AJB falls within the "direct threat exception" to the ADA and
Section 504 of the Rehab Act.
2. Plaintiffs Have Not Shown Irreparable Harm
Plaintiffs have failed to show that they will face irreparable
harm if the court denies the motion for preliminary injunctive
relief. Plaintiffs testified at the hearing that they were
approved previously as foster parents by a private foster care
agency, Hope For Kids. Moreover, Mary Doe testified that
plaintiffs did not accept any foster child referrals from Hope
For Kids because the referrals did not meet their needs. It is
apparent that other avenues for foster parenting are open to
plaintiffs. Therefore, the court finds that plaintiffs have
failed to prove irreparable injury.
Moreover, at the time of the hearing, final approval of
plaintiffs' foster parent application was pending. CYS has not
reached a final decision one way or the other. Because CYS has
not rejected plaintiffs' application, the court fails to see the
harm claimed by plaintiffs. Even assuming that plaintiffs'
application was approved, plaintiffs still cannot prove
irreparable injury because CYS never guaranteed placement of a
child, a fact which was corroborated by Mary Doe at the hearing.
Indeed, it is clear that obtaining the consent and waiver from
the biological parent is a threshold condition that the Does must
meet before CYS can consider placing a child in their home. It
appears that a case by case evaluation must be made in
determining which placement is in the best interests of the
child; thus, it would be indeed inappropriate and imprudent for
CYS to guarantee placement of a foster child without evaluating
the foster child's needs in light of the potential foster home's
ability to meet those needs.
Lastly, plaintiffs through their various attorneys have made
representations to CYS regarding monetary compensation as redress
for plaintiffs' embarrassment and humiliation. First, this
suggests to the court that money damages alone can atone for the
damages claimed by plaintiffs, in contravention to the standard
for preliminary injunctive relief. Second, plaintiffs' argument
that they have suffered embarrassment and humiliation lacks
merit. As previously stated, Mary Doe has a web page which
identifies members of her family by their first names, as well as
AJB's AIDS status. The court finds that if privacy issues were
indeed a concern, it is ingenuous for the Does to use even their
first names in the web site and in their e-mail address.
Moreover, the hearing was held as a closed proceeding, and the
court record is under seal. The court fails to see how plaintiffs
have suffered embarrassment and humiliation.
Accordingly, the court finds that plaintiffs have not shown
irreparable harm by the denial of preliminary injunctive relief.
3. Balance of the Harm
Plaintiffs contend that neither defendants nor any other third
party will suffer harm if plaintiffs are allowed to proceed as
foster parents without the consent and waiver policy. We
We have determined previously that placing a foster child in
the same home as AJB constitutes a direct threat of extremely
serious to any such child, and we will not repeat our analysis
here. See Direct Threat, supra. Moreover, while plaintiffs at
the hearing offered evidence concerning the nonexistent risk of
HIV transmission in casual contact settings, this evidence
provides little guidance, since 36% of foster children placed by
CYS have sexually related issues.
Moreover, the court notes that CYS through its Policy is
fulfilling its obligation under federal law. 42 U.S.C. § 671
provides in pertinent part as follows:
§ 671. State plan for foster care and adoption assistance
(a) Requisite features of State plan
In order for a State to be eligible for payments under this part,
it shall have a plan approved by the Secretary which — (15)
provides that —
(A) in determining reasonable efforts to be made
with respect to a child, as described in this
paragraph, and in making such reasonable efforts,
the child's health and safety shall be the
(B) except as provided in subparagraph (D),
reasonable efforts shall be made to preserve and
reunify families —
(i) prior to the placement of a child in foster
care, to prevent or eliminate the need for
removing the child from the child's home; and
(ii) to make it possible for a child to safely
return to the child's home; . . .
42 U.S.C. § 671(a)(15) (emphasis added). Defendants have a
legitimate concern when placing foster children in a potentially
risky situation. Indeed, placing foster children in a home with
an HIV-infected individual could have grave consequences for
defendants and third parties. Aside from compromising CYS'
eligibility to receive funding from the federal government,
defendants are also subjecting the agency to possible litigation,
should an unfortunate situation occur. Moreover, the court cannot
ignore the most significant potential harm: the potential harm
that a foster child may contract the HIV virus while in care in
the Doe home.
Accordingly, in balancing the harm, we find that a significant
risk of harm exists to defendants and third parties if the court
grants the motion for preliminary injunctive relief.
4. Public Interest
Plaintiffs contend that granting preliminary injunctive relief
will serve the public interest. We disagree. While there is
always a need for foster parents to open their homes to foster
children, this need should not diminish the best interests of the
Moreover, this court does not dispute the fact that the Does
can provide a loving home to a child. However, the court does not
believe that the public interest will be served by granting
preliminary injunctive relief. As previously stated, the
paramount concern for foster care agencies is the health and
safety of the children. See 42 U.S.C. § 671(a)(15). The waiver
and consent Policy appears to further this goal in the best
interest of the foster child.
Plaintiffs in their supporting brief contend that
discrimination should not be promoted. However, the court finds
that the Policy is not a form of unlawful discrimination. Rather,
the Policy serves the public interest by protecting sexually
deviate children from a contagious, life-threatening disease.
Therefore, the court finds that the public interest will not be
served by granting the preliminary injunction.
Based on the foregoing, we conclude that plaintiffs have not
sustained their burden of satisfying the four-prong test for
preliminary injunctive relief. We believe that the evidence in
this case so far establishes that AJB's AIDS status, in light of
his mental and physical deficiencies, as well as the
characteristics of foster children placed by CYS, poses a
significant risk to children if placed in the Doe home. Moreover,
the court finds that plaintiffs have failed to show irreparable
harm; that defendants and other third parties may be harmed by
the granting of the preliminary injunction; and that the public
interest will not be served by the granting of the preliminary
injunction. Accordingly, we will deny plaintiffs' motion for
preliminary injunctive relief.