The Honorable Thomas P. Eichler
May 24, 1996
DYRS also is required to "exercise all powers...as are necessary to discharge their responsibility of legal custody of a juvenile." 31 Del. C. § 5106(8). Similarly to the DFS authorization, this latter provision enables the DYRS to consent to immunizations and testing associated with routine physical and mental health examinations.
2. Can the DFS and DYRS, after unsuccessful attempts to locate the parents, consent to and sign for children in their care and custody in order to allow them to undergo more serious medical treatment such as surgery, or is a court order required?
It is our opinion that 31 Del. C. §§ 304 and 5106(8) authorize the DFS and the DYRS respectively to consent to more serious medical treatment, exclusive of inpatient mental health admissions, for children in their care and custody when parents cannot be located to obtain their consent. In-patient mental health admissions are excluded pursuant to the specific statutory provisions of 16 Del. C.§ 5123(c) discussed in response to question 3.
Section 304 provides that the DFS "shall exercise such duties as shall be necessary, proper and expedient for the supervision, [and] care..." of dependent and neglected children. When a parent is not available to be consulted regarding consent to serious medical treatment and cannot be located within a reasonable time under the applicable circumstances, the consent of DFS to medical treatment becomes necessary, proper and