Foust v. State of Oklahoma, Department of Human Services , 7 F. App'x 834 ( 2001 )


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  •                                                                          F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAR 21 2001
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    EUGENE T. FOUST,
    Petitioner - Appellant,
    v.
    No. 00-5166
    (D.C. No. 90-CV-792-E)
    STATE OF OKLAHOMA,
    (N. District of Oklahoma)
    DEPARTMENT OF HUMAN
    SERVICES,
    Respondent - Appellee.
    ORDER AND JUDGMENT *
    Before EBEL, KELLY and LUCERO, Circuit Judges.
    Eugene T. Foust, appearing pro se, seeks a certificate of appealability
    (“COA”) pursuant to 
    28 U.S.C. § 2253
    (c) to challenge the dismissal of his
    amended petition for a writ of habeas corpus under 
    28 U.S.C. § 2254
    . We grant
    permission for petitioner to appeal in forma pauperis, deny COA, and dismiss the
    appeal.
    *
    The case is unanimously ordered submitted without oral argument
    pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
    judgment is not binding precedent, except under the doctrines of law of the case,
    res judicata, and collateral estoppel. The Court generally disfavors the citation of
    orders and judgments; nevertheless, an order and judgment may be cited under the
    terms and conditions of 10th Cir. R. 36.3.
    Petitioner seeks return of parental rights with respect to his minor
    stepdaughter. The claims he asserts are based on state court rulings in Tulsa
    County, Oklahoma, terminating his rights and the rights of the child’s mother, his
    common-law wife, as to the child. In 1990, the district court dismissed
    petitioner’s original habeas petition for lack of subject matter jurisdiction, and
    this Court affirmed. Foust v. Okla. Dep’t of Human Servs., No. 92-5197, 
    1993 WL 118893
    , at *1 (10th Cir. Apr. 16, 1993). On May 18, 1999, the district court
    dismissed petitioner’s amended petition because the minor child was not “in
    custody” for the purposes of a federal habeas claim. Foust v. Oklahoma, No. 90-
    C-792-E, slip order at 2 (N.D. Okla. May 18, 1999).
    As this Court observed when this matter was before us in 1993, “Mr. Foust
    has selected the wrong remedy.” Foust, 
    1993 WL 118893
    , at *1. Section 2254
    does not confer jurisdiction on federal courts to review state court judgments
    involuntarily terminating parental rights. Anderson v. Colorado, 
    793 F.2d 262
    ,
    263 (10th Cir. 1986) (citing Lehman v. Lycoming County Childrens’ Servs.
    Agency, 
    458 U.S. 502
    , 516 (1982)).
    To maintain an action under § 2254, a petitioner must be “in custody”
    under the challenged conviction or sentence at the time his petition is filed.
    Maleng v. Cook, 
    490 U.S. 488
    , 490–91 (1989) (citation omitted). Petitioner is
    not attacking the conviction for which he is in custody, but a state court ruling
    -2-
    terminating parental rights. His stepdaughter was in foster care at the time of his
    original and amended petitions for habeas relief, and “[t]he ‘custody’ of foster or
    adoptive parents over a child is not the type of custody that traditionally has been
    challenged through federal habeas.” Anderson, 793 F.2d at 263 (internal
    quotation omitted).
    On appeal, petitioner argues that the district court erred in treating his suit
    as a § 2254 action because, although his petition was entitled “Amended Petition
    for Writ of Habeas Corpus,” the claims it presented were brought under the
    Indian Child Welfare Act and the Indian Civil Rights Act. As the district court
    stated in an order denying petitioner’s motion for rehearing, petitioner may not
    raise those new claims now that his original petition has been dismissed and that
    dismissal has been affirmed by this Court on appeal. Instead, he must file a new
    civil lawsuit in order to assert new claims.
    Finally, we note that because petitioner’s stepdaughter is now nineteen
    years of age, the question of her custody has become moot. See Wendel v.
    Wendel, 
    331 P.2d 370
    , 371 (Okla. 1958) (holding that because plaintiff’s
    daughter was eighteen and “[n]o order now made with reference to [her]
    custody . . . could be enforced,” the matter of her custody had become moot)
    (citing 
    Okla. Stat. Ann. tit. 15, § 13
     (providing that “[m]inors . . . are persons
    under eighteen (18) years of age”)); see also 
    Okla. Stat. Ann. tit. 10, § 10
    (3)
    -3-
    (“The authority of a parent ceases . . . [u]pon [the child’s] attaining majority.”);
    
    Okla. Stat. Ann. tit. 43, § 551-102
     (“‘Child’ means an individual who has not
    attained eighteen (18) years of age.”).
    Because petitioner has not made “a substantial showing of the denial of a
    constitutional right,” we decline to grant COA. 
    28 U.S.C. § 2253
    (c)(2).
    The motion to proceed in forma pauperis is GRANTED. The application
    for COA is DENIED. This matter is DISMISSED.
    The mandate shall issue forthwith.
    ENTERED FOR THE COURT
    Carlos F. Lucero
    Circuit Judge
    -4-
    

Document Info

Docket Number: 00-5166

Citation Numbers: 7 F. App'x 834

Judges: Ebel, Kelly, Lucero

Filed Date: 3/21/2001

Precedential Status: Non-Precedential

Modified Date: 8/3/2023