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August 23, 1988


John B. Hannum, Senior United States District Judge.

The opinion of the court was delivered by: HANNUM


 In the present action, the plaintiffs, John J. McLaughlin and Marilyn M. McLaughlin, allege that the defendants, the City of Philadelphia Department of Human Services and its Commissioner, Irene Pernsley, violated their rights under the United States Constitution when the defendants, pursuant to their policy against cross-racial long-term foster care placements and adoptions, removed Raymond Bullard, a black child committed to plaintiffs' foster care, from plaintiffs' home on October 18, 1985. *fn1"

 Raymond Bullard lived with the plaintiffs, a white couple, for a two-year period commencing when the boy was five months old.

 Plaintiffs allege that the defendants removed Raymond Bullard from their home and then placed him with a black foster family, the Williams family, only because plaintiffs are white and for no other reason. Moreover, plaintiffs allege that Raymond Bullard was removed from their home on this October 1985 date without the notice required by Pennsylvania law. Thus, plaintiffs allege that defendants violated their rights to the equal protection of the laws and to due process of law; rights secured to them by the Fourteenth Amendment to the United States Constitution. *fn2"

 After a hearing and full briefing by the parties, this Court will now rule on the plaintiffs' motion for preliminary injunction. *fn3"

 In order to prevail on their motion for a preliminary injunction, the plaintiffs must demonstrate:

(1) a reasonable probability of eventual success on the merits, and
(2) that their interests will be irreparably injured if relief is not granted.

 Moreover, the Court should and will take into account when relevant:

(3) the possibility of harm to other interested persons from the grant or denial of the injunction, and
(4) the public interest. See In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982).

 In addition, the Court notes that mandatory preliminary injunctions, such as the one sought in the case at bar, which seek to alter the status quo are granted only when the facts and the law are clearly in favor of the moving party. See, e.g., Sovereign Order of Saint John of Jerusalem-Knights of Malta by Coleman v. Messineo, 572 F. Supp. 983 (E.D. Pa. 1983).

 Because this Court finds that the plaintiffs have established successfully these criteria and because the law and the facts are clearly in their favor, this Court will grant the plaintiffs' motion for preliminary injunction and will grant the relief the plaintiffs seek; that is, the Court will order the DHS to return Raymond Bullard to the foster care of John and Marilyn McLaughlin. The Court will now examine each of these criteria.

 I. Likelihood of Success on the Merits

 As described above, the plaintiffs pursue two claims, one based upon the Equal Protection Clause of the Fourteenth Amendment and one based upon the Fourteenth Amendment's Due Process Clause. As to each claim, the Court makes findings of fact and conclusions of law.


 (1) Findings of Fact

 With respect to plaintiffs' equal protection claim, the Court finds as follows:

 Raymond Christopher Bullard was born on June 25, 1983 in Philadelphia, Pennsylvania. Subsequent to Raymond's birth and for a short time only, Martina Brown, Raymond's natural mother, was the sole custodial parent of the child. On November 7, 1983, Raymond Bullard was adjudicated dependent and committed to the temporary legal custody of the Department by the Honorable Raymond Lederer, Court of Common Pleas of Philadelphia County, Family court division, retroactive to October 19, 1983, when Raymond was placed voluntarily by his natural mother into foster care.

 Raymond Bullard was placed into emergency foster care by the Catholic Social Services (hereinafter "CSS"), a private, non-profit foster family care agency under contract with the Department. The Catholic Social Services placed Raymond Bullard, who is black, with the McLaughlins, who are white, on October 19, 1983.

 The Catholic Social Services, under the contractual arrangement it has with DHS, provides for the care, training and education of dependent children assigned to it by the Department. CSS also, pursuant to its contract with the Department, places dependent children assigned to it, such as Raymond Bullard, into foster homes. *fn4"

 Although the original placement was for emergency foster care, which is normally for a period not in excess of ninety (90) days, the arrangement became, by the Department's actions, one of continuing foster care. The plaintiffs provided foster care for Raymond Bullard for two years.

 During the two years that Raymond Bullard lived with the McLaughlins, the McLaughlins developed a deep love and affection for him. During this critical period of his development from five months to two and one-half years old, the plaintiffs provided a sensitive, caring and secure home for Raymond. Raymond Bullard during this time developed a strong and affectionate love for the plaintiffs as well. From this relationship, Raymond Bullard developed outgoing attitudes, behavior and personality. A psychological bonding between Raymond Bullard and the McLaughlins occurred during this period.

 In early October, 1985, the Department was advised that the Catholic Social Services, pursuant to Department policy, intended to remove Raymond Bullard from the McLaughlins and place him with a black family. Specifically, the defendants admit that they "were advised by CSS" on or about October 7, 1985 "that Raymond Bullard would be placed with a black family." See Defendant's Answer to Plaintiffs' Complaint, at p. 2. The McLaughlins also were advised at that time by the CSS that Raymond would be placed with a black family.

 On October 10, 1985, despite plaintiffs' objections, Raymond Bullard was taken from their home to stay overnight with a black foster family; that is, with Reverend Willie Williams and Elaine Williams, Raymond's current foster parents. On October 18, 1985, the CSS, acting for and on behalf of the DHS, removed Raymond Bullard from their foster care. The sole reason for the removal was that the McLaughlins were white and that Raymond Bullard was black.

 At the hearing on plaintiffs' motion, the intervening and third-party defendants were unable to show that the Department's decision to remove Raymond Bullard from the McLaughlins was based upon any reason other than that of race. The removal, the evidence reveals, was effected pursuant to a DHS' policy decision that was made at least before October 23, 1984. See Plaintiffs' Exhibit No. 6, page 9.

 This Court is not persuaded that the minor criticisms made about John and Marilyn McLaughlin by CSS' social workers at the hearing entered at all into the DHS' decision to remove Raymond Bullard from the McLaughlins' foster care. These criticisms were not documented nor reduced to writing. These criticisms are part of an attempt to explain prior culpable conduct. *fn5"

 This Court's factual findings are not only supported by the testimony received at the hearing but are also directly supported by plaintiffs' Exhibits Nos. 1-6 which were received into evidence at the hearing. The Court will now examine these documents in more detail:

 1. Plaintiffs' Exhibit No. 2

 Plaintiffs' Exhibit No. 2 is a letter dated June 21, 1984 from Robert Letulle, Supervisor, Child Care Department, Catholic Social Services, to Joseph McNally, Social Worker, Philadelphia, Department of Human Services, regarding Raymond Bullard. This letter recites in relevant part, that:

"One of the issues that needs to be reviewed is that we still do not have another suitable foster home to which Raymond can be transferred. We still maintain that this is a safe foster home [the McLaughlin's home] for Raymond. However, he is a Black child [sic] and the foster home is White [sic] and we can understand your other concern that Raymond shouldn't remain in this home on a long term basis."

 2. Plaintiffs' Exhibit No. 3 Plaintiffs' Exhibit No. 3 consists of three documents which are lists. These lists recite in relevant part as follows: a. Document Dated March 29, 1985 CSS Foster Hom & Inst. Relocations Pending Present Plan Worker Name DOB Race Rel. Location . . . . . . . . . . . . . . . . . . . . . Raymond 6/25/83 2 B P McLaughlin Needs Beahan Bullard FH BL FH . . . . . . . . . . . . . . . . . . . . . b. Document Dated April 19, 1985 CSS Foster Home & Inst. Relocations Pending Present Plan Worker Name DOB Race Age Relig. Location . . . . . . . . . . . . . . . . . . . . . . . . Raymond 6/25/83 B 2 P McLaughlin Needs Beahan Bullard FH BL FH . . . . . . . . . . . . . . . . . . . . . . . . c. Document Dated June 17, 1985 CSS Children needing Relocation Present Plan Worker Name DOB Age Race Relig. Location . . . . . . . . . . . . . . . . . . . . . . . . Raymond 6/25/83 2 B P McLaughlin Needs Beahan Bullard FH BL FH . . . . . . . . . . . . . . . . . . . . . . . .

 The testimony at the hearing revealed that "Needs B FH" and "Needs BL FH" are shorthand for needs black foster home.

 3. Plaintiffs' Exhibit No. 1

 Plaintiffs' Exhibit No. 1 is a document entitled "ADDENDUM TO INDIVIDUAL PROGRAM DESCRIPTION." This document regarding Raymond Bullard was prepared by Ms. Christine M. Beahan in May, 1985. Ms. Christine Beahan was the CSS social worker assigned to the McLaughlin foster home. This document recites in relevant part as follows:

"A. Child
. . . .
2. Assessment of Child
. . . .
3. Areas for Improvement
There is no need for improvement at this time. Ray is black and in a white home. Raymond has been on a replacement list to be placed in a black home. However, at this point it could be very damaging to remove this child from his present foster home. His [sic] is very attached to the McLaughlin's.
. . . .
C. Plans and Goals
Raymond has made a beautiful adjustment in his foster home. Both foster parents [John and Marilyn McLaughlin] have provided Raymond with ...

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