first of all we appreciate the opportunity for argument this is a very record bound sort of appeal and your owners know the law obviously and so please don't hesitate to jump in i hesitant i'm going to tend to whine in this case as you read my brief so i apologize in advance the context here is really important this is an important case it's a case that needs to be tried obviously didn't feel that way we lost on summary judgment below mark james almost ten years ago was arrested you guys know these facts for the most part please don't call us you guys i'm sorry i'm sorry honor's the only thing though the mark james was guilty and in a jury of his peers found this after being out for about thirty minutes was that he was guilty of having married into custody these get away from themes and try and get into where i think they just got into fact are facts facts the district court erred in four chief areas one they didn't draw any of the types of inferences they were required to draw in the non movement's favor on s and thirteen when mark james being prosecuted and then even more recently affidavits confected in this very case we were you know if it went to trial of course you'd put on tracy to say that she later regretted having participated in circumstances that led to the rest i don't think tracey would say she would not hesitate at all she doesn't regret what she did what the the  decision that tracy james made was the correct one she took her child out of she didn't have a right i'm sorry i don't mean it quite that way but i mean it's criminal trial didn't she testified that she thought would some welborn had put this up deliberately to gain custody of the kids absolutely right so you would be using the two thousand and thirteen testimony actually more contemporaneous it didn't take till w by those initials she question him for the first time you've known about this for months opposed you know what what is going on here and you had no explanation whatsoever years later it becomes this escalation theory oh here's why the well i'll tell you what two things i'm concerned about because all this back and forth about the facts is pretty complicated but one is we have the hospital record here and we're trying to diagnosis and i can't i'm not really sure that i see a diagnosis in the record here that i can understand maybe the one ok your honor what you're asking is that our our pediatrics and i think one of the sort of highlighting moments here is that most record site at ninety record and these are because so many things are filed under some doubt that that's because wellborn according to you misled the police or whoever about the fact that she had had urinary problems some bedwetting problems in the past right actually what what what she said was that it started when she  the sort of distill the best to still version is ninety three twenty three which is a february tenth twenty ten letter from so it's document ninety three on page twenty three document ninety r but the point being that he put this in front of the d a and said look this this these problems these part of what this whole thing you know sort of tracy comes and says i will show you medical evidence that around the time that she started living with mark james that she had physical manifestations this in addition to march aims fessed up to this in the just the same to me piers just this it's really damning we find in the district judge sort of disregard it said he that's hearsay evidence you can't can rely on that ok but i want to get back to what you were fixin to say about tracy's lack of regret about her original reaction to the whole situation which was i've got a kid who is claiming abuse i've got to pick her up and i've got to get her out of the situation why doesn't that then basically satisfy the louisiana statute because that's exactly what we want i mean kids can make things up kids can be telling the truth and the truth can be somewhere in between those two things but boy if you're going to err it's on the side of caution fact you're criticizing the wood group for not acting fast enough and so why doesn't that then just satisfy the louisiana statute that you know this kid still to this day as i understand it is making the allegation she hasn't backed off of it and so the fact that that didn't satisfy a jury beyond a reasonable doubt doesn't mean it's not true you're in terms of the whole probable cause concept our entire theory of cases that some are tells the story and that is we know because little a g w is an eight year old tells us i told mum and she's asked that video you see she's asked you know three four different ways when was this how many times and she's repeatedly says i told my parents it was before school's over and it's one thing i asked over and over again well was there anything seville she doesn't that satisfy article six eleven isn't that enough fact that she today as i understand it is still saying the same thing and it was inappropriate touching if you believe her and isn't that enough and isn't that exactly the point of six eleven is to encourage people to make reports and whatever and then the chips fall where they fell and ultimately he was found not guilty and that's the process in motion but again a not guilty verdict is not the same thing as a finding of innocence you're right your honor and the perp of the probable cause element and wish prosecution case requires c m to have had at the time that he made the report some sort of subjective belief obviously well below probably beyond reasonable doubt but something more than mere suspicion and what that whole summer teaches us is that he shops this little girl around tells her story we go to three different mandatory reporters you that's exactly the heart of our whole case and that is that will you're supposed to investigate a little bit well he was really worried we don't we don't get to malicious prosecution as judge says until we get over the immunity of six let louisiana law confers and i think the whole point of that immunity statute is to avoid trial so it's just like we were talking about immunity in the last case it's to avoid trials and so you have to have it seems to me at least the level of evidence for malicious prosecution to overcome that six eleven well i think there's sort of interlocking there  that six eleven requires it requires good faith and obviously bad faith is never presumed malice is never presumed but the whole concept of probable cause and a reporter without probable cause will not be in good faith so i believe that you know there's not this sort of threshold we don't we don't approach this from can get past six eleven i believe that it is did they have probable cause if they have probable cause that  contexts as having a reasonable basis and why isn't your child saying something happened a reasonable basis maybe not perfect maybe again the jury didn't believe beyond a reasonable doubt all of that this is very fraught with peril area of the world but nonetheless a reasonable basis for even if sam also dislikes mark ok i mean that could also be true as undoubtedly it is so you're but that it can still have a mean we do have the standard in criminal law a reasonable suspicion which is less than probable cause spoke what i'm saying is even if you are uncertain you're the parent you've got this kid maybe it's a kid who has a rich imagination but then you start to think oh my gosh you know what if this happened and i'm going to keep sending her back to this guy and so eventually you go i got to do something ok it's still good faith even if you're not one hundred percent sure what happened because of course you weren't there this is an eight year old kid you know whatever but why isn't that a reasonable basis that the child says that and frankly still is saying it even after all the mass that everybody's been through we're going to think if we view if we view the report in sort of a vacuum like that without all the other tendon circumstances the prior threats the false vacation of medical records these types of things then yes absolutely there's there's nothing that should dissuade a parent from making that type report and six eleven probably does without all that other stuff same woods is in good faith just like any parent would be but the other stuff has to be considerate let me bring you back to this report mississippi medical center does it have a diagnosis you know that's real puzzling that the report actually does not have a diagnosis that report actually was introduced in mid way through the criminal trial and it never found its way into evidence during the criminal trial it's puzzling to me because it almost wasn't used in the criminal trial it's very confusing and it's it's was never a it's not in evidence it's not right it was never in evidence in the criminal trial sure it's not in evidence for these purposes it is because it is part of the and da record which are eighty two fourteen and also ninety three twenty five and twenty six ok  so the of course you know the the the point and i suppose malicious prosecutions judicially disfavored action for this very reason and six eleven operates for this very reason that maybe it's ok for a parent to wait a little bit before making these types of reports but under these circumstances you have a parent who can say anything to anyone you have three sets of mandatory reporters that have basically vetted this and said we're not going to report here you have a parent waiting and then when they do finally go when they do finally say something it's not directly to wrap up very briefly  it's the conflicts of how what sam didn't do and then how sam and stephanie it when i am i hate to bring this i hate to have to be so graphic but how did she indicate that he touched vagina as opposed to the outer part of her private part in the in the in the video it was out it was outside it was the skin on the outside ok it was not there was that salt that's in the record a cac in the video which is not well when it says digital penetration it seems to me to have an entirely different connotation i also we actually had a few people look at that and we thought that it's also possible that the evidence there is no proof anywhere that stephanie wellborn told the police that a g w began having health issues coincident with her move into home this is something that the plaintiff has i don't want to use the word to do for something less than the well if all she offered the police was record crown and i want to a little point out three reasons of this was this was tied in with the legal issue over the admissibility of the police report there are a number of reasons why didn't make it into the criminal process if you look at the probable cause affidavit mentions nothing about girder tract infections or anything like that that's not basis to think it might happen ok but he says that is overcome here in this case by all of the other surrounding circumstances if you will of the thread into this and the waiting and everything like that so talk to me about six eleven is there a component to six eleven of my child said oh no if it really happened i'm going to sit around for a while and then i suddenly go and maybe this will help me with the custody dispute if it definitely house with the custody that he doesn't get six eleven protection well no it just i don't i don't agree with that conclusion because oh i see as proof of should judge of good faith all i see is proof of subjective probable cause to trawl court judges fealty to the well i have to say that the trial judge was i mean and i think he was trying to apply as fat youth for which there is apparently little case law but he has to explain away everything well yes they waited over two months to tell mom about it well he never says a word i believe about the fact that she went out of state with mark for a week at the end of july he doesn't you know there were the there are only two incidents there's not a series of incidents she visitor he's not clear it seems to me on when this series of events allegedly began which seems to make a big difference under the circumstances here he has sick well they may have been negligent but they still in good faith will excuse me this guy threatened to get him and again even that is you know all he can do is explain that what well we said it was just we're going to subpoena him to court and you make an ass of himself well excuse me but that still mean not wishing i mean i understand that i'm a mother and so on but the woods keep sending her back to marc every other week during the summer lot and then they go on a one week vacation out of state before tracy finds out about this stuff and how could any responsible parent you know why wasn't she crying and screaming i don't want to go back kept sending her back never the excuse me your proof is uncontested uncontradicted and universal and consistent so what she told stephanie day well she was already going to the mississippi whatever it was in june there he says that she went to to but that's the whole point there is a i think there i think the record race is a dispute about this timing his whole theory is that your client sat on this information about inappropriate touching two in that he sat on it for at least a month and allowed her to keep going abets what the district judge said and he says they may have been negligent but they were still in good faith now you can't contract you're not tracey who then reacted immediately i mean why would you have a tell you have a taped telephone conversation where tracey says to to woods why didn't you tell me two months  know i i think you're going on something that the district court even the district court was not willing to credit as a matter of law i mean the district court it seems to me very well recognize that they were knobbly send the timeline here and in the motivation of your client and in the whether your client reacted properly and therefore was in good faith and then the district court was saying well but they're still in good faith well there's this problem but they're still in good faith and what you know i go back seems to me you have to accept that district court opinion or else you're making up an entirely different daresay that most eight year olds know certain things about anatomy today because they've been told don't let somebody touch you and all that business and they and your you seem to be arguing that it is enough and then we look at the  it is enough alone because we're not looking at post conviction and fifteen years later we're looking at the events for the purposes of the of the immunity right age goes and at some point stephanie in may or june he looked down my panties and then he touch and he touched me two separate occasions and yet they wait two months to tell tracey and the district investigation and that was done here and ultimately charges were brought it wasn't as if they sam was the district attorney and brought the charges himself so the question to me is they were really focused on whether  was a good father in the way he handled this and i don't think that's the question or six eleven to me the question is what does good faith mean and in parker which is granted a district court opinion but said that unless there is proof that the report was made with knowledge that the information was false or with reckless disregard whether it was false this court must find that the report was made in good faith so that seems to focus less on sam's head it does get into his head a little bit but more on the objective question of do we know something's fos i mean even if i have a kid that makes up stories a lot they could be telling the truth on this one story and i may really not know where the other but end up going ahead  reporting it after thinking about it for a while and and so i don't i guess i'm trying to get to what is the standard for good faith because i actually think all of the points that judge jones made are answered by that at least on the six eleven if it is simply mike the guy had had a motive to want something bad to happen to mark then sam loses because of course he had a motive to want something bad to happen to mark but if the question is did he know that a g w was telling a lie i don't think we still know that i don't think we have any evidence that she was telling a lie that the not guilty verdict is not evidence of that so then that to me is the question what is the standard for good faith and what can you add to the parker standard  any of the other standards that have been cited what is the standard you're asking us to to it find here oh on six eleventh's what standard for determining good faith to the let's vet what our daughter is saying let's take her to a counselor let's see what a professional thinks about this before we even pick up the phone and barren to uphold that doesn't answer my question which is how would you identify read from parker the standard that the court and parker used are is that the standard you're advocating for good faith or do you have a different standard because we don't have much from louisiana on this we don't know anything on this statute we're very little on others i want every cake that would stay home stephanie actually did one above the standard for good faith going to take her seriously i thought the counselor well again we're setting the record you have a record of audio tape because that's another point where there's a dispute because they say th came up and told you this would you believe her after some degree were structured skee said yes i would i think that's consistent with the silly isn't that the parker standard i mean are you advocating for the parker standard i think is a good one for y is that a good standard to use here i believe it's all we have to go on at this ok and so judge jones said well what if the kid says he touched me is that enough is it your position no that's not enough by itself that would be enough we have a lot of the facts in this case the problem here is that because sam had a motive to harm mark and didn't like mark and wanted custody of this kid then that takes away from the fact that the says no you know in our present time motive is over here and that's something that certainly consult a ball but it's all of the actual affirmative actions that were taken and here we get into what was said when the report was made it's not here's my daughter she just what evidence do we have that it was made with knowledge that it was false well those those types of facts are easily that's inferrable by the fact that you know one kept delivering her up you knew about this suppose it touching in june that's beyond dispute because you've already shopped around in mississippi in louisiana and one of the reports was finished before june when you send her back all the way through the through the summer and then when you do finally after you have defacto custody of her to seal the deal you make a report months later having learned nothing in the interim you're basically the little girl safe at this point by your own position he had this motive to harm marc at the time she originally made the outcry so he's looking to get him general run out the door screamin and instead he's taken her to counselors and he's trying to do something so maybe he's not dad of the year here in this in this whole transaction but it seems inconsistent with the argument that look he was out to get mark told him he was going to get him but he waited to get in and that's the reason why that's bad faith well i mean it starts to become clear when you look at the calendar which we've argued and he does this basically right before school starts up  that they have an arrangement where she was being sent to slide every other week yes yes something or something to that nature yes seana so it would have been five or six visits feeling when every and it was about to be the point where a g w would go back to slide zero for the school year for good pretty much and with periodic visits back to sam and that's when they slam the door shut j w the sun was already living he had already kind of made that shift and this is to me not clear but it's  more than motive because it's action as well sam had a motive for years before that but it's what he did and didn't do and how he did it when he did it that matters here thank you ours all right and i just want parties to be aware that we are we are aware that the district court also shut the door so to speak on on the merits of malicious prosecution and we didn't really discuss all that but we will get to consider the case on a