[00:00:01] Speaker 03:
All right, our next case this morning is 23-1263 Berryman v. Nassetta.

[00:00:06] Speaker 03:
And Mr. Doherty for the appellant whenever you're ready.

[00:00:10] Speaker 01:
Thank you, Your Honor.

[00:00:22] Speaker 01:
Good morning, Your Honors.

[00:00:23] Speaker 01:
Peter Doherty here on behalf of the defendant appellant, Robin Nasita.

[00:00:30] Speaker 01:
May it please the court?

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

[00:00:33] Speaker 01:
Nasita is the defendant in the case.

[00:00:35] Speaker 01:
She was a caseworker working for Arapahoe County Department of Human Services.

[00:00:41] Speaker 01:
In this case, arises from a state dependency and neglect case that occurred in Arapahoe County

[00:00:49] Speaker 01:
As a result of her investigation, two children were removed from the home and a dependency proceeding continued.

[00:00:58] Speaker 01:
The plaintiffs in this case bring two claims for relief, a procedural due process claim as well as a substantive due process claim.

[00:01:07] Speaker 01:
In our lower court, we brought two primary defenses which are interlockatory at this point, the testimonial immunity defense as well as the qualified immunity defense.

[00:01:21] Speaker 01:
And I will turn to the qualified immunity as it relates to whether this court has jurisdiction, whether it was sufficiently pled.

[00:01:28] Speaker 01:
But I do want to touch base and just give you a brief overview of the allegations in this case.

[00:01:35] Speaker 01:
The plaintiff alleges that caseworker Ms.

[00:01:38] Speaker 01:
Neceda misrepresented facts in obtaining a verbal removal order and admitted facts that would be relevant to whether a next party order of removal would be appropriate.

[00:01:50] Speaker 01:
Also, there's allegations that Ms.

[00:01:53] Speaker 01:
Neceda was provided misrepresentations during her testimony at the hearing and that provides

[00:02:03] Speaker 01:
largely the basis for the procedural due process claim.

[00:02:08] Speaker 01:
Initially, it's our position that the trial court erred in not granting absolute testimonial immunity.

[00:02:17] Speaker 01:
Ms.

[00:02:18] Speaker 01:
Sita's involvement in this case is fairly narrow.

[00:02:22] Speaker 01:
She was involved in some preliminary investigations where she made phone calls to the family.

[00:02:27] Speaker 01:
She then obtained a verbal removal order, which was obtained on February 1st of 2021.

[00:02:33] Speaker 01:
And then there was a contested hearing that took place on February 9th.

[00:02:40] Speaker 03:
You said her involvement was narrow?

[00:02:44] Speaker 01:
The time scope was narrow.

[00:02:46] Speaker 03:
She was the only witness, right?

[00:02:49] Speaker 03:
The only investigator involved in this case prior to the removal?

[00:02:53] Speaker 01:
She was the only investigator as it relates to the barraments, correct.

[00:02:59] Speaker 01:
Her involvement began after there was initially a report that was provided by the Aurora Police Department that there had been a Discord chat, that there had been a cyber alert, that there was inappropriate allegations of inappropriate conduct that was occurring.

[00:03:16] Speaker 03:
Is the Discord chat in the record anywhere?

[00:03:18] Speaker 03:
Why isn't it?

[00:03:20] Speaker 03:
I couldn't find it.

[00:03:21] Speaker 01:
The Discord chat is not in the record.

[00:03:25] Speaker 01:
It was on a motion to dismiss.

[00:03:27] Speaker 01:
We didn't have that available.

[00:03:29] Speaker 01:
But in the verbal removal order, there is, and it would be in the appendix number two on page three, is the actual verbal removal order allegations.

[00:03:42] Speaker 01:
And the plaintiffs are not alleging that any of the statements that are paraphrased there are inaccurate.

[00:03:49] Speaker 01:
Rather, what they're arguing is that Ms.

[00:03:51] Speaker 01:
Neceda's use of those was somehow slanted or tainted.

[00:03:56] Speaker 01:
Giving an example, by saying that it was inappropriate for her to raise the fact that there had been a prior investigation involving Mr. Berryman that took place in 2017.

[00:04:08] Speaker 01:
That part, she does raise that.

[00:04:13] Speaker 01:
And they say, well, and that was unfounded.

[00:04:15] Speaker 01:
Well, if you look at the verbal removal order, that's exactly what she states.

[00:04:19] Speaker 01:
She states that there was a prior incident here in 2017 that Caitlin Berryman said she was going to recant her accusations, and she did in fact recant those accusations.

[00:04:29] Speaker 01:
And then it goes through a process where she says there's been ongoing allegations of misuse and abuse as part of a cryout that occurred over a two-year period.

[00:04:40] Speaker 01:
And so it's because of that that the Aurora Police Department then brought this.

[00:04:47] Speaker 03:
I thought that the VRO was referring to an alleged sexual assault that occurred when the older daughter was six years old and that that's the primary bad act that the allegations

[00:05:09] Speaker 03:
focus on as the basis for the removal.

[00:05:14] Speaker 03:
Maybe you can explain to me why they would suspect some type of ongoing sexual exploitation.

[00:05:24] Speaker 01:
In the verbal removal order, and this is again pulled from the Discord chat at paragraph 13,

[00:05:34] Speaker 01:
by way of example, reads, Caitlin has made numerous outcries to the online boyfriend that her father, Mr. Bearman, physically abuses her in the following ways, smacking Caitlin in the face, shoved Caitlin into a stove causing her to burn her arm, grabbed Caitlin by the hair, shoved her into the stair banister, shoved Caitlin down the stairs, and cut Caitlin on the shoulder with a knife.

[00:06:00] Speaker 01:
There's allegations here where Caitlin, to the cry out as part of the communications with the boyfriend, says that she is disappointed in her mother and not protecting her or her sister.

[00:06:13] Speaker 01:
There's also allegations that there are ongoing efforts to communicate with the mother regarding.

[00:06:27] Speaker 03:
If we can step back for a second.

[00:06:28] Speaker 03:
We're here on a motion to dismiss.

[00:06:30] Speaker 03:
Our focus is whether the complaint plausibly alleges a substantive due process, a procedural due process claim that's clearly established.

[00:06:40] Speaker 03:
Are you, is this argument that there's no constitutional violation or that it's not clearly established?

[00:06:48] Speaker 03:
I mean, what's your primary response?

[00:06:51] Speaker 03:
And, you know, district court found both prongs were met here and just one and over the mistake was by the district court.

[00:06:58] Speaker 01:
First, if we look at the testimony immunity issue, that would remove all of the testimony that took place.

[00:07:06] Speaker 03:
We're on qualified immunity.

[00:07:07] Speaker 01:
Okay.

[00:07:08] Speaker 01:
So if we turn to the qualified immunity issue, first, if we, the information that Ms.

[00:07:15] Speaker 01:
Nassita had was, she was, and it's really on both prongs, were arguing that there's not a constitutional violation in that, in the event that there was, it was not clearly established.

[00:07:26] Speaker 03:
How do you distinguish the Malik case, then, that suggests that a social worker can be liable for making false statements to the juvenile court?

[00:07:38] Speaker 01:
The Malik case has so many disparate facts that it's really not applicable to this particular instance.

[00:07:48] Speaker 01:
In Malik, that was a case in which there were photographs of a young girl

[00:07:54] Speaker 01:
which had been taken five months previously.

[00:07:56] Speaker 01:
There were bruises and what the investigators had learned during the course of that was there was really no imminent threat and they in fact had acknowledged there was no imminent threat with respect to the risk to the child.

[00:08:10] Speaker 01:
The photographs had been taken by an uncle who was not in the vicinity, had moved back to New York.

[00:08:16] Speaker 01:
The bruises that they saw that they saw a physician's assistant looked at those and said, I don't see those as bruises.

[00:08:24] Speaker 01:
You're going to have to get another medical opinion.

[00:08:27] Speaker 01:
Despite all of that, it still moved forward.

[00:08:30] Speaker 01:
So in that circumstance, this court did in fact find, yes, these types of misrepresentations would be inappropriate.

[00:08:39] Speaker 01:
But if we fast forward and we take a look at, say, the case NEL versus Gilder,

[00:08:45] Speaker 01:
Which case?

[00:08:46] Speaker 01:
NEL versus Gildner, which is the 10th Circuit site for that is 780 Fed appendix 567.

[00:08:57] Speaker 01:
It's a 2019 case.

[00:09:00] Speaker 01:
There, the court went through an analysis where similar allegations were made by the parents

[00:09:08] Speaker 01:
saying that this had been an inappropriate verbal removal order in that case.

[00:09:15] Speaker 01:
But looking at, again, on a motion to dismiss, what the court reviewed, and this came out of Kansas, what the court reviewed was the Child in Need of Care Petition, which was the underlying document

[00:09:30] Speaker 01:
and compared that with the actual allegations that were being made in the complaint and found that most of the allegations are actually not being, the way that they were, the conclusory allegations of the complaint were not actually supported by the actual documents.

[00:09:46] Speaker 01:
And we're asking for the same analysis here.

[00:09:49] Speaker 01:
Look at what actually was included in the verbal removal order and how it's being represented in the... What was the basis for Ms.

[00:09:59] Speaker 03:
Nacita's

[00:10:00] Speaker 03:
justification to remove the younger daughter?

[00:10:04] Speaker 01:
The younger daughter was at the same age as the misconduct had first started, allegedly, as related to Caitlin Berryman.

[00:10:18] Speaker 01:
And so she represented these facts to the court stating that

[00:10:22] Speaker 01:
These events had occurred and there is concern that this would in fact be repeated with the younger daughter as well.

[00:10:31] Speaker 01:
And even in Caitlin's own cry outs, she said she didn't want to be removed from the house because she wanted to be there to protect her younger daughter, her younger sister.

[00:10:42] Speaker 03:
So, included within that was this thread of potential risk, potential threat, in which both Caitlin... Well, it says, the VRO says, there's grave concern that the younger daughter is in danger of being sexually assaulted by father if this has not already occurred.

[00:11:03] Speaker 03:
Yes.

[00:11:04] Speaker 03:
Is there any basis to believe that sexual abuse had already occurred?

[00:11:10] Speaker 01:
There was an absence of information as to whether, so no there was nothing there to demonstrate that.

[00:11:21] Speaker 01:
I don't believe so.

[00:11:22] Speaker 01:
I think that was an opinion based upon their experience that as a caseworker

[00:11:27] Speaker 01:
And going back to the case law that this court has established as far as how do you treat a caseworker?

[00:11:34] Speaker 01:
Caseworkers are making decisions to help to protect the individual well-being of children.

[00:11:40] Speaker 01:
And there needs to be some accommodation to the fact that they are trying to reach out and try to make these decisions.

[00:11:48] Speaker 03:
There were interviews of these children after they were taken out of the home, right?

[00:11:52] Speaker 01:
There was of one of the two daughters, yes.

[00:11:55] Speaker 03:
I believe it was a kid.

[00:11:57] Speaker 03:
what happened in those interviews or what the content was.

[00:12:01] Speaker 01:
We do not know.

[00:12:02] Speaker 01:
What we do know is that after the, as I said, on February 1, he had the verbal remover, he had the petition that was filed on February 2, had a hearing February 9.

[00:12:13] Speaker 01:
Fast forward in July of that year, there was a deferred adjudication where the

[00:12:22] Speaker 01:
parents essentially conceded to the allegations and then moving forward they went through counseling and went through a treatment plan and then at the end of that the following year were returned.

[00:12:35] Speaker 01:
On the issue of just quickly the procedural due process in this court's decision of Everhart which was issued I believe in the year 2020 but was since sealed afterwards

[00:12:49] Speaker 01:
that the case was notable for really two things saying on a procedural due process claim also involving a caseworker finding that

[00:13:00] Speaker 01:
If there is that opportunity to be heard, there is also an opportunity to engage in a proceeding.

[00:13:08] Speaker 01:
And in that case, the fact that the parents also admitted to the allegations, that they received the procedural due process that they were required.

[00:13:18] Speaker 00:
Counsel, I don't want to eat up all your rebuttal time, but so can you help me understand how you properly raised your qualified immunity claim before the district court?

[00:13:28] Speaker 00:
Because the district court

[00:13:30] Speaker 00:
has a finding that you did not?

[00:13:35] Speaker 01:
In our motion, and we're very cognizant of Montoya versus Vigil in trying to articulate and ensure that we have pled this

[00:13:45] Speaker 01:
In our initial introduction, we said we're bringing this under a jurisdictional issue as a Rooker Feldman.

[00:13:51] Speaker 01:
Also, we mentioned specifically absolute immunity, procedural immunity.

[00:13:55] Speaker 01:
We go through a lengthy analysis of the first prong of both of substantive due process and procedural due process claim, and then we include and say we are requesting, we're bringing a qualified immunity claim as it relates to both

[00:14:10] Speaker 01:
the procedural due process claim and the substantive due process claim.

[00:14:15] Speaker 01:
So we wanted to ensure that we checked those marks so that it was very clear that that basis, we wanted this court to have the jurisdiction to be able to raise those concerns and address those arguments.

[00:14:27] Speaker 00:
The... So did the district court just get that wrong?

[00:14:29] Speaker 00:
I mean, the district court says in a single sentence without citation to any legal authority,

[00:14:36] Speaker 01:
That is incorrect.

[00:14:39] Speaker 01:
In our motion to dismiss, we included about a page and a half where we had already discussed the first prong of both of those over several pages of both substantive due process as well as procedural due process.

[00:14:55] Speaker 01:
and then at detail and we describe the fact that this is the type of accommodation that's given to caseworkers, describe the fact that what is needed and we also included a summary of, there is no comparable case which on the clearly established that would show that once you have an individual who is given this information, I see my time is up if I may finish.

[00:15:23] Speaker 03:
Yeah, go ahead.

[00:15:25] Speaker 01:
who has this information from a third party at Discord chat, there's information that's intertwined in that, and that information is presented to the court, and then you go through a proceedings in which notice is provided, opportunity to cross examine, and then they have the parents then essentially admit to the allegations to say that under that rubric,

[00:15:52] Speaker 01:
you're going to be exposed to a civil liability under a procedural or substantive due process claim without any type of shocks to conscience.

[00:16:02] Speaker 01:
That's where we argue that we did include that as part of our argument in the underlying case.

[00:16:08] Speaker 01:
Thanks very much.

[00:16:30] Speaker 02:
Good morning, your honors, opposing counsel, Mr. Barrowman.

[00:16:34] Speaker 02:
Mr. Barrowman is sitting with us in the gallery this morning.

[00:16:37] Speaker 02:
My name is Elliot Singer and I represent the appellees in this case.

[00:16:40] Speaker 02:
May it please the court.

[00:16:43] Speaker 02:
Your honors, this family, the Barrowman family, suffered the gravest constitutional injustice that I can think of as a father, which is having their family separated for over a year and a half.

[00:16:57] Speaker 02:
as a result of misrepresentations of fact, omissions of fact, and distortions of fact.

[00:17:04] Speaker 02:
For these reasons, we respectfully request that this court affirm the lower court's denial of Ms.

[00:17:10] Speaker 02:
Neceda's motion to dismiss.

[00:17:13] Speaker 02:
I want to clarify something to begin with.

[00:17:15] Speaker 02:
We have actually three claims for relief, Your Honors.

[00:17:19] Speaker 02:
Violation of procedural due process, violation of substantive due process,

[00:17:24] Speaker 02:
And we have a 1983 claim in which the violations of the Fourth Amendment are also alleged.

[00:17:30] Speaker 02:
The reason why is because when I said it did nothing short of seize these children in violation of the family's constitutional rights while also committing violations of their procedural and substantive due process.

[00:17:44] Speaker 03:
What's your best case on the Fourth Amendment claim?

[00:17:48] Speaker 02:
Malik.

[00:17:50] Speaker 02:
which is that a caseworker such as Nassetta cannot seize children from the school or from the family home without ensuring that constitutional rights are protected.

[00:18:04] Speaker 02:
The quote, Judge Timkovich's, from that case, it was clearly established law that government officials' procurement through distortion, misrepresentation, and omission of a court order to seize a child is a violation of the Fourth Amendment.

[00:18:21] Speaker 03:
It seems like that would run to the children rather than to the parents, a seizure claim.

[00:18:27] Speaker 03:
Maybe it's a conceptual difficulty, but it seems it ought to be their claim and not the parents.

[00:18:34] Speaker 02:
We believe that all four of them had their constitutional rights violated.

[00:18:38] Speaker 02:
If it's the court's position that the children only have the seizure claim, I'm fine with that.

[00:18:46] Speaker 03:
They're plaintiffs.

[00:18:47] Speaker 03:
They're our plaintiffs in this case, right?

[00:18:49] Speaker 02:
Yes, sir.

[00:18:50] Speaker 02:
And all four of them had their due process rights violated because all four of them have the right to be a family under the U.S.

[00:18:57] Speaker 02:
Constitution.

[00:18:59] Speaker 02:
There were three procedures which we believe were violated here.

[00:19:03] Speaker 02:
I want to focus on the February 1st, 2021 verbal removal order, Your Honors.

[00:19:09] Speaker 02:
If there was every time in which due process protection should be afforded, it's in a situation like this.

[00:19:16] Speaker 02:
Before I started taking these cases, I had no idea that a caseworker could call up the sitting state court judge, make verbal allegations, and then get a verbal authorization that doesn't even have to be reduced to writing until the next morning, allowing a caseworker.

[00:19:33] Speaker 03:
Well, that's permitted under state and county law, right?

[00:19:36] Speaker 02:
Yes, sir.

[00:19:37] Speaker 03:
I mean, ex parte proceedings happen all the time, and it's a judicial proceeding to some extent.

[00:19:44] Speaker 03:
There's a judge.

[00:19:45] Speaker 03:
neutral third party.

[00:19:47] Speaker 03:
So there is a process there, even, you know, setting aside it's one sided process, but there's a neutral adjudicator and after the, you know, these orders are temporary, right?

[00:19:57] Speaker 03:
And, you know, didn't your client after the removal have an opportunity to contest the removal and engage in some type of process to get the children back?

[00:20:07] Speaker 03:
Correct.

[00:20:08] Speaker 03:
And they stipulated to neglect and the parents did.

[00:20:14] Speaker 03:
you know, and then it took another year for the children to be, what do we do about that?

[00:20:20] Speaker 02:
To address the latter.

[00:20:22] Speaker 03:
I mean, it seems like there's a lot of process there.

[00:20:24] Speaker 03:
And I know you weren't the lawyer in the beginning, but they had a lawyer and, you know, there was this county attorney was involved, there were judges involved.

[00:20:33] Speaker 03:
I mean, it seems like there's a lot of process.

[00:20:37] Speaker 02:
Understood.

[00:20:38] Speaker 02:
If I could address your Honor's prior point,

[00:20:41] Speaker 02:
The best way I can sum it up is by saying that even if you admit to neglecting your kids, that doesn't mean that you automatically lose custody of your children.

[00:20:51] Speaker 02:
And the point that I think was left out of appellee's argument, or appellant's argument, excuse me, Judge, is that this wasn't, the removal wasn't actually based on the discord allegations.

[00:21:04] Speaker 02:
It was based upon false allegations that the family wasn't cooperating in the investigation.

[00:21:11] Speaker 02:
Earlier on in January, all the discord allegations were known to NYSEDA.

[00:21:16] Speaker 02:
She did not move for the removal of the children at that time.

[00:21:20] Speaker 02:
She asked and filed a petition to investigate, which was granted by the court.

[00:21:24] Speaker 02:
The family said, great, we'll participate in this investigation.

[00:21:28] Speaker 02:
They hired a lawyer.

[00:21:30] Speaker 02:
They made sure that lawyer made the children available for interviews outside of the parents' presence, which they were ordered to do.

[00:21:38] Speaker 02:
I don't mean to mischaracterize things, but this entire removal occurred because of a scheduling conflict.

[00:21:46] Speaker 02:
There is a time set for the children to be interviewed on February 1st.

[00:21:50] Speaker 02:
If I can bring your honors back.

[00:21:52] Speaker 02:
Yes?

[00:21:53] Speaker 03:
To be fair, the petition does include these VROs.

[00:21:59] Speaker 03:
contains the discord allegations, and that's the substantive basis.

[00:22:05] Speaker 03:
I can understand the process about the delay allegations, but the discord allegations are a central part of the removal allegations, right?

[00:22:19] Speaker 02:
They're in there, Judge.

[00:22:20] Speaker 03:
They're in there, okay.

[00:22:22] Speaker 02:
I believe that the central reason for... And why aren't they enough?

[00:22:26] Speaker 02:
They're not enough because

[00:22:28] Speaker 02:
I believe the central reason for the removal was that the family wasn't cooperating when they were, right?

[00:22:33] Speaker 02:
We hear that the family's putting up roadblocks, they're not making the children available for interviews, they're in grave danger, we have no idea what's going on, when in reality what was happening and what the complaint extensively alleges is that they were cooperating.

[00:22:47] Speaker 03:
Well, then that, we're in qualified immunity land and that takes us to what clearly established case says, you know, lack of,

[00:22:56] Speaker 03:
lack of cooperation will support a procedural or substantive due process claim.

[00:23:02] Speaker 03:
What's the clearly established law that says that would tell NACEDA that lack of cooperation is a constitutional violation?

[00:23:14] Speaker 02:
Could Your Honor rephrase the question?

[00:23:17] Speaker 03:
I want to know what clearly established case would alert Ms.

[00:23:21] Speaker 03:
NACEDA

[00:23:23] Speaker 03:
that bringing a petition like this for non-cooperation would violate the Constitution?

[00:23:30] Speaker 02:
I think the cases are O'Connell versus Tunnel, Tuggle, excuse me, Snell versus Tunnel, and then Malik, the case which we've been discussing today, which is that she distorted and misrepresented this family's lack of cooperation with the investigation.

[00:23:46] Speaker 02:
That's what it all comes back to.

[00:23:48] Speaker 02:
That she was telling this district court judge

[00:23:51] Speaker 02:
These children need to be removed.

[00:23:53] Speaker 02:
They're in grave danger because we have no idea what's going on.

[00:23:56] Speaker 02:
This family is not being cooperative when she knew that the exact opposite was true.

[00:24:01] Speaker 02:
She knew that they have hired lawyers.

[00:24:03] Speaker 02:
She knew that the children were going to be made available for interviews.

[00:24:08] Speaker 02:
And the fact that it needed to be rescheduled for two days later somehow triggered her to remove the children.

[00:24:15] Speaker 02:
All she needed to do was investigate.

[00:24:17] Speaker 02:
All she needed to do was complete these interviews two days later.

[00:24:21] Speaker 02:
Nothing had changed in between January when the Discord allegations emerged to when she asked for the verbal removal order.

[00:24:30] Speaker 02:
The only thing that had changed was that their lawyer needed to reschedule the interview.

[00:24:36] Speaker 02:
Had these interviews actually been completed, Your Honors, didn't the Berryman's lawyer have a chance to

[00:24:45] Speaker 03:
participate in a hearing where Ms.

[00:24:48] Speaker 03:
Neceda testified?

[00:24:50] Speaker 03:
And didn't they have an opportunity to, right?

[00:24:54] Speaker 03:
They could have cross-examined her on the point you're making about the, you know, manipulating the delay to get an ex parte order.

[00:25:04] Speaker 03:
I mean, didn't they have the opportunity to clarify whether that was permotive or not?

[00:25:10] Speaker 03:
I know that proceeding's not in the record, correct?

[00:25:16] Speaker 02:
The transcript?

[00:25:17] Speaker 03:
The transcript, yeah.

[00:25:17] Speaker 02:
No, sir.

[00:25:19] Speaker 03:
But anyway, their attorney had a chance to challenge the timing and the circumstances around the ex-party proceedings, didn't it?

[00:25:28] Speaker 02:
They did, nine days later after the civil rights violation had already occurred.

[00:25:36] Speaker 00:
Okay.

[00:25:36] Speaker 00:
Counsel, could I get you to talk a little bit about the absolute immunity issue?

[00:25:41] Speaker 02:
Yes, Your Honor.

[00:25:42] Speaker 02:
Regarding absolute immunity, I'm aware of the case law beginning with the Supreme Court and as articulated by this court, that facially appears to give absolute testimonial immunity to caseworkers.

[00:25:56] Speaker 02:
But I think that still has to be evaluated with the functional test, functional test, excuse me, discussed in Thomas 1st Kavan 765 F3rd 1183 case from this court in 2015.

[00:26:10] Speaker 02:
And what my interpretation of these cases is, is that if a state actor is acting in a advocacy role, right, if you're a prosecutor making an argument on behalf of the state, if you're a judge using the facts at your disposal to make a decision, that is something to which you are entitled to absolute immunity.

[00:26:30] Speaker 02:
But if you're in an investigative capacity, if you're gathering facts, if you're presenting evidence,

[00:26:37] Speaker 02:
and you know that it's false and you know that you're a prosecutor, you're a lawyer, the judge is gonna rely on that information, you are not entitled to absolute testimonial immunity.

[00:26:49] Speaker 00:
Let me stop you there.

[00:26:50] Speaker 00:
So in the broad overview of what Ms.

[00:26:57] Speaker 00:
Neceda did, didn't she testify at a hearing and was that not

[00:27:06] Speaker 00:
Was that, did that not qualify for absolute immunity?

[00:27:11] Speaker 00:
Isn't there testimonial absolute immunity?

[00:27:14] Speaker 00:
And you're telling me no.

[00:27:16] Speaker 02:
No, Your Honor, we agree with the trial court's conclusion that she was acting in an investigative capacity.

[00:27:22] Speaker 00:
At the hearing?

[00:27:23] Speaker 02:
Yes, Your Honor.

[00:27:24] Speaker 00:
Okay, now tell me why is that so?

[00:27:26] Speaker 02:
She was testifying based on alleged interviews that she had conducted with the children, facts that she had gathered.

[00:27:33] Speaker 02:
She wasn't advocating.

[00:27:35] Speaker 00:
Well, she was testifying as to what she had already done, right?

[00:27:39] Speaker 02:
In between when the children had been removed and that date of testimony.

[00:27:44] Speaker 00:
Right.

[00:27:44] Speaker 00:
I mean, I guess I'm having trouble understanding your argument or the district court's opinion that that was investigation at that point.

[00:27:54] Speaker 00:
Wasn't it testimony about

[00:27:57] Speaker 00:
investigation.

[00:27:59] Speaker 02:
Correct, Your Honor, which I believe doesn't entitle her to absolute testimonial immunity because she was acting in an investigative capacity.

[00:28:08] Speaker 02:
And if I may, Your Honor, even if this court concludes that she was entitled to testimonial immunity, there were still two pre-testimonial procedures, the February 1st, 2021 VRO,

[00:28:21] Speaker 02:
the February 2nd, 2021 statements that she submitted as part of the position, which still caused civil rights violations and which would still, in my opinion, allow the case to go on because those civil rights violations had already occurred outside of the testimony.

[00:28:38] Speaker 02:
So I still think we win, even if absolute testimonial immunity is found here.

[00:28:45] Speaker 00:
Does that, would that make no difference?

[00:28:48] Speaker 00:
That's kind of what you're suggesting.

[00:28:50] Speaker 00:
I guess I'm asking you about your case.

[00:28:55] Speaker 00:
It's your claim.

[00:28:56] Speaker 00:
Would it make no difference if Ms.

[00:28:59] Speaker 00:
Nassidi received absolute immunity for her testimony at the hearing?

[00:29:05] Speaker 02:
It would not make a difference, Your Honor, because there were two pre-testimonial procedures which violated their constitutional rights.

[00:29:13] Speaker 02:
So even if this court disagrees with the trial court on the testimonial immunity issue, the order itself should still be upheld.

[00:29:23] Speaker 02:
The reason why it's included in there is not only because of the

[00:29:29] Speaker 02:
testimony that she offered there, but because of the falsehoods, I mean, in our opinion, the egregious falsehoods which were offered there, which appear for the first time about the parents sexually trafficking, actively sleeping with the children and bathing with the children, that the children fantasize with them.

[00:29:48] Speaker 02:
It just, it strengthens the case, in our opinion.

[00:29:52] Speaker 02:
Of course, Judge.

[00:29:58] Speaker 02:
It doesn't sound like the estoppel arguments are particularly at issue here today, but I just want to briefly raise in my last minute and a half that the underlying state court action does not stop or prevent us from bringing this civil rights action.

[00:30:17] Speaker 02:
The deferred adjudication issue was only on custody.

[00:30:20] Speaker 02:
In fact, at the end of the day,

[00:30:22] Speaker 02:
under the Rooker Feldman doctrine.

[00:30:25] Speaker 02:
These parents were not the state court losers.

[00:30:27] Speaker 02:
They won.

[00:30:28] Speaker 02:
Their case was dismissed voluntarily by the county.

[00:30:32] Speaker 02:
They got custody back of their children.

[00:30:35] Speaker 02:
What's present before this court is the civil rights violations which occurred against them.

[00:30:41] Speaker 02:
There were no opposite factual positions taken.

[00:30:46] Speaker 02:
Civil rights violations were not an issue at all in the underlying case.

[00:30:51] Speaker 02:
This case is purely about constitutional violations.

[00:30:56] Speaker 02:
We have three cases which all state that Mrs. Seta was on notice that distortions affect misrepresentations cannot be used to remove a child.

[00:31:06] Speaker 02:
The information that she presented to the state court judge was that this family needed to be separated because they were not cooperating.

[00:31:13] Speaker 02:
That over and over again in the complaint is alleged to be false.

[00:31:17] Speaker 02:
And for these reasons, we respectfully ask that this court affirm the lower court's denial of Nassetta's motion to dismiss.

[00:31:26] Speaker 03:
Thank you, counsel.

[00:31:26] Speaker 03:
We appreciate the arguments that was clarifying.

[00:31:30] Speaker 03:
Counselor excused and the case shall be submitted.