Mullins v. State of Or.

• Decision Date: 12 June 1995
• Docket Number: No. 94-35777,94-35777
• Citation: 57 F.3d 789
• Parties: Loraine MULLINS; Charles Mullins, Plaintiffs-Appellants, v. STATE OF OREGON; Oregon Children's Services Division; Kay Dean Toran, Administrator; Mary Acklin, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 789

57 F.3d 789

63 USLW 2793

Loraine MULLINS; Charles Mullins, Plaintiffs-Appellants, v. STATE OF OREGON; Oregon Children's Services Division; Kay Dean Toran, Administrator; Mary Acklin Defendants-Appellees.

No. 94-35777.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 7, 1995.

Decided June 12, 1995.

Michael D. Linick, Gary Carl & Associates, Eugene, OR, for plaintiffs-appellants.

Katherine H. Waldo, Asst. Atty. Gen., Salem, OR, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before: HALL, O'SCANNLAIN, and RYMER, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

We must decide whether biological connection, standing alone, gives a grandmother a constitutionally protected liberty interest in the adoption of her grandchildren. We conclude that it does not and affirm the district court's dismissal of this case.

I.

This case concerns the lives of two Oregon children. Loraine and Charles Mullins, both Washington residents, wish to adopt the two children. Loraine Mullins is the children's paternal grandmother. Charles Mullins, who only recently married Loraine, has no blood relation to the children. He is, if there be such a thing, the children's step-grandfather.

The children were abused and neglected by their parents. When the abuse came to light, state authorities stepped in, removed the children from their home, and initiated proceedings to terminate the parental rights. Ultimately, the mother voluntarily relinquished her rights in the children. The father's rights were terminated involuntarily pursuant to Oregon law.

While the termination proceedings were pending, the Mullinses filed an adoption petition in the Klamath County Juvenile Court. See Oreg.Rev.Stat. Sec. 109.309. The juvenile court did not immediately act upon the petition. Instead, it waited until the termination proceedings had been concluded before taking up the issue of where to place the children. At that time, the juvenile court permanently committed the children to the custody of Oregon's Children's Services Division ("CSD"). This put the fate of the Mullinses' adoption petition squarely in the hands of CSD, because under Oregon law CSD enjoys the exclusive authority to consent in loco parentis to the adoption of children permanently committed to it. See Oreg.Rev.Stat. Secs. 109.316(1)(b), 109.390(3).

The administrative rules governing CSD specify that relatives have no "right" to the adoption of children in CSD custody. See Oreg.Admin.Rule 412-27-045. The same rules, however, provide that CSD will give relatives, including grandparents, "first consideration" in the adoption of a child if the relative has established a "parent-child relationship" with the child. Oreg.Admin. Rule 412-30-028(1). A relative is said to enjoy a "parent-child relationship" with a child if the relative has provided for the physical and psychological care of the child for at least six months prior to the filing of the adoption petition. See Oreg.Rev.Stat. Sec. 109.119(4). ¹ The Mullinses concede that they did not qualify for this preferential treatment of their adoption petition, because neither of them had established a parent-child relationship with their grandchildren. In fact, by their own admission, the Mullinses never have had more than minimal contact with their grandchildren, seeing them only occasionally and even then only for a few hours at a time.

CSD thus treated the Mullinses' adoption petition as any other. It considered the Mullinses' request but ultimately refused to consent to the adoption. In accordance with Oregon law, CSD did not offer the Mullinses a hearing on its decision to oppose the adoption. See Oreg.Admin.Rule 412-30-036(2). Nor did CSD give the Mullinses a formal, reasoned explanation for its decision. Complaint at p 14. The Mullinses allege that CSD's objection had nothing to do with their fitness as adoptive parents. They claim that CSD objected because it erroneously thought that it had to obtain the blessing of Washington authorities before it could send the children to live with the Mullinses in Seattle. ² See Complaint at p 16.

Whatever the reason for the objection, once CSD withheld its consent to the adoption, that was the end of the road for the Mullinses. The juvenile court had no choice but to dismiss their adoption petition for want of jurisdiction. See Oreg.Rev.Stat. Sec. 109.316 (providing that CSD must consent to adoption of children in its custody); see also In re Adoption of Greybull, 29 Or.App. 889, 565 P.2d 773, 774-75 (1977) (holding that CSD's consent is jurisdictional fact that must be pleaded in adoption petition). The juvenile court dutifully dismissed the Mullinses' adoption petition on July 13, 1994. See Klamath County Juvenile Court June 20, 1994, Letter Opinion at 2 (dismissing for lack of jurisdiction). The Mullinses had no statutory right of appeal. See In re Adoption of Greybull, 565 P.2d at 774-75.

Although the Mullinses could not have appealed the juvenile court's dismissal of their adoption petition, they could have challenged CSD's withholding of consent under Oregon's Administrative Procedures Act. See Oreg.Rev.Stat. Sec. 183.484; see also Adams v. Oregon State Children's Services Div., 131 Or.App. 396, 886 P.2d 19, 22-25 (1994) (in banc) (holding that prospective adoptive parents may challenge to CSD's refusal to consent under the Act), rev. denied by 321 Or. 137, 894 P.2d 468 (1995). The Mullinses, however, chose not to bring an administrative challenge. Instead, they elected to file this federal civil rights action under 42 U.S.C. Sec. 1983 claiming violations of their substantive and procedural due process rights to the society of their grandchildren.

The district court dismissed the Mullinses' action pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Our review is de novo. See Everest and Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994).

II.

The State urges us to dismiss this appeal on jurisdictional grounds. It argues that the district court lacked subject matter jurisdiction over the underlying dispute because it, in effect, was asked to review the juvenile court's dismissal of the Mullinses' adoption petition. This argument has no merit.

We recognize of course that a federal district court, as a court of original jurisdiction, may not review the final determinations of a state court. See, e.g., District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311-12, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923). This is true even when federal constitutional issues are at stake. See Worldwide Church of God v. McNair, 805 F.2d 888, 891 (9th Cir.1986). But the Mullinses have not asked the federal courts to review a final determination of any state court. ³ Instead, they have launched a due process challenge to Oregon's treatment of their claim to the adoption of their grandchildren.

The juvenile court never considered the Mullinses' constitutional claims. Nor could it have. See Adams v. Oregon State Children's Services Div., 886 P.2d at 22-23 (holding that juvenile court has no jurisdiction to consider constitutional claims). As a result, this federal proceeding is hardly "inextricably intertwined" with the juvenile court's dismissal of the Mullinses' adoption petition. We hold that the district court had subject matter jurisdiction of this case. See Dubinka v. Judges of Superior Court, 23 F.3d 218, 221-222 (9th Cir.1994).

III.

The Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a substantive component that protects certain individual liberties from state interference, no matter what process is given, unless the infringement is narrowly tailored to achieve a compelling state interest. See Reno v. Flores, --- U.S. ----, ----, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1 (1993); Collins v. City of Harker Heights, 503 U.S. 115, 123-25, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992). The Mullinses claim that their interest in the adoption of their grandchildren is entitled to the substantive protection of the Due Process Clause. They contend that Oregon unjustifiably abrogated this interest when it blocked the adoption of their grandchildren. ⁴

We begin by noting the narrow range of liberty interests that substantive due process protects. Only those aspects of liberty that we as a society traditionally have protected as fundamental are included within the substantive protection of the Due Process Clause. See Michael H. v. Gerald D., 491 U.S. 110, 122, 109 S.Ct. 2333, 2341-42, 105 L.Ed.2d 91 (1989) (plurality opinion); Bowers v. Hardwick, 478 U.S. 186, 191-92, 106 S.Ct. 2841, 2844-45, 92 L.Ed.2d 140 (1986); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934), overruled on other grounds, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); see also Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937) (describing fundamental liberty interests as those that are "implicit in the concept of ordered liberty"); overruled on other grounds, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). This nation's democratic tradition, moreover, demands our reluctance to expand the substantive protection of the Due Process Clause, lest the only limits upon the judicial veto become the predilections of those who happen to be members of the federal judiciary. See Michael H. v. Gerald D., 491 U.S. at 121, 109 S.Ct. at 2341 (citing Moore v. City of East Cleveland, 431 U.S. 494, 502, 97 S.Ct. 1932, 1937, 52 L.Ed.2d 531 (1977)); see also Calder v. Bull, 3 U.S. (3 Dall.) 386, 398-400, 1 L.Ed. 648 (1798) (opinion of Iredell, J.). As Justice White has observed:

That the Court has ample precedent for the creation of new constitutional rights should not lead it...