GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2005
SESSION LAW 2005-114
HOUSE BILL 451
AN ACT to require criminal background checks for any individual eighteen years of age or older who resides in the household of a prospective adoptive parent, to expand the persons who are subject to criminal record checks by department of health and human services, and to make other conforming changes.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 48-3-309 reads as rewritten:
"§
48-3-309. Mandatory preplacement criminal checks of prospective adoptive
parents seeking to adopt a minor who is in the custody or placement
responsibility of a county department of social services.services and
mandatory preplacement criminal checks of all individuals 18 years of age or
older who reside in the prospective adoptive home.
(a) The Department shall
ensure that the criminal histories of all prospective adoptive parents seeking
to adopt a minor who is in the custody or placement responsibility of a county
department of social services and the criminal histories of all individuals
18 years of age or older who reside in the prospective adoptive home are
checked prior to placement and, based on the criminal history, a determination
is made as to the individual's fitness to have responsibility for the safety
and well-being of children. the prospective adoptive parent's fitness to
have responsibility for the safety and well-being of children and whether other
individuals required to be checked are fit for an adoptive child to reside with
them in the home. The Department shall ensure that all prospective
adoptive parents seeking to adopt a minor who is in the custody or placement
responsibility of a county department of social servicesindividuals
required to be checked are checked prior to placement for county, state,
and federal criminal histories.
(b) A county department
of social services may shall issue an unfavorable preplacement assessment
to a prospective adoptive parent if the county department of social services determines
determines, pursuant to G.S. 48-3-303(e) G.S. 48-3-303(e),
that the individual is unfit to have responsibility for the safety and well-being
of children based on the criminal history. that, based on the criminal
histories, the prospective adoptive parent is unfit to have responsibility for
the safety and well-being of children or other individuals required to be
checked are unfit for an adoptive child to reside with them in the home.
(c) The Department of
Justice shall provide to the Department of Health and Human Services the
criminal history of such a prospective adoptive parentany individual
required to be checked under subsection (a) of this section as requested by the
Department and obtained from the State and National Repositories of
Criminal Histories as requested by the Department.Histories. The
Department shall provide to the Department of Justice, along with the request,
the fingerprints of the prospective adoptive parentany individual
to be checked, any additional information required by the Department of
Justice, and a form consenting to the check of the criminal record and to the
use of fingerprints and other identifying information required by the State or
National Repositories signed by the individual to be checked. The fingerprints
of the prospective adoptive parentany individual to be checked
shall be forwarded to the State Bureau of Investigation for a search of the
State's criminal history record file, and the State Bureau of Investigation
shall forward a set of fingerprints to the Federal Bureau of Investigation for
a national criminal history record check.
(d) At the time of the
request for a preplacement assessment or at a subsequent time prior to
placement, a prospective adoptive parentany individual whose
criminal history is to be checked shall be furnished with a statement
substantially similar to the following:
"NOTICE
MANDATORY CRIMINAL HISTORY CHECK:
NORTH CAROLINA LAW REQUIRES THAT A CRIMINAL HISTORY CHECK BE CONDUCTED PRIOR TO
PLACEMENT ON PROSPECTIVE ADOPTIVE PARENTS SEEKING TO ADOPT A MINOR WHO IS IN
THE CUSTODY OR PLACEMENT RESPONSIBILITY OF A COUNTY DEPARTMENT OF SOCIAL SERVICES.SERVICES
AND ON ALL PERSONS 18 YEARS OF AGE OR OLDER WHO RESIDE IN THE PROSPECTIVE
ADOPTIVE HOME.
"Criminal history" means a
county, state, or federal criminal history of conviction or a pending
indictment of a crime, whether a misdemeanor or a felony, that bears upon a
prospective adoptive parent's fitness to have responsibility for the safety and
well- being of children and whether other individuals required to be
checked are fit for an adoptive child to reside with them in the home, an
individual's fitness to have responsibility for the safety and well-being of
children, including the following North Carolina crimes contained in any of
the following Articles of Chapter 14 of the General Statutes: Article 6,
Homicide; Article 7A, Rape and Kindred Offenses; Article 8, Assaults; Article
10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of
Explosive or Incendiary Device or Material; Article 26, Offenses Against Public
Morality and Decency; Article 27, Prostitution; Article 39, Protection of
Minors; Article 40, Protection of the Family; and Article 59, Public
Intoxication; violation of the North Carolina Controlled Substances Act,
Article 5 of Chapter 90 of the General Statutes, and alcohol-related offenses
such as sale to underage persons in violation of G.S. 18B-302 or driving
while impaired in violation of G.S. 20-138.1 through G.S. 20-138.5;
or similar crimes under federal law or under the laws of other states. Your
fingerprints will be used to check the criminal history records of the State
Bureau of Investigation (SBI) and the Federal Bureau of Investigation (FBI).
If it is determined, based on your
criminal history, that you are unfit to have responsibility for the safety and
well being of children,children or have an adoptive child reside with
you, you shall have the opportunity to complete, or challenge the accuracy
of, the information contained in the SBI or FBI identification records.
If you arethe prospective
adoptive parent is denied a favorable preplacement assessment by a county
department of social services as a result of the a criminal
history check,check as required under G.S. 48-3-309(a), you
the prospective adoptive parent may request a review of the
assessment pursuant to G.S. 48-3-308(a).
Any prospective adoptive parentperson
who intentionally falsifies any information required to be furnished to conduct
the criminal history is guilty of a Class 2 misdemeanor."
Refusal to consent to a criminal history check by any
individual required to be checked under G.S. 48-3-309(a) is grounds
for the issuance by a county department of social services of an unfavorable
preplacement assessment. Any prospective adoptive parentperson
who intentionally falsifies any information required to be furnished to conduct
the criminal history is guilty of a Class 2 misdemeanor.
(e) The Department shall
notify the prospective adoptive parent's supervising county department of
social services of the results of the criminal history check incheck.
In accordance with the federal and State law regulating the dissemination
of the contents of the criminal history file. Thefile, the
Department shall not release nor or disclose any portion of the
prospective adoptive parent'san individual's criminal history to the
prospective adoptive parent.prospective adoptive parent or any other
individual required to be checked. The Department Department,
however, shall also ensure that the prospective adoptive parent prospective
adoptive parent or any other individual required to be checked is notified
of the prospective adoptive parent'sindividual's right to review
the criminal history information, the procedure for completing or challenging
the accuracy of the criminal history, and the prospective adoptive parent's
right to contest the preplacement assessment of the county department of social
services.
A prospective adoptive parent who disagrees with the preplacement assessment of the county department of social services may request a review of the assessment pursuant to G.S. 48-3-308(a).
(f) All the information that the Department receives through the checking of the criminal history is privileged information and is not a public record but is for the exclusive use of the Department and those persons authorized under this section to receive the information. The Department may destroy the information after it is used for the purposes authorized by this section after one calendar year.
(g) There is no liability for negligence on the part of a State or local agency, or the employees of a State or local agency, arising from any action taken or omission by any of them in carrying out the provisions of this section. The immunity established by this subsection shall not extend to gross negligence, wanton conduct, or intentional wrongdoing that would otherwise be actionable. The immunity established by this subsection shall be deemed to have been waived to the extent of indemnification by insurance, indemnification under Article 31A of Chapter 143 of the General Statutes, and to the extent sovereign immunity is waived under the Tort Claims Act, as set forth in Article 31 of Chapter 143 of the General Statutes.
(h) The Department of Justice shall perform the State and national criminal history checks on prospective adoptive parents seeking to adopt a minor in the custody or placement responsibility of a county department of social services and all individuals 18 years of age or older who reside in the prospective adoptive home and shall charge the Department of Health and Human Services a reasonable fee only for conducting the checks of the national criminal history records authorized by this section. The Division of Social Services, Department of Health and Human Services, shall bear the costs of implementing this section."
SECTION 2. G.S. 48-3-303(d) reads as rewritten:
"(d) The agency shall
conduct an investigation for any criminal record as permitted by law. If a
prospective adoptive parent is seeking to adopt a minor who is in the custody
or placement responsibility of a county department of social services, a county
department of social services shall have the individual's prospective
adoptive parent's criminal history and the criminal histories of all
individuals 18 years of age or older who reside in the prospective adoptive
home investigated pursuant to G.S. 48-3-309, and based on the criminal
history, make a determination pursuant to subsection (e) of this section as
to the individual's fitness to have responsibility for the safety and well-being
of children. as to the prospective adoptive parent's fitness to have
responsibility for the safety and well-being of children and as to whether
other individuals required to be checked are fit for an adoptive child to
reside with them in the home."
SECTION 3. G.S. 114-19.7 reads as rewritten:
"§ 114-19.7.
Criminal record checks required prior to placement of prospective
adoptive parents seeking to adopt for adoption of a minor who is in
the custody or placement responsibility of a county
department of social services.
The Department of Justice may provide to the Division of
Social Services, Department of Health and Human Services, the criminal history
from the State and National Repositories of Criminal Histories as defined in
G.S. 48-1-101(5a). The Division shall provide to the Department of
Justice, along with the request, the fingerprints of the prospective
adoptive parent seeking to adopt a minor who is in the custody or placement
responsibility of a county department of social services,any individual
to be checked, any additional information required by the Department of
Justice, and a form consenting to the check of the criminal record and to the
use of fingerprints and other identifying information required by the State or
National Repositories signed by the individual to be checked. The fingerprints
of the prospective adoptive parentindividual shall be forwarded
to the State Bureau of Investigation for a search of the State's criminal
history record file, and the State Bureau of Investigation shall forward a set
of fingerprints to the Federal Bureau of Investigation for a national criminal
history record check. The Division shall keep all information pursuant to this
section privileged, as provided in G.S. 48-3-309(f). The Department of
Justice shall charge a reasonable fee only for conducting the checks of the
national criminal history records authorized by this section."
SECTION 4. G.S. 114-19.6(a)(1) reads as rewritten:
"(a) Definitions. - As used in this section, the term:
(1) "Covered
person" means:means any of the following:
a. An
applicant for employment or a current employee in a position in the
Department of Health and Human Services or the Department of Juvenile
Justice and Delinquency Prevention who provides direct care for a client,
patient, student, resident or ward of the Department; or Department.
b. Supervises
A person who supervises positions in the Department of Juvenile
Justice and Delinquency Prevention providing direct care as outlined in
sub-subdivision a. of this subdivision.for a client, patient, student,
resident or ward of the Department.
c. An applicant for employment or a current employee in a position in the Department of Health and Human Services.
d. An independent contractor or an employee of an independent contractor that has contracted to provide services to the Department of Health and Human Services.
e. A person who has been approved to perform volunteer services for the Department of Health and Human Services."
SECTION 5. This act becomes effective June 24, 2005.
In the General Assembly read three times and ratified this the 23rd day of June, 2005.
s/ Marc Basnight
President Pro Tempore of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ Michael F. Easley
Governor
Approved 3:39 p.m. this 27th day of June, 2005