OAR 413-120-0440
Circumstances in which a Criminal Records Check Must Occur and Types of Records Checks Required
(1)
Circumstances in which the Department conducts criminal records checks.(a)
When a family applies to be certified as a relative caregiver or foster parent under OAR 413-200-0270 (Purpose) to 413-200-0296 (Responsibilities Regarding Denial or Revocation of a Certification), the Department must conduct a criminal records check on each applicant and any person who is identified as an other person in the household.(b)
When a family applies to adopt a child under OAR 413-120-0190 (Purpose) to 413-120-0246 (Standards for an Adoptive Home and Release of an Adoption Home Study), the Department must conduct a criminal records check on each applicant and any person who is identified as an other person in the household.(c)
When a subject individual who has not previously been approved as an other person in the household of a certified family seeks approval to be an other person in the household, the Department must conduct a criminal records check on the subject individual. Notwithstanding this requirement, when a person who lives in the household turns 18 years of age during the time that a family is certified, or after a family has been approved as a potential adoptive resource, a criminal records check is not required on the person who turned 18 until the family is being evaluated for renewal of certification or until a previously approved adoption home study is being amended or updated.(d)
When a certified family is being assessed to determine whether or not the certification will be renewed under OAR 413-200-0287 (Assessment for Renewal of Certification), the Department must conduct a criminal records check on each applicant and any person who is identified as an other person in the household.(e)
When a previously approved home study is being amended or updated within the 12 months prior to an adoption placement selection as required by OAR 413-120-0246 (Standards for an Adoptive Home and Release of an Adoption Home Study), the Department must conduct a criminal records check on each applicant and any person who is identified as an other person in the household.(2)
In addition to the required criminal records checks described in section (1) of this rule, the Department may conduct a criminal records check on any subject individual at any time, if deemed necessary by the Department to protect child safety.(3)
Each criminal records check conducted under section (1) of this rule must include a fingerprint-based check of records maintained by the Federal Bureau of Investigation (FBI) unless one of the following subsections applies:(a)
The criminal records check is being conducted for purposes of a certification renewal or an update to a previously approved home study as described in subsections (1)(d) and (1)(e) of this rule, and the subject individual:(A)
Has not lived outside of Oregon for more than 60 consecutive days after the subject individual’s last criminal records check;(B)
Has not been arrested since the family was last certified to provide foster care or relative care or approved as a potential adoptive resource; and(C)
Previously had a fingerprint-based check of records maintained by FBI in order to be approved under these rules to live in the home that is being assessed for certification renewal.(b)
The criminal records check is being conducted for purposes of approval of a subject individual to provide respite care, and the subject individual:(A)
Has not lived outside the state of Oregon for more than 60 consecutive days in the last five years;(B)
Does not disclose any history of arrests or convictions;(C)
Is not determined, following a review of the results of a check of Oregon criminal records obtained from OSP’s Law Enforcement Data System (LEDS), to have a history of arrests or convictions; and(D)
Is not determined, as a result of review of information received from any other source, to have a history of arrests or convictions.(c)
The criminal records check is being conducted for purposes of approval of a subject individual to be an other person in the household, and the subject individual:(A)
Is under the age of 18;(B)
Is a babysitter; or(C)
Frequents the home but is not a respite provider nor a care-giving employee or volunteer.(d)
The Department determines that the subject individual is unable to submit fingerprints due to a physical or mental condition that makes compliance impossible or presents an undue safety risk to the subject individual or staff, and the District Manager in the District where the criminal records check was initiated provides written approval to forego the fingerprint-based check. The District Manager’s written approval, and written documentation of the circumstances that lead to the decision to forego fingerprinting, must be kept with other documents pertaining to the subject individual’s criminal records check.(4)
Notwithstanding subsections (3)(a) to (3)(c) of this rule, the Department may require a fingerprint-based check of records maintained by FBI as part of the criminal records check for any subject individual if deemed necessary by the Department to protect child safety.(5)
Each criminal records check conducted under these rules must include a check of Oregon criminal records obtained from OSP’s Law Enforcement Data System (LEDS) regardless of whether a fingerprint-based check of records maintained by FBI is conducted or not.(6)
A criminal records check under this rule may also include a review of records obtained from other law enforcement entities, courts, or any other source of criminal information.(7)
A subject individual who is required under these rules (OAR 413-120-0400 (Purpose) to 413-120-0475 (Record Keeping, Confidentiality)) to undergo a fingerprint-based check of records maintained by FBI may be approved following a check of Oregon criminal records obtained from OSP’s Law Enforcement Data System (LEDS). When an approved subject individual is subsequently determined to have arrests or convictions which were unknown at the time of their approval, the subject individual must be approved following a new fitness determination in order to continue to function in the capacity for which the subject individual was previously approved.(a)
The new fitness determination is required regardless of the severity of the previously unknown criminal history, the length of time since the arrests or convictions occurred, or any other factor pertaining to the history.(b)
The new fitness determination must occur as soon as possible after any new criminal history has been discovered, and no later than 14 working days after the history has been discovered.(c)
The new fitness determination must occur regardless of when previously unknown criminal history is discovered and regardless of whether the history is discovered as a result of information obtained from LEDS, the FBI, or any other credible information source.(d)
The same Department employee who made the original fitness determination must also make the new fitness determination, unless the severity of the newly discovered history requires approval at a higher level of the Department’s organizational structure or unless the person who made the original determination is no longer in the position she or he occupied at that time or is otherwise unavailable.(e)
Following the discovery of previously unknown criminal history, and pending a new fitness determination, the Department may permit a subject individual to continue to function in the capacity for which the individual was previously approved. If the newly discovered history includes any convictions that a require a fitness determination by the District Manager, or the Child Welfare Director or Chief Operating Officer, written approval from the District Manager must be obtained within 24 hours in order for the subject individual to continue in her or his current capacity pending the outcome of the new fitness determination.(f)
Notwithstanding subsections (a) to (c) of this section, when a criminal records check is being conducted for the purpose of approval of an adoptive resource or for the initial non-child-specific certification of a foster family, the subject individual must undergo both a check of Oregon criminal records obtained from OSP’s Law Enforcement Data System (LEDS) and a fingerprint-based check of records maintained by FBI before a fitness determination is made and before the subject individual may be approved.(8)
A subject individual who was previously approved as a respite provider or as an other person in the household must undergo a new criminal records check and fitness determination, including a fingerprint-based check of records maintained by FBI, when applying to adopt a child or to be a foster parent or relative caregiver.(9)
When a family currently certified as child-specific caregivers seeks to become a non-child-specific certified family, and the household includes a subject individual who was previously approved following a criminal records related fitness determination, written approval must be granted prior to the family becoming non-relative foster parents. In these circumstances, decisions regarding approval must be made by the Department employees involved in the original fitness determinations or by employees in positions at the same level of the Department’s organizational structure.(10)
A subject individual may not be denied under these rules due to the existence or contents of a juvenile record that has been expunged pursuant to ORS 419A.260 (Expunction) to 419A.262 (Expunction proceeding).
Source:
Rule 413-120-0440 — Circumstances in which a Criminal Records Check Must Occur and Types of Records Checks Required, https://secure.sos.state.or.us/oard/view.action?ruleNumber=413-120-0440.