[00:00:00] Speaker 01: The next matter before us this morning is 23-2056, Lowther versus Children, Youth and Family Department at all. [00:00:12] Speaker 05: May it please the court? [00:00:14] Speaker 05: My name is Vince Ward and I'm here on behalf of the Lowther family, the plaintiffs in this case. [00:00:20] Speaker 05: Members of the court, I haven't been in this courtroom before and the quote above you I think is applicable to our case because [00:00:28] Speaker 05: The Lather family is fighting this fight because the district court's ruling creates an imbalance between the investigation of suspected child abuse and the Fourth Amendment protections that are applicable to the home and families. [00:00:44] Speaker 01: Well, here you've made claims under the Fourth Amendment and under the Fourteenth Amendment. [00:00:50] Speaker 05: Correct, Your Honor. [00:00:50] Speaker 01: And our law is a little confusing between the two, if I dare say so. [00:00:58] Speaker 01: That confusion, does that bake in a not clearly established problem for you with governmental immunity? [00:01:08] Speaker 05: No, Your Honor. [00:01:10] Speaker 05: In fact, I would say that the exigency exception to the warrant requirement is one of the clearest pronouncements of law in this court. [00:01:20] Speaker 05: That's been repeated in Roska. [00:01:23] Speaker 05: It's been repeated in McInerney, which was decided in 2015. [00:01:28] Speaker 05: This court and this Supreme Court has repeatedly said that the home, the protection of the home, is foundational to the Fourth Amendment. [00:01:36] Speaker 01: But we also have case law that says that it supports entry into the home to seize a child if there is reasonable suspicion that the child has been abused. [00:01:54] Speaker 05: So Your Honor, the two cases here just [00:01:57] Speaker 05: talking about our Gomes and Arradondo. [00:02:00] Speaker 05: And those were cases brought under the 14th Amendment and the Right of Familial Association. [00:02:06] Speaker 05: The Fourth Amendment really wasn't that issue. [00:02:08] Speaker 05: But Your Honor, what I would encourage this Court to do. [00:02:10] Speaker 05: So let me stop for just a second. [00:02:12] Speaker 04: Are we then moving on to the 14th Amendment? [00:02:16] Speaker 04: Do you basically concede that under those cases, that your position would fail? [00:02:22] Speaker 05: No, Your Honor, I'm not. [00:02:24] Speaker 04: Not under the Fourth. [00:02:25] Speaker 04: But you're saying, [00:02:27] Speaker 04: Different standard, let's move on, okay. [00:02:31] Speaker 05: I'm saying, Your Honor, that this is foundationally a Fourth Amendment case, okay? [00:02:34] Speaker 01: Well, but there's pleading under both. [00:02:36] Speaker 05: There are, Your Honor. [00:02:37] Speaker 01: Well, so if they had a right to enter and seize the child under the 14th Amendment, and they go in and they seize the child, it doesn't make a lot of sense that if they have the right to go seize the child, [00:02:54] Speaker 01: under the 14th Amendment that it's a violation of the Fourth Amendment? [00:02:58] Speaker 05: I disagree, Your Honor. [00:03:00] Speaker 05: I think that the legal standard under the Fourth Amendment is immediate danger, period. [00:03:10] Speaker 01: Well, and it may be that our, if you look carefully at those cases, it may be that we've drifted away from what was really intended about [00:03:23] Speaker 01: has been abused. [00:03:25] Speaker 01: I think that the intent was has been abused and is at risk of being abused again immediately. [00:03:31] Speaker 01: But we're stuck with what a reasonable officer would understand. [00:03:39] Speaker 01: And at some point when, you know, it starts to get like the rule against perpetuity and trying to figure it out, there comes a point where [00:03:50] Speaker 01: you know, it's not really clearly established because the law is in flux. [00:03:56] Speaker 05: I disagree, Your Honor. [00:03:57] Speaker 05: So one of the facts that I want you guys to remember is that in this case, there was coercion at the door, all right? [00:04:04] Speaker 05: The second fact I want you to remember is that the accused parent, the dad, had been seized. [00:04:11] Speaker 05: Now there's a dispute over whether he was arrested or whether he was detained. [00:04:14] Speaker 05: It doesn't matter, he's seized. [00:04:16] Speaker 05: When he seized, it was factually impossible [00:04:19] Speaker 05: Reason logic tells you that there was no way for the father to enter the home. [00:04:23] Speaker 01: The child's disclosure included that her brother also inappropriately touched her and abused her. [00:04:34] Speaker 01: Right, Your Honor. [00:04:34] Speaker 01: So even though the father is out of the home, there's still a potential abuser in the home, right? [00:04:41] Speaker 05: So Your Honor, he's seven years old, okay? [00:04:43] Speaker 01: Well, he may be seven years old, but the [00:04:47] Speaker 01: The disclosure from the child victim was that my father's abusing me and my brother's abusing me. [00:04:54] Speaker 05: I understand, Your Honor. [00:04:56] Speaker 05: And so again, I go back to reason here. [00:04:58] Speaker 05: When law enforcement shows up at the house, mom is home. [00:05:02] Speaker 05: The motivating consideration for going in there was this question of uncooperativeness, because mom is asserting her right under the Fourth Amendment not to let them in. [00:05:11] Speaker 05: She does that in the context of never being told what the allegation is. [00:05:16] Speaker 05: Not once has she told it. [00:05:19] Speaker 05: Your daughter at school accused your husband and her little brother of abuse. [00:05:26] Speaker 05: That doesn't come up one time, Your Honor. [00:05:28] Speaker 05: The other thing is there's no question that mom is complying and abiding by it. [00:05:32] Speaker 01: They said if you get off the phone with your husband, we'll explain it to you, right? [00:05:38] Speaker 05: I disagree with that, Your Honor. [00:05:39] Speaker 01: That's not in the record? [00:05:40] Speaker 05: So I disagree with that they would have told her that [00:05:46] Speaker 05: what the specific allegations were. [00:05:48] Speaker 05: I absolutely disagree with that. [00:05:50] Speaker 05: I think that what happened was when law enforcement arrived, they immediately thought that they could enter the home. [00:05:56] Speaker 05: And when they began threatening her, which they did three or four times, your honor, it throws everything into chaos. [00:06:01] Speaker 05: But in the midst of that chaos, what you have is an open door. [00:06:05] Speaker 05: You have kids that are running around. [00:06:07] Speaker 01: Yeah, but you cite in your brief that they could see the kids, and I went and checked them. [00:06:13] Speaker 01: those citations and they don't support that allegation that the kids were visible at all times. [00:06:20] Speaker 01: But I think we have to break it out into the first seizure and the second seizure. [00:06:28] Speaker 01: I agree. [00:06:28] Speaker 01: Because there's more information before the second seizure. [00:06:32] Speaker 01: I agree, Your Honor. [00:06:33] Speaker 05: And I'm happy to transition to that. [00:06:34] Speaker 05: But I want to be clear here that I think that it would be a mistake for this court to walk away [00:06:40] Speaker 05: and not issue a decision that makes clear what the standard is under the Fourth Amendment? [00:06:44] Speaker 01: So let's say you have to have, let's say he was arrested when they put him in the police car and put him in handcuffs. [00:06:55] Speaker 01: And let's say that she was coerced, so they didn't have permission to enter. [00:07:02] Speaker 01: Then you would say we need, what, probable cause, reasonable suspicion of imminent [00:07:10] Speaker 01: danger to the child? [00:07:12] Speaker 05: So we're not transitioning to the second removal yet, so this relates to the first. [00:07:16] Speaker 01: I want to get the first entry, the first entry. [00:07:17] Speaker 05: Yes, sure. [00:07:18] Speaker 05: So Your Honor, I think that there's case law in this court that talks about when officers create the exigency, when they've created this through coercive tactics, that it's not appropriate to apply the emergency aid exception. [00:07:32] Speaker 01: Well, they didn't create the exigency. [00:07:35] Speaker 05: I disagree. [00:07:36] Speaker 05: I think that if you look at the position of the appellees, Your Honor, they said the kids are not safe with mom because she was non-believing and she was supporting dad. [00:07:51] Speaker 05: When she's having that conversation with the police, she's having that conversation in the context of being repeatedly threatened with arrest or detention if she doesn't let them into her home. [00:08:04] Speaker 05: And that's why I think it would be a serious mistake for this court. [00:08:07] Speaker 01: Well, that all goes to coercion, but I'm not sure it goes to creating these. [00:08:13] Speaker 01: I mean, they've got a child who has given a rather shockingly detailed description of abuse. [00:08:24] Speaker 01: You know, child four? [00:08:26] Speaker 05: Well, Your Honor, it's a... [00:08:28] Speaker 05: I want to correct. [00:08:29] Speaker 05: So you're assuming that you're, so we have a child to teacher to law enforcement. [00:08:35] Speaker 05: So we've never been able to take discovery in this case around that. [00:08:38] Speaker 05: So I don't know that I would necessarily agree with that characterization, okay? [00:08:41] Speaker 05: But I do think that when you're looking at the balance, your honor, if you affirm this decision, then you're giving law enforcement the power to go to our homes, to threaten us with arrest or detention, as a way of getting into our house, [00:08:57] Speaker 05: and then telling a non-suspected parent of abuse that we can't trust you because you won't let us into the house. [00:09:06] Speaker 05: And that's what creates the exigency. [00:09:08] Speaker 05: But if I could turn now to the second. [00:09:10] Speaker 04: I think there have been another exigency here, and that is at the time this all occurred, there was no, at least I didn't see a conclusion in the record that the father was going to be arrested and taken away. [00:09:26] Speaker 04: So at that time, we have to assume he's being detained while they're questioning people and that he's eventually going to be released and get to go back in the house with the kids. [00:09:38] Speaker 04: And so isn't the exigency that we have to go in and find these kids and take these kids before the father gets back in there? [00:09:47] Speaker 05: I disagree, Your Honor, because I believe that your [00:09:50] Speaker 05: Precedent around the ability to conduct a reasonable detention says that law enforcement gets to go conduct, it gives them time to conduct their investigation, okay? [00:10:01] Speaker 05: And as they're conducting their investigation though, the Supreme Court and this court has made clear that that time is not infinite. [00:10:07] Speaker 05: That that time is, I think that there's, I cite a case, Manzanaris, that talks about the courts never upheld holding somebody in custody for more than 90 minutes, right? [00:10:15] Speaker 05: So I think what you have to do is look at the facts. [00:10:18] Speaker 01: So now you're looking at the arrest. [00:10:20] Speaker 05: So I'm transitioning into, I think that this is relevant to the arrest. [00:10:23] Speaker 05: So on the arrest, man time flies. [00:10:26] Speaker 05: So on the arrest, I point to Cortez, the Cortez case, which was an unbanked decision in this case. [00:10:34] Speaker 01: Very, very different. [00:10:37] Speaker 01: The babysitter's boyfriend hurt my pee pee is vague, it's not specific. [00:10:43] Speaker 01: We have a child here who's acting sexually in her classroom at four years old and gives to her teacher a very disturbing, very graphic and specific description of what her dad and her brother are doing to her and she acts it out [00:11:05] Speaker 05: I disagree again, Your Honor. [00:11:06] Speaker 01: Well, you want to challenge whether that is what the child said. [00:11:12] Speaker 01: But as I recall looking at it, the district court found and made a finding that isn't challenged on appeal. [00:11:19] Speaker 05: Your Honor, what Cortez says is when you have an allegation of abuse by a very young child that's conveyed in hearsay and that is not investigated, [00:11:31] Speaker 05: This court on Bonk has said that there's a duty and obligation for law enforcement to conduct an investigation before making an arrest. [00:11:40] Speaker 01: That's not what Cortez said, and Cortez goes on very clearly to say, we are not making a rule that hearsay, double hearsay, isn't enough. [00:11:51] Speaker 01: We're saying in this case, given the very vague, you know, he hurt my pee-pee, [00:11:58] Speaker 01: description, it's not enough. [00:12:01] Speaker 01: But they say three times in that opinion, we are not making a hard and fast, I should say we say, we are not making a hard and fast rule about relying on hearsay, whether it be double hearsay or not. [00:12:16] Speaker 05: Your Honor, when you have a four-year-old child versus a two-year-old child, when you have a source of the statement as whether it's a nurse or a teacher, [00:12:24] Speaker 01: What Cortez is- The difference is the child spoke directly to the teacher. [00:12:29] Speaker 01: In Cortez, the child spoke to mom, mom spoke to the nurse, nurse spoke to the police. [00:12:37] Speaker 05: But Your Honor, I believe that that distinction makes it so that Cortez would never protect. [00:12:43] Speaker 05: You would never have a situation where law enforcement would need to investigate an allegation before [00:12:52] Speaker 05: arresting a person and destroying their lives based solely on the arrest. [00:12:56] Speaker 04: So do you think that the law enforcement officers could have obtained a warrant on what they had, just the statement from the teacher? [00:13:07] Speaker 05: Well, Your Honor, we know that they got a warrant that same evening. [00:13:12] Speaker 04: They had more by evening. [00:13:14] Speaker 04: Before this all occurred, they only had the teacher's statement. [00:13:22] Speaker 04: So do you think [00:13:23] Speaker 04: Just on the teacher's statement, they could have obtained a warrant. [00:13:26] Speaker 05: Well, I think that, I don't think we'll ever know because they never went to get the warrant. [00:13:31] Speaker 04: I think that what's relevant is- We're bantering here. [00:13:34] Speaker 01: You can tell me if you- But they did get the warrant before the interview at the Children's Justice Center. [00:13:42] Speaker 05: It was after. [00:13:42] Speaker 01: The warrant was that evening. [00:13:45] Speaker 05: It was after the interviews. [00:13:46] Speaker 05: I don't want to mischaracterize the record. [00:13:47] Speaker 05: I only have a minute or so left. [00:13:49] Speaker 05: So I'll address the last removal in my additional time. [00:14:09] Speaker 03: May it please the court. [00:14:11] Speaker 03: My name's Brian Griesmeier. [00:14:12] Speaker 03: I'm representing the county defendant appellees in this matter. [00:14:16] Speaker 03: And I'll split my time with CYFD counsel as appropriate. [00:14:19] Speaker 03: I'll be addressing the August 30, 2017 events. [00:14:23] Speaker 04: So let me ask you this. [00:14:27] Speaker 04: Before the interviews, before interacting with the parents, based on the teacher's statement, do you think the officers could have obtained the warrant? [00:14:37] Speaker 03: Yes. [00:14:37] Speaker 04: OK. [00:14:38] Speaker 04: Yes. [00:14:40] Speaker 04: It doesn't take very long to get a warrant. [00:14:42] Speaker 04: This all happens in the course of a day. [00:14:44] Speaker 04: Isn't this the kind of case where the proper practice would be just to stop and get the warrant on the way over to the house? [00:14:57] Speaker 03: I don't believe that that's as fast as that could have happened. [00:15:01] Speaker 03: I don't think the record even supports that with the warrant that was obtained and not even executed until about 1 AM that same night. [00:15:07] Speaker 04: When was the warrant presented? [00:15:09] Speaker 04: I don't have that information directly. [00:15:11] Speaker 04: I mean, I've signed a lot of warrants. [00:15:12] Speaker 04: I've had officers show up at my house, call 15 minutes ahead, and 15 minutes later they had a warrant. [00:15:20] Speaker 03: So the other issue with the warrant is that doesn't solve the problem of removing the children, because that's a different process. [00:15:26] Speaker 03: That's the ex parte custody order is the only way to comply with the 14th Amendment to actually remove the children. [00:15:31] Speaker 03: That process is a lot different. [00:15:33] Speaker 03: It's unclear how long that would have taken. [00:15:36] Speaker 03: So just getting a warrant to detain or arrest Adam Lowther doesn't really solve the problem of the emergency circumstances that exist for the children. [00:15:45] Speaker 03: And so that process is a CYFD process. [00:15:48] Speaker 03: It's generally CYFD that would actually apply for that. [00:15:52] Speaker 03: It goes through the children's court. [00:15:54] Speaker 03: The record supports that it took several days in this case in order to even get that. [00:15:59] Speaker 03: And when you have an emergency circumstance... Then why did you go get a warrant that night? [00:16:05] Speaker 04: It doesn't matter. [00:16:07] Speaker 04: All they had to do was get the ex parte order several days later. [00:16:11] Speaker 03: Well, they wouldn't have been able to hold the children, though. [00:16:13] Speaker 03: I mean, a warrant with the father, and then it's unclear if he would get out immediately. [00:16:17] Speaker 03: No, I know. [00:16:17] Speaker 03: That's what I'm saying, though. [00:16:19] Speaker 04: Why do it? [00:16:21] Speaker 04: I mean, maybe you wouldn't have been able to hold the father, but you still had the exact same factual basis for seeking the ex parte order. [00:16:33] Speaker 04: But this case has a lot of moving parts, is what I'm saying. [00:16:35] Speaker 04: I mean, you want to skip to the last part of it. [00:16:40] Speaker 04: But you had to do some things to ever get to the last part, to get to the ex parte order. [00:16:45] Speaker 04: Because your ex parte order didn't just say, the teacher told us this, give us an ex parte order. [00:16:52] Speaker 03: Correct. [00:16:53] Speaker 03: There was additional investigation that took place during that time that I think was important to you. [00:16:57] Speaker 04: That was somewhat, at least somewhat, based on [00:17:01] Speaker 04: a warrantless entry into the house? [00:17:04] Speaker 03: Well, Your Honor, the warrantless entry into the house is based on the emergency circumstances that arise. [00:17:10] Speaker 03: When you have significant disclosures of abuse coupled with the personal observations of the teacher, demonstrative hand movements, this gives rise to an emergency circumstance that puts the children at an immediate safety risk. [00:17:23] Speaker 03: And when we look at the case that really tells us what is an emergency circumstance during a child abuse investigation, the only one is Arendondo, as well as this unpublished opinion of Sylvan v. Briggs. [00:17:35] Speaker 03: And comparing the facts to those two cases, we have an emergency circumstance that's comparable to those cases. [00:17:41] Speaker 03: And importantly, in Sylvan, that emergency circumstance was determined under Arendondo, and then it was applied to the Fourth Amendment, comparing it to Roska. [00:17:52] Speaker 03: So when these officers are faced with an emergency circumstance because of the disclosure of abuse, everyone treated this as an emergency. [00:17:59] Speaker 03: It was coded as an emergency from the beginning. [00:18:02] Speaker 03: Officers had to make contact. [00:18:03] Speaker 03: CYFD had to make contact. [00:18:05] Speaker 03: Investigator Morales was able to interview or at least confirm the report with the teacher. [00:18:10] Speaker 03: And by the time they show up to the door, there's already a very heightened emergency situation that's unfolding. [00:18:16] Speaker 03: It's not practical to have these officers then detain the entire house or [00:18:20] Speaker 03: hours and hours to try and get a warrant, especially when the interaction at the door doesn't really assuade them or eliminate the emergency circumstances. [00:18:31] Speaker 03: I mean, I think that it's important to point out in the CYFD report that part of the disclosure from AL is also that she can't tell her mom, right? [00:18:39] Speaker 03: That she feels if she were to tell mom, she would scream. [00:18:42] Speaker 03: And then what happens when they're at the door and they do tell mom that your four-year-old daughter made a descriptive disclosure at the school [00:18:49] Speaker 03: Mom gets angry. [00:18:50] Speaker 04: That's not really what they said, though, is it? [00:18:52] Speaker 04: They said, we have an allegation of abuse. [00:18:54] Speaker 04: If you'll hang up, we'll tell you what it is. [00:18:56] Speaker 03: Well, before they make the entry into the home, they additionally tell mother that it's your daughter who made a disclosure to the school, and she was very descriptive in what she said. [00:19:06] Speaker 03: And then the mother reacts by saying it's baseless. [00:19:10] Speaker 03: And this is on the deputy small on her bell tape audio. [00:19:14] Speaker 03: This entire interaction is captured. [00:19:16] Speaker 03: So, I mean, it's not true that she was not informed, that the disclosure came from her daughter, that it was descriptive, and that additionally the mother reacts by saying it's baseless accusations, it's unbelieving. [00:19:29] Speaker 03: What we really have here is a timeline that's condensed and very similar to the Sylvan v. Briggs case, where this court, again unpublished, did determine that there was an emergency circumstance under the 14th Amendment and applied it to the 4th Amendment. [00:19:44] Speaker 03: And certainly it wasn't unreasonable for officers in this situation to believe that there were emergency circumstances when looking at the controlling case law. [00:19:54] Speaker 04: Well, I want you to assume that you could have gotten a warrant in an hour. [00:20:01] Speaker 04: That your clients could have gotten a warrant in an hour. [00:20:07] Speaker 04: If that's the assumption, is this a case where you should be required to get a warrant? [00:20:14] Speaker 04: I mean, is an hour, I mean, are we really, I mean, mom and dad don't know, you know, they don't know you're going to show up at the house and, you know, want to come in and take the kids away to a safe house and interview them. [00:20:28] Speaker 04: So dad's at work. [00:20:33] Speaker 04: I mean, what's an hour? [00:20:35] Speaker 03: Is that, is there an immediate threat? [00:20:37] Speaker 03: I think under the existing case law, yes, Your Honor, there is an immediate threat to the safety of these children as soon as you have the CYFT report with its disclosures, observations, hand gestures. [00:20:49] Speaker 01: That gives rise to an emergency circumstance that will mean... Well, it gives rise to, I think, reasonable suspicion this child had been abused. [00:20:58] Speaker 01: But the question is whether it was [00:21:02] Speaker 01: such an emergency that you couldn't take an hour to get a warrant. [00:21:06] Speaker 01: And I see him talking an arrest warrant for Dr. Lowther, who they believe is the primary abuser. [00:21:14] Speaker 01: So he's in the patrol car, handcuffed for part of the time. [00:21:19] Speaker 01: He can't possibly abuse the daughter at that point. [00:21:25] Speaker 01: Is there any immediacy at that point that prevents them from going and getting an arrest warrant? [00:21:33] Speaker 03: I think that's the wrong signal to send officers when they're faced with these situations. [00:21:38] Speaker 01: Well, it's not about signals. [00:21:39] Speaker 01: It's about constitutional rights. [00:21:41] Speaker 03: Well, and my argument, Your Honor, is that under existing case law, where there is reasonable suspicion that a child has been abused or there's an immediate threat of abuse, under Arradondo, that gives rise to an immediate risk to their safety, at least under the case law, as would be understood by a reasonable officer acting in these circumstances. [00:22:03] Speaker 01: Under our case law, as I read it, two different standards, one for the Fourth Amendment and one for the Fourteenth Amendment. [00:22:11] Speaker 01: I haven't seen a single Fourth Amendment case that says child has been abused is enough to enter as an exigent circumstance. [00:22:23] Speaker 01: So under a Fourth Amendment analysis, you've got to have an immediate threat to the child. [00:22:32] Speaker 03: Well, and that's what I think is interesting about the Arendondo and the Gomes standard is that really that's the same language that this court used in those cases. [00:22:40] Speaker 01: Well, those are both 14th Amendment cases, right? [00:22:42] Speaker 03: Correct. [00:22:43] Speaker 03: But it still is that it's an immediate safety threat to the child is the emergency circumstance. [00:22:48] Speaker 03: And it really just elucidates the more specific test when it comes to child abuse cases in adopting the majority standard, you know, citing cases such as Hatch from the First Circuit that it's [00:22:59] Speaker 03: when there's reasonable suspicion that a child has been abused or there's an imminent threat, that gives rise to an immediate safety risk to the child. [00:23:06] Speaker 01: Have you seen a case from the 10th Circuit or the Supreme Court under the Fourth Amendment that says past abuse is enough for entry into the home without a warrant? [00:23:20] Speaker 03: As far as entry into the home, [00:23:22] Speaker 03: I don't believe so but the Sylvan v. Briggs case I think is key here because it also analyzed it under the Fourth Amendment and found that the Fourth Amendment seizure was reasonable. [00:23:33] Speaker 01: I believe the Fourth Amendment analysis in Sylvan versus Briggs is different than the analysis here and the Fourteenth Amendment in Sylvan I think is a substantive due process argument which is different than we have here but I could be remembering that. [00:23:50] Speaker 03: I think there was both, Your Honor, and Sylvan. [00:23:51] Speaker 03: There was actually a procedural and a substantive. [00:23:55] Speaker 03: And so under the procedural, they used Arendondo's test to find emergency circumstances. [00:23:59] Speaker 03: And then they applied those same emergency circumstances to the Fourth Amendment seizure. [00:24:04] Speaker 01: If we break it down, is your argument that our law is so confused that no reasonable officer should be expected to understand that you [00:24:19] Speaker 01: past abuse isn't enough under one constitutional amendment, but it is enough under a different constitutional amendment? [00:24:28] Speaker 03: Absolutely, Your Honor. [00:24:29] Speaker 03: I think in this case, there were emergency circumstances first. [00:24:33] Speaker 03: But yes, secondly, the test is really whether it would have been clear to a reasonable officer that there weren't. [00:24:39] Speaker 03: And I think on that test, looking at the case laws that exist and how these cases have modified the standard, moving along all the way up to Sylvan, it's just not clear. [00:24:48] Speaker 03: and the law is not clearly established. [00:24:51] Speaker 03: And as appellants suggest that this court clarify these standards, I think that by itself is indicative of the fact that there's not clearly established law here to put officers on reasonable notice. [00:25:03] Speaker 02: Is part of the exigency that the fear that the mother will inappropriately interact with the daughter [00:25:11] Speaker 03: That's absolutely part of it. [00:25:12] Speaker 03: And as I mentioned, part of the disclosure itself from AL in the CYFD report is that mother will scream if I were to tell her. [00:25:19] Speaker 03: So there's a reason why this girl discloses to her teacher that she's only been in the classroom for two weeks and not the mother. [00:25:26] Speaker 02: So if the father is in shackles in the patrol car, the daughter is still at risk. [00:25:41] Speaker 02: in dealing with the mother. [00:25:44] Speaker 02: It's certainly reasonable to infer that. [00:25:46] Speaker 01: That would be the second removal, right? [00:25:50] Speaker 03: No, I believe that's true even for the first removal based on the interaction at the door and even the CYFD report and the disclosure from AL. [00:25:58] Speaker 03: And I am cognizant of my time here. [00:26:01] Speaker 03: I know that there wasn't the second removal addressed yet and I think CYFD counsel can address that hopefully in a minute or two, Your Honor. [00:26:08] Speaker 01: Good luck. [00:26:19] Speaker 00: Thank you. [00:26:20] Speaker 00: May it please the court. [00:26:21] Speaker 00: My name's Nicole Workmeister. [00:26:23] Speaker 00: I am appearing on behalf of the CYFD social workers, Ms. [00:26:27] Speaker 00: Morales and Ms. [00:26:29] Speaker 00: Miles. [00:26:32] Speaker 00: There was even more exigency with regard to the second removal than there was with the first, because as this court has pointed out in questioning [00:26:42] Speaker 00: There was much more information in addition to the initial CYFD report or the teacher's report to CYFD by the time of the second removal. [00:26:53] Speaker 00: There was also the additional safe house interviews where the children corroborated the initial disclosures. [00:27:01] Speaker 00: There was a medical exam by a nurse that was reviewed by a physician. [00:27:08] Speaker 00: There was the events that occurred in the courtroom at the criminal release hearing that occurred after that hearing was over after 5 p.m. [00:27:22] Speaker 01: And did they have the calls from the jail by then saying that they were going to run away with the kids? [00:27:28] Speaker 00: That information was disclosed and became known to CYFD during the hearing as it was reported by the DA during that hearing. [00:27:39] Speaker 00: So there was the issue of absconding with the children. [00:27:42] Speaker 00: There was a lot of information that changed the status quo [00:27:47] Speaker 00: after 5 p.m. [00:27:49] Speaker 00: on the day of that hearing that CYFD social workers then were laid to law enforcement that led to the second removal decision. [00:27:58] Speaker 01: You argue that the social workers can't be liable for the removals because they didn't have power to remove. [00:28:07] Speaker 01: That runs counter to our precedent, doesn't it, in Roska? [00:28:13] Speaker 00: I don't believe so. [00:28:14] Speaker 00: I think if you look at the underlying constitutional standard for individual liability is reckless and intentional misconduct. [00:28:24] Speaker 00: It's the deliberate and different standard for constitutional liability against individuals. [00:28:30] Speaker 00: So whatever case you're looking at for CYFD social workers to be liable, that's the standard by which they have to be judged. [00:28:39] Speaker 00: Did they engage in intentional or reckless misconduct and simply [00:28:43] Speaker 00: relaying accurate information about events that transpired to law enforcement does not exhibit that kind of intentional misconduct. [00:28:53] Speaker 00: And in fact, it is what we would like to encourage social workers to do to relay as much information to law enforcement as possible so that law enforcement can make a decision based on the most information available. [00:29:08] Speaker 01: Well, the argument in the brief is that because, for example, investigator Morales is not law enforcement and she could not have obtained a warrant, that she can't be liable for not having a warrant to enter the house. [00:29:24] Speaker 01: But as I understand our case law, there's no special exception to the warrant requirement for social workers. [00:29:32] Speaker 01: And if they are intimately involved in the decision to enter without a warrant, [00:29:38] Speaker 01: or to seize a child, if they meet the other standards you've talked about, they can be found liable. [00:29:45] Speaker 01: Do you disagree with that? [00:29:48] Speaker 00: I don't. [00:29:50] Speaker 00: That would be the DALCOR decision that addresses the issue that you have just raised, Your Honor. [00:29:56] Speaker 00: And that decision, it's an unpublished 10th Circuit decision, but it does reiterate the constitutional standard that [00:30:03] Speaker 00: liability for law enforcement's actions can be imputed on social workers only if there is evidence of reckless or intentional misconduct. [00:30:10] Speaker 01: Yeah. [00:30:10] Speaker 01: Well, I'm dealing with the argument that was made in the brief, which is I am immune because I don't have power to get a warrant. [00:30:17] Speaker 01: And I think ROSCA, which is a published decision, says that that is not true. [00:30:26] Speaker 00: I think that the Dalport decision, which took into consideration all the previous constitutional law, [00:30:31] Speaker 00: and which applies specifically in the social worker, CYFD law enforcement context, in the context of removal of children, illuminates that standard and sets forth the standard about imputing a liability, not imputing liability unless there is intentional and reckless misconduct and simply passing along information or giving input to law enforcement [00:30:56] Speaker 00: that informs law enforcement's decision is not sufficient to impose constitutional liability. [00:31:03] Speaker 00: Thank you. [00:31:03] Speaker 00: Thank you. [00:31:06] Speaker 01: We will take this matter under. [00:31:08] Speaker 01: Did you have rebuttal? [00:31:09] Speaker 01: Did you have rebuttal? [00:31:10] Speaker 01: I'm sorry. [00:31:12] Speaker ?: I have a minute. [00:31:12] Speaker 01: You have one minute. [00:31:12] Speaker 05: Sorry. [00:31:13] Speaker 05: So first of all, under the Fourth Amendment, the standard is serious physical injury or threat of death, not mom yelling at the kid. [00:31:21] Speaker 05: But I want to turn to the second removal. [00:31:23] Speaker 05: So in the second removal, all of the facts that [00:31:26] Speaker 05: the appellees raised, all those things were known when they gave the kids back to mom. [00:31:32] Speaker 05: And they did it pursuant to a safety plan. [00:31:35] Speaker 05: There's evidence that I cite to you that says that the social worker who was working on the case didn't think that there was an immediate danger. [00:31:41] Speaker 05: And also the social worker said that there wasn't any new instance of abuse that she was aware of. [00:31:49] Speaker 01: But all bets were off when the neutral [00:31:52] Speaker 01: supervisors, I forget what they call them, indicated at the hearing that they weren't very neutral at all. [00:31:58] Speaker 01: And they had additional information about mom and dad talking about absconding with the children. [00:32:05] Speaker 05: That was known before when they gave the children back, Your Honor. [00:32:10] Speaker 05: So they knew all of these details and yet still gave the children back to mom. [00:32:13] Speaker 05: And the only reason they took the children away from mom at that point, and imagine the trauma, the ensuing trauma that occurs is because the grandfather [00:32:22] Speaker 05: allegedly said something that CYFD didn't like. [00:32:25] Speaker 05: Thank you, Ron. [00:32:27] Speaker 01: Thank you. [00:32:28] Speaker 01: Now we'll take this matter under replacement.