C.R.S. § 26-6-910: Certification and annual recertification of foster care homes and kinship foster care homes by county departments and licensed child placement agencies - background and reference check requirements - rules - definition.

(1) This section applies to a foster care home, including a kinship foster care home, certified by a county department or a licensed child placement agency. Except as otherwise provided in subsection (4) of this section, this section does not apply to a foster care home that is licensed by the state department pursuant to the requirements of section 26-6-905 and that does not receive money from a county or a child or youth placed by a county. A foster care home licensed by the state department must undergo all of the background checks and requirements set forth in section 26-6-905 or as otherwise stated in this part 9.

(2) A person operating a foster care home or kinship foster care home shall obtain a certificate to operate the home from a county department or a child placement agency licensed pursuant to this part 9. A certificate is considered a license for the purpose of this part 9, including, but not limited to, the investigation and criminal history background checks required pursuant to this section, section 26-6-912, or section 19-3-406 (5) specific to a kinship foster care home. Each certificate must be in the form prescribed and provided by the state department, certify that the person operating the foster care home is a suitable person to operate a foster care home or kinship foster care home or provide care for a child or youth, and contain any other information that the state department requires. A child placement agency issuing or renewing the certificate shall notify the state department about the certification in a method and time frame as set by rule adopted by the state board.

(3) A foster care home or kinship foster care home, when certified by a county department or licensed child placement agency, may receive for care a child from a source other than the certifying county department or child placement agency upon the written consent and approval of the certifying county department or child placement agency.

(4) A county department or licensed child placement agency may certify a facility as a foster care home that is also licensed as a family child care home, as defined in section 26.5-5-303, by the department of early childhood so long as the licensure and certification are provided by two separate licensing entities.

(5) Prior to issuing a certificate to an applicant to operate a foster care home or a kinship foster care home, a county department or a child placement agency licensed pursuant to the provisions of this part 9 shall conduct the following background checks and fingerprint-based criminal history record checks for the applicant for a certificate, a person employed by the applicant, or a person who resides at the facility or the home:

(a) An initial submission of a fingerprint-based criminal history record check through the Colorado bureau of investigation for a check of state records, and thereafter a submission to the federal bureau of investigation for a national criminal history record check to determine if the applicant, employee, or a person who resides at the facility or the foster care home has been convicted of:

(I) Child abuse, as specified in section 18-6-401;

(II) A crime of violence, as defined in section 18-1.3-406;

(III) An offense involving unlawful sexual behavior, as defined in section 16-22-102 (9);

(IV) A felony, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3;

(V) A felony involving physical assault, battery, or a drug-related offense within the five years preceding the date of application for a certificate;

(VI) A pattern of misdemeanor convictions, as defined by rule of the state board, within the ten years preceding the date of the application for the certificate; or

(VII) An offense in another state, the elements of which are substantially similar to the elements of any one of the offenses described in subsections (5)(a)(I) to (5)(a)(VI) of this section;

(b) A check of the ICON system at the state judicial department to determine the status or disposition of any criminal charges brought against the applicant, the employee, or a person who resides at the facility or the home that were identified by the fingerprint-based criminal history record check through the Colorado bureau of investigation;

(c) A check of the state department's automated database for information to determine if the person, employee, or person who resides at the facility or the home has been identified as having a finding of child abuse or neglect and whether the finding has been determined to present an unsafe placement for a child;

(d) A check against the state's sex offender registry and against the national sex offender public registry operated by the United States department of justice that checks names and addresses in the registries and the interactive database system for Colorado to determine if the applicant, employee, or person who resides at the facility or the home is a registered sex offender; and

(e) When the results of a fingerprint-based criminal history record check or any other record check performed pursuant to this subsection (5) reveal a record of arrest without a disposition, the county department, state department, or licensed child placement agency shall require the person to submit to a name-based judicial record check, as defined in section 22-2-119.3 (6)(d). Results received by the state department from the federal bureau of investigation that require additional investigation due to a record of arrest without a disposition must only be disclosed to and discussed with the subject of the fingerprint-based criminal history record check. All judicial record information received as a result of the further investigation must be kept confidential and not shared with a licensed child placement agency or with a person not authorized to receive criminal justice information. The child placement agency or non-authorized person must only receive information provided in the general information letter containing eligibility status.

(f) A fingerprint-based criminal history record check through the Colorado bureau of investigation and the federal bureau of investigation to determine if the applicant, employee, or a person who resides in the kinship foster care home has been convicted of any offense described in section 19-3-406 (5), as "conviction" is defined in section 19-3-406 (12).

(5.3) (a) The Colorado bureau of investigation shall send records obtained as a result of a fingerprint-based criminal history record check conducted pursuant to this section only to the county department or state department, and the use and handling of the information must comply with the federal criminal justice information services security policy and federal bureau of investigation's requirements surrounding the handling of criminal history record check information. A fingerprint-based criminal history record check conducted pursuant to this section is for child placement only. A private entity is never authorized to receive criminal history record check information. Information regarding the result of the fingerprint-based criminal history record check received from the federal bureau of investigation and released to facility, agency, or county department staff not authorized to receive criminal history record check information must disclose only whether the applicant is eligible or ineligible, or that the investigation is inconclusive, with a further request for the applicant to contact the state department to provide further information to determine final eligibility status.

(b) As a private entity, a child placement agency is not authorized to receive criminal history record information from the federal bureau of investigation.

(5.5) Prior to issuing a certificate to an applicant to operate a kinship foster care home pursuant to this part 9 and rules adopted by the state board, a county department, state department, or a child placement agency shall conduct a fingerprint-based criminal history record check through the Colorado bureau of investigation pursuant to section 19-3-406 or 26-6-910. The applicant shall pay, unless otherwise paid by a county department or a child placement agency, the costs associated with the fingerprint-based criminal history record check to the Colorado bureau of investigation.

(6) A county department or a child placement agency licensed pursuant to this part 9 shall not issue a certificate to operate, or a recertification to operate, a foster care home or kinship foster care home and shall revoke or suspend a certificate if the applicant for the certificate, a person employed by the applicant, or a person who resides at the facility or home:

(a) Has been convicted of any of the crimes listed in subsection (5)(a) of this section for a foster care home, or has been convicted of any crime listed in section 19-3-406 (5) for a kinship foster care home, as verified through a fingerprint-based criminal history record check, a name-based judicial record check, if necessary, and a check of the ICON system at the state judicial department;

(b) Has been identified as having a finding of child abuse or neglect through a check of the state department's automated database and such finding has been determined to present an unsafe placement for a child;

(c) Is a registered sex offender in the sex offender registry created pursuant to section 16-22-110 or is a registered sex offender in another state as determined by a check of the national sex offender public registry operated by the United States department of justice; except that this provision does not apply to an adult resident who has been placed in the foster care facility or home for treatment under an adult child waiver. The sex offender registry checks must check the known names and addresses of the applicant, employee, or a person who resides at the facility or the home in the interactive database system for Colorado and in the national sex offender public registry against all of the registrant's known names and addresses.

(7) As used in this section, "convicted" means a conviction by a jury or by a court and includes a deferred judgment and sentence agreement, a deferred prosecution agreement, a deferred adjudication agreement, an adjudication, or a plea of guilty or nolo contendere; except that this does not apply to a diversion or deferral or plea for a juvenile who participated in diversion, as defined in section 19-2.5-102, and does not apply to a diversion or deferral or plea for a person who participated in and successfully completed the child abuse and child neglect diversion program, as described in section 19-3-310.

(8) (a) The convictions identified in subsections (5)(a) and (6)(a) of this section, and in section 19-3-406 for a kinship foster care home, must be determined according to the records of the Colorado bureau of investigation or the federal bureau of investigation and the ICON system at the state judicial department. The screening request in Colorado must be made pursuant to section 19-1-307 (2)(k.5), rules promulgated by the state board pursuant to section 19-3-313.5, and 42 U.S.C. sec. 671 (a)(20). A certified copy of the judgment of a court of competent jurisdiction of the conviction, deferred judgment and sentence agreement, deferred prosecution agreement, or deferred adjudication agreement is prima facie evidence of a conviction or agreement.

(b) The county department or licensed child placement agency shall not issue a certificate to operate a foster care home if the state department or the county department has a certified court order from another state indicating that the person applying for the certificate:

(I) Has been convicted of child abuse or any unlawful sexual offense against a child under a law of another state or the United States, the elements of which are substantially similar to the elements of any of the offenses described in subsections (5)(a)(I) to (5)(a)(VI) of this section; or

(II) Has entered into a deferred judgment or deferred prosecution agreement in another state as to child abuse or any sexual offense against a child, the elements of which are substantially similar to the elements of any of the offenses described in subsections (5)(a)(I) to (5)(a)(VI) of this section.

(c) The county department or licensed child placement agency shall not issue a certificate to operate a kinship foster care home if the state department or county department has a certified court order from another state indicating that the person applying for the certificate:

(I) Has been convicted of felony child abuse or any unlawful sexual offense against a child under a law of another state or the United States, the elements of which are substantially similar to the elements of any of the offenses described in section 19-3-406 (5); or

(II) Has entered into a deferred judgment or deferred prosecution agreement in another state as to felony child abuse or any sexual offense against a child, the elements of which are substantially similar to the elements of any of the offenses described in section 19-3-406 (5).

(9) Notwithstanding any other provision of this part 9, a person shall not operate a foster care home or kinship foster care home that is certified by a county department or by a licensed child placement agency if the person is a relative of an employee of the child welfare division or unit of the county department certifying the foster care home or kinship foster care home or a relative of an owner, officer, executive, member of the governing board, or employee of the child placement agency certifying the foster care home or kinship foster care home. If the person files an application with a county department or a child placement agency that would violate this subsection (9) by certifying the foster care home or kinship foster care home, the county department or child placement agency shall refer the application to another county department or child placement agency. Unless otherwise prohibited, the county department or child placement agency to which the application is referred may certify and supervise a foster care home or kinship foster care home operated by the person. The county department that referred the application may place a child in the county-certified foster care home or kinship foster care home upon written agreement of the two county departments.

(10) Notwithstanding any other provision of this part 9, an owner, officer, executive, member of the governing board, or employee of a child placement agency licensed pursuant to this part 9 or a relative of said owner, officer, executive, member, or employee, shall not hold a beneficial interest in property operated or intended to be operated as a foster care home or kinship foster care home when the property is certified by the child placement agency as a foster care home or kinship foster care home.

(11) A county department or licensed child placement agency may issue a one-time provisional certificate for a period of six months to an applicant for an original certificate that permits the applicant to operate a foster care home or kinship foster care home if the applicant is temporarily unable to conform to all of the standards required pursuant to this part 9 upon proof by the applicant that the applicant is attempting to conform to the standards or to comply with any other requirements. The applicant has a right to appeal to the state department any standard that the applicant believes presents an undue hardship or has been applied too stringently by the county department or licensed child placement agency. Upon the filing of an appeal, the state department shall proceed in the manner prescribed for licensee appeals in section 26-6-909 (4).

(12) A county department or child placement agency shall issue a one-time provisional certificate at a location for a kinship foster care home for a period of six months upon the applicant's request and the successful completion of a fingerprint-based criminal history record check. The one-time provisional certificate permits the applicant to operate the kinship foster care home if the applicant is temporarily unable to conform to all required standards. This is an exception to subsection (11) of this section, which allows the use of provisional certificates. The state department shall promulgate rules for the operation of this subsection (12).

(13) The state board shall promulgate rules to modify the standards for kinship foster care homes to remove non-safety standards, in accordance with state or federal law.