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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 applications for stay
- February 13, 1995
-
- The applications for stay addressed to Justice O'Con-
- nor and referred to the Court 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 be-
- lieved, 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 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,
- -In the event that an order for adoption is vacated,
- the court shall promptly conduct a hearing as to the
- temporary and permanent custody of the minor child
- who is the subject of the proceeding pursuant to
- part VI of the Illinois Marriage and Dissolution of
- Marriage Act. The parties to the proceeding shall
- be the petitioners to the adoption proceeding, the
- minor child, the biological parents whose rights have
- not been terminated, and other parties who have
- been granted leave to intervene in the proceeding.
- The provisions of this Section shall apply to all
- cases pending on and after the effective date of this
- amendatory Act of 1994.-
- The amendment employs mandatory language. Cf.
- Hewitt v. Helms, 459 U. S. 460, 472 (1983). It also
- appears on its face to apply to the instant case.
- At this juncture, we can only speculate about the
- Illinois Supreme Court's rationale for avoiding applica-
- tion 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 provi-
- sion 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., writing in support of denial of rehearing)
- (citing Stanley v. 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.
-