This procedure letter provides updates to public children services agencies (PCSAs), private child placing agencies (PCPAs) and private noncustodial agencies (PNAs) on the disqualifying criminal offenses for a foster caregiver.

Through the Adam Walsh Act, Congress enacted legislation tying federal funds to a requirement that states screen foster and adoptive applicants for felony convictions for spousal abuse, rape, sexual assault, or homicide and disapprove any applicant with such a conviction. On April 1, 2010, ODJFS amended two rules to specifically address the requirements of the federal law. The language of the foster caregiver rule, Ohio Administrative Code (OAC) 5101:2-7-02(K), now reads as follows:

If any of the following have a felony conviction for spousal abuse, rape, sexual assault, or homicide, the foster home shall not be certified and no rehabilitation standards exist for:

(1)An adult resident in the household of a foster caregiver or applicant.

(2)A foster caregiver.

(3)A foster care applicant.

Regarding adoptive parents, OAC 5101:2-48-10(D)(2), now states "…If a person has a felony conviction for spousal abuse, rape, sexual assault, or homicide, the home shall not be approved. "

First, it needs to be acknowledged that not all of the offenses listed in both OAC 5101:2-7-02(K) and 5101:2-48-10(D) are found verbatim in Ohio's criminal code. For example, Ohio doesn't have a specific "spousal abuse" offense and there is no specific "homicide" offense, but rather all homicide offenses are grouped together and are identified by a specific term based on the nature of the crime. The language in the rule mirrors the federal language. There is no way to indicate a corresponding ORC code violation as the federal language is vague. Each agency will need to apply the language accordingly.

The plain language of the rules, 5101:2-7-02(K) and 5101:2-48-10(D) (2), leads to the conclusion that a felony conviction of what amounts to spousal abuse, rape, sexual assault or homicide by a currently certified foster caregiver, a foster care applicant, a prospective adoption parent, or a currently approved adoptive parent (or adult resident in the home of any of the above) prohibits that individual or home from further certification or approval.

The foster caregiver rule, OAC 5101:2-7-02, explicitly states that neither applicants nor foster caregivers shall be certified. For adoptive parents, OAC 5101:2-48-10 states that for persons with such felony convictions, the home shall not be approved. This language indicates that revocation is appropriate whenever the agency discovers a foster caregiver has one of these felony convictions. Approved adoptive parents must be denied whenever the agency discovers the adoptive parent has one of these felony convictions.

A review of the statutes relating to foster caregivers with criminal offenses shows that the General Assembly meant for these prohibitions to apply to both applicants and currently certified foster caregivers. Ohio Revised Code (ORC) 5103.0328 states that if a recommending agency receives notice from ODJFS or learns in any other manner that a foster caregiver has been convicted of or pleaded guilty to any foster caregiver-disqualifying offense (as defined in ORC 2151.86(C)), that agency must assess the overall situation for safety concerns and forward any recommendations, if applicable, for revoking the foster certification to ODJFS for review for possible revocation. ORC 2151.86 indicates that the disqualifying offenses are the same as those found in ORC 109.572(A) (8), and authorizes ODJFS to promulgate rules creating rehabilitative standards for those individuals with prohibitive offenses. However, ODJFS has established, through the two rules at issue here, that there are no rehabilitation standards for those individuals with offenses listed in 5101:2-7-02(K) and 5101:2-48-10(D) (2) and therefore they can never be foster caregivers or adoptive parents.

When an agency discovers a foster caregiver has a felony conviction for one of the specified offenses, the agency must forward a recommendation to ODJFS for revocation based upon OAC 5101:2-7-02(K). For adoptive parents, who have an approved homestudy, with such a conviction of one of the adoptive parents, the agency must complete an addendum to the homestudy and disapprove the adoptive parent. This is true regardless of when the conviction occurred.

When ODJFS receives a recommendation from an agency under 5101:2-7-02(K), the ODJFS enforcement coordinator will review the recommendation, with the assistance of the Office of Legal and Acquisition Services, to determine whether revocation is required under the rule and will take the appropriate steps to revoke the certification, if necessary.

Anyone with questions regarding this procedure letter may contact the OCF Help Desk at 1-866-886-3537, option 4.

INSTRUCTIONS:

The following chart shows what materials should be inserted into the Family, Children and Adult Services Manual (FCASM).