Foster Parents and Aids: Considering the Best Interests of a Foster Child in in Re Interest of John T., 4 Neb. Ct. App. 79, 538 N.w.2d 761 (1995)

JurisdictionNebraska,United States
CitationVol. 77
Publication year2021

77 Nebraska L. Rev. 617. Foster Parents and AIDS: Considering the Best Interests of a Foster Child in In re Interest of John T., 4 Neb. Ct. App. 79, 538 N.W.2d 761 (1995)



Foster Parents and AIDS: Considering the Best Interests of a Foster Child in In re Interest of John T., 4 Neb. Ct. App. 79, 538 N.W.2d 761 (1995)


I. Introduction ............................................ 618
II. Background .............................................. 620
III. Relevant Law ............................................ 623
IV. Analysis of In Re Interest of John T. ................... 627
A. The Court Did Not Appropriately Apply a Balancing
of Interests Test in John T. by Failing to Recognize
the Manifest Legal Differences Between Biological
Families and Foster or Adoptive Families ............. 628
B. The Brummetts' Interest in the Fos-Adopt
Relationship Is Not Equivalent to the Biological
Parent-Child Relationship Because There Is No
Fundamental Right to Adopt or to Provide Foster
Care ................................................. 629
C. The Best Interests of the Child Standard and the
Court's Problematic Application of this Standard in
John T. .............................................. 632
D. The Effect of Interjecting Societal and Political
Interests into a Child Placement Decision-Why
AIDS Was a Factor in the Outcome of This Case . . .... 640
E. Future Implications of the John T. Decision and Jay
Brummett's Suit in Federal Court ..................... 643
V. Conclusion .............................................. 644



When Diane first met her friend, Sarah, through the Project Kids Program,(fn1) she never anticipated the situation in which she was getting involved. It all started out innocently enough. Diane's role was to spend time with ten year-old Sarah and to be a friend and a role model to her. When they first started spending time together, Sarah lived at home with her mother and her brothers. Now, two years later, Sarah lives in a foster home. After Sarah was placed in the foster home, Diane's role began to change. She spent hours at various meetings discussing the family's reunification plan and making phone calls as an advocate for Sarah. She never knew what would happen next. Many times, Diane felt she was waging a personal battle for her young friend's best interests in the complex world of foster care. In today's child welfare system, volunteers like Diane are not alone in having a personal stake in the outcome of a child placement decision.

With all the competing interests involved in a child placement decision, are the best interests of the child really the controlling factor in making decisions regarding foster children? The child welfare system today must deal with many factors that compete with the best interests of children. Many situations regarding child welfare often find their way into a court of law, where decisions must be made as to what type of placement is in the best interests of the child. We would all like to think that our judicial system would never place other considerations ahead of a child's best interest. These other considerations should not outweigh the child's best interests. However, this can happen. Such was the case of a little boy named John T.

In In re Interest of John T.,(fn2) the Nebraska Court of Appeals disapproved the plan of the Nebraska Department of Social Services ("DSS")(fn3) to remove a young boy from the home of his foster parents,


one of whom had HIV-AIDS.(fn4) In John T., the court promoted the interests of the foster parents under the guise of seeking the best interests of the child. This proposition may not be evident in the court of appeals opinion alone, but becomes apparent through the progression of the case as a whole. John's best interests were placed behind the social goal of discouraging discrimination in the judicial process against an individual with AIDS.

It cannot be disputed that there is widespread discrimination against individuals with HIV-AIDS.(fn5) Such discrimination has prompted reforms to protect the rights of people infected with HIV-AIDS. (fn6) Discouraging discrimination against individuals with this dis-


ease is a legitimate goal in the judicial and social systems. However, in a situation like John T.'s, can this be taken too far? Whose interests are to be given more weight-those of an HIV-AIDS-infected foster parent or those of the foster child? In the John T. situation, the fact that the foster mother had AIDS, as opposed to some other terminal illness, tipped the scales in favor of protecting the foster parents' interests over what was really in the best interests of this child. This Note first presents the factual background of In re Interest of John T., as well as the ultimate outcome of the situation, which is not evident in the court of appeals opinion itself. Next, this Note presents the legal framework upon which the case can be analyzed. This Note then analyzes the Nebraska Court of Appeal's opinion in John T., beginning with an analysis of the differences in the rights of biological families as compared to the rights of foster and adoptive families. The meaning of the best interests of the child standard is then examined. The ramifications of interjecting the social and political goal of discouraging discrimination against HIV-AIDS-infected individuals into a child placement decision are then discussed. This Note concludes by examining the future implications for the child welfare system arising from the John T. case and the subsequent federal court suit brought by the foster parents alleging discrimination by DSS because of the foster mother's HIV-AIDS status.


In re Interest of John T.(fn7) was an appeal to the Nebraska Court of Appeals seeking to reverse an order of the juvenile court. The juvenile court order approved the DSS plan to remove a three-and-a-half-year-old boy from the home of foster parents because the foster mother was HIV-positive. The court of appeals reversed the juvenile court's order, thereby disapproving the DSS plan.(fn8) However, there is much more to this case than what is revealed in the court of appeals opinion, making the story all the more tragic. John T. was born on December 28, 1991. (fn9) When he was three months old, DSS placed John in the home of foster parents, Jay and GayLynn Brummett.(fn10) John was placed in foster care because his parents could not care for him properly. John's biological mother had suffered from schizophrenia (fn11) for over half her life,(fn12) and his biologi-


cal father was incarcerated on a sexual assault charge and was also possibly schizophrenic.(fn13) Because his mother was schizophrenic, John had a fourteen-percent chance of developing schizophrenia himself.(fn14) If John's father also had schizophrenia, John would have a fifty-percent chance of developing the illness.(fn15)

John's placement with the Brummetts was a "fos-adopt" placement, a term of art meaning the placement was assumed permanent and the foster parents would adopt the child when the child became free for adoption.(fn16) On April 9, 1992, John was adjudicated as a child without proper support through no fault of his parents, and the biological parents later relinquished all rights to John, freeing him for adoption. (fn17) At the time of John's placement with the Brummetts, DSS had a health regulation concerning foster and adoptive parents which stated that in the case of adoption, the health of the parents should be maintained until the child reaches the age of majority.(fn18) The Brummetts first applied to be foster parents in December of 1990, and their performance as foster parents since that time was satisfactory. (fn19) However, when they applied to be foster parents, neither Jay nor GayLynn Brummett disclosed to DSS that GayLynn Brummett had tested HIV positive in 1989 and was taking AZT, a drug commonly taken as treatment for the disease.(fn20) DSS found out about GayLynn's HIV status through an anonymous report,(fn21) and, when confronted with the information, GayLynn Brummett confirmed the report.(fn22) Mrs. Brummett stated that she did not disclose the information because she believed she would be rejected as a foster parent.(fn23) DSS asked the Brummetts to consider changing John's placement


from fos-adopt to longterm foster care.(fn24) The Brummetts insisted on adopting John.(fn25)

DSS gathered information stating that GayLynn Brummett would develop AIDS within the next seven years and had no chance of survival. (fn26) Concerned about the potential impact of losing his mother at a young age on the schizophrenia in his biological makeup,(fn27) DSS filed a placement change to transfer John to another foster home.(fn28) The transfer was approved by the juvenile court.(fn29)

John's guardian ad litem appealed the juvenile court order to the court of appeals.(fn30) The court of appeals opinion, rendered on October 3, 1995, stated that the DSS plan was not in John's best interests. The court found that a preponderance of the evidence showed that it was in John's best interests to stay with the Brummetts. This evidence showed that John had bonded with the Brummetts, had a close extended family through the Brummetts, that there were no deficiencies in John's care, and that there was no risk of John contracting HIV from Mrs. Brummett through ordinary household contact.(fn31) Even though the Brummetts had deceived DSS in violation of the health regulation regarding adoptive parents,(fn32) the court disapproved the DSS plan. DSS petitioned the Nebraska Supreme Court for further review of the case,(fn33) but the Court refused.(fn34) It appeared that John would be staying with the Brummetts.

However, one crucial fact not evident in the court of appeals opinion is that John...

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