[00:00:00] Speaker 02:
The next case on the calendar, Heslitt versus Ryan, has been submitted on the briefs.

[00:00:06] Speaker 02:
And the final case for argument is Fidler versus State of Arizona Phoenix Children's Hospital in the Arizona Department of Child Safety, Annie Drew Kaplan-Seekman.

[00:00:23] Speaker 02:
Council, I understand you have divided up

[00:00:27] Speaker 02:
your time, that is for the defendants at police.

[00:00:33] Speaker 02:
So when we get there, I think we're going to separate your time on the clock to make sure you each get your increment of time.

[00:00:47] Speaker 05:
Good morning, Your Honors.

[00:00:48] Speaker 05:
My name is Thomas A. Connolly, Mills and Woods Law.

[00:00:53] Speaker 05:
Here on behalf of the plaintiff's appellants, Jessica Fidler and her son EF, I'd like to reserve five minutes of my time for rebuttal.

[00:01:02] Speaker 05:
I'll be probably referring to EF as Eddie today, although that's not his real name.

[00:01:10] Speaker 03:
Can we ask you to speak up?

[00:01:12] Speaker 05:
Sure.

[00:01:18] Speaker 05:
Eddie, his medical history is complex, but the facts of this case are not.

[00:01:24] Speaker 05:
And the district court dismissed all the claims against the defendants in this case.

[00:01:35] Speaker 05:
that the claims were implausible.

[00:01:43] Speaker 05:
There are 12 different claims that are made in the case, and when you read the district court's opinion, what comes through clearly

[00:01:53] Speaker 05:
the district court was focusing apparently on the conspiracy claim and the underlying motivation or potential motivation for that claim.

[00:02:06] Speaker 05:
And in doing so, determined that the only plausible explanation was that the defendants were all executing their responsibilities in an appropriate manner.

[00:02:23] Speaker 03:
We have a limited amount of time with you, counsel.

[00:02:26] Speaker 05:
Yes, sir.

[00:02:27] Speaker 03:
So why don't we get to the issues that are square and upfront, and you can respond to them.

[00:02:33] Speaker 03:
The district court felt that the Rooker-Feldman doctrine required dismissal of these claims.

[00:02:41] Speaker 03:
Is that correct?

[00:02:45] Speaker 05:
I don't recall that the district court

[00:02:49] Speaker 05:
said that Rooker Feldman applied, and if I missed that, then the district court is wrong.

[00:02:57] Speaker 05:
Rooker Feldman applies primarily to state court losers.

[00:03:01] Speaker 05:
My client was not a state court loser.

[00:03:05] Speaker 05:
They prevailed in the state court.

[00:03:07] Speaker 02:
It could also apply not just to the final judgment ending the removal order, but also to the order of removal.

[00:03:18] Speaker 02:
If the claim is interpreted as challenging that order, it seems that Rucker-Feldman would apply.

[00:03:23] Speaker 02:
But I think what's happened in the interim is that your opponents have sent a letter to this court acknowledging that the Rucker-Feldman doctrine would not bar claims for judicial deception.

[00:03:35] Speaker 02:
And it appears that there are three potential claims that could come into play here, the first, second, and third.

[00:03:40] Speaker 02:
Is the first claim a claim for judicial deception?

[00:03:47] Speaker 05:
Well, judicial deception is certainly an element of the first claim.

[00:03:51] Speaker 05:
The first claim is for violation of the Fourth and Fourteenth Amendments, right?

[00:03:59] Speaker 02:
But doesn't the first claim allege that some of the defendants unlawfully seized EF?

[00:04:07] Speaker 02:
Yes.

[00:04:08] Speaker 02:
Right.

[00:04:09] Speaker 02:
But that seizure could only be unlawful if the order of removal was invalid.

[00:04:14] Speaker 05:
Well, and that's true.

[00:04:17] Speaker 05:
Well, it's not exactly true.

[00:04:21] Speaker 05:
A seizure can be unlawful when there's an inadequate investigation.

[00:04:27] Speaker 05:
The state has an obligation under state law, not only under the Constitution, but also under state law to do a thorough investigation.

[00:04:37] Speaker 02:
Okay, so then how does claim one differ from claim three?

[00:04:44] Speaker 05:
Claim three is explicitly set out as a judicial deception claim.

[00:04:52] Speaker 05:
Claim one, the unlawful seizure and detention, is focused more on the inadequate investigation.

[00:04:59] Speaker 05:
I'll also note under Ricker Feldman that extrinsic fraud also

[00:05:06] Speaker 05:
takes a case out of Rooker Feldman.

[00:05:09] Speaker 05:
And we have that here.

[00:05:10] Speaker 05:
And it's clearly alleged in the complaint that the actors deceived the court by putting false information in the affidavit for removal.

[00:05:22] Speaker 02:
Okay.

[00:05:22] Speaker 02:
So the only one who verified an affidavit was Burns.

[00:05:28] Speaker 02:
That's correct.

[00:05:29] Speaker 02:
So how did any of the other defendants make false statements to the state court?

[00:05:36] Speaker 05:
Well, the application for removal was based on, first of all, Dr. Christensen, who... I understand all of that, but Dr. Christensen did not submit an affidavit.

[00:05:48] Speaker 02:
Neither did Ms.

[00:05:49] Speaker 02:
Quigley or Dr. Kaufman or any of the other defendants.

[00:05:53] Speaker 02:
The only statement made to the court was a petition for removal signed by attorneys from the attorney general's office and with a declaration verifying under information and belief by Ms.

[00:06:04] Speaker 02:
Burns.

[00:06:04] Speaker 05:
That's true, Your Honor, and I think if you'll note in our briefing, we did concede the claims against Dr. Kaufman, Dr. Christensen, and Phoenix Children's Hospital as far as those constitutional claims, and we're not pursuing those here.

[00:06:27] Speaker 02:
Right, but that's a slightly different issue.

[00:06:28] Speaker 02:
That was an acknowledgment that

[00:06:30] Speaker 02:
they were not state actors.

[00:06:32] Speaker 02:
So the 1983 claims cannot proceed against them.

[00:06:35] Speaker 02:
But this is a little different issue that just to plausibly allege as a judicial deception claim, it seems there has to be some judicial deception.

[00:06:43] Speaker 02:
They had to make some false statements to the court.

[00:06:45] Speaker 02:
And if a defendant did not do so, how can that claim go forward against any of them except perhaps Defender Burns?

[00:06:52] Speaker 05:
Well, first of all, we allege in the complaint, as far as Defending Quigley goes, that

[00:06:59] Speaker 02:
DCS policies and procedures But that's becoming into a Monell claim potentially so that's another issue you have with science Quigley And Edwards is that it doesn't appear that any of them for any claim actually personally took action It seems you're starting responding at superior liability.

[00:07:19] Speaker 05:
Well respectfully your honor.

[00:07:21] Speaker 05:
That's incorrect DCS policy requires a supervisor and

[00:07:25] Speaker 05:
to actually review materials and approve a petition before it's filed, approve an application before it's filed.

[00:07:37] Speaker 05:
So it's not just defendant Burns making an affidavit to the court.

[00:07:44] Speaker 05:
It has to be approved by her supervisor.

[00:07:46] Speaker 05:
In this case, Burns' supervisor was Quigley.

[00:07:50] Speaker 05:
And so as far as claim one, it's really only against... So what you would have to argue is that

[00:07:56] Speaker 02:
A supervisor's approval of an unreasonable investigation or an ineffective investigation is a constitutional violation.

[00:08:05] Speaker 02:
And somehow we're taking it outside of respondeat superior liability.

[00:08:11] Speaker 05:
Yes, Your Honor.

[00:08:12] Speaker 05:
I don't believe respondeat superior is

[00:08:14] Speaker 05:
is the theory we've pled.

[00:08:16] Speaker 02:
Well, you can't, because there is no such thing on 1983.

[00:08:19] Speaker 02:
Correct.

[00:08:19] Speaker 05:
That's why we never plead to respond yet, superior, but we always plead against the supervisors because the DCS files.

[00:08:28] Speaker 02:
So the question then is, what are the allegations about what they personally did?

[00:08:32] Speaker 02:
Approve the actions?

[00:08:34] Speaker 02:
That's their personal conduct at issue?

[00:08:37] Speaker 05:
For?

[00:08:38] Speaker 02:
For Saenz, Edwards, and Quigley.

[00:08:41] Speaker 05:
Well, for Quigley we allege a number of different things that she did.

[00:08:53] Speaker 05:
We allege that she

[00:09:01] Speaker 05:
approved the reviewed and approved the application for taking temporary custody for the removal order.

[00:09:11] Speaker 05:
She approved the engagement of Kaplan Seekman, who was not qualified at all to perform the actions that she did.

[00:09:22] Speaker 05:
There are a couple of other allegations that are not springing to my mind right now.

[00:09:31] Speaker 02:
So I'm having a hard time distinguishing that from a theory of supervisory liability.

[00:09:38] Speaker 05:
I understand that, Your Honor, but I think the complaint makes it clear that it's not simply that Quigley is being held responsible for Burns' actions without having been involved herself and having made decisions

[00:09:56] Speaker 05:
We've had, in fact, Your Honor, we've had cases involving DCS where the discovery process has revealed that the frontline workers took actions against their own view and thinking of what should be done because their supervisor directed them to take such actions.

[00:10:24] Speaker 02:
Well, I think you have to distinguish between a claim of negligence or some other form of liability and a constitutional claim.

[00:10:34] Speaker 05:
I agree, Your Honor.

[00:10:35] Speaker 05:
And all of our claims are based on fundamental rights that are protected by the first, fourth, and 14th Amendments.

[00:10:41] Speaker 02:
Well, not all of them.

[00:10:42] Speaker 02:
I mean, don't you have medical malpractice claims in such against Dr. Christensen and Kaufman?

[00:10:48] Speaker 05:
That's true.

[00:10:49] Speaker 05:
I didn't mean to speak that broadly.

[00:10:51] Speaker 02:
So another question that I have is,

[00:10:54] Speaker 02:
Your opening brief does not discuss your negligence claims and claims eight or nine.

[00:10:59] Speaker 02:
Did you intend to waive those claims?

[00:11:01] Speaker 02:
Because they're not argued.

[00:11:02] Speaker 02:
So I know there's a lot of claims.

[00:11:04] Speaker 02:
There were 12 and the 11th was dismissed and not appealed.

[00:11:07] Speaker 02:
That was against the family where EF was placed.

[00:11:13] Speaker 02:
But it appeared that eight and nine were not appealed either.

[00:11:16] Speaker 05:
That's correct, Your Honor.

[00:11:18] Speaker 05:
We're not pursuing claims eight or nine.

[00:11:23] Speaker 05:
But we are pursuing the negligence claim in count 10 and 12.

[00:11:33] Speaker 02:
So then another place where I was questioning your claim was with the unreasonable investigation.

[00:11:42] Speaker 02:
And I understand the factual assertion that the defendants did not conduct a reasonable investigation before going to the court and seeking a removal order.

[00:11:51] Speaker 02:
But the case law that talks about liability and constitutional violations in that context are all cases in which there is no court order, where there's a seizure or removal of a child, and then where there are exigent circumstances, no, this was a violation of the right of familial association, but there's no court order.

[00:12:12] Speaker 02:
So what do we do with that?

[00:12:14] Speaker 02:
There's a court order in place here.

[00:12:15] Speaker 02:
Does that change our analysis?

[00:12:17] Speaker 05:
I don't think so, Your Honor.

[00:12:18] Speaker 05:
First of all, we've got a court order that's a result of judicial deception.

[00:12:23] Speaker 02:
So that raises an issue.

[00:12:25] Speaker 02:
That may be a claim against the individuals who made the deceptive comments, but does that mean the court order's not valid?

[00:12:31] Speaker 02:
I mean, doesn't that take us right back to Rucker Feldman?

[00:12:34] Speaker 05:
No, I don't believe so.

[00:12:37] Speaker 05:
And if it does take us right back to Rucker Feldman, then we're at the extrinsic fraud exception to Rucker Feldman.

[00:12:44] Speaker 03:
From the very first sentence you uttered,

[00:12:47] Speaker 03:
and correct me if I'm wrong, that you don't attack the order itself.

[00:12:55] Speaker 03:
Is that right?

[00:12:57] Speaker 05:
Well, only in the sense that it was... Can we start with the yes or no?

[00:13:02] Speaker 03:
Do you attack the order of removal?

[00:13:06] Speaker 03:
Do you ask this court to determine whether the order of removal was appropriate?

[00:13:13] Speaker 05:
No, Your Honor.

[00:13:14] Speaker 05:
That would be squarely a problem with Rooker Felden and we're not doing that.

[00:13:19] Speaker 03:
So is your claim addressed to the conduct that was engaged in by these various defendants, whether they're properly before us or not, but their conduct that led up to the issuance of the order?

[00:13:33] Speaker 03:
Is that right?

[00:13:33] Speaker 05:
That's correct, Your Honor.

[00:13:35] Speaker 05:
We have allegations that

[00:13:41] Speaker 05:
Eddie had a team of medical professionals, all of whom were mandated reporters, none of whom ever suggested that his mother was a Munchausen parent.

[00:13:53] Speaker 05:
They all supported the

[00:13:56] Speaker 05:
the surgery that brings us all here.

[00:13:59] Speaker 05:
The only doctor who disagreed was Dr. Christensen.

[00:14:02] Speaker 05:
The defendants failed to interview and consider the views of all those other doctors.

[00:14:09] Speaker 05:
They failed to consider the records of the home health nurse to show that the reason there may have been so many visits to the hospital or the emergency room was because the mother was following the doctor's orders

[00:14:24] Speaker 03:
to bring this fragile child to the hospital whenever his temperature... Is it your contention that this information was deliberately withheld?

[00:14:35] Speaker 05:
I don't know if I can say deliberately at this point, Your Honor, but it certainly was available and known to be available and not gathered.

[00:14:47] Speaker 05:
There was no interviewing by the investigators of these

[00:14:52] Speaker 05:
primary care physicians or the other doctors on the team.

[00:14:56] Speaker 05:
There was no request to see the home health nurse records even though the existence of the home health nurse was known and it's common knowledge that a medical professional like that is going to have records, treatment records and records showing why certain actions were taken and when they were taken.

[00:15:18] Speaker 02:
You wanted to reserve five minutes.

[00:15:20] Speaker 02:
You have about 28 seconds left.

[00:15:22] Speaker 02:
So if you'd like to reserve that, I'll give you a couple of additional minutes.

[00:15:26] Speaker 05:
I would like a couple additional minutes, Your Honor.

[00:15:28] Speaker 05:
Thank you.

[00:15:49] Speaker 02:
I think there might be a button in the front of the podium that raises and lowers it if you that when you then maybe we could see you.

[00:16:01] Speaker 03:
Is that good.

[00:16:02] Speaker 03:
That's better.

[00:16:02] Speaker 03:
Thank you.

[00:16:02] Speaker 00:
Put it in a position that you're comfortable with.

[00:16:04] Speaker 00:
I'm comfortable.

[00:16:06] Speaker 00:
Thank you.

[00:16:08] Speaker 00:
May it please the court.

[00:16:09] Speaker 00:
My name is Rita Bustos, counsel for

[00:16:11] Speaker 00:
Phoenix Children's Hospital, Dr. Katherine Kaufman and Dr. Beau Borch Christensen, collectively known as the PCH defendants.

[00:16:18] Speaker 00:
The issues to the PCH defendants are very limited on appeal.

[00:16:23] Speaker 00:
I really just wanted to point out to the court, which has already been pointed out by plaintiffs' counsel and the court, that plaintiffs have waived all of the 1983 issues and the negligence per se and the gross negligence claim against the PCH defendants.

[00:16:38] Speaker 00:
That's counts 1, 2, 3, 8, and 9.

[00:16:41] Speaker 00:
So the only potentially viable claims against the PCH defendants are counts 10 and 12.

[00:16:48] Speaker 00:
Count 10 is plaintiff's attempt to state a claim for medical negligence specifically against Dr. Christensen.

[00:16:55] Speaker 00:
Under Arizona law, a claim for medical negligence requires plaintiff to prove via expert testimony

[00:17:01] Speaker 00:
a duty requiring defendant to conform to a certain standard of care, breach of that duty, a causal connection between defendant's conduct and a resulting injury.

[00:17:10] Speaker 02:
Could it be, I know your argument focuses on the allegation about obtaining records, but what about the allegation that Dr. Christensen canceled all treatment for EF while he was at PCH, so could come off all medical intervention for a few days to see what would happen?

[00:17:31] Speaker 00:
Oh, absolutely, Your Honor.

[00:17:32] Speaker 00:
Well, first of all, I don't see how that would be a violation of the standard of care in this case, especially since we do not have any expert medical testimony to prove that.

[00:17:40] Speaker 00:
Under Arizona law, you do need a preliminary expert affidavit, which plaintiff has not provided.

[00:17:45] Speaker 00:
But more importantly, then you would have to have a causal connection to an actual injury.

[00:17:50] Speaker 00:
And in this case, plaintiff just hasn't pled that.

[00:17:53] Speaker 00:
There's no indication in their complaint of an actual injury except for alleged bowel flare-ups of EF.

[00:18:00] Speaker 00:
But then in another part of their amended complaint, they say that that is something that happened to EF often, even before Dr. Christensen canceled all of those specific treatments for EF.

[00:18:14] Speaker 00:
So truly, there just isn't a claim for medical negligence against Dr. Christensen.

[00:18:18] Speaker 00:
Specific to PCH, plaintiff has also, in Count 12, attempted to state an independent medical negligence claim against PCH, allegedly for negligent hiring and supervision, but again,

[00:18:30] Speaker 00:
They provided no facts and circumstances to show that PCH was negligent in hiring Dr. Christensen or Dr. Kaufman or supervising them.

[00:18:38] Speaker 00:
I see my time is up unless you have any questions.

[00:18:41] Speaker 00:
Thank you very much.

[00:18:55] Speaker 04:
May it please the court.

[00:18:57] Speaker 04:
My name is Michael Niederbomber, and I am here on behalf of the state at Belize.

[00:19:02] Speaker 04:
The appellant's case is a house of cards.

[00:19:05] Speaker 04:
It depends on eight people who do not know each other conspiring to take a child away from his mother.

[00:19:13] Speaker 04:
For reasons unexplained, appellants did not address the district court's basis for dismissing their case, that their basic factual theory is implausible.

[00:19:24] Speaker 02:
But are all of their claims dependent on the defendant's mental state?

[00:19:28] Speaker 02:
So, for example, as a part of a judicial deception claim, they would have to show that the defendants were recklessly or deliberately making false statements to the court.

[00:19:38] Speaker 02:
But what about due process claims?

[00:19:40] Speaker 02:
There doesn't seem to be a mental state requirement, so I'm not sure how the district court's conclusion there would defeat their claims.

[00:19:48] Speaker 04:
Well, Your Honor, I think, and I might be having this question incorrect,

[00:19:54] Speaker 04:
But I think it's sort of based upon the appellant's reply.

[00:19:58] Speaker 04:
And the appellant's reply said that it was not the intent or the mental state of the doctors or anybody else that had issue in this case.

[00:20:06] Speaker 04:
But I would say that was the glue that holds all of this together.

[00:20:09] Speaker 02:
But don't we need to look at this claim by claim and determine if they have plausibly alleged a particular claim, its elements, if the person is a state actor?

[00:20:19] Speaker 02:
I mean, this all seems to go to the 1983 claims.

[00:20:22] Speaker 02:
If it's supervisory liability,

[00:20:24] Speaker 02:
It doesn't seem like I have some concerns for sweeping broadly and just saying it was implausible.

[00:20:30] Speaker 02:
They didn't know each other.

[00:20:31] Speaker 02:
They're involved in this, said them being in this conspiracy.

[00:20:35] Speaker 04:
Sure.

[00:20:35] Speaker 04:
I mean, if we address each of their claims individually, their 1983 claims seem to be in two camps.

[00:20:44] Speaker 04:
Camp number one would be up to and including removal, and camp two would be post removal.

[00:20:50] Speaker 04:
And those have different analyses.

[00:20:56] Speaker 04:
In their pre-removal claims, the linchpin is their contention that Appellees Burns and Quigley failed to conduct any type of reasonable investigation before seeking both the child from Ms.

[00:21:13] Speaker 04:
Fiddler and then terminate the parent child.

[00:21:15] Speaker 03:
What did Burns rely upon to make the application for removal?

[00:21:22] Speaker 04:
She relied on several things, Your Honor.

[00:21:24] Speaker 04:
Number one, her conversations with Dr. Christensen.

[00:21:29] Speaker 03:
Two, she hired... Just on that point, the complaint alleges, and we're here on the Rule 12b-5 dismissal, we don't know what the facts are, and this body doesn't determine facts.

[00:21:41] Speaker 03:
District courts do that.

[00:21:43] Speaker 03:
But in their claim, they say that Dr. Christensen lied about the kind of surgery that the child got.

[00:21:55] Speaker 04:
Well, even if Dr. Christensen lied.

[00:21:57] Speaker 03:
I mean, it does say that.

[00:21:59] Speaker 03:
It does say that.

[00:22:00] Speaker 03:
And it says that he said that the child had this more invasive form of surgery when it turned out that they didn't have it at all.

[00:22:09] Speaker 03:
It was a less invasive surgery that was agreed to by the people at Banner Health, by the mother's own care provider, et cetera, et cetera.

[00:22:21] Speaker 03:
So that's what we're faced with right now.

[00:22:23] Speaker 04:
Well, let's say he did lie.

[00:22:25] Speaker 04:
I know it alleges that he lied.

[00:22:26] Speaker 04:
Let's say, I mean, we have to take that true.

[00:22:29] Speaker 04:
But where does it in the complaint allege that Burns and Quigley knew that he lied or he had reason to know that he lied?

[00:22:39] Speaker 04:
It's nowhere in the complaint.

[00:22:41] Speaker 03:
Burns knew that Christiansen had said that the child was faking this.

[00:22:49] Speaker 03:
That's in the complaint.

[00:22:52] Speaker 04:
Well, it says new.

[00:22:53] Speaker 04:
That's a conclusion.

[00:22:54] Speaker 04:
There's no facts there to say how she would know.

[00:22:59] Speaker 03:
Did that motivate Burns in any way to seek removal?

[00:23:04] Speaker 04:
No, Your Honor, because, well, it may have.

[00:23:06] Speaker 04:
Dr. Christensen's statements obviously did have a motivation to seek removal because she did indicate that medical providers were concerned that the child may be suffering

[00:23:21] Speaker 04:
Maybe faking it.

[00:23:22] Speaker 02:
Well, not the child.

[00:23:23] Speaker 02:
I mean, it's much house and die proxy.

[00:23:25] Speaker 02:
So the allegation is the child is a victim of a parent who's manipulating medical care and doctor shopping.

[00:23:32] Speaker 04:
Correct.

[00:23:32] Speaker 04:
And as I was going to my, the phrase was going to be, was the child was suffering medical abuse.

[00:23:39] Speaker 04:
Uh, and so obviously Dr. Christiansen's information, you know, had an effect, which she just didn't rely on Dr. Christiansen's information.

[00:23:48] Speaker 04:
It says it in the complaint.

[00:23:50] Speaker 04:
It says it in the complaint that she spoke with Dr. Christensen.

[00:23:53] Speaker 04:
It says it in the complaint that she hired Apple Lee Drew Kaplan Seekman to do a medical review.

[00:23:58] Speaker 03:
We don't know what Christensen said to her, correct?

[00:24:02] Speaker 04:
It doesn't say that in the complaint, no.

[00:24:04] Speaker 03:
We don't know what level of inquiry she engaged in?

[00:24:07] Speaker 04:
That's correct.

[00:24:09] Speaker 03:
We simply know that she talked to Christensen and that was part of her motivation to seek a court order removing the child from the parent's custody, correct?

[00:24:20] Speaker 04:
Well, yes, partially, because she also spoke with Dr. Christensen in conjunction with the Scottsdale Police Department, as well as Drew Kaplan-Seekman was also there.

[00:24:31] Speaker 03:
At a minimum, don't we need to know those facts?

[00:24:35] Speaker 04:
Well, I think it was incumbent upon the plaintiffs to state those facts in order to push it beyond possibility and plausibility.

[00:24:44] Speaker 04:
Because as of right now, what you have is

[00:24:46] Speaker 04:
They admitted that Berns spoke with the mother, that Berns spoke with the child, that Berns spoke with the home health care person.

[00:24:55] Speaker 04:
Berns spoke with Christensen.

[00:24:56] Speaker 03:
Is Berns a doctor?

[00:24:58] Speaker 04:
Berns is not.

[00:25:00] Speaker 03:
Berns is a social worker.

[00:25:00] Speaker 03:
Does she have any training in muchos and by proxy?

[00:25:04] Speaker 04:
Berns is a social worker.

[00:25:06] Speaker 04:
I do not know, and the complaint does not allege, what her background is.

[00:25:10] Speaker 03:
Does the record tell us the level of her expertise on

[00:25:16] Speaker 03:
parent sort of faking a child's medical condition?

[00:25:20] Speaker 04:
Well, I think it would be she relied upon Dr. Christensen to inform her of that.

[00:25:24] Speaker 03:
And again, we don't know what Christensen told her, what she asked, et cetera, right?

[00:25:31] Speaker 04:
That's correct.

[00:25:31] Speaker 04:
That has not been alleged in the complaint.

[00:25:36] Speaker 03:
But the complaint does say that Christensen, if you will, lied about the nature of the child's surgery, correct?

[00:25:44] Speaker 04:
It does state that.

[00:25:47] Speaker 04:
But I don't believe that that has anything to do with whether or not Burns's investigation was clear, because again, we go into the fact is they do not explain how Burns would know that Dr. Christensen was in quote or quote lying.

[00:26:06] Speaker 03:
And because we don't know the level of information that she or not that she received from him, correct?

[00:26:16] Speaker 04:
That's correct.

[00:26:17] Speaker 03:
if she knew that Christensen had told her A, this child is faking it or the mother is, but B, it turned out that the mother was not faking it, that the child really had some gastrointestinal problems that required surgery that was approved by her own doctor, or does that get us?

[00:26:42] Speaker 04:
I don't believe it.

[00:26:44] Speaker 04:
Where it gets us is this, is that I think we're focusing on what was stated in her petition as opposed to what ultimately was determined.

[00:26:54] Speaker 04:
At the petition stage, something might turn out to be incorrect.

[00:26:59] Speaker 04:
That doesn't mean it was knowingly or recklessly made false.

[00:27:04] Speaker 04:
I mean, it happens all the time.

[00:27:06] Speaker 04:
It happens all the time in DCS investigations.

[00:27:08] Speaker 04:
It happens all the times in criminal investigations.

[00:27:11] Speaker 04:
Someone swears to something at the very beginning,

[00:27:14] Speaker 04:
It triggers due process rights such as notice, such as hearings, such as the ability to question people under oath during that process and ultimately ends in a conclusion.

[00:27:28] Speaker 04:
Just because they may have been incorrect does not mean that Drew, I mean, I'm sorry, Burns intentionally made a false statement or even recklessly made a false statement.

[00:27:43] Speaker 02:
It seems that you're turning to the judicial deception claims and you sent a letter acknowledging that the Rooker-Feldman doctrine would not bar those claims.

[00:27:53] Speaker 02:
But I have a question about the scope of your concession.

[00:27:56] Speaker 04:
Yes.

[00:27:56] Speaker 02:
Which claims are you, it seems to me that claims one, two and three were potentially judicial deception claims.

[00:28:06] Speaker 02:
What's the scope of your concession?

[00:28:08] Speaker 04:
The scope of our concession is that we can't attach or we can't attack a judicial deception claim.

[00:28:13] Speaker 02:
I believe- Right, so do you think that claim one is a judicial deception claim?

[00:28:17] Speaker 04:
I believe it's based upon a judicial deception claim, meaning that I do truly believe that it is a wrongful removal.

[00:28:23] Speaker 04:
They are attacking the decision of the court, and it all goes back- Counsel has just told us the opposite.

[00:28:32] Speaker 04:
I disagree with counsel, Your Honor.

[00:28:35] Speaker 04:
That's from my reading of the complaint and all of the documents.

[00:28:38] Speaker 02:
What I want to understand is what is the scope of your concession.

[00:28:41] Speaker 02:
I understand you and your opposing counsel are going to disagree with each other.

[00:28:44] Speaker 02:
Correct.

[00:28:44] Speaker 02:
It seemed from your letter and from looking at the complaint that claims two and three,

[00:28:49] Speaker 02:
were more solidly based in judicial deception, allegations of false statements and false information presented to the court in order to obtain the removal order.

[00:28:57] Speaker 02:
Claim one was, in my view, a little different.

[00:29:00] Speaker 02:
It seemed it could be read different ways.

[00:29:02] Speaker 02:
It could be read as a claim challenging an unlawful remover and seizure, which in my view is an attack on the court order, or as your opposing counsel said, that the defendants made false statements to the court.

[00:29:14] Speaker 02:
And it's just another reiteration of, say, claim three, judicial deception.

[00:29:19] Speaker 02:
What do you concede?

[00:29:20] Speaker 02:
Which of those claims do you no longer assert Rooker Feldman?

[00:29:25] Speaker 04:
Two and three, we do not claim Rooker Feldman because Benavides prevents us.

[00:29:31] Speaker 02:
Okay, so two and three.

[00:29:32] Speaker 02:
What about one?

[00:29:34] Speaker 04:
No, Your Honor, I do believe that's still an attack on the Rooker.

[00:29:38] Speaker 04:
I still believe Rooker Feldman applies to one because I believe it is attack.

[00:29:42] Speaker 04:
It's asking

[00:29:43] Speaker 04:
this court and was asking the district court to basically determine that that judicial decision was wrongful.

[00:29:50] Speaker 03:
Let's assume for the purpose of argument that Urquhart Feldman does apply.

[00:29:54] Speaker 03:
Doesn't our case law say that if a court determines that it applies, the dismissal should be without prejudice?

[00:30:06] Speaker 04:
Your Honor, I do.

[00:30:06] Speaker 03:
Do you not know the answer to that question?

[00:30:08] Speaker 04:
I do not know.

[00:30:09] Speaker 04:
I'll be honest, I do not know the answer to that question.

[00:30:11] Speaker 03:
She did dismiss, Judge Silver did dismiss, with prejudice.

[00:30:15] Speaker 04:
Yes, she did.

[00:30:17] Speaker 03:
Thank you.

[00:30:18] Speaker 03:
We've taken you a bit over time.

[00:30:19] Speaker 02:
Thank you.

[00:30:21] Speaker 02:
All right.

[00:30:22] Speaker 02:
And then we have one more.

[00:30:25] Speaker 02:
Mr. Crotchy?

[00:30:27] Speaker 02:
Crocky.

[00:30:28] Speaker 02:
I'm just not pronouncing anybody's name correctly this morning.

[00:30:37] Speaker 01:
Good morning, Your Honors.

[00:30:39] Speaker 01:
May it please the court, Stephen Crockie appearing on behalf of appellee Drew Kaplan-Siekman.

[00:30:45] Speaker 01:
The court asked counsel for appellant, how did the other defendants make false statements to the court when only Ms.

[00:30:54] Speaker 01:
Burns verified the petition that was filed with the juvenile court?

[00:30:57] Speaker 01:
And that's precisely the argument that Ms.

[00:30:59] Speaker 01:
Kaplan raised in her answering brief.

[00:31:02] Speaker 01:
Third Amendment complaint didn't allege that Ms.

[00:31:06] Speaker 01:
Kaplan's report was submitted to the juvenile court, that Ms.

[00:31:10] Speaker 01:
Kaplan submitted it to the juvenile court.

[00:31:12] Speaker 01:
You know, Ms.

[00:31:13] Speaker 01:
Kaplan attached the motion to dismiss and also added to the supplemental excerpts of record.

[00:31:18] Speaker 03:
Wasn't your client tasked with the responsibility of determining whether, in fact, this was moot-chanzen by proxy?

[00:31:28] Speaker 01:
I don't know that the complaint alleges exactly what she was tasked with doing.

[00:31:33] Speaker 03:
Let's assume it does.

[00:31:36] Speaker 01:
I think her task was to review medical records and determine whether there was some sort of abuse.

[00:31:41] Speaker 03:
Does your client have medical training?

[00:31:44] Speaker 01:
I don't believe that's alleged in the Third Amendment Plaint, I don't know, offhand.

[00:31:49] Speaker 01:
She's a social worker, right?

[00:31:50] Speaker 01:
She's a social worker.

[00:31:51] Speaker 02:
She's not a medical doctor.

[00:31:52] Speaker 01:
No, Your Honor.

[00:31:53] Speaker 02:
And so she's being retained by the state to review medical records.

[00:31:59] Speaker 02:
How does that qualify her to make an offering of opinion on the medical records?

[00:32:06] Speaker 01:
Well, my understanding is she's looking at the medical records and not necessarily making it like a medical determination, but determining whether in her line of work, whether that would constitute a child abuse itself.

[00:32:22] Speaker 01:
I don't know that she's making a medical decision.

[00:32:24] Speaker 01:
So I think it's kind of like a fine line that she's walking when she's reviewing these medical records.

[00:32:33] Speaker 01:
But kind of going back to the judicial deception claim, Ms.

[00:32:36] Speaker 01:
Kaplan argued

[00:32:37] Speaker 01:
in the answering brief that her report wasn't submitted to the juvenile court and that she herself didn't make any statements to the juvenile court.

[00:32:45] Speaker 01:
And plaintiff didn't address those arguments in the reply brief.

[00:32:49] Speaker 01:
I believe footnote seven in the reply just said that appellant was going to rest on the opening brief and didn't address this argument.

[00:32:57] Speaker 01:
So Ms.

[00:32:57] Speaker 01:
Kaplan would ask the court to affirm the dismissal of the district court because she didn't actually make any statements to the juvenile court.

[00:33:04] Speaker 01:
She just issued a report provided to DCS.

[00:33:07] Speaker 01:
there's no allegations that that report was provided to the juvenile court.

[00:33:11] Speaker 01:
With respect to the first claim, the unlawful removal... Just take a step back.

[00:33:18] Speaker 03:
Did defendant Burns, I know that's not your client, but did defendant Burns undertake any investigation on her own or rely upon what other people provided her?

[00:33:33] Speaker 01:
I believe

[00:33:34] Speaker 01:
Burns did do an investigation on her.

[00:33:36] Speaker 01:
I know, I believe they allege that Burns attended the telephone call.

[00:33:39] Speaker 03:
And the complaint alleges that Burns tasked your client with the responsibility of making the determination of whether, in fact, to state it colloquially, this child was faking it.

[00:33:54] Speaker 01:
Is that correct or incorrect?

[00:33:57] Speaker 01:
I don't believe the complaint alleged specifically what she was tasked with, other than she was retained to review medical records and that she issued a report.

[00:34:04] Speaker 01:
and made findings that were essentially reiterations of what Dr. Christensen had reported to police.

[00:34:13] Speaker 01:
But I believe Ms.

[00:34:13] Speaker 01:
Burns did come.

[00:34:14] Speaker 03:
And the complaint says, and again, we're here on 12b5 dismissal, we don't know whether this stuff is true or not.

[00:34:21] Speaker 03:
But the complaint says that when this child was first examined by Dr. Christensen, he said, there's nothing wrong with this child.

[00:34:30] Speaker 03:
She's faking that.

[00:34:31] Speaker 03:
And when you compare that

[00:34:33] Speaker 03:
with what happened at the end of the day, that's not correct.

[00:34:39] Speaker 03:
Right?

[00:34:41] Speaker 01:
According to the third component complaint, that's what they allege.

[00:34:44] Speaker 02:
Okay.

[00:34:44] Speaker 02:
Thank you.

[00:34:46] Speaker 01:
Thank you, Your Honor.

[00:34:47] Speaker 02:
Thank you.

[00:34:50] Speaker 02:
Mr. Connolly, you have two minutes.

[00:34:53] Speaker 05:
Thank you, Your Honor.

[00:34:54] Speaker 05:
I'll first start with

[00:34:56] Speaker 05:
something everybody knows that the allegations at this point of the complaint have to be taken is true.

[00:35:03] Speaker 05:
As regards to PCH, Drs.

[00:35:08] Speaker 05:
Christensen and Dr. Kaufman, the examination in April was simply an investigatory examination.

[00:35:19] Speaker 05:
There was no medical purpose for it and the defendants conceded that and we allege that in the complaint.

[00:35:25] Speaker 03:
What's the basis in the complaint for contending that, just to take him for example, Dr. Christensen is a state actor?

[00:35:35] Speaker 05:
We're not pursuing that any further, Your Honor.

[00:35:37] Speaker 05:
We've conceded that.

[00:35:38] Speaker 03:
Who agrees not?

[00:35:40] Speaker 05:
Reluctantly, yes.

[00:35:42] Speaker 05:
We're not pursuing that.

[00:35:44] Speaker 05:
The one other thing I want to make a point about from counsel for those defendants, PCH and the others, she stood up here and said that the flare-ups is trying to make an issue of the flare-ups.

[00:36:01] Speaker 05:
The problem that the district court has and that counsel has is that they're not paying attention to the timing

[00:36:07] Speaker 05:
of the allegations regarding flare-ups.

[00:36:09] Speaker 05:
If you pay attention to the timing, you'll see that in paragraph 35, they talk about GI flare-ups at the time before the surgery that was ultimately performed was performed.

[00:36:21] Speaker 05:
And then if you pay attention to paragraphs 62, 69, and 168, what you'll see is that after Dr. Christensen removes

[00:36:32] Speaker 05:
the medical treatments that the child has during this investigatory examination, that's when he starts having GI flare-ups again.

[00:36:40] Speaker 02:
It seems like you're sort of conflating a couple different claims.

[00:36:45] Speaker 02:
So you have the claims that after the child was removed from his mother's custody, the DCS defendants were violating the child and the mother's constitutional rights by not allowing her

[00:37:01] Speaker 02:
to be present at medical examinations.

[00:37:04] Speaker 02:
And you're saying this was an investigatory examination.

[00:37:06] Speaker 02:
It wasn't for any other reason.

[00:37:08] Speaker 05:
It wasn't for any medical purpose.

[00:37:09] Speaker 02:
With the claim that Dr. Christensen was committing malpractice, that there was medical negligence.

[00:37:14] Speaker 02:
And the states, or excuse me, PCH's response was that there was no affidavit, there was no evidence that there was medical negligence.

[00:37:24] Speaker 02:
And that's going to go to claim 10 versus, I think, your claims about

[00:37:30] Speaker 02:
violating the child and the mother's rights were in four and five.

[00:37:36] Speaker 02:
I think those were claims four and five about placement with a non-Jewish family and then also not being present at medical exams.

[00:37:43] Speaker 02:
So those seem to be different claims here.

[00:37:47] Speaker 02:
So how do you address the lack of any expert declaration to support a claim of medical negligence against Dr. Christensen?

[00:37:57] Speaker 05:
Well, Your Honor, first of all,

[00:38:00] Speaker 05:
There was, Dr. Christensen was, any consent he had at the very beginning to examine or look at medical records was withdrawn.

[00:38:14] Speaker 05:
So he had no consent.

[00:38:15] Speaker 05:
There is some malpractice that is not- Okay, so that's different though.

[00:38:19] Speaker 02:
Looking at the medical records is a different component of your claim than withdrawing medical treatment.

[00:38:24] Speaker 02:
So assuming that he didn't have consent and it was,

[00:38:28] Speaker 02:
It was treatment to look at medical records.

[00:38:32] Speaker 02:
How did that result in harm?

[00:38:33] Speaker 02:
I mean, then you've got the damages problem.

[00:38:37] Speaker 05:
How did looking at medical records result in not looking at medical records result in harm?

[00:38:41] Speaker 05:
Well, what he did was he only looked at certain medical records.

[00:38:44] Speaker 05:
He didn't look at them all, first of all.

[00:38:46] Speaker 05:
And he had no right to look at them because consent.

[00:38:50] Speaker 02:
So this circles back to your, you know, bad motive, unauthorized

[00:38:55] Speaker 02:
an inadequate investigation, it doesn't seem to go to medical negligence.

[00:39:00] Speaker 02:
I'm having a hard time connecting it to Claim 10.

[00:39:03] Speaker 05:
Well, I just think it's almost a recognized concept that if a doctor doesn't have consent to treat a patient or review his medical records, that it's negligence if he's allowed to do so.

[00:39:20] Speaker 02:
Right, but you just said two different things.

[00:39:22] Speaker 02:
Certainly it's malpractice to

[00:39:25] Speaker 02:
provide, do some sort of medical treatment on a person without consent.

[00:39:29] Speaker 02:
But that's different.

[00:39:31] Speaker 02:
That begs the question of whether reviewing records is in fact treatment.

[00:39:37] Speaker 05:
Well, Dr. Christensen also was not a treating doctor for Eddie.

[00:39:44] Speaker 05:
The only thing he did

[00:39:46] Speaker 05:
in April was to conduct this investigatory examination.

[00:39:51] Speaker 05:
He wasn't treating any of Eddie's medical conditions.

[00:39:54] Speaker 05:
In fact, he was making them worse.

[00:39:56] Speaker 05:
And as far as the affidavit goes, Arizona law doesn't require that until

[00:40:02] Speaker 05:
a little later in the process.

[00:40:04] Speaker 05:
We don't have to give an affidavit at the time we file a complaint.

[00:40:07] Speaker 05:
I'd like to just touch real briefly.

[00:40:08] Speaker 05:
I know I'm over my time, Your Honor, but you're right that the mental states of the defendants is not something that's required to be pled.

[00:40:16] Speaker 05:
We don't need to plead a prima facie case in the complaint to defeat a motion to dismiss.

[00:40:23] Speaker 05:
Medical decisions are constitutionally protected and

[00:40:28] Speaker 05:
And as far as count one, I just want to go back to that for a second, Your Honor.

[00:40:32] Speaker 05:
Count one, actually, I looked at it again.

[00:40:35] Speaker 05:
It's really not set up as a judicial deception claim.

[00:40:40] Speaker 05:
It expressly sets out how Burns and the others we allege, Kaplan-Seekman, for instance,

[00:40:47] Speaker 05:
failed to conduct their investigations.

[00:40:53] Speaker 02:
So that seems different from, and we're well over time, but I want to follow up on what you just said.

[00:40:58] Speaker 02:
That seems very different from what you said before.

[00:41:00] Speaker 02:
So are you conceding that count one is not a judicial deception?

[00:41:05] Speaker 05:
It's not pled as just judicial deception.

[00:41:08] Speaker 05:
It's pled as a failure to investigate.

[00:41:12] Speaker 02:
Failure to investigate and lawful seizure, right?

[00:41:15] Speaker 05:
failure to investigate any, the events or the circumstances that were then presented to the court.

[00:41:25] Speaker 03:
What the court, what was presented to... Let me get this clear because my colleague has just asked you a really important question and I want to get a clear answer.

[00:41:35] Speaker 05:
Yes, sir.

[00:41:36] Speaker 03:
Are you saying that count one does not allege because of the inadequacy of investigation

[00:41:45] Speaker 03:
and the claim false information did not result in judicial deception?

[00:41:54] Speaker 05:
No, claim one doesn't say that.

[00:41:56] Speaker 05:
Claim one just says that under Arizona law,

[00:42:00] Speaker 05:
ARS 8-456, an investigator doing an investigation of a hotline call has an obligation to do a prompt and thorough investigation including evidence that would tend to support or refute the allegation.

[00:42:14] Speaker 03:
But to be completely clear, your count one is not saying as a result of all of this that the defendants engaged in judicial deception.

[00:42:31] Speaker 03:
Is that what you're saying?

[00:42:36] Speaker 05:
No.

[00:42:36] Speaker 05:
Count one is not saying that expressly.

[00:42:41] Speaker 05:
It's setting out that they didn't do what they have to do under the law, under Arizona law and constitutional law to conduct an investigation.

[00:42:52] Speaker 05:
Count three is the judicial deception claim where we say because of that failed investigation,

[00:42:57] Speaker 05:
and the false information in the affidavit and the petition.

[00:43:03] Speaker 03:
You link the two together.

[00:43:06] Speaker 05:
Well, I think they can be linked, but they're also separate and distinct claims.

[00:43:11] Speaker 02:
Okay.

[00:43:11] Speaker 02:
Okay.

[00:43:11] Speaker 02:
So thank you.

[00:43:12] Speaker 02:
We appreciate your time this morning and argument from all counsel.

[00:43:16] Speaker 02:
The final case on the calendar, Lockhart versus Tectronic Industries, has been submitted on the briefs, and we are adjourned.