Or. Admin. R. 413-120-0450

Current through Register Vol. 63, No. 6, June 1, 2024

Section 413-120-0450 - Assessment of Criminal Convictions

(1) The Department must complete a fitness determination of any applicant with a criminal conviction being assessed as a resource parent, relative resource parent, potential adoptive resource, or any individual being assessed as a member of the household, respite care provider, or child care provider unless the subject individual must be denied under OAR 413-120-0450(4) or (5).

(2) A subject individual for whom a positive fitness determination is made following a criminal records background check, may still be denied approval to be a resource parent, relative resource parent, adoptive resource, member of the household, respite provider or child care provider if the subject individual does not meet other requirements contained in Department rules governing care, foster care relative care, and adoption.

(3) An authorized designee employed by the Department must make all fitness determinations.

(4) A subject individual convicted in Oregon or any other jurisdiction of any felony crime listed in subsections (a) to (e) of this section may not be a resource parent, relative resource parent, adoptive resource, member of the household, respite provider or child care provider regardless of how long ago the subject individual was convicted or any other factors or circumstances that exist. An authorized designee may not conduct a weighing test and must deny approval if the conviction is for a felony crime that involves:

(a) Violence, including rape, sexual assault, and homicide, but not including other physical assault or battery;

(b) Abuse or neglect of a child;

(c) Spousal abuse;

(d) A child as the victim (including child pornography);

(e) Felony criminal convictions under Oregon law that fall under subsection (4) (a)-(d) and for which the authorized designee must make a negative fitness determination include:

(A) ORS 162.165 - Escape in the first degree;

(B) ORS 163.095 - Aggravated murder;

(C) ORS 163.107 - Murder in the first degree;

(D) ORS 163.115 - Murder;

(E) ORS 163.118 - Manslaughter in the first degree;

(F) ORS 163.125 - Manslaughter in the second degree;

(G) ORS 163.145 - Criminally negligent homicide;

(H) ORS 163.149 - Aggravated vehicular homicide;

(I) ORS 163.160 - Assault in the fourth degree, if classified as a felony, and the victim is a child or the subject individual's spouse;

(J) ORS 163.165 - Assault in the third degree if the victim is a child or the subject individual's spouse;

(K) ORS 163.175 - Assault in the second degree if the victim is a child or the subject individual's spouse;

(L) ORS 163.185 - Assault in the first degree if the victim is a child or the subject individual's spouse;

(M) ORS 163.192 - Endangering a person protected by a Family Abuse Prevention Act restraining order, if the victim is a child or the subject individual's spouse;

(N) ORS 163.205 - Criminal mistreatment in the first degree if the victim is a child or the subject individual's spouse;

(O) ORS 163.207 - Female genital mutilation;

(P) ORS 163.235 - Kidnapping in the first degree if the victim is a child or the subject individual's spouse;

(Q) ORS 163.245 - Custodial interference in the second degree if the victim is a child;

(R) ORS 163.257 - Custodial interference in the first degree if the victim is a child;

(S) ORS 163.266 - Trafficking in persons if the victim is a child;

(T) ORS 163.275 - Coercion, if the victim is a child or the subject individual's spouse;

(U) ORS 163.355 - Rape in the third degree;

(V) ORS 163.365 - Rape in the second degree;

(W) ORS 163.375 - Rape in the first degree;

(X) ORS 163.385 - Sodomy in the third degree;

(Y) ORS 163.395 - Sodomy in the second degree;

(Z) ORS 163.405 - Sodomy in the first degree;

(A)(A) ORS 163.408 - Unlawful sexual penetration in the second degree;

(B)(B) ORS 163.413 - Purchasing sex with a minor;

(C(C) ORS 163.411 - Unlawful sexual penetration in the first degree;

(D)(D) ORS 163.425 - Sexual abuse in the second degree;

(E)(E) ORS 163.427 - Sexual abuse in the first degree;

(F)(F) ORS 163.432 - Online sexual corruption of a child in the second degree;

(G)(G) ORS 163.433 - Online sexual corruption of a child in the first degree;

(H)(H) ORS 163.452 - Custodial sexual misconduct in the first degree;

(I)(I) ORS 163.479 - Unlawful contact with a child;

(J)(J) ORS 163.525 - Incest, if the victim of the offense is a child;

(K)(K) ORS 163.535 - Abandonment of a child;

(L)(L) ORS 163.537 - Buying or selling a person under 18 years of age;

(M)(M) ORS 163.547 - Child neglect in the first degree;

(N)(N) ORS 163.670 - Using a child in display of sexually explicit conduct;

(O)(O) ORS 163.684 - Encouraging child sexual abuse in the first degree;

(P)(P) ORS 163.686 - Encouraging child sexual abuse in the second degree;

(Q)(Q) ORS 163.688 - Possession of materials depicting sexually explicit conduct of a child in the first degree;

(R)(R) ORS 163.689 - Possession of materials depicting sexually explicit conduct of a child in the second degree;

(S)(S) ORS 163.701 - Invasion of personal privacy in the first degree, if the victim is a child;

(T)(T) ORS 164.225 - Burglary in the first degree if the victim is a child or the subject individual's spouse;

(U)(U) ORS 164.405 - Robbery in the second degree if the victim is a child or the subject individual's spouse;

(V)(V) ORS 164.415 - Robbery in the first degree if the victim is a child or the subject individual's spouse;

(W)(W) ORS 167.017 - Compelling prostitution, if the victim is a child or the subject individual's spouse;

(X)(X) ORS 167.057 - Luring a minor;

(Y)(Y) ORS 475C.369 - Administration to another person under 18 years of age; or

(Z)(Z) ORS 475C.365 - Causing another person to ingest marijuana, if the victim is a child or the subject individual's spouse.

(5) A subject individual convicted of any crime listed in this section within five years preceding the signature of the consent for background check may not be a resource parent, relative resource parent, adoptive resource, member of the household, respite provider or child care provider regardless of any factors or circumstances that exist. An authorized designee may not conduct a weighing test and must deny approval if the felony crime involves:

(a) Physical assault, battery;

(b) A drug-related offense;

(c) Felony criminal convictions which occurred within five years preceding the signature of the consent for background check that fall under subsection (5)(a)-(b) and for which an authorized designee must deny include:

(A) ORS 163.160 - Assault in the fourth degree, if classified as a felony.

(B) ORS 163.165 - Assault in the third degree.

(C) ORS 163.175 - Assault in the second degree.

(D) ORS 163.185 - Assault in the first degree.

(E) ORS 163.208 - Assaulting a public safety officer.

(F) ORS 164.225 - Burglary in the first degree

(G) ORS 164.395 Robbery in the third degree

(H) ORS 164.405 - Robbery in the second degree

(I) ORS 164.415 - Robbery in the first degree

(J) ORS 166.015 - Riot;

(K) ORS 166.165 - Bias in the first degree;

(L) ORS 167.212 - Tampering with drug records.

(M) ORS 167.262 - Adult using minor in commission of controlled substance offense, if classified as a felony.

(N) ORS 475.752 - Prohibited acts generally, if classified as a felony.

(O) ORS 475.806 - Unlawful manufacture of hydrocodone.

(P) ORS 475.808 - Unlawful manufacture of hydrocodone within 1000 feet of a school.

(Q) ORS 475.810 - Unlawful delivery of hydrocodone.

(R) ORS 475.812 - Unlawful delivery of hydrocodone within 1000 feet of school.

(S) ORS 475.816 - Unlawful manufacture of methadone.

(T) ORS 475.818 - Unlawful manufacture of methadone within 1000 feet of a school.

(U) ORS 475.820 - Unlawful delivery of methadone.

(V) ORS 475.822 - Unlawful delivery of methadone within 1000 feet of a school.

(W) ORS 475.824 - Unlawful possession of methadone, if classified as a felony.

(X) ORS 475.826 - Unlawful manufacture of oxycodone.

(Y) ORS 475.828 - Unlawful manufacture of oxycodone within 1000 feet of a school.

(Z) ORS 475.830 - Unlawful delivery of oxycodone.

(A)(A) ORS 475.832 - Unlawful delivery of oxycodone within 1000 feet of a school.

(B)(B) ORS 475.846 - Unlawful manufacture of heroin.

(C)(C) ORS 475.848 - Unlawful manufacture of heroin within 1,000 feet of school.

(D)(D) ORS 475.850 - Unlawful delivery of heroin.

(E)(E) ORS 475.852 - Unlawful delivery of heroin within 1,000 feet of school.

(F)(F) ORS 475.854 - Unlawful possession of heroin, if classified as a felony.

(G)(G) ORS 475.858 - Unlawful manufacture of marijuana within 1,000 feet of school.

(H)(H) ORS 475.860 - Unlawful delivery of marijuana, if classified as a felony.

(I)(I) ORS 475.862 - Unlawful delivery of marijuana within 1,000 feet of school.

(J)(J) ORS 475.866 - Unlawful manufacture of 3,4-methylene-dioxymethamphetamine.

(K)(K) ORS 475.868 - Unlawful manufacture of 3,4-methylene-dioxymethamphetamine within 1,000 feet of school.

(L)(L) ORS 475.870 - Unlawful delivery of 3,4-methylenedioxy-methamphetamine if classified as a felony.

(M)(M) ORS 475.872 - Unlawful delivery of 3,4-methylenedioxy-methamphetamine within 1,000 feet of school.

(N)(N) ORS 475.874 - Unlawful possession of 3,4-methylenedioxymethamphetamine.

(O)(O) ORS 475.876 - Unlawful manufacture of cocaine.

(P)(P) ORS 475.878 - Unlawful manufacture of cocaine within 1,000 feet of school.

(Q)(Q) ORS 475.880 - Unlawful delivery of cocaine.

(R)(R) ORS 475.882 - Unlawful delivery of cocaine within 1,000 feet of school.

(S)(S) ORS 475.884 - Unlawful possession of cocaine if classified as a felony.

(T)(T) ORS 475.886 - Unlawful manufacture of methamphetamine.

(U)(U) ORS 475.888 - Unlawful manufacture of methamphetamine within 1,000 feet of school.

(V)(V) ORS 475.890 - Unlawful delivery of methamphetamine.

(W)(W) ORS 475.892 - Unlawful delivery of methamphetamine within 1,000 feet of school.

(X)(X) ORS 475.894 - Unlawful possession of methamphetamine, if classified as a felony.

(Y)(Y) ORS 475.904 - Unlawful manufacture or delivery of controlled substance within 1,000 feet of school.

(Z)(Z) ORS 475.908 - Causing another person to ingest a controlled substance.

(A)(A)(A) ORS 475.910 - Application of controlled substance to the body of another person, if the controlled substance is in Schedule I, II, III, or IV.

(B)(B)(B) ORS 475.914 - Prohibited acts for registrants related to Schedule I controlled substances, if classified as a felony.

(C)(C)(C) ORS 475.962 - Distribution of equipment, solvent, reagent, or precursor substance with intent to facilitate manufacture of controlled substance.

(D)(D)(D) ORS 475.967 - Possession of precursor substance with intent to manufacture controlled substance.

(E)(E)(E) ORS 475.977 - Possessing or disposing of methamphetamine manufacturing waste.

(F)(F)(F) ORS 475C.229 - Prohibition against importing or exporting marijuana items, if classified as a felony.

(G)(G)(G) ORS 475C.337 - Unlawful possession by person 21 years of age or older, if classified as a felony.

(H)(H)(H) ORS 475C.341 - Unlawful possession by person under 21 years of age, if classified as a felony.

(I)(I)(I) ORS 475C.346 - Unlawful delivery of marijuana item, if classified as a felony.

(J)(J)(J) ORS 475C.349 - Unlawful manufacture of marijuana item, if classified as a felony.

(K)(K)(K) ORS 475C.357 - Arson incident to manufacture of cannabinoid extract first degree.

(L)(L)(L) ORS 475C.361 - Arson incident to manufacture of cannabinoid extract second degree.

(M)(M)(M) ORS 475C.365 - Causing another person to ingest marijuana.

(6) The fitness determination of a subject individual with a felony conviction in subsection (5) which occurred more than 5 years, but less than 10 years, from the date of the criminal records check must be made by the Child Welfare Director or designee.

(7) The fitness determination of a subject individual with a felony conviction described in subsection (5) which occurred more than 10 years from the date of the criminal background check must be made by the District Manager or Designee.

(8) The fitness determination of a subject individual with a criminal conviction other than described in sections (3), (4), or (5), of this rule may be made by a Program Manager or Designee.

Or. Admin. R. 413-120-0450

SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 4-1999, f. & cert. ef. 3-22-99; SOSCF 1-2000(T), f. & cert. ef. 1-14-00 thru 7-12-00; SOSCF 14-2000, f. & cert. ef. 7-13-00; SOSCF 23-2001, f. 6-29-01, cert. ef. 7-1-01; SOSCF 11-2002(Temp), f. & cert. ef. 9-13-02 thru 3-12-03; CWP 21-2003, f. & cert. ef. 3-13-03; CWP 31-2007(Temp), f. 12-31-07, cert. ef. 1-1-08 thru 6-27-08; CWP 3-2008, f. & cert. ef. 5-15-08; CWP 22-2008(Temp), f. & cert. ef. 10-1-08 thru 3-30-09; CWP 1-2009, f. & cert. ef. 2-2-09; CWP 3-2012, f. & cert. ef. 6-26-12; CWP 28-2021, amend filed 11/29/2021, effective 12/1/2021; CWP 16-2022, amend filed 06/23/2022, effective 6/29/2022; CWP 15-2024, minor correction filed 05/20/2024, effective 5/20/2024

Statutory/Other Authority: ORS 409.050, ORS 418.005, ORS 418.016 & ORS 181A.195

Statutes/Other Implemented: ORS 418.005, ORS 418.016, ORS 181A.200, ORS 181A.010 - 181A.245 & ORS 409.010