New York Codes, Rules and Regulations
Title 18 - DEPARTMENT OF SOCIAL SERVICES
Chapter II - Regulations of the Department of Social Services
Subchapter C - Social Services
Article 3 - Child-care Agencies
Part 441 - General
Section 441.18 - Children's privacy rights
Universal Citation: 18 NY Comp Codes Rules and Regs ยง 441.18
Current through Register Vol. 46, No. 39, September 25, 2024
The provisions contained in this section shall apply unless a condition in a court order provides to the contrary. Such condition shall be documented in the child's record.
(a) Mail.
(1) A child in care has an unrestricted right
to send mail without prior censorship or prior reading.
(2) A child in care has the right to receive
mail without prior reading or prior censorship. However, an authorized child
care agency or foster family boarding home may require the child to open the
mail in the presence of a staff member or the foster parent if there is
reasonable cause to suspect the delivery of contraband (e.g.,
drugs or weapons).
(3) Nothing
contained in paragraphs (1) and (2) of this subdivision shall be construed to
permit a child's use of mail for fraudulent, illegal or illicit
purposes.
(4) As part of a
treatment plan developed or approved by the local social services district
caseworker who has case management responsibility for a child, and in
consultation with the authorized agency or foster parent, the authorized child
care agency or foster parent may require that a child open mail arriving from a
predesignated person in the presence of a staff member or foster parent. Such a
situation might arise when it is anticipated that mail from a parent or other
person is likely to cause emotional harm to a child, and that such potential
harm could be lessened with the presence of a staff member or foster parent.
The child shall be informed of this aspect of the treatment plan when it is
established and the reason(s) for its implementation.
(b) Telephone.
(1) A child in care shall have the right to
receive or refuse any and all calls made to him/her during reasonable hours to
be set by the authorized agency or foster parent.
(2) A child in care shall be allowed to call
any person of his/her choosing; however, the time, duration and cost of such
calls may be restricted by the limits of the authorized agency's or foster
family boarding home's policies for access and utilization of the
telephone.
(3) Nothing contained in
paragraphs (1) and (2) of this subdivision shall be construed to permit a
child's use of the telephone for fraudulent, illegal or illicit
purposes.
(4) Except at the child's
request, neither agency staff nor foster parents shall listen in on a child's
phone conversation. An area which affords the child a reasonable degree of
privacy shall be provided for the purpose of receiving and initiating phone
calls whenever it is physically possible to provide such an area. It is not,
however, required that an authorized agency or foster home have a telephone,
except as required by section
442.14 of
this Subchapter, nor that it have any specific policy for its utilization
beyond what is contained in this subdivision.
(c) Access to attorney and clergy.
Nothing contained in subdivision (a) or (b) of this section shall be construed to impede access of a child to either his attorney or his clergyman.
(d) Searches.
(1) No search may be
conducted for the punishment, retaliation, discipline or the
harassment/embarrassment of a child or youth. Prior to any search being
conducted, the youth must be given an opportunity to relinquish
contraband.
(2) The search of a
child's property may include inspection of a child's bags, backpack, purse, or
jackets. Searches of a child's property may be made only under the following
circumstances:
(i) there is reasonable cause
to suspect that the child has in his/her possession one or more of the
following:
(a) an item(s) which does not
belong to him/her;
(b) items, the
possession of which by either an adult and/or a child is a crime
(e.g., weapons, firearms, controlled substances); or
(c) articles which the authorized agency
considers to be dangerous or harmful to the child, other children in the home
or program, or to the physical structure; or
(ii) a child who was absent without consent
from a program returns to care;
(iii) when there is reasonable cause to
believe that a stolen or illegal object is concealed in a child's pocket, a
search of a child's property may also include having the child empty out
his/her pockets.
(3) The
child must be present during the search of a child's room, locker or
possessions, unless to do so would compromise an agency or criminal
investigation or the safety of the child or others at the program or foster
home. In cases where the child is not present during the search, the authorized
agency or foster parent must notify the child at the earliest possible time
that a search has been made, the reason for the search, and whether any
material has been confiscated.
(4)
Every search must have an explanation of the purpose and the results of the
search documented in a separate search documentation log maintained by the
agency. Except in foster family boarding homes, every search must be authorized
by the director of the authorized agency or the director's designee.
(5)
(i) An
authorized agency may conduct routine area searches of the facility subject to
a search policy that has been approved by the office. An area search includes
any and all portions of the grounds and buildings of the facility other than
the child's bedroom. A search policy that permits routine area searches of the
facility must include:
(a) an explanation of
the need for routine area searches based on safety needs and contraband
concerns, taking into account the reasonable and prudent parent standard and
its case by case application;
(b)
consistent with the limitations referenced in subparagraph (i) of this
paragraph, the area or areas within the facility to be routinely searched;
and
(c) the facility's schedule of
such routine searches.
(ii) An authorized agency may not commence
routine area searches unless and until the authorized agency receives the
approval from the office of the above referenced authorized agency policy and
may not revise such policy absent the written approval of the office.
(6)
(i) An authorized agency may undertake an
unannounced general search only in circumstances where there is reasonable
cause to suspect that there are widespread articles of contraband which present
a danger that cannot be found by other means. The unannounced general search
may be a portion of the facility or of the entire facility. Prior notification
must be provided to the Office before an unannounced general search may be
conducted.
(ii) an unannounced
general search is defined as a search that is not routine or previously
announced, and where all areas of the facility including the grounds may be
searched, inclusive of a youth's rooms and property.
(7) An authorized agency may use metal
detectors for the routine examination of a child or the child's possessions in
accordance with the authorized agency's search policy, as referenced in
subparagraph (5)(i) of this subdivision.
(8) An authorized agency may use drug
sniffing dogs for the purpose of conducting scheduled or unscheduled searches
with the authorized agency's search policy as referenced in subparagraph (5)(i)
of this subdivision. Notification must be provided to the office at the
earliest possible time, but not later than the first business day following the
day the search takes place.
(9)
(i) Personal Searches: The search of a person
may be conducted only when:
(a) the
conditions of paragraph (2) of this subdivision are present; and
(b) there is reasonable cause to suspect that
the child or other persons in the facility or home are in imminent danger of
serious harm due to the object(s) or substance(s) in his/her
possession.
(ii) In such
situations the only personal searches allowed are:
(a) asking a child to empty personal effects
from a wallet or similar pocket sized compartment for personal papers, paper
money, and cards;
(b) asking the
youth to remove outer garments;
(c)
other garments may be searched carefully, including asking the youth to turn
out pant cuffs, sleeve cuffs, and pockets;
(d) a visual inspection of the mouth, nose,
and ears.
(iii) An
authorized agency may only include a pat-frisk search of a child's person
within their OCFS approved search policy if they have a program that serves
exclusively youth placed pursuant to Article 3 of the Family Court Act. This
type of search shall be done by a person of the same gender as the child.
Transgender/gender non-conforming youth may request the gender of the staff to
conduct a search when such search is required. Staff shall make all reasonable
efforts to accommodate the request.
(iv) Strip searches where a youth is required
to be naked in front of any staff, cavity searches, and any other invasive
bodily searches are not permissible under any circumstances.
(10) Contraband.
(i) For the purpose of this section,
contraband are those articles that are:
(a)
prohibited to be possessed under any law applicable to the general
public;
(b) readily capable of
being used to cause death or serious physical injury including, but not limited
to: firearms, cartridges, knives, explosives, or illegal drugs;
(c) prohibited by the regulations and
policies of the office;
(d)
prohibited by the rules of the facility, or program;
(e) possessed by a child, staff or visitor
without authorization; or
(f) items
not considered contraband by the general public but which may be considered
contraband by the authorized agency, include, but are not limited to,
inhalation devices, tobacco, lighters, and matches.
(ii) Authorized agencies operating a facility
must have a contraband policy, approved by the office, which outlines, at a
minimum:
(a) the items that are considered as
contraband for children, staff and visitors;
(b) a plan of communication regarding the
contraband rules for staff, residents and visitors;
(c) a plan for the confiscation, storage,
destruction and return of any contraband items as outlined in subparagraphs
(iii), (iv) and (v) of this paragraph.
(iii) Authorized agencies operating a
facility must have an inventory and documentation plan regarding seized
contraband. Contraband that is found and confiscated during searches of any
kind must be inventoried and documented. Such documentation must include:
(a) name of the resident;
(b) date of confiscation;
(c) name and signature of staff;
and
(d) resident's signature. If
the child refuses to sign or is not able to consent such refusal or inability
must be documented in the child's case record.
(iv) Property that is contraband but not
illegal and does not present a substantial safety or sanitation concern may
either be kept at the facility in a secure storage area, or released to the
child's parent or guardian, or discarded with consent of the youth and
permission of the parent/guardian.
(v) Authorized agencies operating a facility
must release to appropriate law enforcement officials property that is
contraband and for which possession may constitute a crime as defined by the
Penal Law. Any such release must be recorded in writing and include:
(a) a description of the property released to
law enforcement officials;
(b) the
time and date of release;
(c) the
name of the person from whom the property is confiscated; and
(d) the name and organization of the official
to whom the property is released.
If law enforcement officials give other instructions regarding the release of the property, these instructions must be documented and followed.
(11) Residential programs that are intended
to serve only children adjudicated and placed as juvenile delinquents in
accordance with article 3 of the Family Court Act shall establish policies for
routine scheduled and unscheduled property searches for approval by the office.
Such policies must include all requirements of the policies as listed above in
this subdivision. Additionally, such policies must include but are not limited
to:
(i) requirements for scheduled and
unscheduled searches, including expected frequency of each;
(ii) areas to be included in searches such as
living areas, individual rooms, or bathrooms;
(iii) number of staff required to
search;
(iv) methods of documenting
searches;
(v) methods of
documenting itemized list of contraband;
(vi) methods of disposing of contraband
pursuant to paragraph (10) of this subdivision; and
(vii) training of staff regarding conducting
property and area searches.
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