In the Illinois child protection court process, a temporary custody hearing must take place within forty-eight hours of the Department of Children and Family Services taking protective custody of a child after investigating an allegation of child abuse or neglect. If the court finds, based on the evidence presented, that there is an “urgent and immediate” need to remove the child from the care of the parents, the court will appoint DCFS, or an appropriate adult, as the child’s temporary custodian and set the case for trial.
In late May 2018, the Illinois Legislature enacted an amendment to the Juvenile Court Act (H.B. 5157) that allows the court to grant the custodian the authority to serve as a surrogate decision maker for the minor under the Health Care Surrogate Act.
This is important, because healthcare decisions must often be made before final adjudication on the merits. In many reported cases, clinician recommendations to withdraw life-sustaining treatment from critically injured children have been rejected by the very parents who inflicted the abuse. Typically, parents retain the right to make such decisions until there is a “permanent” termination of parental rights.
To grant the temporary custodian such authority, the court must determine by clear and convincing evidence that it is in the best interests of the minor. In making its determination, the court shall weigh the following factors in addition to standard best interests factors:
(a) the efforts to identify and locate the respondents and adult family members of the minor and the results of
(b) the efforts to engage the respondents and adult family members of the minor in decision making on behalf of the minor;
(c) the length of time the efforts in paragraphs (a) and (b) have been ongoing;
(d) the relationship between the respondents and adult family members and the minor;
(e) medical testimony regarding the extent to which the minor is suffering and the impact of a delay in decision-making on the minor; and
(f) any other factor the court deems relevant