The opinion of the court was delivered by: George H. WU United States District Judge
ORDER: DISMISSING PETITION FOR WRIT OF HABEAS CORPUS;
AND DENYING CERTIFICATE OF APPEALABILITY
On February 11, 2013, a 28 U.S.C. § 2254 habeas petition was filed by counsel on behalf of two minor petitioners and their parents ("Petition"). Specifically, the Petitioners are stated to be Ariane Erichsen, a 14-year old ("Ariane"), and Zachary Erichsen, a nine-year old ("Zachary"), "by and through their parents, KIRK ERICHSEN and KRYSTAL ERICHSEN." (Petition at 1.) The named Respondents are the Orange County Social Services Agency and its Director.
The Petition alleges that Ariane and Zachary are the subjects of
petitions filed in the Orange County Superior Court pursuant to
California Welfare and Institutions Code § 300(b) and (g), based on
allegations of parental neglect and lack of provision for support due
parental incarceration (Case Nos. DP23004 and DP23005, hereafter, the
"Pending State Actions"). (Petition at 2.) The Petition alleges that,
as a result of the Pending State Actions, Ariane and Zachary have been
placed at the Orangewood Children and Family Center.*fn1
The Petition raises three grounds for relief. Ground One alleges that: the placement of Ariane and Zachary in protective custody did not comply with California law, specifically, the requirement of a warrant or reasonable suspicion to believe that the children were in imminent danger of physical harm; and after parents Kirk and Krystal Erichsen ("Parents" or "Kirk and Krystal") were arrested, the police improperly refused to release Ariane and Zachary to their maternal grandmother. (Petition at 5.) Ground Two alleges that: the continued detainment of Ariane and Zachary is based upon fabricated evidence and the wilful suppression of exculpatory evidence; Kirk and Krystal were arrested for allegedly providing false information on school enrollment forms; the police seized and suppressed evidence supporting a finding that Kirk and Krystal are the parents of Ariane and Zachary; the police lied about statements made by Ariane and Zachary to support an allegation of abuse; and the police falsely accused Parents of kidnapping. (Petition at 5-6.) Ground Three alleges that: the continued confinement of Ariane and Zachary at the Orangewood Children and Family Center in protective custody violates due process, because it is contrary to California law. Specifically, Ground Three alleges that: a jurisdictional hearing in the Pending State Actions should have been held within 60 days; Ariane and Zachary are being held based upon false evidence; and the failure to hold a prompt merits hearing has deprived them and Parents of a factual hearing and their familial rights of association. (Petition at 6.)
The Petition concedes that Grounds One through Three are unexhausted. (Petition at 5-6.) The Petition alleges that Parents filed a petition for both habeas relief and a writ of mandate in the California Court of Appeal, which raised Grounds One through Three, and that petition was denied on November 29, 2012. (Petition at 2-4.) Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial notice of the official dockets of the California Supreme Court and the California Court of Appeal, which are available electronically.*fn2
Those dockets show that: on November 21, 2012, in California Court of Appeal Case No. G047678, Parents, through their present counsel, filed petitions; and on November 29, 2012, the California Court of Appeal denied the petitions on their merits and specifically denied both mandamus and habeas relief. (See also copy of November 29, 2012 Order in Case No. G047678 appended to the Petition.) The record further shows that Parents, Ariane, and Zachary filed a habeas petition in the Pending State Actions on November 13, 2012, which the Orange County Superior Court denied on its merits on November 26, 2012. Based on the November 26, 2012 Order, it appears that the substance of at least Grounds One and Two was raised in the habeas petition. (Petition at 4 and attached copy of the November 26, 2012 Order in the Pending State Actions.)
The Petition indicates that Ariane, Zachary, and/or Parents have not sought relief in the California Supreme Court. A review of the dockets for the California Supreme Court shows no state high court filing by Petitioners. The Petition alleges that no "appeal" has been taken, because there "is no adequate state remedy" due to the lack of a state statutory remedy for the failure to hold a timely jurisdictional hearing in the Pending State Actions. (Petition at 3.) The Petition, however, does not explain why Petitioners have not sought habeas relief in the California Supreme Court and have not presented their three present claims to that court.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that a petition for writ of habeas corpus "must" be summarily dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Here, it plainly appears that Petitioners are not entitled to relief for two reasons, and therefore, the Petition must be dismissed.*fn3
First, the Petition is unexhausted. Federal courts may not grant 28 U.S.C. § 2254 habeas relief unless the petitioner has exhausted his available state court remedies as to each of the issues presented. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198, 1203 (1982); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005)("We may review the merits of Petitioner's habeas petition only if he exhausted state court remedies."). "[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732 (1999)(emphasis added); see also Baldwin v. Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 1349 (2004)(to give the State the chance to pass upon and resolve violations of his federal rights, a state prisoner must exhaust his available state remedies before seeking federal habeas relief). To satisfy the exhaustion requirement, a California petitioner is required to fairly present his federal claims to the California Supreme Court. See Baldwin, 541 U.S. at 29, 124 S. Ct. at 1349 (a state petitioner must fairly present his claim to a state supreme court having the power of discretionary review); Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998).
As noted above, it is undisputed that the claims alleged in the Petition have not been presented to the California Supreme Court. Thus, the Petition is unexhausted. While it is true that the exhaustion requirement may be excused if there "is an absence of available State corrective process" or circumstances exist that render the exhaustion process ineffective to protect the rights of the petitioner (see 28 U.S.C. § 2254(b)(1)(B)), neither predicate is met here. Petitioners' claim that they "lack an adequate state remedy," because there is no California statute that specifically provides a remedy for a dependency court's failure to hold a timely jurisdictional hearing, is unavailing. Petitioners plainly possess an adequate state remedy; indeed, they have partially exercised it.*fn4 As discussed above, Petitioners filed habeas petitions at both the state trial court and appellate court levels in which they raised their present claims, and those petitions were considered and denied on their merits. Petitioners then could have filed an "original" habeas proceeding in the California Supreme Court raising Grounds One through Three,*fn5 but for unexplained reasons, they did not do so. Instead, they waited two months and then proceeded to federal court.
The same attorney who represented Petitioners in their California Court of Appeal habeas proceeding represents them in this action.
Petitioners' failure to exercise a state remedy readily available to them cannot serve as a basis for excusing the exhaustion requirement. Accordingly, as the Petition is unexhausted, that ground alone mandates its summary dismissal without prejudice.*fn6 Rose, 455 U.S. at 522, 102 S. Ct. at 1205.
Second, even if the Petition were exhausted, it would be dismissed for lack of jurisdiction based on the Supreme Court's decision in Lehman v. Lycoming County Children's Servs., 458 U.S. 502, 102 S. Ct. 3231 (1982). In Lehman, plaintiff/mother filed a Section 2254 petition challenging the constitutionality of the state statute pursuant to which the state obtained protective custody of her children and thereafter involuntarily terminated her parental rights. The Supreme Court affirmed the dismissal of her habeas petition for lack of jurisdiction and held that there is no federal habeas jurisdiction over collateral challenges to child custody determinations by state courts. Id. at 516, 102 S. Ct. at 3239-40. The Supreme Court observed that its precedent limited the availability of federal habeas relief to petitioners who, as a result of a state court criminal conviction, had suffered restraints not shared by the public generally, and "federal habeas has never been available to challenge parental rights or child custody." Id. at 510-11, 102 S. Ct. at 3236-37. The Supreme Court emphasized the federalism and comity concerns that would arise should federal habeas jurisdiction be found to exist over claims stemming from child custody matters, noting "the exceptional need for finality in child-custody disputes" and the "unusually strong" nature of the State's "interest in finality." Id. at 512-13, 102 S. Ct. at 3238; see also id. at 512, 102 S. Ct. at 3237-38 (given that federal courts "consistently have shown special solicitude for state interests" in family matters, extending federal habeas jurisdiction to encompass challenges to state court child custody decisions based on alleged collateral constitutional defects "would be an unprecedented expansion of the jurisdiction of the lower federal courts"). The Supreme Court further opined that the children -- who had been placed in foster homes -- were not "in custody" within the meaning of Section 2254, because the "'custody' of foster or adoptive parents over a child is not the type of custody" that can be challenged through a Section 2254 petition. Id. at 511, 102 s. Ct. at 3237.
Here, Parents do not allege that their parental rights have been terminated; indeed, they complain about the delay in holding a merits hearing in the Pending State Actions. That fact, however, does not render Lehman -- and its conclusion that the statutory grant of federal habeas jurisdiction does not encompass collateral challenges stemming from state court child custody matters -- inapplicable to this case. See Middleton v. Attorneys Gen. of States of New York and Pennsylvania, 396 F.3d 207, 209 (2d Cir. 2005)(rejecting the argument that, because petitioner-father's children had been removed and placed in foster care due to sexual abuse allegations and his parental rights had not yet been terminated, the Lehman rule was not applicable; and concluding that the Lehman rationale "does not turn on such a distinction"); Donkor v. City of New York Human ...