62A-2-120 - Criminal background checks -- Direct access to children or vulnerable adults.
62A-2-120. Criminal background checks -- Direct access to children or vulnerableadults.
(1) (a) Except as provided in Subsection (7), an applicant for an initial license or alicense renewal under this chapter shall submit to the office the names and other identifyinginformation, which may include fingerprints, of all persons associated with the licensee, asdefined in Section 62A-2-101, with direct access to children or vulnerable adults.
(b) The Criminal Investigations and Technical Services Division of the Department ofPublic Safety, or the office as authorized under Section 53-10-108, shall process the informationdescribed in Subsection (1)(a) to determine whether the individual has been convicted of anycrime.
(c) Except as provided in Subsection (1)(d), if an individual has not continuously lived inUtah for the five years immediately preceding the day on which the information referred to inSubsection (1)(a) is submitted to the office, the individual shall submit fingerprints for a FBInational criminal history record check. The fingerprints shall be submitted to the FBI through theCriminal Investigations and Technical Services Division.
(d) An individual is not required to comply with Subsection (1)(c) if:
(i) the individual continuously lived in Utah for the five years immediately preceding theday on which the information described in Subsection (1)(a) is submitted to the office, except fortime spent outside of the United States and its territories; and
(ii) the background check of the individual is being conducted for a purpose other than apurpose described in Subsection (1)(f).
(e) If an applicant described in Subsection (1)(a) spent time outside of the United Statesand its territories during the five years immediately preceding the day on which the informationdescribed in Subsection (1)(a) is submitted to the office, the office shall require the applicant tosubmit documentation establishing whether the applicant was convicted of a crime during thetime that the applicant spent outside of the United States and its territories.
(f) Notwithstanding Subsections (1)(a) through (e), and except as provided in Subsection(1)(h), an applicant described in Subsection (1)(a) shall submit fingerprints for an FBI nationalcriminal history records check, through the Criminal Investigations and Technical ServicesDivision, if the background check of the applicant is being conducted for the purpose of:
(i) licensing a prospective foster home; or
(ii) approving a prospective adoptive placement of a child in state custody.
(g) Except as provided in Subsection (1)(h), in addition to the other requirements of thissection, if the background check of an applicant described in Subsection (1)(a) is beingconducted for the purpose of licensing a prospective foster home or approving a prospectiveadoptive placement of a child in state custody, the office shall:
(i) check the child abuse and neglect registry in each state where each prospective fosterparent or prospective adoptive parent resided in the five years immediately preceding the day onwhich the prospective foster parent or prospective adoptive parent applied to be a foster parent oradoptive parent, to determine whether the prospective foster parent or prospective adoptiveparent is listed in the registry as having a substantiated or supported finding of child abuse orneglect; and
(ii) check the child abuse and neglect registry in each state where each adult living in thehome of the prospective foster parent or prospective adoptive parent described in Subsection(1)(g)(i) resided in the five years immediately preceding the day on which the prospective foster
parent or prospective adoptive parent applied to be a foster parent or adoptive parent, todetermine whether the adult is listed in the registry as having a substantiated or supported findingof child abuse or neglect.
(h) The requirements under Subsections (1)(f) and (g) do not apply to the extent that:
(i) federal law or rule permits otherwise; or
(ii) the requirements would prohibit the Division of Child and Family Services or a courtfrom placing a child with:
(A) a noncustodial parent under Section 62A-4a-209, 78A-6-307, or 78A-6-307.5; or
(B) a relative, other than a noncustodial parent, under Section 62A-4a-209, 78A-6-307,or 78A-6-307.5, pending completion of the background check described in Subsections (1)(f) and(g).
(i) The office shall make rules, in accordance with Title 63G, Chapter 3, UtahAdministrative Rulemaking Act, to implement the provisions of this Subsection (1) relating tobackground checks.
(2) The office shall approve a person for whom identifying information is submittedunder Subsection (1) to have direct access to children or vulnerable adults in the licenseeprogram if:
(a) (i) the person is found to have no criminal history record; or
(ii) (A) the only convictions in the person's criminal history record are misdemeanors orinfractions not involving any of the offenses described in Subsection (3); and
(B) the date of the last conviction under Subsection (2)(a)(ii)(A) is more than five yearsbefore the date of the search;
(b) the person is not listed in the statewide database of the Division of Aging and AdultServices created by Section 62A-3-311.1;
(c) juvenile court records do not show that a court made a substantiated finding, underSection 78A-6-323, that the person committed a severe type of child abuse or neglect;
(d) the person is not listed in the Licensing Information System of the Division of Childand Family Services created by Section 62A-4a-1006;
(e) the person has not pled guilty or no contest to a pending charge for any:
(i) felony;
(ii) misdemeanor listed in Subsection (3); or
(iii) infraction listed in Subsection (3); and
(f) for a person described in Subsection (1)(g), the registry check described in Subsection(1)(g) does not indicate that the person is listed in a child abuse and neglect registry of anotherstate as having a substantiated or supported finding of a severe type of child abuse or neglect asdefined in Section 62A-4a-1002.
(3) Except as provided in Subsection (8), unless at least 10 years have passed since thedate of conviction, the office may not approve a person to have direct access to children orvulnerable adults in the licensee's human services program if that person has been convicted ofan offense, whether a felony, misdemeanor, or infraction, that is:
(a) identified as a sexual offense, domestic violence, lewdness, assault, or battery;
(b) a violation of any pornography law, including sexual exploitation of a minor;
(c) prostitution;
(d) included in:
(i) Title 76, Chapter 5, Offenses Against the Person;
(ii) Title 76, Chapter 5a, Sexual Exploitation of Children; or
(iii) Title 76, Chapter 7, Offenses Against the Family;
(e) a violation of Section 76-6-103, aggravated arson;
(f) a violation of Section 76-6-203, aggravated burglary;
(g) a violation of Section 76-6-302, aggravated robbery; or
(h) a conviction for an offense committed outside of the state that, if committed in thestate, would constitute a violation of an offense described in Subsections (3)(d) through (g).
(4) (a) Except as provided in Subsection (8), if a person for whom identifyinginformation is submitted under Subsection (1) is not approved by the office under Subsection (2)or (3) to have direct access to children or vulnerable adults in the licensee program, the officeshall conduct a comprehensive review of criminal and court records and related circumstances ifthe reason the approval is not granted is due solely to one or more of the following:
(i) a conviction for:
(A) any felony not listed in Subsection (3);
(B) any misdemeanor or infraction, not listed in Subsection (3), within five years of thedate of the search;
(C) a protective order or ex parte protective order violation under Section 76-5-108 or asimilar statute in another state; or
(D) any felony, misdemeanor, or infraction listed in Subsection (3) if at least 10 yearshave passed since the date of conviction;
(ii) a plea of guilty or no contest to a pending:
(A) felony;
(B) misdemeanor listed in Subsection (3); or
(C) infraction listed in Subsection (3);
(iii) the person is listed in the statewide database of the Division of Aging and AdultServices created by Section 62A-3-311.1;
(iv) juvenile court records show that a court made a substantiated finding, under Section78A-6-323, that the person committed a severe type of child abuse or neglect;
(v) the person is listed in the Licensing Information System of the Division of Child andFamily Services created by Section 62A-4a-1006; or
(vi) the person is listed in a child abuse or neglect registry of another state as having asubstantiated or supported finding of a severe type of child abuse or neglect as defined in Section62A-4a-1002.
(b) The comprehensive review under Subsection (4)(a) shall include an examination of:
(i) the date of the offense or incident;
(ii) the nature and seriousness of the offense or incident;
(iii) the circumstances under which the offense or incident occurred;
(iv) the age of the perpetrator when the offense or incident occurred;
(v) whether the offense or incident was an isolated or repeated incident;
(vi) whether the offense or incident directly relates to abuse of a child or vulnerableadult, including:
(A) actual or threatened, nonaccidental physical or mental harm;
(B) sexual abuse;
(C) sexual exploitation; and
(D) negligent treatment;
(vii) any evidence provided by the person of rehabilitation, counseling, or psychiatrictreatment received, or additional academic or vocational schooling completed, by the person; and
(viii) any other pertinent information.
(c) At the conclusion of the comprehensive review under Subsection (4)(a), the officeshall approve the person who is the subject of the review to have direct access to children orvulnerable adults, unless it finds that approval will likely create a risk of harm to a child orvulnerable adult.
(d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, theoffice may make rules, consistent with this chapter, defining procedures for the comprehensivereview described in this Subsection (4).
(5) (a) For purposes of this Subsection (5), "directly supervised" means that the personbeing supervised is under the uninterrupted visual and auditory surveillance of the person doingthe supervising.
(b) A licensee may not permit any person to have direct access to a child or a vulnerableadult unless, subject to Subsection (5)(c), that person is:
(i) associated with the licensee and:
(A) approved by the office to have direct access to children or vulnerable adults underthis section; or
(B) (I) the office has not determined whether to approve that person to have direct accessto children or vulnerable adults;
(II) the information described in Subsection (1)(a), relating to that person, is submitted tothe department; and
(III) that person is directly supervised by a person associated with the licensee who isapproved by the office to have direct access to children or vulnerable adults under this section;
(ii) (A) not associated with the licensee; and
(B) directly supervised by a person associated with the licensee who is approved by theoffice to have direct access to children or vulnerable adults under this section;
(iii) the parent or guardian of the child or vulnerable adult; or
(iv) a person approved by the parent or guardian of the child or vulnerable adult to havedirect access to the child or vulnerable adult.
(c) Notwithstanding Subsection (5)(b), a person may not have direct access to a child or avulnerable adult if that person is prohibited by court order from having that access.
(6) (a) Within 30 days after receiving the identifying information for a person underSubsection (1), the office shall give written notice to the person and to the licensee or applicantwith whom the person is associated of:
(i) the office's decision regarding its background screening clearance and findings; and
(ii) a list of any convictions found in the search.
(b) With the notice described in Subsection (6)(a), the office shall also give to the personthe details of any comprehensive review conducted under Subsection (4).
(c) If the notice under Subsection (6)(a) states that the person is not approved to havedirect access to children or vulnerable adults, the notice shall further advise the persons to whomthe notice is given that either the person or the licensee or applicant with whom the person isassociated, or both, may, under Subsection 62A-2-111(2), request a hearing in the department'sOffice of Administrative Hearings, to challenge the office's decision.
(d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
office shall make rules, consistent with this chapter:
(i) defining procedures for the challenge of its background screening decision describedin this Subsection (6); and
(ii) expediting the process for renewal of a license under the requirements of this sectionand other applicable sections.
(7) Notwithstanding Subsection (1)(a), this section does not apply to an applicant for aninitial license, or license renewal, to operate a substance abuse program that provides services toadults only.
(8) (a) Notwithstanding Subsections (2) through (4), the office may not approve orlicense a person as a prospective foster parent or a prospective adoptive parent if the person hasbeen convicted of:
(i) a felony involving conduct that constitutes any of the following:
(A) child abuse, as described in Section 76-5-109;
(B) commission of domestic violence in the presence of a child, as described in Section76-5-109.1;
(C) abuse or neglect of a disabled child, as described in Section 76-5-110;
(D) endangerment of a child, as described in Section 76-5-112.5;
(E) aggravated murder, as described in Section 76-5-202;
(F) murder, as described in Section 76-5-203;
(G) manslaughter, as described in Section 76-5-205;
(H) child abuse homicide, as described in Section 76-5-208;
(I) homicide by assault, as described in Section 76-5-209;
(J) kidnapping, as described in Section 76-5-301;
(K) child kidnapping, as described in Section 76-5-301.1;
(L) aggravated kidnapping, as described in Section 76-5-302;
(M) an offense described in Title 76, Chapter 5, Part 4, Sexual Offenses;
(N) an offense described in Title 76, Chapter 5a, Sexual Exploitation of Children;
(O) aggravated arson, as described in Section 76-6-103;
(P) aggravated burglary, as described in Section 76-6-203;
(Q) aggravated robbery, as described in Section 76-6-302; or
(R) domestic violence, as described in Section 77-36-1; or
(ii) an offense committed outside the state that, if committed in the state, wouldconstitute a violation of an offense described in Subsection (8)(a)(i).
(b) Notwithstanding Subsections (2) through (4), the office may not approve or license aperson as a prospective foster parent or a prospective adoptive parent if, within the five yearsimmediately preceding the day on which the person would otherwise be approved or licensed, theperson has been convicted of a felony involving conduct that constitutes any of the following:
(i) aggravated assault, as described in Section 76-5-103;
(ii) aggravated assault by a prisoner, as described in Section 76-5-103.5;
(iii) mayhem, as described in Section 76-5-105;
(iv) an offense described in Title 58, Chapter 37, Utah Controlled Substances Act;
(v) an offense described in Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
(vi) an offense described in Title 58, Chapter 37b, Imitation Controlled Substances Act;
(vii) an offense described in Title 58, Chapter 37c, Utah Controlled Substance PrecursorAct; or
(viii) an offense described in Title 58, Chapter 37d, Clandestine Drug Lab Act.
(9) If any provision of this section conflicts with a provision of Section 62A-2-120.5, theconflicting provision of Section 62A-2-120.5 shall govern.
Amended by Chapter 365, 2010 General Session