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- SUPREME COURT OF THE UNITED STATES
- --------
- Nos. A-555 and A-558
- --------
- EDWARD J. O'CONNELL, guardian ad litem for
- BABY BOY RICHARD
- A-555 v.
- OTAKAR KIRCHNER
-
- JOHN AND JANE DOE
- A-558 v.
- OTAKAR KIRCHNER
- on application for stays
- 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 trans-
- ferred 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 consti-
- tutionally 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 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 jurisdic-
- tion. 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 surren-
- der 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 unfortu-
- nate effects on innocent parties are, of course, not
- matters that I have any authority to consider in connec-
- tion with the dispositions of the pending applications for
- federal relief.
- Accordingly, both stay applications are denied.
- It is so ordered.
-