                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 17 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PETER HUK; BEVERLY RAFF,                         No. 14-55680

              Plaintiffs - Appellants,           D.C. No. 2:12-cv-02317-DSF-
                                                 VBK
 v.

COUNTY OF SANTA BARBARA;                         MEMORANDUM*
KATHY GALLAGHER; DELFINO
NEIRA; CINDY NOTT; SUSAN
TOGNAZZINI; KATHY DAVIS; JULIE
DE FRANCO; CHRISTEL BARROS;
FRANCENE KELLY,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted April 7, 2016
                               Pasadena, California

Before: FARRIS, SENTELLE**, and M. SMITH, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable David Bryan Sentelle, Senior Circuit Judge for the
U.S. Court of Appeals for the District of Columbia Circuit, sitting by designation.
      Peter Huk and Beverly Raff appeal the dismissal of three constitutional due

process claims they brought pursuant to 42 U.S.C. § 1983. They allege a violation

of their substantive due process rights against individual defendants for fabricating

evidence and deceiving the juvenile court in civil child custody proceedings. They

also allege a violation of their procedural due process rights against the individual

defendants and the County of Santa Barbara for removing their foster child from

their care without notice or an opportunity to object. We have jurisdiction under 28

U.S.C. § 1291 and we review the dismissal of Appellants’ claims de novo. We

VACATE IN PART AND AFFIRM.

      To pursue a § 1983 claim against the individual defendants, plaintiffs must

plead facts sufficiently alleging a violation of a constitutional right and show that

the asserted right was so clearly established that a reasonable state actor would

understand that his or her actions violated that right. See Filarsky v. Delia, 132 S.

Ct. 1657 (2012). Huk and Raff assert a violation of their substantive due process

right not to suffer a deprivation of liberty based on fabricated evidence and false

representations in child custody proceedings. This right was clearly established in

2010, at the time of defendants’ alleged unconstitutional conduct. See Devereaux v.

Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc); Beltran v. Santa Clara

County, 514 F.3d 906 (9th Cir. 2008) (en banc); Greene v. Camreta, 588 F.3d


                                           2
1011, 1035 (9th Cir. 2009); Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d

1101, 1113–14 (9th Cir. 2010). The district court’s holding on this claim

misapplies this Court’s holding in Costanich. That portion of the district court’s

opinion is vacated.

      The Supreme Court has explained that constitutionally-protected liberty

interests in familial relationships derive from the intrinsic and traditional value

placed on biological connection, parental instruction, and the emotional bonds that

form from the intimacy of daily association. Smith v. Organization of Foster

Families for Equality and Reform (“OFFER”), 431 U.S. 816, 844–45 (1977).

Where a claimed liberty interest in a familial relationship “derives from a

knowingly assumed contractual relation with the State, it is appropriate to ascertain

from state law the expectations and entitlements of the parties.” Id. at 845–46. We

recognize that the emotional bonds and child-rearing relationship in a foster family

may grow so strong that a protected liberty interest develops. Id. at 844.

      Yet, the district court correctly held that California law did not here create a

protected liberty interest in the continued custody of a foster child. State law

creates an interest protected by the Due Process Clause only if the law contains

“(1) substantive predicates governing official decision-making, and (2) explicitly

mandatory language specifying the outcome that must be reached if the substantive


                                           3
predicates have been met.” James v. Rowlands, 606 F.3d 646, 656 (9th Cir. 2010)

(quoting Bonin v. Calderon, 59 F.3d 815, 842 (9th Cir. 1995)).

      State law requires the California Department of Social Services to provide

pre-removal notice and a grievance process for foster parents to contest the

removal of a foster child, but these laws do not establish substantive predicates or

mandate any outcomes. See DSS Manuel §§ 31-440, 31-020. A social worker’s

removal authority is highly discretionary and is not governed by objective and

defined criteria. See Cal Wel. & Inst. § 306. These regulations do not entitle foster

parents, as a matter of federal constitutional right, to the notice and grievance

procedures required by California law. Here, as there is no entitlement, there is no

constitutional interest to protect with process.

      Even if it can be established that Huk and Raff were deprived of their

custody of their foster child through allegedly deceptive means and without any

opportunity to contest the validity or reason behind the removal, they have not and

can not demonstrate that their custody of their foster child was a liberty interest

protected by the Due Process Clause. Cf. Elwell v. Byers, 699 F.3d 1208, 1217

(10th Cir. 2012) (finding liberty interest where foster parents had cared for child

for “nearly his entire life and were on the verge of adopting him,” but

“recogniz[ing] that the typical foster care arrangement generally does not create a


                                           4
liberty interest in familial association.”). And nothing in the record would support

a conclusion that Appellants can be designated as “prospective adoptive parents”

for constitutional purposes.1 Both their procedural and substantive due process

claims against the individual defendants and the County of Santa Barbara must fail.

      We understand Appellants’ position. We do not question their genuine love

for their foster child, but the question before us is whether the actions about which

they complain deprived them of a constitutionally protected liberty interest. In so

ruling, we do not ignore the desirability of process to contest a removal. We only

hold that nothing more than what was done here was constitutionally required.

      VACATED IN PART AND AFFIRMED.

      The two pending motions to take judicial notice, entered 11/05/14 [docket

no. 9] and 01/05/15 [docket no. 25], are GRANTED.




      1
        We note that the California Court of Appeal affirmed the rejection of
Appellants’ request for de facto parent status and request for an adoptive home
study. In re Rickey T., 2d Juv. No. B229647, 2011 Cal. App. Unpub. LEXIS 7644,
*10–*15 (Cal. Ct. App. 2011).

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