EDWARD J. O'CONNELL, GUARDIAN AD LITEM FOR BABY BOY RICHARD v. OTAKAR
JOHN AND JANE DOE v. OTAKAR KIRCHNER ON APPLICATION FOR STAYS Nos. A-555 AND A-558 January 28, 1995
JUSTICE STEVENS, Circuit Justice.
The guardian ad litem for Baby Boy Richard and his adoptive parents have filed with me in my capacity as Circuit Justice for the Seventh Circuit applications to recall the mandate of the Illinois Supreme Court and to stay that Court's issuance of a writ of habeas corpus directing that custody of Baby Boy Richard be transferred to his natural father. The decision implements an earlier judgment entered by the Illinois Supreme Court, see Petition of Doe, 159 Ill. 2d 347, 202 Ill. Dec. 535, 638 N.E.2d 181 (1994); two months ago, this Court denied a petition for certiorari seeking review of that judgment, ___ U.S. ___ [115 S. Ct. 499] (1994).
The applications are based on a procedural due process theory that Baby Boy Richard has a constitutionally protected liberty interest in remaining in the family of John and Jane Doe, his adoptive parents, and that the Does have a liberty interest in maintaining their relationship with Richard. Under this theory, no writ of habeas corpus ordering a change in the [ O'CONNELL v. KIRCHNER, ___ U.S. ___ (1995) , 2] child's custody could be issued absent a full and fair hearing. I accept the representation in footnote 5 of the Does' application that this claim was presented to the Illinois Supreme Court, at least as to the rights of the adoptive parents. I must therefore assume that the state court passed upon this claim and that this Court has jurisdiction. I have concluded, however, that the claim cannot succeed. The underlying liberty interests the applicants claim have already been the subject of exhaustive proceedings in the Illinois courts, culminating in the Illinois Supreme Court's decision last year. The result of those proceedings was a determination that the biological father was entitled to present custody. The habeas corpus proceeding from which the adoptive parents now seek relief was an execution of the Court's prior decision, ordering the adoptive parents to surrender custody "forthwith." That order adjudicated no new substantive rights, but merely enforced the mandate of the prior decision. Accordingly, applicants have received all the process due them under federal law.
The adoptive parents also claim that Illinois law requires an additional hearing in these circumstances. But the highest court in the State apparently disagrees; for if applicants correctly described their state-law entitlement, the Supreme Court of the State would have ordered the hearing they seek. I have no authority to review that Court's interpretation of the law of Illinois. Finally, the regrettable facts that an Illinois court entered an erroneous adoption decree in 1992 and that the delay in correcting that error has had such unfortunate effects on innocent parties are, of course, not matters that I have any authority to consider in connection with the dispositions of the pending applications for federal relief.
Accordingly, both stay applications are denied.
JUSTICE O'CONNOR, with whom JUSTICE BREYER joins, dissenting.
Wrenching factual circumstances such as these have arrived on our doorstep twice in as many years. See DeBoer by Darrow v. DeBoer, 509 U.S. ___ (1993). Baby Richard is nearly four years old. He has lived his entire life in the care of the Does, a couple who believed, at least initially, that he was legally their child. Otakar Kirchner, the boy's biological father, was told for the first 57 days of the boy's life that his son was dead. When Kirchner learned that Baby Richard had instead been put up for adoption by his biological mother, Kirchner immediately asserted his rights and sought the boy's return. Last year, after finding Kirchner a fit parent and determining that he had adequately pursued his interest in the child, the Illinois [ O'CONNELL v. KIRCHNER, ___ U.S. ___ (1995) , 2] Supreme Court invalidated the adoption, see In re Petition of Doe, 159 Ill. 2d 347, 638 N.E.2d 181 (1994). We denied the petition for certiorari seeking review of that judgment, see 513 U.S. ___ (1994). To date, Otakar Kirchner has never met his son.
One week ago, four hours after concluding oral argument on Kirchner's habeas petition, the Illinois Supreme Court issued a one-line order directing the Does "to surrender forthwith custody of the child known as Baby Boy Richard" to Otakar Kirchner. In so doing, the court evidently did not apply a recent amendment to the state adoption laws, 750 Ill. Comp. Stat. 50/20b (1994), which provides,
At this juncture, we can only speculate about the Illinois Supreme Court's rationale for avoiding application of a state law that appears to mandate a "best interests" hearing. The court may have rested its decision on state law grounds, either finding the provision altogether inapplicable in this habeas proceeding or determining that it violated the state constitution. On the other hand, the court may have rested its decision on a conclusion that 750 Ill. Comp. Stat. 50/20b runs afoul of the Federal Constitution. Cf. 638 N. E 2d, at 188 (Heiple, J., [ O'CONNELL v. KIRCHNER, ___ U.S. ___ (1995) , 3] Illinois, 405 U.S. 645 (1972), a case based on the Federal Constitution, to support the proposition that the "best interests" standard should not be the determining factor in custody cases); id., at 190 (suggesting that the enactment of a provision designed to affect pending cases violates state principles of separation of powers).
That we are left guessing about the basis for the Illinois Supreme Court's decision, particularly when opinions are forthcoming, gives me considerable pause. A decision that the Federal Constitution invalidates the Illinois statute may raise a conflict with decisions of other courts. See, e. g., In re Baby Boy C., 630 A.2d 670 (D.C. 1993), cert. denied sub nom. H. R. v. E. O., 513 U.S. ___ (1994). Because we are presently ill-equipped to evaluate the issues in this difficult case, I would grant a stay extending until 10 days after issuance of the Illinois Supreme Court's opinion or 45 days from today, whichever comes first. As in Sklaroff v. Skeadas, 76 S. Ct. 736, 738, 100 L.Ed. 1524, 1525 (1956) (Frankfurter, J., in chambers), I believe that in this case, "[d]isrupting the statu[s] quo forthwith . . . has consequences whose disadvantages, from the point of view of the child's interests, outweigh any loss to the [biological father] that may result from a short delay in acquiring custody of the child." I respectfully dissent.