The opinion of the court was delivered by: McCLURE, District Judge.
The crux of this matter and the focus of the preliminary
injunction hearing concerns a mandatory disclosure policy
("Policy" or "The Policy") adopted by the Board of Commissioners
of Centre County which has the effect of mandating that before a
foster child is placed in the Doe home:
(1) the Does must allow CYS to disclose the fact
that AJB has AIDS to the biological parents of any
foster child placed in the Does' home; and
(2) the biological parents of the foster child
placed in the Doe home must execute a written waiver
releasing CYS from any liability arising from the
foster child's placement in the Doe home.
Plaintiffs filed concurrently with their complaint a motion for a
preliminary injunction seeking that the Policy be declared
unlawful and that their home study be completed for placement of
foster children into their home.*fn2 The court on June 22, 1999,
held an evidentiary hearing on the motion for a preliminary
injunction. The parties then were granted leave to submit
supplemental briefs along with findings of fact and conclusions
Before the court is plaintiff's motion for a preliminary
injunction. For the reasons which follow, we will deny the
I. Standard for Preliminary Injunctive Relief
Fed.R.Civ.P. 65 provides for the issuance of preliminary
injunctions. In the Third Circuit,
[a]t the trial level, the party seeking a preliminary
injunction bears the burden of producing evidence
sufficient to convince the court that (1) the movant
has shown a reasonable probability of success on the
merits; (2) the movant will be irreparably injured by
denial of relief; (3) granting preliminary relief
will not result in even greater harm to the other
party; and (4) granting preliminary relief will be in
the public interest. . . .
ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987)
The requirement of a reasonable probability of success on the
merits also has been described as a "better than negligible
chance" of success on the merits. Int'l Kennel Club v. Mighty
Star, Inc., 846 F.2d 1079, 1084 (7th Cir. 1988) (citations
omitted). Regarding the element of irreparable injury, the harm
must be imminent and of such a nature that money damages alone
cannot atone for it. ECRI, 809 F.2d at 226.
1. Mary Doe is a Caucasian woman. She is a citizen of the
United States and of the Commonwealth of Pennsylvania, residing
in the Borough of State College, County of Centre, Pennsylvania.
Mary Doe is currently 52 years old.
2. John Doe is an African-American male, and is a citizen of
the United States and of the Commonwealth of Pennsylvania,
residing in the Borough of State College, County of Centre,
Pennsylvania. John Doe is currently 50 years old.
3. John Doe had a robbery conviction in the 1970's as well as a
burglary conviction in the 1970's.
4. John Doe has spent 14 years in prison, including time spent
in the juvenile justice system.
5. John Doe was released from prison in 1984. He has had no
convictions since his release.
6. John Doe graduated from The Pennsylvania State University in
1991 with a degree in administration of justice.
7. At present, John Doe is a cab driver who works from 1:00
p.m. to 9:30 p.m., Saturday through Monday.
8. John Doe has in the past worked as an aide for the
Pennsylvania Association of Retarded Citizens, as well as a drug
and alcohol counselor to prisoners in the State Correctional
Institution at Rockview.
9. John and Mary Doe married on December 31, 1996.
10. Prior to marrying John Doe, Mary Doe adopted several
children. Two of those children are AJB and MJB.
11. AJB and MJB are biological brothers. Mary Doe has cared for
both AJB and MJB since their infancies.
12. AJB and MJB are both African-American males. AJB is
currently 10 years old; MJB is 11 years old.
13. After his marriage to Mary Doe, John Doe adopted both MJB
14. AJB and MJB live with John and Mary Doe.
15. John and Mary Doe do not have medical insurance.
16. In 1997, John Doe injured his leg and was unable to work.
During that time, he received Medical Assistance. The Does no
longer receive Medical Assistance.
17. Mary Doe has a web site on America Online devoted to
helping other parents of children with AIDS. The members of the
Doe family are identified on this web page by their first names.
The Does' e-mail address is also displayed on this web page. The
e-mail address is comprised of Mary and John Does' first names.
The Does' Foster Parenting History
18. Before her marriage to John Doe, Mary Doe had extensive
experience as a foster parent in the state of New York.
19. During the time that Mary Doe served as a foster parent in
New York, she cared for eight children. She eventually adopted
seven of those children, two of whom are MJB and AJB.
20. Several of the foster children in Mary Doe's care in New
York had special needs or were disabled.
21. Several of the foster children in Mary Doe's care were
victims of abuse prior to their placements with Mary Doe.
22. Mary Doe testified that none of the children in her care
harmed AJB in any way.
23. Mary Doe was selected as Foster Parent of the Year by the
New York State Foster Parents' Association. She was also
highlighted as "New Yorker of the Week" on New York City's Cable
24. When Mary Doe moved to Pennsylvania to join John Doe, she
moved with four of her adopted children.
25. Prior to applying with CYS, the Does had applied and were
approved as foster parents with a private foster care agency,
Hope For Kids. The Does did not accept a foster child referral
from this agency because the child did not meet the background
requirements that the Does had deemed appropriate for their
family and had communicated to the agency. The Does terminated
their relationship with Hope For Kids and are no longer licensed
as foster parents with that agency.
Centre County CYS Foster Care Program
26. Defendant Centre County provides a foster care program for
children in need of temporary or permanent placements outside of
the homes of their biological or custodial families.
27. Centre County and CYS are beneficiaries of federal funding,
and a portion of the federal funding that those entities receive
benefits the Centre County Foster Care Program.
28. The Centre County Foster Care Program is administered by
the Centre County CYS. CYS is obligated to operate the Centre
County Foster Care program in accordance with all applicable
federal and Commonwealth regulations.
29. Defendant Terry Watson is the Director of CYS. He has
overall management responsibility for CYS' programs, including
the Centre County Foster Care Program.
30. Defendant Carol Smith is the Assistant Director of CYS. She
assists Watson in overseeing CYS' programs, and she is ultimately
responsible for the selection and training of foster families
under the Centre County Foster Care Program.
31. Defendant Lisa Rice is a Foster Home Specialist employed by
CYS. She is responsible for helping to select and counsel current
and potential foster families under the Centre County Foster Care
32. Tom Groninger is an employee of CYS who performs the
preliminary home study for potential foster parents.
33. CYS has a continuing and current need for new families to
serve as foster families under the Centre County Foster Care
Program. CYS has recruited and continues to recruit foster
families to care for certain children in the Centre County Foster
Care system who are in need of placements outside of their
34. The steps in a foster parent application, as testified to
by Smith, are as follows:
A. CYS receives an initial phone call from interested
potential foster parents;
B. Tom Groninger performs the preliminary homestudy;
C. the potential foster parents undergo six weeks of
D. the potential foster parents meet with Lisa Rice
for a final walk-through and assessment;
E. Lisa Rice then meets with Carol Smith to either
approve or disapprove the potential foster parents'
35. CYS makes its placement decisions based on the best
interests of the foster child.
36. In accordance with 42 U.S.C. § 1996b, CYS may not delay or
deny the placement of a child for adoption or into foster care,
on the basis of the race, color, or national origin of the
adoptive or foster parent, or the child, involved.
37. Although the goal of placement is short-term with an eye
towards reunification, because of uncertainties regarding the
duration of placement, CYS places children into homes in which
they can thrive on a long-term basis, if necessary.
John and Mary Does' Application Status with CYS
38. John and Mary Doe applied to be foster parents with CYS on
or about January, 1998.
39. Tom Groninger conducted a preliminary home study of the
40. Groninger reported to CYS that a child with AIDS resides in
the Doe home.
41. Prior to the submission of the Does' application to become
foster parents, CYS never knowingly placed an HIV or
AIDS-infected child into a foster home.
42. In January, 1998, CYS did not have a policy that addressed
what limitations, if any, applied to foster homes in which a
child with an infectious disease such as HIV or AIDS resided.
43. At present, the Does have completed the mandatory six-week
44. After CYS adopted its policy in December 1998, the Does
refused to continue with the application process.
45. CYS informed the Does by correspondence dated December 18,
1998, that CYS was ready to proceed with the Does' application.
46. At present, the Does need to meet with Lisa Rice for the
final walk-through of the home and assessment of their foster
47. The Does' background checks (including criminal record
checks and Childline checks), physicals, and first aid
examinations need to be ...