject of the check consents to the completion of the check;
(B) Certification that the subject of the check has not been convicted of a crime and if the subject of the check has been convicted of a crime, contains a description of the crime and the particulars of the conviction;
(C) Notification that the subject of the check may challenge the accuracy and completeness of any information in any report and obtain a prompt determination as to the validity of the challenge before a final determination is made by the board with respect to his or her employment status or licensing status;
(D) Notification that the subject of the check may be denied a license or exemption to operate a child welfare agency or may be denied unsupervised access to children in the care of a child welfare agency due to information obtained by the check that indicates that the subject of the check has been convicted of, or is under pending indictment for, a crime listed in this subchapter; and
(E) Notification that any background check and the results thereof shall be handled in accordance with the requirements of Pub. L. No. 92-544.
(2) The owner or operator of the child welfare agency shall submit the criminal records check form to the Identification Bureau of the Department of Arkansas State Police for processing within ten (10) days of hiring the employee or volunteer, who shall remain under conditional employment or volunteerism until the registry check and criminal records checks required under this subchapter are completed.
(3) Nothing in this section shall be construed to prevent the board from denying a license or exemption to an owner or preventing an operator or employee in a child welfare agency from having unsupervised access to children by reason of the pending appeal of a criminal conviction or child maltreatment determination.
(4) In the event a legible set of fingerprints as determined by the Department of Arkansas State Police and the Federal Bureau of Investigation cannot be obtained after a minimum of two (2) attempts by qualified law enforcement personnel, the board shall determine eligibility based upon a name check by the Department of Arkansas State Police and the Federal Bureau of Investigation.
(5) (A) An owner or operator of a child welfare agency shall not be liable during a conditional period of service for hiring any person required to have a background check pursuant to this subchapter who may be subject to a charge of false swearing upon completion of central registry and criminal records check.
(B) (i) Pursuant to this subchapter, false swearing shall occur when a person while under oath provides false information or omits information that the person knew or reasonably should have known was material.
(ii) Lack of knowledge that information is material is not a defense to a charge of false swearing.
(C) For purposes of this subchapter, false swearing is a Class A misdemeanor.
(e) (1) Except as provided in subdivision (d)(2) or subdivision (h)(1) of this section, no person who is required to have a criminal check under subdivision (b)(1) or subdivision (c)(1) of this section shall be eligible to have direct and unsupervised contact with a child in the care of a child welfare agency if that person has pleaded guilty or nolo contendere to, or has been found guilty of, any of the following offenses by any court in the State of Arkansas or of any similar offense by a court in another state or of any similar offense by a federal court unless the conviction was vacated or reversed:
(A) Capital murder as prohibited in 5-10-101;
(B) Murder in the first degree as prohibited in 5-10-102 and murder in the second degree as prohibited in 5-10-103;
(C) Manslaughter as prohibited in 5-10-104;
(D) Negligent homicide as prohibited in 5-10-105;
(E) Kidnapping as prohibited in 5-11-102;
(F) False imprisonment in the first degree and false imprisonment in the second degree as prohibited in 5-11-103 and 5-11-104;
(G) Permanent detention or restraint as prohibited in 5-11-106;
(H) Battery in the first degree, battery in the second degree, and battery in the third degree as prohibited in 5-13-201, 5-13-202, and 5-13-203;
(I) Aggravated assault as prohibited in 5-13-204;
(J) Assault in the first degree and assault in the second degree as prohibited in 5-13-205 and 5-13-206;
(K) Terroristic threatening in the first degree and terroristic threatening in the second degree as prohibited in 5-13-301(a) and (b);
(L) Any sexual offense as prohibited in 5-14-101 et seq.;
(M) Permitting abuse of a child as prohibited in 5-27-221;
(N) Endangering the welfare of a minor in the first degree and endangering the welfare of a minor in the second degree as prohibited in 5-27-205 and 5-27-206;
(O) Contributing to the delinquency of a minor as prohibited in 5-27-209;
(P) Engaging children in sexually explicit conduct for use in visual or print medium, transportation of minors for prohibited sexual conduct, use of a child or consent to use of a child in sexual performance, and producing, directing, or promoting sexual performance by a child as prohibited in 5-27-303, 5-27-305, 5-27-402, and 5-27-403;
(Q) Incest as prohibited in 5-26-202;
(R) Interference with visitation as prohibited in 5-26-501;
(S) Interference with custody as prohibited in 5-26-502;
(T) Engaging in conduct with respect to controlled substances as prohibited in 5-64-401;
(U) Distribution to minors as prohibited in 5-64-406;
(V) Public display of obscenity as prohibited in 5-68-205;
(W) Prostitution as prohibited in 5-70-102;
(X) Promoting prostitution in the first degree, promoting prostitution in the second degree, and promoting prostitution in the third degree as prohibited in 5-70-104, 5-70-105, and 5-70-106;
(Y) Computer child pornography as prohibited in 5-27-603;
(Z) Computer exploitation of a child in the first degree as prohibited in 5-27-605(a);
(AA) Criminal attempt, criminal complicity, criminal solicitation, or criminal conspiracy as prohibited in 5-3-201, 5-3-202, 5-3-301, and 5-3-401 to commit any of the offenses listed in this section;
(BB) Any felony or any misdemeanor involving violence, threatened violence, or moral turpitude; and
(CC) Any former or future law of this or any other state or of the federal government that is substantially equivalent to one (1) of the aforementioned offenses.
(2) (A) Any person who is required to have a criminal check under subdivision (b)(1) or subdivision (c)(1) of this section who pleads guilty or nolo contendere to, or is found guilty of, any of the offenses listed in subdivision (e)(1) of this section, unless the conviction is vacated or reversed, shall be absolutely disqualified to be an owner, operator, volunteer, foster parent, adoptive parent, member of an agency's board of directors, or employee in a child welfare agency during the period of his or her confinement, probation, or parole supervision.
(B) Except as provided in subdivision (h)(1) of this section, any person who is required to have a criminal check under subdivision (b)(1) or subdivision (c)(1) of this section who pleads guilty or nolo contendere to, or is found guilty of, any of the offenses listed in subdivision (e)(1) of this section, unless the conviction is vacated or reversed, shall be presumed to be disqualified to be an owner, operator, volunteer, foster parent, adoptive parent, member of an agency's board of directors, or employee in a child welfare agency after the completion of his or her term of confinement, probation, or parole supervision. The operator, volunteer, foster parent, adoptive parent, household member of a foster parent or an adoptive parent, member of any agency's board of directors, or an employee in a child welfare agency cannot petition the board unless the agency supports the petition. This presumption can be rebutted in the following manner:
(i) (a) The applicant must petition the board to make a determination that the applicant does not pose a risk of harm to any person.
(b) The applicant shall bear the burden of making such a showing; and
(ii) The board in its discretion may permit an applicant to be an owner, operator, volunteer, foster parent, adoptive parent, member of an agency's board of directors, or an employee in a child welfare agency notwithstanding having been convicted of an offense listed in this section upon making a determination that the applicant does not pose a risk of harm to any person served by the facility. In making this determination, the board shall consider the following factors:
(a) The nature and severity of the crime;
(b) The consequences of the crime;
(c) The number and frequency of crimes;
(d) The relation between the crime and the health, safety, and welfare of any person, such as:
(1) The age and vulnerability of victims of the crime;
(2) The harm suffered by the victim; and
(3) The similarity between the victim and persons served by a child welfare agency;
(e) The time elapsed without a repeat of the same or similar event;
(f) Documentation of successful completion of training or rehabilitation pertinent to the incident; and
(g) Any other information that bears on the applicant's ability to care for children or any other relevant information.
(C) The board's decision to disqualify a person from being an owner, operator, volunteer, foster parent, adoptive parent, member of an agency's board of directors, or an employee in a child welfare agency under this section shall constitute the final administrative agency action and shall not be subject to review.
(f) (1) No foster child in the custody of the Department of Human Services shall be placed in the home of any foster or adoptive parent if the criminal records check reveals a felony conviction for:
(A) Child abuse or neglect;
(B) Spousal abuse;
(C) A crime against children, including child pornography; or
(D) A crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery.
(2) No foster child in the custody of another state agency who is placed in Arkansas shall be placed in any home if the criminal records check reveals a felony conviction of an adult in the home for:
(A) Child abuse or neglect;
(B) Spousal abuse;
(C) A crime against children, including child pornography; or
(D) A crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault or battery.
(g) (1) No foster child in the custody of the Department of Human Services shall be placed in the home of any foster or adoptive parent if the criminal record check reveals a felony conviction for physical assault, battery, or a drug-related offense if the offense was committed within the past five (5) years.
(2) No foster child in the custody of another state agency who is placed in Arkansas shall be placed in any home if the criminal record check reveals a felony conviction of any adult in the home for physical assault, battery, or a drug-related offense if the offense was committed within the past five (5) years.
(h) (1) For purposes of this section, an expunged record of a conviction or plea of guilty or nolo contendere to an offense listed in subdivision (e)(1) of this section shall not be considered a conviction, guilty plea, or nolo contendere plea to the offense unless the offense is also listed in subdivision (h)(2) of this section.
(2) Because of the serious nature of the offenses and the close relationship to the type of work that is to be performed, the following shall result in permanent disqualification:
(A) Capital murder as prohibited in 5-10-101;
(B) Murder in the first degree as prohibited in 5-10-102 and murder in the second degree as prohibited in 5-10-103;
(C) Kidnapping as prohibited in 5-11-102;
(D) Rape as prohibited in 5-14-103;
(E) Sexual assault in the first degree and second degree as prohibited in 5-14-124 and 5-14-125;
(F) Endangering the welfare of a minor in the first degree and endangering the welfare of a minor in the second degree as prohibited in 5-27-205 and 5-27-206;
(G) Incest as prohibited in 5-26-202;
(H) Arson as prohibited in 5-38-301;
(I) Endangering the welfare of incompetent person in the first degree as prohibited in 5-27-201; and
(J) Adult abuse that constitutes a felony as prohibited in 5-28-103.
(i) (1) Upon request by the Department of Human Services, local law enforcement shall provide the Department of Human Services with criminal background information on persons who have applied to be a provisional foster home, a regular foster home, or an adoptive home for the department.
(2) Upon request by the Department of Human Services, local law enforcement shall provide the Department of Human Services with criminal background information on persons whose home is being studied by the Department of Human Services.