Cal Indian



[NAME OF TRIBE][NAME OF] Tribal Department of Social ServicesPolicy for Conducting Criminal Background ChecksFor Tribally Approved HomesSECTION I. PURPOSEThe [NAME] Tribe’s (herein “Tribe”) most valuable resource are its children. Our children are the future of the Tribe and must be protected, nurtured, and provided for in their homes and in our tribal community. It is the mandate of the Tribal Department of Social Services (TDSS) [OR NAME OF TRIBAL AGENCY/DEPARTMENT] to ensure, to the greatest extent possible, that any tribal child removed from his or her home is placed with extended family or with a family in or near our community. However, before a home is tribally approved for placement, the TDSS shall ensure the home is suitable and all adults caring for or in frequent contact with the child while in the home are fit and will not endanger the child. This Policy sets forth the necessary process and procedures for TDSS in conduct criminal background checks on all adults residing in the home, other adults who have familial relationship with an adult in the home, and/or will have direct or regular contact with the child while in the home. SECTION II. DEFINITIONSCACI—Child Abuse Central IndexCORI—Criminal Offender Record InformationCOR—Custodian of RecordsDOJ—California Department of JusticeICWA—Indian Child Welfare Act [cite] ORI—Originating Agency Identifier Tribe—[OFFICIAL NAME OF TRIBE]TDSS—[OFFICIAL NAME OF THE TRIBAL DEPARTMENT OR AGENCY DESIGNATED TO CONDUCT CRIMINAL BACKGROUND CHECKS AND IMPLEMENT THE POLICY]TAH—Tribally Approved HomeSECTION III. AUTHORIZED PERSONNEL TO CONDUCT AND REVIEW CRIMINAL BACKGROUND CHECKS AND TO CERTIFY TAHS.1. State and federal laws mandate that a Native American child removed from his/her home cannot be placed in the home of another unless and until all members residing in that home have been cleared through a state and federal criminal background check, and a CACI search. 2. All TDSS staff identified under this Section shall receive training on the implementation of this Policy before conducting a criminal background check, presenting a home as a TAH to the County Department of Social Services, or a state or tribal court that has jurisdiction over a tribal child. 3. On [DATE] the Tribe was approved by the DOJ to conduct criminal background checks on families seeking approval to accept tribal children into their home when the children have been removed from the custody of their parent(s), custodian, guardian or other caregiver. 4. The TDSS [OR WHATEVER TRIBAL AGENCY OR DEPARTMENT] is the tribally approved department responsibility for approving a TAH. The Director of the TDSS is the authorized person to certify to the county or a court that a home assessment and all necessary criminal background checks have been completed on all adults residing in the home, who will have frequent access or contact with the child have been approved. 5. Currently, [STAFF NAME AND POSITION TITLE] has been designated as the Tribe’s COR, and has cleared a criminal background as required by DOJ. All future persons assigned to act as the COR shall submit and be cleared through a criminal background check. 6. The Tribal Chief of Police, Tribal Attorney and [ANY OTHER PERSONNEL] have been identified and approved by the DOJ as persons who can review a person’s CORI. 7. Only those persons identified under 4-6 of this Section are authorized to review a person’s CORI. Any person identified under Sections 4-6 that allows an unauthorized person or entity to see a person’s CORI or shares information from a person’s CORI shall be subject to immediate disciplinary action up to and including termination. Such person may also be subject to state criminal and civil liability. IV. INITIAL SCREENING OF POSSIBLE TAHS 1. All person who seek to have his/her home approved as a TAH must be residing on or near the reservation. Whether a home is “near” enough to the reservation to be considered as a TAH, shall be determined by the TDSS. The factors the TDSS shall consider in making such determination shall include but not be limited to:a. reasonable proximity of the approved home in relationship to the home the child has been removed from (his/her home);b. proximity of the approved home in relationship to the reunification services being offered the child and his/her family;c. relationship between the child and the family whose home is being considered as possible placement;d the ability of the TDSS and county social services to regularly visit and monitor the placement; ande. the caregiver’s knowledge of the Tribe’s culture, traditions and ability of the caregiver to keep the child tied to the tribal community. 3. The following persons must complete a TDSS criminal background application form: a. The Applicant (primary caregiver); b. Applicant’s spouse;c. Any adult living in the home;d. Any adult who has a familial or intimate relationship with a person living in the home and visits or stays in the home on a frequent, regular, and consistent basis; e. Any person who works in the home on a frequent, regular, and consistent basis.4. Each person identified under subsection 3 above shall complete a criminal background check application. The application for shall include at a minimum the following:a. The person’s full name and any aliases; b. Whether person is living in the home that is seeking approval as a TAH;c. If the person is not living in the home, his/her relationship to the home or an adult living in the home; d. Current address of his/her residency and physical location of the residency if the person receives mail at a post office box;e. How long the person has resided at the current location and if less than five (5) years, all locations the person has resided in within the last five (5) years. If the person has lived out of state in the last five (5) years the person must provide the address, city/town, county, state and/or Indian reservation she/he has lived. f. Whether the person has ever been convicted of a crime in California, in any other state, by any tribe, or the federal government (including military) and/or whether the person is awaiting adjudication for any offense he/she has been arrested for in any of the locations listed. g. If yes, the person shall identify the underlying offense that resulted in pending arrest and/or conviction, where, when and circumstances of the offense. The person shall also identify the sentence that was issued. For example: incarceration; supervised or unsupervised probation; diversion; fine; or any other sentence that was imposed. h. TDSS should also request any and all documentation from the person pertaining to the arrest, conviction, and sentence if available.5. The application form shall include the following the statement and warning:YOU MUST DISCLOSE ALL CONVICTIONS EVEN IF:1. It happened a long time ago;2. It was only a misdemeanor;3. You did not go to court (your attorney went for you);4. You did not serve time in jail or prison time but were given a fine or probation;5. You received a certification of rehabilitation; 6. The conviction was later dismissed, set aside or the sentence was suspended. NOTE: IF THE CRIMINAL BACKGROUND CHECK REVEALS ANY CONVICTION(S) THAT YOU DID NOT DISCLOSE ON THIS FORM, YOUR FAILURE TO DISCLOSE THE CONVICTION(S) MAY RESULT IN A DENIAL OF THE HOME BEIGN APPROVED AS A TAH AND/OR AN EXEMEMPTION DENIAL. V. CONDUCTING OF THE LIVE SCAN1. After the completion of the application form and a determination that there is no disqualifying information reported, the COR shall complete a “Request for Live Scan Services” form issued by the DOJ. 2. The COR shall ensure that all of the necessary tribal information is provided on the form; such as the tribe’s ORI number; Mailing Code number; Billing number; and all of the person’s information.3. Once completed the person will be provided the form and directed to the location where he/she may have the Live Scan conducted. OPTION: If the tribe will be conducting Live Scans the Request form may be submitted directly to the person authorized and certified to conduct the Live Scan. OPTION: If the Live Scan will be conducted offsite the COR shall provide the person the location on where his/she should take the Request form so that the Live Scan can be conducted.4. All fees and costs for conducting the Live Scan shall be the responsibility of the (1) Tribe or (2) person having the Live Scan. VI. APPROVING A HOME AS A TAH A. No Convictions/CACI History1. Upon receipt of the person’s CORI and the CACI results, the COR shall review the information in conjunction with any tribal agency or officer that has been identified and approved by the DOJ to review the CORI and CACI. 2. If the CORI reveals that all persons who submitted to a criminal background check have no convictions or “Possible Pending Matches” from the CACI search, the TDSS Director shall certify to the county or to the specific social worker if the placement is for a particular case that the home is a TAH and qualifies as a placement. 3. The certification form submitted to the county or social worker shall include but not be limited to: a. The location of the home and that it has been approved pursuant to the tribe’s Policy and Procedures. The TAH is available for the placement of tribal children that are subject to a “child custody proceeding” defined under the ICWA. b. Pursuant to Welfare and Institution Code § 10553.12, the following individual or individual associated with the home have been cleared or granted an exemption, consistent with standards set forth in California Health & Safety Code §§ 1522 and 1522.1c. Provide all individuals information (name, date of approval, date of birth, residence, relation to the home, date cleared, and/or date of exemption granted);d. The Tribe certifies that in event that it receives a report from the DOJ that there has been a subsequent arrest or conviction of any person named on the certification, the Tribe will notify the county social worker within 24 hours of the notification.e. In the event that the Tribe revokes a TAH’s approval or a person’s exemption, it will notify the county social worker of the revocation [OPTION-insert any agreed upon time frame with the county or determine what time frame the Tribe wants to include—24 hours, 48 hours, as soon as practicable, etc.); andf. Identify the tribal social worker that is assigned to the case and his/her contact information. g. If the county social worker intends to do a home visit that he/she contact the Tribe’s social worker to make arrangements in advance. If the home is not on the reservation, the county social worker should contact the caregiver directly. B. Conviction for Non-Exemptible Offense 1. If the CORI reveals the Applicant, his/her spouse or an adult living in the home has been convicted of an offense that is listed on the current and updated published list of non-exemptible crimes, the home shall be denied by TDSS Director; 2. The Applicant will be notified in writing of the denial and that the Applicant may, upon request, obtain a copy of his/her CORI from TDSS. 3. The TDSS shall also notify the Applicant’s spouse and other adults living in the home that they may request a copy of their CORI. 4. If the person with the non-exemptible conviction does not reside in the home, TDSS may notify the Applicant and the person with the conviction that if the person agrees to not be in the home and to have no contact with the child, TDSS may approve the home. 5. It shall be the responsibility of the TDSS and the Applicant (primary caregiver), on an ongoing basis, to ensure, verify and confirm the person with the conviction is in fact not in the home and is not engaging in unauthorized contact with the child placed in the home. 6. If TDSS determines that the person banned from the home is back in the home and/or having unauthorized contact with the child, TDSS shall notify the Applicant that the home’s TAH status shall be revoked unless the situation is corrected immediately.C. CACI “Possible Pending Match”1. If the CACI search reveals a “Possible Pending Match” the person shall be notified in writing of the results. No person other than person with the CACI Match results may be informed of the results of check. 2. TDSS shall conduct a thorough investigation into the CACI Match that includes but is not limited to:a. Verifying that the person with the CACI Match is the same person TDSS is working with. Because a CACI search is named based only it is critical that TDCC verify that the physical and other identifiers of the person with the Match are the same as those of the person identified from CACI search. b. TDSS shall contact the county agency and local police department where the reported incident of child abuse/neglect occurred. TDSS shall secure the county’s and, if applicable, the police reports documenting the allegation. This information should provide the verification necessary to confirm the identity of the applicant and that of the person whose name was reported in the CACI search. c. The information from the reporting county and police reports shall also provide the TDSS additional and relevant information concerning: i. When, where, and the circumstances surrounding the allegation of abuse/neglect;ii. The person’s involvement in the claims of abuse or neglect;iii. Whether the allegation were based on the county’s misunderstanding of tribal cultural or traditional or the alleged conduct is acceptable according to tribal custom; andiv. Has the issue giving rise to the allegation been mitigated or can it be mitigated with tribal assistance. d. The above investigation shall be conducted in every state that the person lived in in the last five (5) years. TDSS shall consult to determine the process and procedure for the respective state identified in the CACI report. e. If, after thorough investigation, it is determined the person has or had incidents of serious and substantiated allegations of child abuse and/or neglect that have not and cannot be mitigated or that allegations in the discretion of TDSS would pose threat or danger to a child placed in the home, the TDSS Director shall deny the application for TAH status. f. If the person with the CACI Match is someone who is not living in the home and TDSS is satisfied that the person can effectively be removed from the home per Section A, subsections 5 and 6 above shall be applicable to the person being removed from the home.VII. GRANTING AN EXEMPTION 1. If a person’s CORI reveals he/she has been convicted of an offense not listed as non- exemptible, TDSS shall notify the person that he/she needs to request an exemption in order to approve the home for placement. 2. Additionally, the written notice shall state the person with the conviction shall meet with TDSS before the exemption process can be begin. If so requested, TDSS shall explain the exemption process and that a thorough investigation of the conviction and circumstances will need to be completed. The person shall sign a Release of Information form allowing TDSS to obtain information and documents from third (3rd) parties.3. Depending on the nature of the conviction and other factors, TDSS may determine that little or no investigation is needed. This determination shall be based on existing verifiable information know to TDSS. Such information may include:a. The conviction occurred several years ago;b. The conviction was for a non-violent crime and/or misdemeanor;c. The person completed his/her sentence and complied with all requirements of the probation; d. The person has a certificate of rehabilitation, successfully completed a treatment, counseling, or training; e. The person has no documented criminal history since the conviction;f. The person is known in the community as a good tribal citizen and/or has overcome obstacles and hardships in his/her life; g. The person has a long history of employment and is currently employed;4. If TDSS determines that a conviction requires a more thorough investigation, TDSS shall consider the following: a. Obtaining records and information from the court where the conviction was rendered in order to evaluate the sentence that was imposed;b. If the person was placed on probation, contacting the Probation Department and Officer that was assigned to work with the applicant to determine what if any treatment or rehabilitation programs the applicant participated in and/or completed; c. Obtaining the police reports surrounding the arrest leading to the conviction;d. If necessary, interviewing the applicant again to determine if he/she has other information or documents to provide to TDSS that are relevant to the exemption determination; e. Interviewing others that might have relevant information about the applicant such as:i. Current and former employers; ii. Community organizations that applicant is involved with; iii. Members of the community that know the applicant and can speak to his/her character and standing in the community;iv. Applicant’s family members and extended family members;v. Tribal police;vi. Friends and neighbors of the applicant. f. At the conclusion of TDSS’s investigation it shall weigh all the information gathered, for example: i. Substantial and convincing evidence to demonstrate rehabilitation;ii. The tribe’s cultural standards for child rearing; iii. The type of crime committed (violent vs. non-violent); iv. Length of time since last conviction/pattern of crimes; v. Information in arrest reports/court records;vi. Release from probation/parole;vii. Self-disclosure of history;viii. Written personal statement;ix. Character references;x. Fine/Restitution payments;xi. Written verification of education, drug/alcohol treatment and/or counseling.5. Based on all the information gathers, TDSS shall determine whether there is substantial and convincing evidence to support a reasonable belief that the person with the conviction is of good character as to justify issuance of the exemption. If granted, TDSS shall notify the Applicant in writing of the determination and prepare the necessary certification of the TAH to be submitted to the county or social service as provided for under Section VI. A, subsection 3 above.6. If the exemption is denied, TDSS shall notify the person that the exemption has been denied and the grounds for the denial. If the person is someone other than the Applicant, his/her spouse or an adult living in the home, and said person can be removed from the home and not have contact with the child in the placement, TDSS may approve the home as a TAH with strict conditions that the person is not permitted in the home and cannot have contact with the child. TDSS and the Applicant are responsible to ensure the person remains out of the home and has no contact with the child as set forth under Section IV. B, subsections 4-6 above. VIII. APPEALS OF DENIED EEXMPTION RESERVEDThis section will have to be tailored to your tribe’s unique situation and circumstances. Consideration for developing an appeal process should include: Who can appeal? Is the appeal limited to the person who was denied the exemption or can it be from the Applicant whose home is being considered for a TAH? What is the timeframe for filing an appeal? Five days from receipt of the notice of the exemption denial or 10 days, 15 days, etc. Where is the appeal filed? TDSS, the tribal body or person who will be deciding the appeal?What information needs to be included in a request for an appeal?Who will hear and decide the appeal?Will the appeal be a hearing where TDSS and the person requesting the appeal can appear and make arguments or will the decision be made on the documents submitted by the parties? If the appeal will involve a hearing, what rules and procedures will be needed to guide the hearing process? Can the person be represented by an attorney or representative? What is the timeframe for a decision on the appeal? Is the decision on the appeal final or is there another level of review of the decision?IX. ARRESTS AND SUBSEQUENT ARRESTS 1. Although the primary focus of conducting a criminal background check is to determine a person’s convictions and other records, TDSS may consider the person’s arrest record both at the time the person’s CORI is received or when notified of a subsequent arrest after granting a TAH or an exemption.2. Where a person has an extensive arrest record, TDSS should consider the following in determining whether the person may pose a threat to safety of a child placed in home when the person resides in the home, works in the home, or frequents the home: a. The number of offenses the person is arrested for;b. The nature of the offenses, e.g. violent or non-violent;c. Whether the offenses involved alcohol or controlled substances; d. Why the arrest did not lead to a prosecution;e. Whether the arrest report demonstrates a pattern of criminal activity; f. The age of the person at the time of the arrests; andg. Where the arrests took place (city, county, state, etc.)3. TDSS shall investigate the arrest record of a person in the first insistence especially if the arrest is for a non-exemptible crime and/or the arrest history is so extensive that TDSS determines that an investigation is warranted; 4. If notified by the DOJ of an arrest for a non-exemptible crime while approval of the TAH is pending, TDSS shall stop processing the application until the outcome of arrest is concluded. If the arrest is for a non-violent exemptible crime the TAH process may continue at the discretion of the TDSS but no exemption may be granted until there has been conviction entered.X. SUBSEQUENT CONVICTIONS1. If TDSS is notified by DOJ that a person residing in a TAH has been convicted of non-exemptible crime, the TDSS shall notify the county within 24 hours of the DOJ notice. TDSS shall notify the Applicant (caregiver) of the TAH that approval is being revoked and that the child will be removed. The child may be moved to another TAH and all Indian preferences for placement of the ICWA are applicable. 2. If the person who has subsequently been convicted of a non-exemptible crime is not residing in the home, but frequents the home or works in the home, the Applicant (caregiver) shall be notified immediately and instructed that unless the person with the conviction is banned from the home and from contacting the child, the home’s status as a TAH will be revoked. 3. If the person can be effectively removed from the home and have no contact with the child, TDSS will notify the county and a joint decision shall be made on whether the removal of the person with the conviction from the home will ensure that the child is in no threat of danger or injury. If the county determines that the convicted person may continue to pose a threat to the child, the county may remove the child and place him/her in another TAH. 4. If the subsequent conviction is for an offense that is exemptible, the TDSS and county shall met and confer on whether the child shall remain in the home pending the final determination of the exemption. If removal is determined necessary, the child shall be removed and placed in another TAH pending the exemption decision. IX. STORING, RETAINING, AND DESTROYING CORI AND CACI RECORDSThe COR shall me responsible for ensuring CORI and CACI records and documents are properly stored and secured; All CORI and CACI records and documents are confidential and shall be stored in a secure, fire proof, locked cabinet or other type of container; No one other than authorized TDSS and tribal staff identified and approved by the DOJ shall have access to a person’s CORI and CACI records;CORI and CACI records and documents may not be reproduced or disseminated;All CORI and CACI records and documents shall be retained by the Tribe and secured by the COA for a period on no less than [there is no limit and is up to the Tribe to decide] following the conclusion of the state dependency case said final outcome may include: dismissal, adoption of the child, guardianship, Tribal Customary Adoption, and/or other placement of the child as ordered by the state court;After the required time for retaining the records and documents as set forth above, the COR shall destroy the CORI and CACI documents by shredding or other means as determined appropriate by the Tribe. ANY PERSON WITH ACCESS TO CORI AND CACI RECORDS AND DOCUMENTS THAT VIOLATES THIS POLICY OF CONFIENDTIALITY SHALL BE SUBJECT TO CRIMINAL LIABILITY BY THE DOJ AND CIVIL LIABILITY BY THE TRIBE. ................
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