          [Not for Publication - Not to be Cited as Precedent]

          United States Court of Appeals
                      For the First Circuit


No. 01-1270

SIMONE-ALYS ALWYN, INDIVIDUALLY AND AS PARENT AND NEXT FRIEND,
  B/N/F PERIELL ALWYN, B/N/F SIDANNEN ALWYN, B/N/F CERRIDWEN
   ALWYN; MICHAEL ALWYN, INDIVIDUALLY AND AS PARENT AND NEXT
 FRIEND OF PERIELL ALWYN, SIDANNEN ALWYN AND CERRIDWEN ALWYN,

                     Plaintiffs, Appellants,

                                  v.

               JOHN DUVAL; MICHAEL RUSSELL, LT.,

                      Defendants, Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF NEW HAMPSHIRE

     [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


                                Before

                       Boudin, Chief Judge,
                    Torruella, Circuit Judge,
                and Stahl, Senior Circuit Judge.



     Paula J. Werme for appellant.
     Charles P. Bauer, with whom John T. Alexander and Ransmeier
& Spellman Professional Corporation were on brief, for appellee.
November 5, 2001
            STAHL, Senior Circuit Judge.           Michael and Simone-Alys

Alwyn appeal from the dismissal of their civil rights action

against two Concord police officers, filed in June of 1999

pursuant to 42 U.S.C. § 1983.          The appellants first claimed that

Officer John Duval and Lieutenant Michael Russell violated their

constitutional rights by making misrepresentations about the

condition of their apartment, which resulted in the appellants

temporarily losing custody of their children.                   The district

court     dismissed    this    claim     for    lack   of     subject    matter

jurisdiction pursuant to the Rooker-Feldman doctrine.                    Second,

the appellants alleged that the officers violated their Fourth

and Fourteenth Amendment constitutional rights by conducting a

warrantless search of their home.              This claim was dismissed by

the district court on defendants' motion for summary judgment

after finding that there were no genuine issues of material fact

in dispute.      The Alwyns appeal these adverse rulings.                     We

affirm.

                                       I.

            On June 12, 1996, Mrs. Alwyn reported to the Concord

Police    Department    that   two     of    her   children    were     missing.

Officer Duval was dispatched to the Alwyns' home, and upon his

arrival, asked the Alwyns whether he could search the house

because “missing” children are frequently found to have been


                                       -3-
hiding inside their own home.                     Duval became suspicious when

appellants insisted that they had already searched the house and

refused to allow him to enter.                Duval asked Mrs. Alwyn if there

was any reason why they would not want the police to enter the

apartment.        She responded that the apartment merely was not

“very well kept inside.”              Officer Duval was then joined by a

canine officer of the New Hampshire State Police.                         The officers

explained to the Alwyns that, in order for the police dog to

search for the children, it needed to obtain the girls' scent.

Notwithstanding this advice, appellants continued to refuse to

allow    the   officers      entry     to    the    apartment.        Instead,     they

brought out articles of the children's clothing for the police

to use.   Officer Duval informed them that it was still necessary

for the canine officer and search dog to enter the apartment

because the search dog needed to sniff the clothing without any

other person having touched it, so that only the children's

scent would be present on the garment.                          Duval then told the

Alwyns    that    he   did     not   think        they   were    giving    their   full

cooperation and that precious time was slipping away.                        Finally,

Mr.   Alwyn      agreed   to    let    the        police   enter    the    apartment.

However, the parties disagree as to the scope of the consent

ultimately       given,   with       the    appellants      insisting       that   they

consented only to the canine officer entering the premises


                                            -4-
solely for the purpose of obtaining articles of their daughters'

clothing, and with the appellees, on the other hand, maintaining

that Mr. Alwyn stated "I don't care, go in the apartment,"

signifying unrestricted consent to enter and search for the

children as well.

            Mr. Alwyn went into the apartment with the canine

officer, and Duval followed.       The canine officer found what he

needed near the door and left.          Upon entering, Officer Duval

observed an extremely unkempt and dirty apartment,1 and summoned

his supervisor, Lieutenant Russell, to assist him in searching

the premises until they were satisfied that the missing children

were not there.     Shortly thereafter, the girls were discovered

in   the   neighborhood   and   were   taken   to   the   Concord   Police

Station.

            When the Alwyns were notified by the police that their

missing daughters had been located, they were instructed to

bring their other children to the station house.                Based on


      1
     According to the affidavit of Officer Duval, “[t]he entire
apartment floor, including living room, kitchen, bathroom and
bedrooms were [sic] covered with piles of trash, garbage and
spoiled food, which was mixed up with piles of clothing. The
odor in the house was consistent with rotting food.” Officer
Duval also claims to have observed “the kitchen counters
completely covered with meals which appeared to be several days
old. . . [and] a foil pan containing the carcass of cooked
turkey which appeared to be several days old.”       Lieutenant
Russell's affidavit offers a description consistent with that
provided by Officer Duval.

                                  -5-
Duval's and Russell's observations about the conditions in the

Alwyn home, all of the children were taken into protective

custody and placed in foster homes.2        On June 14, 1996, the New

Hampshire Division of Children, Youth and Families ("DCYF")

filed child neglect petitions in Concord District Court.             On

February 13, 1997, after a full evidentiary hearing, the Concord

District Court entered a finding of neglect.        On April 10, 1997,

the   Concord   District   Court   issued    a   dispositional   order,

authorizing the DCYF to continue its legal supervision over the

children.    In May 1997, the Alwyns appealed the dispositional

order to the Merrimack County Superior Court.         However, because

the conditions described in the complaint had been corrected,

DCYF agreed to terminate the neglect petitions if the Alwyns

agreed to terminate their appeal of the February order.             The

Alwyns agreed and DCYF filed a “Withdrawal of Petitions” on June

11, 1997, and the appeal was terminated.3

            Appellants raise two issues in this appeal: first, that

the district court erred in ruling that the Rooker-Feldman



      2
     Although the child welfare proceedings continued for almost
a year, the children were returned to the custody of their
parents within days of their removal from the Alwyn home.
      3
      As the district court noted, “the parties have not
explained the process that ended the superior court proceeding,”
and no further information about the termination of the state
court litigation has been provided to this Court.

                                   -6-
doctrine mandated the dismissal of their misrepresentation claim

against the officers; and second, that summary judgment on the

unlawful search claim was inappropriate.                 We turn first to the

Rooker-Feldman issue.

                                           II.

                  A federal district court is without subject matter

jurisdiction to review the final decisions of a state court of

competent jurisdiction.              Rooker v. Fidelity Trust Co., 263 U.S.

413 (1923).            A district court also may not hear federal claims

that       are    “inextricably      intertwined”     with   the   state   court's

denial       of    a   claim    in   a   judicial   proceeding.      District   of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).4

Even when a party does not actually raise the federal claims in

the state court proceeding, “Rooker-Feldman forecloses lower

federal court jurisdiction over claims that are 'inextricably

intertwined'           with    the   claims   adjudicated    in    state   court.”

Sheehan v. Marr, 207 F.3d 35, 40 (1st Cir. 2000).                      A federal

claim is inextricably intertwined with the state court claims

"if the federal claim succeeds only to the extent that the state

court wrongly decided the issues before it."                      Hill v. Town of



       4
      For a more detailed discussion of the origin of the Rooker-
Feldman doctrine, see Wilson v. Shumway, 264 F.3d 120, 123-24
(1st Cir. 2001), and Hill v. Town of Conway, 193 F.3d 33, 34 n.1
(1st Cir. 1999).

                                           -7-
Conway, 193 F.3d 33, 39 (1st Cir. 1999).                     This court reviews de

novo    a   dismissal      for    lack    of    subject       matter      jurisdiction

pursuant to the Rooker-Feldman doctrine.                     Wilson v. Shumway, 264

F.3d 120, 123 (1st Cir. 2001).

             In the present case, the U.S. District Court held that,

pursuant to the Rooker-Feldman doctrine, it had no subject

matter jurisdiction to hear the Alwyns' misrepresentation claim

in light of the Concord District Court's February 13, 1997

finding of neglect.         The district court reasoned that, in order

for appellants' claim to succeed, the fact-finder would have to

reject the officers' testimony regarding the condition of the

Alwyns' home, which would directly contradict the determination

already made by the state tribunal.                   Consequently, the district

court dismissed the count.

             Appellants     maintain       that       there    is    no   final    state

judgment that would trigger the Rooker-Feldman doctrine in this

case.        Citing     State      v.    Anderson,       142    N.H.      918   (1998),

appellants     argue    that      once   they     filed      their    appeal      to   the

Merrimack County Superior Court, the Concord District Court's

finding of neglect was vacated and rendered a legal nullity.

Anderson     held   that    the    state       does    not    violate     a   guarantee

against double jeopardy when it honors a defendant's request for

a second de novo trial after the first proceeding has resulted


                                         -8-
in a conviction.       See 142 N.H. at 922.         Anderson does not

suggest, however, that the filing of an appeal renders all prior

proceedings   a    legal   nullity,   regardless   of    what   transpires

thereafter.       In child welfare proceedings, absent a specific

directive by the court, a dispositional order remains in effect

unless and until the superior court overrules the decision after

conducting a second de novo hearing.       See N.H. R.S.A. § 169-C:28

(“An appeal under this chapter may be taken to the superior

court by the child or the child's authorized representative or

any party having an interest, including the state, or any person

subject to any administrative decision pursuant to this chapter,

within 30 days of the final dispositional order; but an appeal

shall not suspend the order or decision of the court unless the

court so orders.”).        Therefore, even though the Alwyns would

have been entitled to a        de novo rehearing on the issue of

neglect, the mere filing of their appeal did not vacate the

finding of the Concord District Court.

         Furthermore, the Alwyns chose not to appeal the initial

finding of neglect in exchange for the termination of state

supervision, which, as they conceded at oral argument, makes

this case indistinguishable from a nonsuit.             The New Hampshire

Supreme Court has explicitly held that "the effect of a nonsuit

taken after an appeal is to let the judgment of the court below


                                  -9-
'stand as if no appeal had been taken.'"            Appeal of Nolan, 134

N.H. 723, 730 (1991) (quoting Simpson v. Gafney, 66 N.H. 477,

477 (1891)).      Consequently, the finding of neglect qualifies as

a final judgment of a state court, from which no appeal can be

heard    in    federal   district   court   under    the    Rooker-Feldman

doctrine.5     Accordingly, this count of the Alwyns' complaint was

properly dismissed.6

                                    III.

              The Alwyns also appeal the decision of the district

court granting summary judgment for the defendants on their

claim that the officers violated their Fourth and Fourteenth

Amendment rights by conducting a warrantless search of their

apartment.      Summary judgment is appropriate where there are no

issues of material fact in dispute and “the moving party is

entitled to a judgment as a matter of law."                Fed. R. Civ. P.

56(c).    This Court reviews a grant of summary judgment de novo,

examining the record in the light most favorable to the non-


     5
     Appellants have conceded that the Rooker-Feldman doctrine
applies and dismissal was required if the Concord District
Court's finding of neglect was, in fact, a final state court
judgment.
     6
     In light of the disposition above, we need not address any
other obstacles that appellants would need to overcome in order
to sustain a section 1983 claim stemming from the officers'
alleged misrepresentations. See, e.g., Anderson v. Creighton,
483 U.S. 635 (1987) (qualified immunity); Briscoe v. LaHue, 460
U.S. 325 (1983) (absolute immunity).

                                    -10-
moving party.     Euromotion, Inc. v. BMW of N. Am., Inc., 136 F.3d

866, 869 (1st Cir. 1998).

            A search conducted without a warrant is presumptively

unreasonable      and    violates    the       Fourth       Amendment   unless     an

exception to the warrant requirement exists.                   Bilida v. McCleod,

211 F.3d 166, 171 (1st Cir. 2000).              Valid consent overcomes this

presumption      and    renders   the    search       constitutionally         valid,

United States v. Perez-Montanez, 202 F.3d 434, 438 (1st Cir.

2000), but the search must not exceed the scope of the consent

given.   United States v. Coraine, 198 F.3d 306, 310 (1st Cir.

1999).   The appropriate inquiry for determining the scope of the

consent given asks, “what would the typical reasonable person

have understood by the exchange between the officer and the

suspect?”     United States v. Turner, 169 F.3d 84, 87 (1st Cir.

1999).

            In   the    affidavit    filed      in    conjunction       with   their

opposition to the defendants' motion for summary judgment, the

appellants claim that Mr. Alwyn gave only the canine officer and

not Officer Duval permission to enter the home, and only for the

purpose of obtaining an article of clothing from the missing

children, so that the search dog could acquire the scent. 7



    7The Alwyns         have   not      argued       that    consent    was     given
involuntarily.

                                        -11-
However, at the state neglect hearing, Mr. Alwyn was explicitly

asked whether he told Officer Duval, “I don't care, go in the

apartment,” to which he responded “Yes, I did say that.”                   In

granting summary judgment, the district court relied upon Torres

v. E.I. Dupont De Nemours & Co., 219 F.3d 13 (1st Cir. 2000),

where this Court held that “[w]hen an interested witness has

given clear answers to unambiguous questions, he cannot create

a conflict and resist summary judgment with an affidavit that is

clearly contradictory, but does not give a satisfactory answer

of why the testimony is changed.”          Id. at 20 (quoting Colantuoni

v.   Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir.

1994)).

            The appellants have offered no adequate explanation as

to   why   the   admission   made   by     Mr.   Alwyn   during   the   state

adjudicatory proceedings should now be disregarded or called

into question.8      The transcript from the state adjudicatory

proceeding indicates that the officers asked the Alwyns multiple


      8
     The record belies the Alwyns' contention that they could
not adequately explain the inconsistency because they were
precluded by New Hampshire state law, see N.H. R.S.A. § 168-
C:25, from making reference to the state court neglect
proceedings, which were under seal. The state court record had
been released to the parties, pursuant to an order by the U.S.
District Court, prior to the district court's ruling.       The
Alwyns had the ability to supplement their opposition to the
officers' motion for summary judgment with whatever information
from the state court proceedings that they believed would have
been helpful, but failed to do so.

                                    -12-
times what they were hiding and why they would not let the

police   conduct   a    search   of    the    apartment   for   the   missing

children.    The district court's determination that a reasonable

person would have understood Michael Alwyn's statement, “I don't

care, go in the apartment,” as              his relenting to the repeated

request of the police officers to enter the home to search for

the children was appropriate.           Accordingly, the district court

properly granted the officers' motion for summary judgment.

                                      IV.

            Having found no error in the proceedings below, the

decision of the district court is hereby affirmed.

            Affirmed.




                                      -13-
