Exemptions for Criminal History Records
0100-520.70 | Revision Date: 4/5/2023

Overview

This policy reviews the process for granting exemptions to applicants, including relatives, nonrelative extended family members (NREFM), and individuals living or regularly present in the home.

Table of Contents

Version Summary

This policy guide was updated from the 07/01/14 version, to incorporate SB354 which expands eligibility for criminal record exemption requests for child specific Resource Family Approvals (RFA), under the provisions of Health and Safety Code (H&SC) section 1522. Also, information regarding criminal exemptions from the RFA policy was added to update this policy and the outdated ASFA procedures were removed.

POLICY

Criminal Record Exemption

The criminal record background check process is required for all Resource Family applicants, as well as persons residing or regularly present in the home.

The criminal exemption provides individuals with convictions an opportunity to prove that they are rehabilitated and of present good character. If a person has a criminal conviction or a history of criminal conduct such as an arrest that did not result in a conviction, the reviewing agency must determine whether the person presents a potential health and safety risk to a child or nonminor dependent (NMD).

The resource family’s approval cannot be denied or rescinded prior to the provision of due process, including, but not limited to written notification of a denied or rescinded criminal record exemption and an opportunity to appeal.

A criminal record exemption request must be made for every adult in the home who has been convicted of a crime that is a felony or misdemeanor. Criminal record exemption requests are not required for infraction convictions, even if they were initially charged as misdemeanors. Examples of infraction convictions are jaywalking or driving with expired tags. An exemption will be issued based upon substantial and convincing evidence that:

• A person is of good character, which justifies the child’s placement in the home; and

• The placement does not pose a risk of harm to the child.

An applicant with convictions previously listed as non-exemptible may now request a criminal record exemption. Each request will be assessed and decided upon by the DCFS Resource Family Approval Division (RFAD) Criminal Exemption Unit (CEU). The SB 354, criminal record exemption are as follows:

Resource Family Applicants

• Applicants with convictions previously listed as non-exemptible may now request a standard criminal record exemption after ten (10) years from conviction, unless the conviction is for one of the following offenses:

o No exemptions for felony convictions for child abuse or neglect, spousal abuse, crimes against children, including child pornography, or crimes involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery.

• Applicants with a felony conviction for physical assault, battery or drug or alcohol related offenses may seek an exemption after five (5) years.

Relative Applicants

• Relative applicant and other adult living in the home can now seek standard exemption for previously non-exemptible convictions (no time lapse required) if:

o The relative is seeking placement of a specific child; and,

o Is rehabilitated and of present good character; and,

o Does not have a felony conviction within the last five years for child abuse or neglect, spousal abuse, rape, sexual assault, homicide, or any other crime against a child, including child pornography

• This type of exemption placement is not eligible for federal funding, but would qualify for ARC funds.

• This exemption is nontransferable and is only valid for the purpose of the relative’s child specific RFA approval.

• Nonrelative extended family members (NREFMs) are not eligible for the relative applicant exemptions.

• This process does not apply to emergency placements. For information on placement prior to RFA approval, please see 0100-520.05.

The following are the 3 types of exemptions:

1. Standard Exemption – The standard exemption process is used to evaluate an individual’s criminal history if they have a conviction that meets any of the following criteria:

• Felony conviction within the past 5 years

• Misdemeanor conviction within the past 3 years

• Conviction of previously non-exemptible crimes now exemptible

• Misdemeanor conviction for Penal Code (PEN) 261.5 (statutory rape)

• Misdemeanor conviction for PEN 314 (lewd or obscene exposure of private parts)

• Misdemeanor conviction for PEN 368 (elder or dependent adult abuse)

2. Simplified Exemption – The simplified exemption process entails only an examination of the convicted person’s rap sheet and any written or verbal self-disclosures received by the reviewing agency. The simplified exemption does not require a response from the individual and/or applicant. Per Health and Safety Code 1522.7, the simplified exemption process may be used for individuals who:

• Have no misdemeanor convictions within the last 3 years

• Have no felony convictions within the last 10 years

• Have not been convicted of a violent crime

• Have not been convicted of a crime within the last 5 years

• Have five or fewer misdemeanor convictions

• Have no more than one felony conviction

• Have not been convicted of a crime for which the department is prohibited from granting an exemption

• Please note that the reviewing agency has discretion to require a criminal record exemption using the standard exemption process even if the conviction(s) meets the simplified exemption criteria and is not on the non-exemptible list.

3. Individual Exemption – If the resource family elects not to pursue an exemption on behalf of an affected individual and the individual no longer resides or is regularly present in the home, the affected individual has the right to request an individual exemption on their own behalf. The Department may associate the individual to a Resource Family Home (RFH) on receipt of a written request from a resource family applicant.

Notification of the Criminal Exemption Decision

The following are the procedures for notifying an individual of the criminal exemption decision:

Approval

All approvals will be incorporated into the written report by the RFA CSW, who will then notify the individual of the exemption approval.

Denial

Prior to issuing a Notice of Action (NOA) for denial of a criminal record exemption (RFA 09B), the county must seek a legal consult with CDSS Legal. When an approval agency issues a NOA for an exemption denial or rescission to the individual, and the denial or rescission requires an action against the resource family or applicant, the criminal history of the individual who is the subject of the exemption decision must not be listed in the NOA to the family or applicant. A separate NOA for denial or rescission of the approval must be sent to the family or applicant that does not include the criminal history. The approval agency must notify the applicant or resource family of the denial or rescission using RFA 09, Notice of Action Regarding Resource Family Approval, and must concurrently notify the affected person using RFA 09(B), Notice of Action to Individual Regarding Resource Family Approval Criminal Background Exemption Decision.

Applicant/Resource Family – If the Department denies or rescinds the exemption of an applicant or resource family, the application must be denied or the resource family approval must be rescinded. A Notice of Action must be issued.

Associated Individual – If the Department denies or rescinds the exemption of a prospective or actively associated individual, the individual may not reside or be regularly present in the home until an exemption is granted. If the person continues to reside or be regularly present in the home, the application must be denied or the approval of the Resource Home must be rescinded. Seek a legal consult to determine if an exclusion action is appropriate based on conduct that did not result in a conviction.

Individual Exemption – If an individual who resides or is regularly present in the home is denied a criminal record exemption, the approval agency shall inform the resource family and the individual of the fact through separate, concurrent NOA notices. If the affected individual is no longer residing or regularly present in the home, they have the right to appeal the exemption denial or rescission on their own behalf.

All NOAs must include the reason an exemption was denied. The reason cannot include specific information about the conviction(s) unless it is being sent to the affected individual.

Changed Circumstances

As of January 1, 2022, a relative RFA applicant or an individual residing in the relative’s home, may reapply if a recent denial, rescission, revocation exemption denial or exemption rescission was because of a conviction that was non-exemptible prior to January 1, 2022.

Temporary Placement of a Child in a Prospective Caregiver's Home

A child may be temporarily placed in the home of a prospective caregiver at any time during the child’s case if any of the following situations apply:

• The placement is made with a relative or NREFM on an emergency basis.

• There is a compelling reason for the placement based on the needs of the child or NMD.

Please refer to 0100-520.05, for more information.

This placement may occur if a prospective caregiver, any other adult residing in the home, and any persons having significant contact with the child meet both of the following criteria:

  1. California Law Enforcement Telecommunications System (CLETS) results show no convictions other than an infraction.
    • If the CLETS results indicate any exemptible offenses, the child may be temporarily placed in that home, pending a criminal records exemption decision if all the following are met: 
      a. The conviction does not involve an offense against a child.
      b. The Deputy Director, Director, or their designee (RA, ARA) determines that the placement is in the best interest of the child.
      c. No party to the case objects to the placement
  2. The CWS/CMS search of their prior child welfare services and their Child Abuse Central Index (CACI) results have determined that they do not to pose a risk to the child. In addition, they have met all the requirements outlined in Evaluating a Prospective Caregiver.

If the CLETS information obtained indicates that the person has been convicted of a non-exemptible offense, DCFS cannot place the child in the home unless the prospective caregiver is a relative and a SB 354 criminal records exemption has been granted, or the court has ordered the placement.

Juvenile Offenders

If a person committed a crime when they were under the age of 18 and the charges were adjudicated in Juvenile Court, the disposition shall not be considered a conviction for background check purposes.

Placements Involving an Indian Tribe

If an Indian tribe is involved in the child’s placement, and if the home of a relative or nonrelative extended family member (NREFM) has not been approved, the CSW will obtain the required criminal records clearances. SB 354 allows for tribally approved homes to apply for criminal exemptions for previously non-exemptible criminal records, same as RFA applicants. An Indian tribe may requests an exemption to a criminal background check based on either:

  • The criminal history record of any one (1) of the adults residing in the home
  • Any other adult having significant contact with the child.

In such a case, the Indian tribe may have the county with jurisdiction over the child or the State Department of Social Services (CDSS) evaluate the exemption request. Once the tribe elects for this, the exemption decision may only be made by that reviewing agency. If the Indian tribe decides to have the county review and approve the exemption request, follow the procedures outlined in this policy guide.

PROCEDURE

Reviewing the Criminal Records Clearance Documents

CSW Responsibilities

  1. Review the criminal background for all adults residing or regularly present in the home. If the record reflects a conviction for a non-exemptible crime, please proceed to #2. If you placed with relative or NREFM, submit the RFA 01A to RFA_Intake@dcfs.lacounty.gov. If considering for placement or relative asks for placement, send DCFS 6087.
  2. Review the Non-Exemptible Crime List
    • If the prospective caretaker is NOT a relative and the caretaker or any adult living or visiting the home has a conviction for a non-exemptible crime, an exemption cannot be granted. Do not place.
    • If the prospective caretaker is a relative or an adult living in the relative home, an exemption can be requested. After consultation with your SCSW, submit the RFA 01A, Resource Family Application if:
      • The relative is seeking placement of a specific child; and,
      • Does not have a felony conviction within the last five yeas for child abuse or neglect, spousal abuse, rape, sexual assault, homicide, or any other crime against a child, including child pornography.
      • The placement is in the child's best interest
    • Temporary placement in a relative home pending a criminal exemption is not available for those convicted of a non-exemptible crime. The child cannot be placed in the home unless a criminal exemption has been granted or the court ordered the placement. Please refer to 0100-520.05 - Placement Prior to Resource Family Approval.

Requesting a Criminal Records Exemption

RFAD CSW Responsibilities

  1. If the RFA type Live Scan reveals at least one conviction (misdemeanor or felony), submit the CEU request form and Live Scan results by email to WaiveA@dcfs.lacounty.gov

RFAD CEU Responsibilities

1. Assign the RFA Exemption file.

2. Gather all the documents required for the exemption.

3. Assess the exemption for approval or denial per the

Background Assessment Guide.

4. The following factors are considered in the assessment of the standard criminal exemption request:

  1. Nature of the crime(s);
  2. Period of time since the crime(s) was committed and number of offenses;
  3. Circumstances surrounding the commission of the crime that would demonstrate the unlikelihood of repetition;
  4. Life activities since conviction, including employment or participation in therapy or education, that would indicate changed behavior; and
  5. Evidence of honesty and truthfulness as revealed in exemption application documents (example: compare the RFA01B with the results of the criminal history.
  6. The governor’s grant of full and unconditional pardon.
  7. Character reference(s).  References from relatives or an employer are not acceptable.
  8. A certificate of rehabilitation from the State Board of Corrections or from a Judicial or Superior Court
  9. A dismissal under Penal Code 1203.4 is still considered to be a conviction for exemption purposes. When the court sets aside or dismisses convictions based on this section, it does not mean that the individual was never convicted of the crime

Criminal Exemption Request is Approved

RFAD CEU Responsibilities

  1. Email the approval to the RFA CSW and SCSW and upload to BINTI

RFAD CSW Responsibilities

  1. Incorporate approval in the RFA written report.

RFA Assessment is Approved

RFAD SCSW Responsibilities

  1. Complete the RFA 05A, Resource Family Approval Certificate and ensure the applicant, case carrying CSW and SCSW receive a copy.
    1. Document the child specific approval and the SB 354 criminal exemption on the RFA 05A as applicable.

Case Carrying CSW Responsibilities

  1. Upon receipt of RF05A Resource Family Approval Certificate marked child specific approval SB 354, submit a DCFS 280 with the applicable Level of Care (LOC) and Specialized Care Increment (SCI) and a copy of the RFA05A to the Case Carrying Eligibility Worker to assess and initiate ARC funding.

When an Exemption is Denied

RFAD CEU Responsibilities

  1. When barriers to exemption approval are identified, alert the assigned RFA CSW/SCSW via email.
  2. If barriers cannot be resolved, prepare the CDSS legal consult package & submit to CDSS inbox for legal consult calendar.
  3. Once CDSS attorneys determines legal sufficiency to deny, mail out the Notices of Action via first class and certified mail to the individual being denied.
  4. If exemption applicants request an appeals hearing, CEU managers may be required to be present as an expert witness.

RFAD CEU CSW Responsibilities

  1. Provide information to CEU to resolve barriers if possible.
  2. Inform the case carrying CSW of the barriers to the exemption and ask for assistance when needed.

RFAD SCSW Responsibilities

  1. Send notification to the Case-Carrying CSW, SCSW and ARA of the RFA application denial using the template language and Denial Notification form. If the home has emergency placement of a child/NMD, also attach the RFA 09, Notice of Action.

  2. Provide additional information as needed to the Case-Carrying SCSW/CSW for a report to the court of reasons for the RFA denial. Consult with County Counsel as needed regarding the providing of information to the court and confidentiality.

    a. Note on Confidentiality: While the County is mandated to maintain the confidentiality of information and records obtained in the administration of the RFA program, information may be included in a court report to assist the juvenile court in determining whether placement with a relative is appropriate. This includes information relating to the child's best interests, the good moral character of the relative, including whether any individual residing in the home has a history of violent criminal acts or has been responsible for acts of child abuse or neglect, and the ability of the relative to provide a safe home for the child. For a full list of factors, see Welfare and Institutions Code, section 361.3(a)(1)-(8).

Case Carrying CSW Responsibilities

1. If the child is already in the home, consult with your SCSW on whether continued placement is in the best interest of the child.

2. Consult with County Counsel on how to notify the court of the RFA denial and reasons for denial, with a walk-on or next hearing report.

Please note, the RFA 09 is not to be submitted to court, however information regarding the reasons for the denial can be shared with court.

• Never ask the Court, the child's attorney, opposing counsel, or CASA for an order to prevent the removal of a child from a denied home that did not meet RFA Written Directive.

3. If the court authorizes/orders continued placement following the RFA denial, submit a DCFS 280 with the applicable LOC and SCI, the RFA 09, and the court authorization for placement to the Case Carrying Eligibility Worker to request ARC funding. ARC funding is effective on the date all ARC eligibility requirements are met.

a. Despite court authorization to place in a non-RFA approved home, DCFS is unable to recommend a permanent plan of legal guardianship or adoption with the non-RFA approved home as both require the home to be RFA approved.

Responding to Changes in a Criminal Conviction after RFA Approval

Case-Carrying CSW Responsibilities

  1. If after a child’s placement and upon the bi-annual update by the Resource Family Support and Permanency (RFSP) Division or through a subsequent arrest notification, it is revealed that the caregiver or an adult residing in the home has been convicted of an offense that has not been exempted:
    1. Consult with the SCSW to determine the most appropriate plan for the child. 
    2. Inform and consult with the assigned RFSP CSW and SCSW.
  2. If the adult residing in the home has been convicted of an offense that can be granted an exemption:
    1. Immediately verify the adult is no longer residing in the home.
    2. Begin the process to request an exemption as outlined in Requesting a Criminal Records Exemption.
  3. A child may remain in the home while an exemption request is processed only if the following circumstances apply:
    • It is determined from the reported conviction, the adult’s description of the conviction, and other relevant information that the placement will continue to serve the child’s best interest and safety, and
    • The approval from the ARA or the RA has been obtained
  4. Upon approval of the exemption, the adult with the conviction may return to the home.

 

APPROVALS

CEU Manager Approval

  • All criminal exemptions approval and denials
HELPFUL LINKS

Attachments

Non-Exemptible Crime List

Forms

LA Kids

RFA 01A, Resource Family Application
RFA 01A(SP), Resource Family Application
RFA 01B, Resource Family Criminal Record Statement
RFA 09, Notice of Action Regarding Resource Family Approval
RFA 09B, Notice of Action to Individual Regarding Resource Family Approval Criminal Record Exemption Decision

REFERENCED POLICY GUIDES

0070-559.10, Clearances
0100-520.10, Evaluating a Prospective Caregiver
0100-520.11, When a Child is Residing in the Home of a Relative or Nonrelative Extended Family Member that does not Meet Title 22 Approval Standards
0300-506.05, Communication with Attorneys, County Counsel, and Non-DCFS Staff

STATUTES AND OTHER MANDATES

Assembly Bill (AB) 2651 – States that criminal background checks are required for an extended list of individuals and under an extended list of circumstances.

Senate Bill (SB 354) – Expands eligibility for criminal record exemptions for RFA applicants and expands eligibility for simplified criminal exemptions.

California Department of Social Services (CDSS) All County Letter (ACL) 13-27 – Provides state hearing procedures for cases where county child welfare agency denied a relative or nonrelative extended family member approval to provide care to a juvenile court dependent.

CDSS ACL 22-33 – Addresses SB 354 and its implementation.

Community Care Licensing (CCL) Evaluators Manual Section 7-1600 – States, in part, that if a subsequent conviction is received for an individual who had previously been granted a California Department of Social Services or county licensing agency clearance, the previous conviction should also be reviewed for an exemption according to existing procedures.  An action to deny an exemption for a subsequent conviction will result in a reversal of the California Department of Social Services or county licensing agency clearance.

CCL Evaluators Manual Section 7-1700 – Defines an exemption as a Department authorized written document that "exempts" an individual from the requirement of having a criminal record clearance.

Health and Safety Code (HSC) Section 1522Lists the specific crimes an applicant can and cannot seek a criminal record exemption. See section 111(b) for the federal non-exemptible crimes.

Penal Code (PEN) Section 667.5 – Defines which criminal offenses are considered as “violent felonies” such as murder or voluntary manslaughter; assault with intent to commit rape; sodomy; murder; rape; causing bodily harm or mental suffering to a child; cruel or inhumane physical punishment on a child; lewd and lascivious conduct with a child under fourteen (14) years old, sexual penetration, force; registered sex offender; or crimes against elders.

PEN Section 4852.13(a)(b) – States, in part, that if the court finds that the person has demonstrated by his or her course of conduct his or her rehabilitation and his or her fitness to exercise all of the civil and political rights of citizenship, the court may make an order declaring that the person has been rehabilitated, and recommending that the Governor grant a full pardon to him or her.  No certificate of rehabilitation must be granted to a person convicted of any offense specified in Section 290 if the court determines that the person presents a continuing threat to minors.

PEN Section 11105 – States in part that a copy of criminal history information must be furnished to the subject person.

Welfare and Institutions Code (WIC) Section 361.4 – States, in part, that prior to placing a child in the home of a relative, or the home of any prospective guardian or other person who is not licensed or a certified foster parent, the social worker must visit the home to determine the appropriateness of the placement and initiate a state and federal criminal records check and Child Abuse Central Index (CACI) check.

WIC Section 361.4(d)(2) – States, in part, that if the fingerprint clearance check indicates that the person has been convicted of a crime that would preclude licensure under Section 1522 of the Health and Safety Code, the child must not be placed in the home, unless a criminal records exemption has been granted by the county, based on substantial and convincing evidence to support a reasonable belief that the person with the criminal conviction is of such good character as to justify the placement and not present a risk of harm to the child, pursuant to paragraph three (3) of this subdivision.