NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 2 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARA M. KELLEY; TERESA L. SMITH, No. 20-56111
Plaintiffs-Appellants, D.C. No.
3:19-cv-01404-LAB-DEB
v.
SAN DIEGO COUNTY HEALTH AND MEMORANDUM*
HUMAN SERVICES AGENCY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted November 18, 2021
Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and BOUGH,** District
Judge.
Sara Kelley and Teresa Smith (“Appellants”), a same-sex, married couple
who held de facto parent and educational rights holder statuses and were the
prospective adoptive parents to Teenager before his removal from their home by
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
San Diego County Health and Human Services Agency and certain of its
employees (“Appellees”), appeal a district court order dismissing their 18 U.S.C. §
1983 claims for failure to state a claim under Fed. R. Civ. Pro. 12(b)(6). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. Appellants fail to identify a federal constitutional right of which they
have been deprived. Because de facto and foster parents do not have federal
constitutional rights to the custody of minors in their care, Appellants’ substantive
due process rights were not violated when Teenager was removed from their home.
See Miller v. California, 355 F.3d 1172, 1176–77 (9th Cir. 2004) (“[B]eing de
facto parents simply [gives] . . . the right to appear in the proceeding . . . . It
confer[s] no other, or weightier interest of constitutional dimension.”); Backlund v.
Barnhart, 778 F.2d 1386, 1389 (9th Cir. 1985) (“[F]oster parents do not enjoy the
same constitutional protections that natural parents do.”) (citations omitted).
California law does not grant a fundamental right to approval as a resource family.
See Cal. Welf. & Inst. Code § 16519.61 (stating reasons that “[a] county or the
department may deny a resource family application or rescind the approval of a
resource family”); see also Cal. Welf. & Inst. Code § 16519.61(c). Moreover,
Teenager had an absolute right under California law to withhold consent to his
adoption by Appellants, and without his consent, Appellants were not permitted to
adopt him. See Cal. Fam. Code § 8602.
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2. Appellants’ retaliation claim fails because they have not established that
their engagement in a constitutionally protected activity was a “substantial or
motivating factor” in Teenager’s removal from their care. See Capp v. Cnty. Of
San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) (quoting O’Brien v. Welty, 818
F.3d 920, 932 (9th Cir. 2016)). Further, because Teenager was not returned to
Appellants’ home nor were additional foster children placed there, Appellants’
speech within their home could not have been chilled by the social worker’s
admonishment against the future discussion with Teenager of certain topics. See
id. (requiring a “chilling effect” to state a First Amendment retaliation claim). To
the extent that Appellants claim injury based on not having received a new foster
child placement or having been required to attend an additional class as a condition
of maintaining their resource family status, there is no clearly established law
requiring any alternative conduct by Appellees during the pendency of this
litigation. Therefore, Appellees are entitled to qualified immunity on these claims.
3. Appellants’ claim regarding the use of fabricated evidence and judicial
deception in the juvenile dependency court is barred by the Rooker-Feldman
doctrine. We have no jurisdiction “over the de facto equivalent of [an appeal of a
state court’s decision].” Cooper v. Ramos, 704 F.3d 772, 777 (9th Cir. 2012)
(internal quotation marks omitted) (citing Noel v. Hall, 341 F.3d 1148, 1155 (9th
Cir. 2003)). Moreover, because the state courts have approved the termination of
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Appellants’ statuses as de facto parents and educational rights holders of Teenager
and determined that the Agency did not engage in any discriminatory conduct
against Appellants, any claims based on those events are likewise barred by the
Rooker-Feldman doctrine.
4. Appellants’ remaining federal claims lack merit. Accordingly, it was
within the district court’s discretion to dismiss Appellants’ state law claims. See
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (explaining that where
all “federal claims are dismissed before trial, . . . state claims should be dismissed
as well”); 28 U.S.C. § 1367(c).
5. The district court did not err by denying leave to file a second amended
complaint. A district court need not grant leave to amend if it determines that
amendment would be futile. See Eminence Capital, LLC v, Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
Because Appellants failed to identify any clearly established federal constitutional
rights that Appellees violated, and because Appellees enjoy qualified immunity
with respect to the alleged violations of their federal rights, see Pearson v.
Callahan, 555 U.S. 223, 231–32 (2009), the district court did not err in denying
leave to amend.
AFFIRMED.
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