Who needs a background check in a foster home?

Role in the home DPS and DFPS background check required? FBI fingerprint check required?
Foster parent Y Y*
Adult resident Y Y*
Non-client child resident, 14 years old or older Y N
Person regularly or frequently present in the home
(discussed below)
Y N

* For foster homes verified after September 1, 2006, and adult residents who move into any foster home after September 1, 2006.

STATUTE:
§42.056. REQUIRED BACKGROUND AND CRIMINAL HISTORY CHECKS. 
(a) In accordance with rules adopted by the department, the director, owner, or operator of a child-care facility or family home shall, when applying to operate a child-care facility or when listing or registering a family home and at least once during each 24 months after receiving a license, listing, registration, or certification of approval, submit to the department for use in conducting background and criminal history checks:
(1)  the name of the director, owner, and operator of the facility or home, and the name of each person employed at the facility or home;  and
(2)  the name of each person 14 years of age or older who will regularly or frequently be staying or working at the facility or home while children are being provided care.

RULES:
TITLE 40; PART 19; CHAPTER 745; SUBCHAPTER F
RULE §745.601What words must I know to understand this subchapter?
These words have the following meanings:
(1) Frequently--More than two times in a 30-day period.
(2) Regularly--On a scheduled basis

RULE §745.615  On whom must I request background checks?
(a) You must request background checks for each person 14 years or older, other than clients of the operation, who will regularly or frequently be present at your operation while children are in care, including:
(1) Employees and applicants you intend to hire that will provide direct care or have direct access to a child in care;
(2) Any person(s), including volunteers, who are counted in the child/caregiver ratio;
(3) Person(s) applying to adopt or foster children through any licensed child-placing agency; and
(4) Any person under contract with your operation who has unsupervised contact with children in care on a regular or frequent basis.
(b) You must also request background checks for the following:
(1) The directors, owners, operators, or administrators of the operation;
(2) Non-client residents of the operation that are 14 years or older; and
(3) Applicants for a child-care administrator's license.
(c) You do not have to request a background check on professionals who have cleared a background check through another governmental regulatory entity, and you do not employ or contract with the professional.

What does it mean to be Regularly or Frequently Present in a Foster Home?

BACKGROUND
Although the rules requiring background checks for persons who are regularly or frequently present in a foster home are not new, the Department’s augmented oversight of child-placing agencies and the findings of its review of the Mesa CPA have resulted in increased attention to this requirement.  The unique nature of foster homes and the many different types of guests and visitors to these homes makes it difficult to determine when a person requires a background check. During recent foster home inspections, background checks were missing for many critical people in the foster home, especially on family members who visited the home and who were found to have criminal backgrounds that would preclude them from being around children. 

DFPS recognizes that the various child care operations under its regulation are different.  For example, a residential treatment center has some rigid boundaries, so that someone would more likely have to be "present at the operation" in order to have contact with children in care.  Foster care, however, is designed to integrate the children into the community, which broadens opportunities for contact with people beyond the confines of the foster home.  Requiring background checks on someone just for having regular or frequent contact with a foster child would make the foster child's experience seem too institutionalized.  On the other hand, DFPS does want to protect children from endangering persons and must enforce the law.

ENFORCEMENT OF BACKGROUND CHECK RULES

In its application of background check rules to foster homes, DFPS has attempted to balance the safety achieved in conducting background checks with the well-being achieved by creating a family-based, non-institutional setting for children.

DFPS does not require that all visitors to a foster home submit their names for a background check. The Child Care Licensing rules require that all residents over the age of 14 and all other persons within that age range who are regularly or frequently present in the home while children are in care receive a background check.

All foster homes are unique, and the application of the term “regularly or frequently present” must often be made on a case-by-case basis. Keeping in mind the need for children to be in a normal, family-based setting, Child Care Licensing has clarified that it will not require background checks on regular or frequent child visitors (aged 14-17) to the home unless:

  • the child is responsible for caring for the children (e.g. a babysitter);   
  • the child is related to members of the foster home; or
  • there is reason to believe the person might have a criminal history or a history of child abuse or neglect

Regarding regular or frequent adult visitors to the foster home, the following are the factors most often considered in determining whether a regular or frequent visitor to the home requires a background check:

  • Is the person likely to have unsupervised access to any foster child?
  • What type of access does the person have to the home? For example, does the person have a key or the freedom to come and go at will?
  • How closely connected is the person to the foster home? For example, all persons regularly or frequently present who are related to a member of the foster family must have a background check.
  • Does anyone in the foster home or at the child-placing agency have reason to believe the person might have a criminal history or a history of child abuse or neglect?

If a person comes to the home in order to provide services to a foster child, that person also needs a background check if he/she will be regularly or frequently present in the home.  This is especially critical for persons who will have unsupervised access to children in care.  An FBI fingerprint check is not required, but criminal and central registry checks through Licensing are required.  This requirement applies even if the person is a licensed professional, unless the child-placing agency verifies that the person has already cleared a background check through a governmental regulatory entity, per 745.615(c).  If the CPA verifies that the person has already cleared a background check through a governmental regulatory entity, no additional background check is required.