Medical Appointments, Consents, and Children in DSS Custody

In North Carolina, a juvenile who is the subject of an abuse, neglect, or dependency petition may be placed in the custody of a Department of Social Services (DSS). When DSS has a court order of custody, it places a child outside of the child’s home, often in a licensed foster home or in the home of a relative or other placement provider. Here at the School of Government (SOG), we are often asked whether North Carolina law authorizes foster parents (or the child’s placement providers) to consent to health services for the children in DSS custody who are placed in providers’ homes. Spoiler: the answer is “no.” If foster parents or placement providers cannot consent to medical care for the children in their home, must the person whose consent is required (e.g., a DSS caseworker) attend and give consent at every appointment for every child who is in DSS custody? This blog post, co-authored by SOG faculty Kirsten Leloudis and Sara DePasquale, addresses these questions. DSS Custody After DSS files a petition alleging that a juvenile (who is an unemancipated minor that has not enlisted in the U.S. Armed Forces) is abused, neglected, or dependent, DSS may seek a nonsecure custody order, which is a temporary order that may place the juvenile in DSS’s custody. Under G.S. 7B-503, nonsecure custody is ordered in certain situations when the juvenile’s health and safety are at risk, including but not limited to situations where the juvenile has been abandoned or is at substantial risk of physical injury or sexual abuse due to conditions created by the juvenile’s parent, guardian, custodian, or caretaker. If a juvenile is ultimately adjudicated by the court as abused, neglected, and/or dependent, then the court will enter disposition orders. One possible disposition is that the juvenile is ordered to the custody of DSS. See G.S. 7B-903(a)(6). In both nonsecure custody and dispositional orders, the same statute- G.S. 7B-505.1– governs who can consent to health services for a child in DSS custody. See G.S. 7B-903.1(e) (applying G.S. 7B-505.1 to dispositional order of DSS custody). Who Can Consent to Health Care for a Juvenile in DSS Custody? There are three categories of persons who can consent to specific types of care for a juvenile in DSS custody:

• the DSS director or their representative,
• the juvenile’s parent, guardian, or custodian, and
• the juvenile themselves.

Who is missing? Foster parents and other placement providers are not authorized to consent. We will circle back to this issue, but first, let’s review the laws addressing who is authorized to consent to care for a juvenile in DSS custody. DSS Director or the Director’s Authorized Representative When a juvenile is in DSS custody, G.S. 7B-505.1(a) authorizes the DSS director to give consent for the juvenile to receive routine medical and dental care and emergency care for medical, surgical, and mental health needs, as well as testing and evaluation in exigent circumstances. In these situations, consent may be given directly by the DSS director. DSS may also consent to other types of health care either through a court order or the authorization of the child’s parent, guardian, or custodian (discussed immediately below). Under North Carolina law, a DSS director can delegate certain duties to an authorized representative, who must be a member of the DSS’s director’s staff. See G.S. 7B-101(1); 108A-14(b). This delegation of authority happens by operation of law. As a result, in practice, it is more common for a DSS caseworker to consent to medical care for the child in DSS custody as the director’s authorized representative. The Authority of a Juvenile’s Parent, Guardian, or Custodian What about care that falls outside G.S. 7B-505.1(a)- care that is not routine, not an emergency, or not testing or evaluation in an exigent circumstance? Under G.S. 7B-505.1(c), unless there is a court order stating otherwise, the juvenile’s parent, guardian, or custodian is the appropriate party to give consent to these health services. The law also allows the parent, guardian, or custodian to authorize the DSS director (or the director’s authorized representative) to consent for the juvenile’s nonroutine and nonemergency health care. Any such authorization to DSS would be in writing, typically using the DSS 1812 form. The court may also remove the authority to consent to nonroutine and nonemergency health care from a parent, guardian, or custodian and enter an order authorizing the DSS director to do so. First,  a hearing is held, and the court finds by clear and convincing evidence that the care is in the juvenile’s best interest. See G.S. 7B-505.1(c). Examples of the type of nonroutine and nonemergency medical care that a parent, guardian, or custodian or with authorization by the parent, guardian, or custodian or by court order DSS may consent to are addressed in statute. A non-exhaustive list of treatment types includes

• Prescriptions for psychotropic medications.
• Participation in clinical trials.
• Immunizations when it is known that the parent has a bona fide religious objection to the standard schedule of immunizations.
• Child Medical Evaluations not governed by subsection (b) of G.S. 7B-505.1, comprehensive clinical assessments, or other mental health evaluations.
• Surgical, medical, or dental procedures or tests that require informed consent.
• Psychiatric, psychological, or mental health care or treatment that requires informed consent.

G.S. 7B-505.1(c). The Juvenile Themselves A North Carolina statute, G.S. 90-21.5(a)- often referred to as the “minor’s consent law”- allows unemancipated minors with decisional capacity to consent on their own to certain medical health services for the prevention, diagnosis, or treatment of venereal and other reportable diseases, pregnancy, abuse of controlled substances or alcohol, and emotional disturbance. A minor who is in DSS custody can consent to specific health services on their own (and without the consent of a parent, guardian, custodian, or DSS) in the same manner and to the same extent as a minor who is not in DSS custody. What about Foster Parents and Placement Providers? North Carolina statutes clearly identify who can make health care decisions for a juvenile in DSS custody and when. There is no state law that authorizes a foster parent or other placement provider to consent to health services for a child who is in DSS custody and placed in the care of a foster parent or other placement provider. Although some may think a foster parent or placement provider is a person standing in loco parentis (PILP) to the child, case law is clear that a foster parent is not a PILP. See e.g., Liner v. Brown, 117 N.C. App. 44 (1994) (aunt child was placed with when child was in legal and physical custody of DSS was not PILP as she was providing temporary care and did not intend to assume status and obligations of a parent including support and maintenance for child). The statute that allows the DSS director to delegate their powers and duties- G.S. 108A-14(b)- only permits delegation to members of the DSS director’s staff. Foster parents and relative placements are not DSS employees. Therefore, the DSS director does not have authority to delegate their power to consent to care for a juvenile in DSS custody to someone other than a member of their own staff. A letter from DSS, presented by the foster parent or placement provider, that simply states that the child is in DSS custody is not sufficient to authorize the delivery of care to that child under G.S. 7B-505.1. Stating that a juvenile is in DSS custody is not the same as providing consent for that child to receive health services. If anything, that statement should prompt the health care provider to ensure proper consent is being obtained from either DSS or the child’s parent, guardian, or custodian, whoever has authority to do so. Obtaining Consent when DSS Is Authorized to Consent but Cannot Attend the Appointment Although foster parents and other placement providers are not legally authorized to consent to health care for children in DSS custody who are placed in their care, it is lawful- and very common- for those providers to be the one who brings the child to a health care appointment. In many instances, the care that the foster child will receive- routine care (including sick visits) and emergency care- is a type of care that the DSS director (or their authorized representative) consents to under G.S. 7B-505.1(a). This raises the question, “Does the DSS director (or their authorized representative) need to be physically present at the appointment in order to give consent?” The answer is no. Nothing in the medical consent statute- G.S. 7B-505.1- requires the DSS director (or their representative) to be physically present at every appointment for which they give consent. This is likely welcome news to DSS agencies statewide, which may be experiencing staffing shortages. How, then, can the consent of the DSS director (or their authorized representative) be appropriately memorialized? In some instances, a wet signature from the DSS director (or their authorized representative) on a printed, paper consent form may be needed- but these situations tend to be the exception, not the norm. From a practical standpoint, it may be preferable to have the DSS director (or their authorized representative) sign an electronic copy of a consent form by using electronic signature tools such as Adobe or DocuSign. It may not also be necessary to get a fresh signature on a consent form from DSS every time that a child in DSS custody is presented for care. Some health care providers use a “general consent to treat” form, which is often signed at the first appointment and authorizes the delivery of a multitude of routine, low-risk health services to the patient. Although not required by state law, many health care providers request that new “general consent to treat” forms be signed on an annual basis. If a DSS director (or their authorized representative) has previously signed a “general consent to treat” form for a juvenile in DSS custody and the health service to be provided to that juvenile  falls within the scope of the care (1) described in the “general consent to treat” form (and the risks/benefits of providing the service to the juvenile have not changed) and (2) that a DSS director may consent to under G.S. 7B-505.1, then the DSS director (or their representative) likely does not need to sign a new consent form for that health service. Another option involves the health care provider contacting the DSS director (or their authorized representative, who is typically a DSS caseworker) by phone and obtaining consent orally. The health care provider should then memorialize that the DSS director (or their authorized representative) gave consent to the health care being provided to the minor by documenting it in the patient’s health record. Which of these approaches is most appropriate- written consent versus oral consent that is documented in the patient’s record- will depend on a handful of factors. There may be situations where written consent is required by law or is considered best practice. Beyond any legal requirements, whether consent can be given orally may also be informed by the standard of care, the health care provider’s ability to verify the identity of the person on the phone (the DSS director or their authorized representative), and the nature of the treatment to be provided. Health care providers with questions about the standard of care and best practices for obtaining and memorializing consent should consult their attorney, malpractice insurer, and/or licensing board, as appropriate. Additional Resources For more information about consent to care for minors, generally, please see this recent bulletin by Kirsten Leloudis: “Consent to Care for Minor Patients: An Update on the Legal Landscape After S.L. 2023-106, Part III.” For a more in-depth discussion of the types of care that a DSS director may consent to under G.S. 7B-505.1, please see this blog post by Sara DePasquale: “New Law: Consenting to Medical Treatment for a Child Placed in the Custody of County Department.” For more information about who qualifies as a PILP, please see this blog post by Kirsten Leloudis: “Who is a ‘Person Standing In Loco Parentis’ and When Can They Consent to Health Care for a Minor?” For more information about the minor’s consent law, please see this blog post by Kirsten Leloudis: “An Update on Minor’s Consent: Changes to the Law and Implications for COVID-19, Mpox, and Beyond.” Questions? If you have questions about this blog post, please contact Sara DePasquale (sara@sog.unc.edu) or Kirsten Leloudis (kirsten@sog.unc.edu).