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August 30, 1999


The opinion of the court was delivered by: McCLURE, District Judge.



On April 28, 1999, plaintiffs John and Mary Doe commenced this action against various defendants*fn1 with the filing of a complaint pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq.; section 504 of the Rehabilitation Act of 1973 ("Rehab Act"), 29 U.S.C. § 794; Title IV of the Civil Rights Act of 1964 ("Title IV"); and 42 U.S.C. § 1983. Plaintiffs allege, inter alia, that defendants violated their civil rights by excluding plaintiffs from participation in the foster care program run by Centre County because of the disability of plaintiffs' son and on account of plaintiffs' race. See Complaint at ¶ 1.

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 of law.

Before the court is plaintiff's motion for a preliminary injunction. For the reasons which follow, we will deny the motion.


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) (citation omitted).

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.

II. Findings of Fact

The Doe Family

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 and AJB.

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 Channel One.

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 Program.

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 regular homes.

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
    pre-service training;
  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 Does.

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 pre-service training.

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 parent application.

47. The Does' background checks (including criminal record checks and Childline checks), physicals, and first aid examinations need to be ...

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