County cannot ban placing foster children in families with HIV-positive members.

The Third Circuit Court of Appeals has held that a county policy prohibiting the placement of a child in a foster family because a family member is HIV-positive is not authorized under the direct-threat exception to the Americans with Disabilities Act (ADA). (Doe v. County of Centre, 242 F.3d 437 (3d Cir. 2001).) That exception allows disability discrimination if a disability directly threatens the health or safety of others.

"The county made a lot of unwarranted assumptions, both about people with AIDS and about foster children," said the plaintiffs' lawyer, Matthew Gutt of Philadelphia.

John and Mary Doe, whose son Adam is HIV-positive, brought the suit. After the Does applied to become foster parents under a county program, the county adopted a policy that foster families whose members have serious infectious diseases may care only for children with the same disease.

The Does alleged that the policy violated the ADA, but the trial court granted the county summary judgment, finding that the direct-threat exception applies because foster children placed with the Does could sexually assault Adam and contract HIV.

In a unanimous opinion by Judge Julio Fuentes, a panel of the Third Circuit reversed. Fuentes wrote that courts must make "an individualized determination as to the significance of risk underlying the direct-threat exception" when deciding whether the exception applies. Here, the court found, the trial court failed to conduct the required inquiry. Instead, it concluded that foster children have a high propensity for sexual abuse, relying on "a bland and generalized set of statistics" indicating that 12 percent of foster children have histories of perpetrating sexual abuse.

However, Fuentes emphasized, "the statistics broadly define `sexual abuse to include activities ... that carry no risk of transmitting HIV." In addition, Fuentes noted, the Does have stated a preference for foster children under the age of 12, and children who have not reached puberty are extremely unlikely to commit forcible sexual intercourse leading to the transmission of HIV.

The court concluded that a reasonable fact finder could determine that placement of at least some foster children with the Does would not entail a significant risk.

"This case shows there is still a mistaken perception in the public at large as to how people with AIDS transmit the disease and the likelihood that such transmission would occur in an intimate setting," Gutt said.