Jason R. was a troubled teen whose mother placed him in foster care because she felt she could not properly look after him. He was placed with a same-sex married couple who soon wished to adopt him. But Jason did not want to be adopted. He wanted to be placed elsewhere, and he was. The foster couple did not object to the removal. But they did object to the reason and sued the County, claiming Jason was removed from them on the basis of their sexual orientation. The Ninth Circuit disagreed.

Appellants Sara M. Kelley and Teresa Smith brought the action against the San Diego County Health and Human Services Agency (the Agency) as an appeal from a decision by the United States District Court for the Southern District of California. Their suit included six federal claims and four state claims.

A three-judge panel of the Ninth Circuit Court of Appeal, composed of Circuit Judges Kim Wardlaw and Andrew Hurwitz, plus District Court Judge Stephen R. Bough of the Western District of Missouri, affirmed the District Court’s dismissal with prejudice on December 2.

The appellants had been appointed de facto parents and educational rights status holders of Jason R. in March 2017, when he was about to turn 13. The following year, “Jason’s relationship with caregivers significantly deteriorated,” and the Agency filed a notice of intent to remove him in June 2018. The primary reason for the notice was Jason’s objection to adoption. Jason was soon removed from appellants’ home, and he filed a motion to terminate appellants’ status as de facto parents.

Appellants then filed a brief that requested they be allowed to continue their de facto parenting even though Jason R. no longer lived with them. They claimed the juvenile court had erred when their parenting status was terminated. They also believed they were more capable of being Jason’s educational representatives, which would have given them the responsibility of making decisions in all matters affecting Jason’s educational needs. The district court disagreed with this claim as well.

At a hearing, Jason R. and his new foster mother both testified about his positive adjustment to his new home. Kelly also testified, claiming she and Smith had a bond with Jason, and that they were “uniquely positioned to care for him.”

The District Court terminated appellants’ status, saying the decision was largely based on Jason’s “stated wishes, as well as his age, prior life challenges, and the court’s desire not to inflict more emotional harm than what he already suffered.”

The district court’s review of the record led to their support of the juvenile court’s decision. They said that Jason’s best interests motivated the decision to remove him from the appellants’ home and place him elsewhere. Because Jason was opposed to adoption, they agreed that he should not be forced to do something that was against his wishes. They also wrote that Jason’s history properly led the court to make decisions that did not “risk his emotional wellbeing” and that would “protect him from emotional trauma and provide him with some semblance of control over his life.”

The Ninth Circuit’s opinion opened with their agreement that appellants had failed to state a proper claim and “to identify a federal constitutional right of which they had been deprived.” They noted that de facto and foster parents lack a federal, constitutional right to custody of minors under their care. In this way, they distinguished the rights of natural parents from those of foster parents. They also stressed that under California law, Jason had an “absolute right” to withhold his consent to adoption.

The court went on to say that the appellants’ sexual orientation, which is constitutionally protected, was not a “substantial or motivating factor” in Jason’s removal from their home and his alternate placement.

Appellants’ additional claim against the Agency for failure to place a new foster child in their care was also dismissed because of a lack of established law on the matter. The judges said state courts had already determined that the Agency had not “engaged in discriminatory conduct” and cited case law that prevented them from revisiting those claims.

In addition, the court made it clear that the appellants’ lack of an established constitutional right affirmed the district court’s decision.