NOT FOR PUBLICATION FILED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.

2 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

3 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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