§ 131D-10.3A. Mandatory criminal checks.
§ 131D‑10.3A. Mandatorycriminal checks.
(a) Effective January1, 1996, in order to ensure the safety and well‑being of any child placedfor foster care in a home, the Department shall ensure that the criminalhistories of all foster parents, individuals applying for licensure as fosterparents, and individuals 18 years of age or older who reside in a family fosterhome, are checked and, based on the criminal history check, a determination ismade as to whether the foster parents, and other individuals required to bechecked, are fit for a foster child to reside with them in the home. TheDepartment shall ensure that, as of the effective date of this Article, allindividuals required to be checked are checked for county, state, and federalcriminal histories.
(b) The Departmentshall ensure that all individuals who are required to be checked pursuant tosubsection (a) of this section are checked upon relicensure for county andState criminal histories.
(c) The Departmentshall prohibit an individual from providing foster care by denying or revokingthe license to provide foster care if an individual required to submit to acriminal history check pursuant to subsection (a) of this section has acriminal history. The Department may prohibit an individual from providingfoster care by denying or revoking the license to provide foster care if theDepartment determines that the safety and well being of a child placed in thehome for foster care would be at risk based on other criminal convictions,whether felony or misdemeanor.
(d) The Department ofJustice shall provide to the Department the criminal history of the individualsspecified in subsection (a) of this section obtained from the State andNational Repositories of Criminal Histories as requested by the Department. TheDepartment shall provide to the Department of Justice, along with the request,the fingerprints of the individual to be checked, any additional informationrequired by the Department of Justice, and a form consenting to the check ofthe criminal record and to the use of fingerprints and other identifyinginformation required by the State or National Repositories signed by theindividual to be checked. The fingerprints of the individual to be checkedshall be forwarded to the State Bureau of Investigation for a search of theState's criminal history record file, and the State Bureau of Investigationshall forward a set of fingerprints to the Federal Bureau of Investigation fora national criminal history record check.
(e) At the time ofapplication, the individual whose criminal history is to be checked shall befurnished with a statement substantially similar to the following:
"NOTICE
MANDATORY CRIMINAL HISTORY CHECK
NORTH CAROLINA LAW REQUIRES THAT A CRIMINAL HISTORYCHECK BE CONDUCTED ON ALL PERSONS 18 YEARS OF AGE OR OLDER WHO RESIDE IN ALICENSED FAMILY FOSTER HOME.
"Criminal history" includes any county,State, and federal conviction of a felony by a court of competent jurisdictionor pending felony indictment of a crime for child abuse or neglect, spousalabuse, a crime against a child, including child pornography, or for a crimeinvolving violence, including rape, sexual assault, or homicide, other thanphysical assault or battery; a county, State, or federal conviction of a felonyby a court of competent jurisdiction or a pending felony indictment forphysical assault, battery, or a drug related offense, if the offense wascommitted within the past five years; or similar crimes under federal law orunder the laws of other states. Your fingerprints will be used to check thecriminal history records of the State Bureau of Investigation (SBI) and theFederal Bureau of Investigation (FBI).
If it is determined, based on your criminal history,that you are unfit to have a foster child reside with you, you shall have theopportunity to complete or challenge the accuracy of the information containedin the SBI or FBI identification records.
If licensure is denied or the foster home license isrevoked by the Department of Health and Human Services as a result of thecriminal history check, if you are a foster parent, or are applying to become afoster parent, you may request a hearing pursuant to Article 3 of Chapter 150Bof the General Statutes, the Administrative Procedure Act.
Any person who intentionally falsifies any informationrequired to be furnished to conduct the criminal history is guilty of a Class 2misdemeanor."
Refusal to consent to acriminal history check is grounds for the Department to deny or revoke alicense to provide foster care. Any person who intentionally falsifies anyinformation required to be furnished to conduct the criminal history is guiltyof a Class 2 misdemeanor.
(f) The Departmentshall notify in writing the foster parent and any person applying to belicensed as a foster parent, and that individual's supervising agency of thedetermination by the Department of whether the foster parent is qualified toprovide foster care based on the criminal history of all individuals requiredto be checked. In accordance with the law regulating the dissemination of thecontents of the criminal history file furnished by the Federal Bureau ofInvestigation, the Department shall not release nor disclose any portion of anindividual's criminal history to the foster parent or any other individualrequired to be checked. The Department shall also notify the individual of theindividual's right to review the criminal history information, the procedurefor completing or challenging the accuracy of the criminal history, and thefoster parent's right to contest the Department's determination.
A foster parent who disagreeswith the Department's decision may request a hearing pursuant to Chapter 150Bof the General Statutes, the Administrative Procedure Act.
(g) All the informationthat the Department receives through the checking of the criminal history isprivileged information and is not a public record but is for the exclusive useof the Department and those persons authorized under this section to receivethe information. The Department may destroy the information after it is usedfor the purposes authorized by this section after one calendar year.
(h) There is noliability for negligence on the part of a supervising agency, or a State orlocal agency, or the employees of a State or local agency, arising from anyaction taken or omission by any of them in carrying out the provisions of thissection. The immunity established by this subsection shall not extend to grossnegligence, wanton conduct, or intentional wrongdoing that would otherwise be actionable.The immunity established by this subsection shall be deemed to have been waivedto the extent of indemnification by insurance, indemnification under Article31A of Chapter 143 of the General Statutes, and to the extent sovereignimmunity is waived under the Torts Claim Act, as set forth in Article 31 ofChapter 143 of the General Statutes.
(i) The Department ofJustice shall perform the State and national criminal history checks onindividuals required by this section and shall charge the Department areasonable fee only for conducting the checks of the national criminal historyrecords authorized by this section. The Division of Social Services, Departmentof Health and Human Services, shall bear the costs of implementing thissection. (1995,c. 507, s. 23.26(b); 1997‑140, s. 2; 1997‑443, ss. 11A.89,11A.118(a); 2003‑304, s. 4; 2007‑276, ss. 12, 13.)