N.Y. Comp. Codes R. & Regs. tit. 18 § 441.18

Current through Register Vol. 46, No. 45, November 2, 2024

Section 441.18 - Children's privacy rights

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.

N.Y. Comp. Codes R. & Regs. Tit. 18 § 441.18

Amended New York State Register December 23, 2015/Volume XXXVII, Issue 51, eff. 12/23/2015

Amended New York State Register December 11, 2019/Volume XLI, Issue 50, eff. 12/11/2019