July 1, 1981, he reversed that finding on the basis of a "confidential report" which he had ordered.
On the same day, Justice Larsen of the Supreme Court of Pennsylvania issued a supersedeas directing Rachael's placement from the agency to plaintiffs. One week later, upon motion, the Supreme Court of Pennsylvania reversed his ruling and directed Rachael's placement with her biological parents.
Plaintiffs then instituted this action to stay Judge Franciosa's orders of February 26 and July 1, 1981, for a writ of habeas corpus directing the biological parents to show cause why they should have custody, for a declaration that certain portions of the Pennsylvania Adoption Act are unconstitutional and for appointment of separate counsel for Rachael herself.
To prevail on a motion for a temporary restraining order, plaintiffs must demonstrate, inter alia, a likelihood of success on the merits. See Kennecott Corp. v. Smith, 637 F.2d 181 (3d Cir. 1980). Specifically, plaintiffs seek a stay of the orders entered by defendant Judge Franciosa. Plaintiffs also request a declaration that the Pennsylvania Adoption Act unconstitutionally violates the rights of all children under the age of six months and denies them due process and equal protection in not affording them the right to a hearing and impartial trial, adequate counsel and consideration of their "best interests."
A writ of habeas corpus may not be used to challenge the custody of a foster or adoptive parent over a child. A determination of child custody, without more, simply cannot provide the predicate for the use of federal habeas corpus. See Lehman v. Lycoming County Children's Services Agency, 648 F.2d 135 (3d Cir.) (en banc), cert. denied, 454 U.S. 1077, 102 S. Ct. 630, 70 L. Ed. 2d 611 (1981).
Similarly, the Due Process Clause of the Fourteenth Amendment does not require appointment of counsel where a litigant's personal liberty is not at stake. See Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640, decided by the Supreme Court of the United States on June 1, 1981. For either protection to apply, the litigant must be in, or risk, incarceration or a restriction or restraint affecting his or her personal liberty. At no time has Rachael been deprived of her physical liberty within the meaning of the Fourteenth Amendment.
The only question properly before this Court is whether Judge Franciosa and the other defendants violated Rachael's civil rights and whether the questioned portions of the Pennsylvania Adoption Act are unconstitutional. On the basis of the understandably limited record presently before the Court, plaintiffs have failed to show at this point the deprivation of a property right protected by the Fourteen Amendment Due Process Clause or an invidious discrimination offending the Equal Protection Clause.
We express no opinion concerning where Rachael's "best interests" lie and with whom she should live. Those questions must be reserved for the state courts to solve. We determine only that the plaintiffs have failed to demonstrate a likelihood of success on the merits and, therefore, to meet their burden to obtain a temporary restraining order. Accordingly, plaintiffs' motion for a temporary restraining order will be denied and we shall enter the following order:
AND NOW this 10th day of July, 1981, it is ORDERED that plaintiffs' motion for a temporary restraining order is DENIED.
I would be less than candid if, in closing, I did not say that this is a difficult decision for anyone to make, particularly for one who is a father for many years and a grandfather for 18 months. Thank you for your patience and courtesy in remaining, and this Court is now adjourned.
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