F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 21 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
EUGENE T. FOUST,
Petitioner - Appellant,
v.
No. 00-5166
(D.C. No. 90-CV-792-E)
STATE OF OKLAHOMA,
(N. District of Oklahoma)
DEPARTMENT OF HUMAN
SERVICES,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before EBEL, KELLY and LUCERO, Circuit Judges.
Eugene T. Foust, appearing pro se, seeks a certificate of appealability
(“COA”) pursuant to 28 U.S.C. § 2253(c) to challenge the dismissal of his
amended petition for a writ of habeas corpus under 28 U.S.C. § 2254. We grant
permission for petitioner to appeal in forma pauperis, deny COA, and dismiss the
appeal.
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The Court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
Petitioner seeks return of parental rights with respect to his minor
stepdaughter. The claims he asserts are based on state court rulings in Tulsa
County, Oklahoma, terminating his rights and the rights of the child’s mother, his
common-law wife, as to the child. In 1990, the district court dismissed
petitioner’s original habeas petition for lack of subject matter jurisdiction, and
this Court affirmed. Foust v. Okla. Dep’t of Human Servs., No. 92-5197, 1993
WL 118893, at *1 (10th Cir. Apr. 16, 1993). On May 18, 1999, the district court
dismissed petitioner’s amended petition because the minor child was not “in
custody” for the purposes of a federal habeas claim. Foust v. Oklahoma, No. 90-
C-792-E, slip order at 2 (N.D. Okla. May 18, 1999).
As this Court observed when this matter was before us in 1993, “Mr. Foust
has selected the wrong remedy.” Foust, 1993 WL 118893, at *1. Section 2254
does not confer jurisdiction on federal courts to review state court judgments
involuntarily terminating parental rights. Anderson v. Colorado, 793 F.2d 262,
263 (10th Cir. 1986) (citing Lehman v. Lycoming County Childrens’ Servs.
Agency, 458 U.S. 502, 516 (1982)).
To maintain an action under § 2254, a petitioner must be “in custody”
under the challenged conviction or sentence at the time his petition is filed.
Maleng v. Cook, 490 U.S. 488, 490–91 (1989) (citation omitted). Petitioner is
not attacking the conviction for which he is in custody, but a state court ruling
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terminating parental rights. His stepdaughter was in foster care at the time of his
original and amended petitions for habeas relief, and “[t]he ‘custody’ of foster or
adoptive parents over a child is not the type of custody that traditionally has been
challenged through federal habeas.” Anderson, 793 F.2d at 263 (internal
quotation omitted).
On appeal, petitioner argues that the district court erred in treating his suit
as a § 2254 action because, although his petition was entitled “Amended Petition
for Writ of Habeas Corpus,” the claims it presented were brought under the
Indian Child Welfare Act and the Indian Civil Rights Act. As the district court
stated in an order denying petitioner’s motion for rehearing, petitioner may not
raise those new claims now that his original petition has been dismissed and that
dismissal has been affirmed by this Court on appeal. Instead, he must file a new
civil lawsuit in order to assert new claims.
Finally, we note that because petitioner’s stepdaughter is now nineteen
years of age, the question of her custody has become moot. See Wendel v.
Wendel, 331 P.2d 370, 371 (Okla. 1958) (holding that because plaintiff’s
daughter was eighteen and “[n]o order now made with reference to [her]
custody . . . could be enforced,” the matter of her custody had become moot)
(citing Okla. Stat. Ann. tit. 15, § 13 (providing that “[m]inors . . . are persons
under eighteen (18) years of age”)); see also Okla. Stat. Ann. tit. 10, § 10(3)
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(“The authority of a parent ceases . . . [u]pon [the child’s] attaining majority.”);
Okla. Stat. Ann. tit. 43, § 551-102 (“‘Child’ means an individual who has not
attained eighteen (18) years of age.”).
Because petitioner has not made “a substantial showing of the denial of a
constitutional right,” we decline to grant COA. 28 U.S.C. § 2253(c)(2).
The motion to proceed in forma pauperis is GRANTED. The application
for COA is DENIED. This matter is DISMISSED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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