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McLaughlin v. Pernsley

argued: January 24, 1989.


Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-7143.

Author: Seitz


SEITZ, Circuit Judge

This is the sad case of five-year-old Raymond Bullard. Uprooted twice in his young life, Raymond has become the unfortunate victim of litigation before several courts.

This controversy began with Raymond's removal from a foster home allegedly on the basis of race and without notice. In their complaint, the plaintiffs in this case -- the foster parents from whose care Raymond was removed -- claim that the child's removal violated the equal protection and due process clauses of the United States Constitution as well as Pennsylvania state law. We are faced today only with the question of the propriety of the district court's issuance of a mandatory preliminary injunction ordering Raymond's return to the care of his original foster parents. The unusual and complicated procedural posture of this case limits the issues properly before us.

I. Background

In October 1983, when he was four months old, Raymond Bullard, a black child, was placed in foster care with the plaintiffs John and Marilyn McLaughlin, who are white. The placement was made by Catholic Social Services (CSS), a Foster Family Care Agency with which the City of Philadelphia, Department of Human Services contracts, inter alia, for the provision of foster care services. A CSS document describing Raymond's placement with the McLaughlins states "a White home had to be used because it was the only available Infant Home." Shortly after the placement, pursuant to Pennsylvania's Juvenile Act, 42 Pa.Cons.Stat.Ann. 6301, et seq. (Purdon 1982), Raymond was adjudicated a dependent child and committed to the legal custody of the City of Philadelphia, Department of Human Services, Children and Youth Agency retroactive to the date of his placement with the McLaughlins. The Department of Human Services and its commissioner (DHS or the City) are the defendants in this action. Raymond remains in the City's legal custody.

After Raymond had been with the McLaughlins for two years, a black family, intervenor defendants Rev. Willie Williams and Elaine Williams, became available as foster parents. CSS determined to remove Raymond to the foster care of the Williams family. The Department of Human Services was advised by CSS that Raymond would be removed from the McLaughlins' care and placed with the Williamses.

With certain exceptions, Pennsylvania foster care regulations give foster parents who have had actual custody of a child for a period in excess of six months the right to appeal the child's removal from their foster family. These regulations require the Foster Family Care Agency, in this case CSS, to inform foster parents in writing at least fifteen days prior to the relocation of the child of their right to appeal. If the foster parents do appeal, the regulations provide that "the child shall remain in the foster family home pending a decision on the appeal." This regulation appears at 55 Pa.Code 3700.73.*fn1

At the time of its determination to transfer Raymond to the Williams home, CSS admittedly did not inform the McLaughlins of their right to appeal. Nonetheless, in October 1985, Raymond was removed from the McLaughlins' care and placed in foster care with the Williamses.

The McLaughlins filed a petition in the Family Court Division of the Court of Common Pleas of Philadelphia County seeking the return of Raymond. That court found that the Williamses could adequately provide for the foster child's needs, and denied the McLaughlins' petition. See McLaughlin v. Pernsley, 654 F. Supp. 1567, 1576 (E.D.Pa. 1987). The McLaughlins filed timely exceptions to the Order of the Family Court. Thereafter, the McLaughlins and DHS agreed that DHS would be granted an indefinite extension of time to respond to the McLaughlins' exceptions to the order. The parties do not represent that there will ever be a final judgment in this matter.

The City and the McLaughlins also agreed that an independent psychiatric evaluation might obviate the need for any further litigation. Dr. Eileen Bazelon was chosen by the City of Philadelphia to evaluate Raymond from a list of psychiatrists provided by the McLaughlins' counsel. She recommended that Raymond should be returned to the McLaughlins.

When DHS did not act on Dr. Bazelon's recommendation, the McLaughlins instituted this action in the district court solely against the City. The McLaughlins' complaint contained claims under 42 U.S.C. 1983 (1982) alleging a violation of their constitutional right to equal protection of the laws, and a deprivation of their due process rights, a claim under 42 U.S.C. 1985(3) (1982) alleging a conspiracy to deprive them of their right to equal protection, and a state law claim of intentional infliction of emotional distress. The McLaughlins sought declaratory and injunctive relief and compensatory and punitive damages, as well as reasonable attorneys' fees. DHS thereafter joined CSS as a third-party defendant solely on an indemnification theory.

In an attempt to resolve this litigation, DHS and the McLaughlins agreed to a new psychiatric evaluation of Raymond by a three-psychiatrist panel. The City chose one psychiatrist, Dr. Henry Eisner, as did the McLaughlins, who chose Dr. Bazelon. These two psychiatrists chose the third member of the team, Dr. Marshall Schechter. This team conducted an extraordinarily thorough psychological examination of Raymond. After the team filed its report -- which can be read to recommend returning Raymond to the care of his original foster parents -- DHS reversed its position on Raymond's placement and decided to return Raymond to the McLaughlins.

By this time, however, the consequences of Raymond's original removal from the McLaughlins and placement with the Williams family could not so easily be undone. Raymond had now been with the Williamses for more than one year and eight months. Pursuant to 55 Pa.Code 3700.37, the Williamses appealed DHS's decision to relocate Raymond to the Pennsylvania Department of Public Welfare (DPW) in a proceeding to which the McLaughlins were not parties.

The Department of Public Welfare first ordered Raymond's return to the McLaughlins. On rehearing, however, DPW Secretary John White reversed this order and sustained the Williamses' relocation appeal, concluding that it was in Raymond's best interests that he remain with the Williamses. The City subsequently filed a Petition for Review in the Commonwealth Court of Pennsylvania.*fn2

Meanwhile, the McLaughlins had filed in the district court a renewed Motion for a Preliminary Injunction asking that the city be ordered to return Raymond to their care. After Secretary White's decision, DHS filed its Response to this motion. Although the putative defendant, DHS did not contest the McLaughlins' motion. DHS argued in the district court that "the single issue before this Court is whether the child's best interests warrant his return to plaintiffs' foster care." DHS asked that the district court "move directly to a consideration of the child's best interests with the full participation of all appropriate persons."

The Williamses filed a motion to intervene as of right under Fed.R.Civ.P. 24(a) "to protect their interest in maintenance of their long-term foster care placement of [Raymond Bullard], which recently was affirmed by the Secretary of DPW." The district court granted in part this motion to intervene as of right, "insofar as it permits the Williams family to assist the Court in deciding whether Raymond Bullard's best interests are served by returning him to the foster care of the McLaughlins as a remedy to any constitutional violation." The motion to intervene was denied "insofar as the Williams family seeks to assist the Court in determining if constitutional violations occurred because the Williams family lacks standing to address these issues." Compare Harris v. Pernsley, 820 F.2d 592, 599 (3d Cir.), cert. denied, 484 U.S. 947, 108 S. Ct. 336, 98 L. Ed. 2d 363 (1987).

The district court held three days of hearings on the McLaughlins' motion and then examined the various factors that must be considered in deciding whether to issue a mandatory preliminary injunction. See In Re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982). It concluded that, in removing Raymond from the McLaughlins' care, CSS was "acting for and on behalf of the DHS," and that the removal was based, "pursuant to [DHS] policy," solely on the fact that the McLaughlins are white and Raymond black. The district court concluded therefore that the McLaughlins would likely succeed on the merits of their equal protection claim. The district court also found that the McLaughlins had been provided no notice of their right to appeal the original removal decision, and concluded that the McLaughlins would also likely succeed on the merits of their due process claim.

The district court found that the McLaughlins would suffer irreparable harm if the injunction were not granted, and that Raymond would suffer irreparable harm if he were not returned to the McLaughlins. The court recognized the harm to the Williamses from the injunction, but concluded that "the balance of equities in this case strongly [favors] the return of Raymond to the McLaughlins."

Lastly, the district court examined the public interest, and concluded that placement solely on the basis of race, rather than on the quality of the child's relationships, could never serve the public interest.

The district court granted the plaintiffs' motion and ordered DHS to return Raymond to the foster care of the McLaughlins. The district court's order also requested that Dr. Bazelon submit a plan for the return of Raymond from the Williamses to the McLaughlins over an eight week period. Three weeks later, the district court issued a second order implementing a ...

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