July 12, 2006

The Effect of a Criminal Conviction on Child Care Providers
By Shannon Dorvall, Esq. and Jay Mykytiuk

Childcare providers are entrusted with an awesome responsibility: taking care of our nation’s children and infants.  Understandably then, states are extremely vigilant in ensuring that those operating day care and childcare centers pose no danger to the youth they are entrusted to protect.  Although specific provisions vary, each state has specific procedures and guidelines in place to license childcare providers.  These procedures govern who is granted a license to operate a childcare center, and under what circumstances already licensed providers will have their licenses revoked.

Would-be childcare providers with a record of criminal convictions may face an uphill battle when attempting to obtain a license to open a childcare center.  Since all states require that an applicant submit to a criminal records check, there is no hiding from past mistakes.  Current childcare license holders who suffer criminal convictions face that same battle in preventing the state from revoking their existing licenses.  In determining whether to deny or revoke a license, licensing agencies review the “character” of the applicant.  For instance, Arizona will deny a license to an applicant who does not possess “good character.” Factored into that determination is whether the applicant has been convicted of, or is awaiting to stand trial for a criminal offense including: burglary, robbery, felony marijuana offenses, sexual assault, and any offense against a minor.  California’s licensing standards call for the denial of a childcare license to any applicant who has been convicted of any crime, other than a traffic violation.  It does, however, have a procedure for granting an exemption.  New York will even deny a license for any drug or DWI offense in the previous five years.  Like Arizona, California, and New York every state has some provision for denying a license to those with criminal convictions or those who fail to meet their “character” standards.

Although the decision to grant or revoke a license rests entirely with that state’s licensing agency, that decision cannot be arbitrary or capricious.  Because the ability to obtain a license is considered a legal right, the state must satisfy the constitutional standard of procedural due process when denying or revoking a childcare license.  This means that license applicants and holders must be notified of any and all actions taken involving their eligibility for a license.  An applicant or holder must be given notice of and an opportunity for a hearing whenever a license is revoked or denied.  Normally, the denied applicant will be permitted to put on any evidence available to contest the findings or change the ruling of the licensing body.  For instance, some states will consider various mitigating factors when determining whether a conviction should be grounds for license denial, including:  the length of time since conviction; nature of the crime; circumstances surrounding the commission of the offense or offenses; evidence of rehabilitation; number of prior offenses; and age of the individual at the time of occurrence. 

Any applicant denied a child care license or any current care provider targeted for license revocation may secure an attorney to aid them in defending their rights.  An attorney can assist you in preparing any papers necessary to request an appeal of your license denial or revocation.  A criminal attorney is familiar with the burdens of proof applicable to licensing hearings and the methods of presenting evidence in one’s defense.  In states that provide exemptions for criminal records based on the demonstration of the applicant’s good or moral character, an attorney can help present the facts needed to sway the judging body.  Even those with certain types of criminal convictions are entitled to due process and may, in fact, be entitled to a childcare provider license. 

Back to Imhoff & Associates, P.C. Firm Articles

DISCLAIMER
The statement above is not legal advice! This statement is not intended to be a correct statement of law in your jurisdiction. This statement is intended to give you a very general understanding of what is involved in this type of crime. Please consult an attorney to find out what law applies in your jurisdiction.