§ 62A-2-120. Criminal background checks -- Direct access to children or vulnerable adults.

(1)

(a)

(i) Except as provided in Subsection (7), an applicant for an initial license or a license renewal under this chapter shall submit to the office the names and other identifying information, which may include fingerprints, of all persons associated with the licensee, as defined in Section 62A-2-101, with direct access to children or vulnerable adults.

(ii) Except as provided in Subsection (7), a licensee who has been issued a renewal license for a 24-month period under Subsection 62A-2-108(4)(c) shall submit to the office all the information described in Subsection (1)(a)(i) on an annual basis.

(b) The Criminal Investigations and Technical Services Division of the Department of Public Safety, or the office as authorized under Section 53-10-108, shall process the information described in Subsection (1)(a) to determine whether the applicant has been convicted of any crime.

(c) Except as provided in Subsection (1)(d), if an applicant has not continuously lived in Utah for the five years immediately preceding the day on which the information referred to in Subsection (1)(a) is submitted to the office, the applicant shall submit fingerprints for a FBI national criminal history record check. The fingerprints shall be submitted to the FBI through the Criminal Investigations and Technical Services Division.

(d) An applicant is not required to comply with Subsection (1)(c) if:

(i) the applicant continuously lived in Utah for the five years immediately preceding the day on which the information described in Subsection (1)(a) is submitted to the office, except for time spent outside of the United States and its territories; and

(ii) the background check of the applicant is being conducted for a purpose other than a purpose described in Subsection (1)(f).

(e) If an applicant described in Subsection (1)(a) spent time outside of the United States and its territories during the five years immediately preceding the day on which the information described in Subsection (1)(a) is submitted to the office, the office shall require the applicant to submit documentation establishing whether the applicant was convicted of a crime during the time 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 national criminal history records check, through the Criminal Investigations and Technical Services Division, 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 this section, if the background check of an applicant described in Subsection (1)(a) is being conducted for the purpose of licensing a prospective foster home or approving a prospective adoptive placement of a child in state custody, the office shall:

(i) check the child abuse and neglect registry in each state where each applicant resided in the five years immediately preceding the day on which the applicant applied to be a foster parent or adoptive parent, to determine whether the prospective foster parent or prospective adoptive parent is listed in the registry as having a substantiated or supported finding of child abuse or neglect; and

(ii) check the child abuse and neglect registry in each state where each adult living in the home of the applicant described in Subsection (1)(g)(i) resided in the five years immediately preceding the day on which the applicant applied to be a foster parent or adoptive parent, to determine whether the adult is listed in the registry as having a substantiated or supported finding of 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 court from 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, Utah Administrative Rulemaking Act, to implement the provisions of this Subsection (1) relating to background checks.

(2) The office shall approve an applicant for whom identifying information is submitted under Subsection (1) to have direct access to children or vulnerable adults in the licensee program if:

(a)

(i) the applicant is found to have no criminal history record; or

(ii)

(A) the only convictions in the applicant's criminal history record are misdemeanors or infractions 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 years before the date of the search;

(b) the applicant is not listed in the statewide database of the Division of Aging and Adult Services created by Section 62A-3-311.1;

(c) juvenile court records do not show that a court made a substantiated finding, under Section 78A-6-323, that the applicant committed a severe type of child abuse or neglect;

(d) the applicant is not listed in the Licensing Information System of the Division of Child and Family Services created by Section 62A-4a-1006;

(e) the applicant 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 an applicant described in Subsection (1)(g), the registry check described in Subsection (1)(g) does not indicate that the applicant is listed in a child abuse and neglect registry of another state as having a substantiated or supported finding of a severe type of child abuse or neglect as defined in Section 62A-4a-1002.

(3) Except as provided in Subsection (8), unless at least 10 years have passed since the date of conviction, the office may not approve an applicant to have direct access to children or vulnerable adults in the licensee's human services program if the applicant has been convicted of an 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) Section 76-5b-201, Sexual Exploitation of a Minor; 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 the state, would constitute a violation of an offense described in Subsections (3)(d) through (g).

(4)

(a) Except as provided in Subsection (8), if an applicant for whom identifying information 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 office shall conduct a comprehensive review of criminal and court records and related circumstances if the 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 the date of the search;

(C) a protective order or ex parte protective order violation under Section 76-5-108 or a similar statute in another state; or

(D) any felony, misdemeanor, or infraction listed in Subsection (3) if at least 10 years have 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 applicant is listed in the statewide database of the Division of Aging and Adult Services created by Section 62A-3-311.1;

(iv) juvenile court records show that a court made a substantiated finding, under Section 78A-6-323, that the applicant committed a severe type of child abuse or neglect;

(v) the applicant is listed in the Licensing Information System of the Division of Child and Family Services created by Section 62A-4a-1006; or

(vi) the applicant is listed in a child abuse or neglect registry of another state as having a substantiated or supported finding of a severe type of child abuse or neglect as defined in Section 62A-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 vulnerable adult, 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 psychiatric treatment 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 office shall approve the applicant who is the subject of the review to have direct access to children or vulnerable adults, unless it finds that approval will likely create a risk of harm to a child or vulnerable adult.

(d) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the office may make rules, consistent with this chapter, defining procedures for the comprehensive review described in this Subsection (4).

(5)

(a) For purposes of this Subsection (5), "directly supervised" means that the person being supervised is under the uninterrupted visual and auditory surveillance of the person doing the supervising.

(b) A licensee may not permit any person to have direct access to a child or a vulnerable adult 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 under this section; or

(B)

(I) the office has not determined whether to approve that person to have direct access to children or vulnerable adults;

(II) the information described in Subsection (1)(a), relating to that person, is submitted to the department; and

(III) that person is directly supervised by a person associated with the licensee who is approved 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 the office 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 have direct access to the child or vulnerable adult.

(c) Notwithstanding Subsection (5)(b), a person may not have direct access to a child or a vulnerable 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 under Subsection (1), the office shall give written notice to the person and to the licensee or applicant with 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 the applicant the details of any comprehensive review conducted under Subsection (4).

(c) If the notice under Subsection (6)(a) states that the applicant is not approved to have direct access to children or vulnerable adults, the notice shall further advise the persons to whom the notice is given that either the person or the licensee or applicant with whom the person is associated, or both, may, under Subsection 62A-2-111(2), request a hearing in the department's Office 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 described in this Subsection (6); and

(ii) expediting the process for renewal of a license under the requirements of this section and other applicable sections.

(7) Notwithstanding Subsection (1)(a), this section does not apply to an applicant for an initial license, or license renewal, to operate a substance abuse program that provides services to adults only.

(8)

(a) Notwithstanding Subsections (2) through (4), the office may not approve or license a person as a prospective foster parent or a prospective adoptive parent if the person has been 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 Section 76-5-109.1;

(C) abuse or neglect of a child with a disability, 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 Section 76-5b-201, Sexual Exploitation of a Minor;

(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, would constitute a violation of an offense described in Subsection (8)(a)(i).

(b) Notwithstanding Subsections (2) through (4), the office may not approve or license a person as a prospective foster parent or a prospective adoptive parent if, within the five years immediately preceding the day on which the person would otherwise be approved or licensed, the person 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 Precursor Act; 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, the conflicting provision of Section 62A-2-120.5 shall govern.

Amended by Chapter 293, 2012 General Session
Amended by Chapter 302, 2012 General Session