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Prior knowledge of criminal history allows FSSA to disqualify employment

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The Indiana Court of Appeals Friday concluded that a woman employed by a license-exempt child care ministry in Indianapolis can’t circumvent a prohibition from being employed at any child care ministry by relying on the Indiana Restricted Access Act.

LaSonda Carter served as Rebirth Christian Academy Daycare’s director. She had a prior felony conviction related to controlled substances, which the Indiana Family and Social Services Administration said prevented her from working at Rebirth based on I.C. 35-48-4. The two parties entered into an agreement in August 2010 in which Carter would not be on the premises at any time when children were present, and any certificate of registration to operate the daycare would be terminated if she was found at the center when children were present.

The FSSA learned Carter and Rebirth violated the agreed entry, which led to an amended agreed judgment in which Carter again agreed to stay off the premises when children were present.

Carter had a substantiated report naming her as a perpetrator of child abuse or neglect expunged from her record in 2011, and in 2012 she got an order restricting access to her criminal history. She and the daycare claimed that because her criminal record is now restricted and the child abuse allegation expunged, she could work at Rebirth. The trial court denied dissolving the agreed judgment in August 2012. The daycare’s certification has since been terminated by FSSA for other violations.

“The purpose of the (Restricted Access) Act is not ignored when the FSSA applies the provisions of Indiana Code section 12-17.2-6-14, which prevents the employment by a CCM of certain individuals with disqualifying convictions,” Judge Patricia Riley wrote in Rebirth Christian Academy Daycare, Inc. v. Indiana Family & Social Services Administration, 49A04-1209-MI-467. “Here, Rebirth and the FSSA received information of Carter’s disqualifying conviction for employment at a CCM before Carter applied for a restriction of her criminal record. As such, Rebirth is prohibited from employing Carter and is mandated to keep a record of the criminal history check."

The judges noted that the Act doesn’t impose a retroactive prohibition that would prevent an agency from using its prior knowledge in its determination of future actions.

They also held that because Rebirth initiated a civil action by way of its motion to dissolve and/or modify order in First Amended Agreed Judgment, the FSSA, as the defendant, can use Carter’s entire criminal history as a defense to Rebirth’s claim that Carter has become employable by a child care ministry, based on I.C. 35-38-8-6.

“Based on the circumstances before us, we conclude that the FSSA can use its prior knowledge, established prior to Carter’s restriction of her criminal history, to disqualify Carter from being employed by a CCM,” she wrote.

 

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