due process clause is for the government from abusing its power and point its power as an instrument of oppression the touchstone of due process is fundamental fairness and the protection against arbitrary government action here in beverly were not treated fairly they're subjected to arbitrary government action the heart of the issue here they taken on this record they met with the adoption social worker on may fourth and discussed adoption to express them they would have no problem adopting archie they were here beyond a temporary foster placement there was no temporary temporary custody for this is beyond that they were on the path to adoption they committed themselves to their own resources and did all they could to try to make our kids like that a foster parent has at least the constitutional liberty interest in maintaining the relationship with the foster child so if you want to look at them truly as a foster parent it would look as still having some at least a minimal interest  it tells us that a foster family cannot be treated as a collection of on related individuals that's an indication that there is at least some type of status and some type of libya interest that would be afforded here to which cannot be lied about in court in addition there was other aspects of that were that archie was barred from the courtroom because they didn't want the judge to see his development and his progress and the strides he's made he had made under peter beverly scare  the fact is the child was excluded from the courtroom during the discussion of everything on the case isn't that the fact from the record before us i don't believe that w based on the record before you i can go back and try to find the exact information but one of the problems we've had here is that a twenty seven records documenting the trial and all the goings on to happen in the court have not been released yet some of those documents were but the juvenile court did not release the records until the twenty six was decided now the inference there in the light was favorable to the plaintiff the fact that the allegations are saying that the finance refused  your time good morning your honor somebody may be please the court my name is mary pat barry i'm here from the county of santa barbara i represent the county and the county social workers present also on the honors in this case the the district court correctly found that the social workers were entitled to qualified immunity because the law did not clearly establish that failure to provide notice and a hearing you have to  the district court correctly found that the social workers were entitled to qualified immunity because the laws did not clearly establish that failure to provide notice and a hearing before removal of a foster child violates federally protected due forgot the substantive due process aspect and putting aside for a moment the questions my colleagues ask but whether there was such a violation i'm just trying to understand whether the substantive right to due process rights w t yes and first your honor i just want to point out as set forth in the county's brief there's no allegation in the second amendment complaint that any judicial action taken as a result of any point is you based the qualified immunity and the court did on the fact that the right was not clearly established so before we get to whether it was properly planned in the first place i'm trying to understand is the county agree that based on bill tran and green that the right for say was established by the time that we're talking about here whether or not it was properly planned no your honor we believe that the district court was correct warrant through a criminal process or in a child abuse proceeding but where probable cause is established based on what's later established to be untrue evidence or fabricated evidence and then a warrant results and what the christan it's court said is you know this is different this is a civil proceeding this is not something that we feel was clearly established through green or through  a brief decision deciding that social workers were not entitled to absolute immunity well and well we can deal with that but so your honor i don't think that the right was clearly established before two thousand and ten and as judge snyder stated below other district courts have there is and that raises the issue of the procedural due process question and there's there's no federally protected right under offer and under gibson out of the ninth circuit of a foster parent in a continuing relationship with the foster child so then we turn to you did state law establish a federally protected procedural due process right and then we look to whether or not the state law that plaintiffs rely on or the state policy established substantive probably gets and i have to be really quick substantive predicates and a mandated outcome and absolutely the  department of social services rules the county's contract with these foster parents establish no substantive predicates no if there's if there is a right to notice before the deprivation of contact by a leak person here what if there is a post deprivation hearing provided in any fake we know there's not a pretty day priv hearing they did not your honor why did they not get a hearing they do not get a hearing because no hearing is allowed or fired when a child is removed due to being in immediate danger which was the reason the county removed the child plain argue that that was pretextual in any event yes and since they were not given an opportunity to confront it and as the court is likely aware in the juvenile dependency system the court the attorneys and all of the participants are charged with looking out for the best interests of the minor child miss kelly as the appointed attorney has a special interest in doing so you can introduce your relationship with that child she has be charged with exercising her discretion to look out for the best interests of the child and as the attorney she is also appointed as the captive guardian for the child now we have argued in addition to the qualified immunity that ms kelley is entitled to absolute qua judicial immunity let me ask you this counsel did were did she bruiser her arguments that she was not acting under color of the law or that the conspiracy was not alleged was sufficient specificity we did that raise that in our brief your honor and we raised it in the twelve b six motion to the first complaint the court although it granted the twelve the six motion expressly rejected that argument we were felt it would be inappropriate to raise it in the twenty six motion to the first of many complaints after the court expressly ruled on it so we believe it was preserved and she certainly is not a state actor there is no dispute about that she was appointed as a private attorney and to adequately allege a conspiracy they must show actual facts here they don't allege any of the acts giving rise to the conspiracy other than facts showing that ms kelley exercised her discretion looking out for the best interests of the minor child so i don't believe she is a state actor and i don't believe she can held liable under a one thousand three violation as is alleged here she's also entitled to the absolute immunity as i pointed out in the appellant's brief they don't really address that argument they only address it in the reply wherein they state that it can't be determined from the record that ms kelley was also the captain guardian and they concede implicitly that a captain guardian is entitled to absolute immunity under california rule of court five sixty two see the attorney point appointed as the attorney for the minor will be is the use words used by the statute will be kept a guardian only discretion of rises if no with tourney is appointed for the minor child in that case the cassa individual will be the captive guardian but here since ms kelley was appointed as counsel she was necessarily the captive guardian and therefore is entitled under babcock to absolute immunity she's also afforded protection under the nor pennington doctrine which is a litigation privilege opposing counsel cannot be sued for advocating on behalf of the client that is a well established principle throughout your is proved here all that is alleged is that she claimed that the appellant were just record didn't reach that nor pennington issued that it did not who are we talking about here for well if it to the extent that the court finds that qualified immunity doesn't apply then either absolute immunity does apply or she is immunized under the nor pennington doctrine so i'm preserving it for that purpose and did was this brief by both parties yes a y was certainly raised extensively in our opening brief it was raised and appellants claim that it nor pennington does not apply due to the sham exception to nor  the cottle decision so yes i think it's fully briefed the sham exception here does not apply under cottle appellants correctly point out that there are three types of sham exceptions and they say under the third sham exception that ms kelley doesn't apply however for the third type of the sham exception to apply there has to be such a high degree of misrepresentation as to rob the proceedings of their legitimacy and coddle specifically states that given that that exception impinges upon the first amendment right of position it has to be specifically pled there's a heightened pleading requirement we don't have that here once again all that is alleged is that miss kelly is advocating on behalf of her clients and the law is very well established that the minors counsel has the advocate for the minor minor exercising her discretion the best interests of the minor and not feel better for compromise or or threatened by the fear of potential litigation by competing parties and that's exactly address a couple of the points very quickly because stanage simply looked at the time of the deprivation as to the state of the law i think consider the state of the law after two thousand and one and therefore cannot be  used to hold that just the steps and so it seems to me what you're struggling with here is even if the right was clearly established the points made by my colleagues about the underlying substantive due process is a little questionable what do you think is your best argument that you have in fact pled the substantive due process claim the best argument would be that when you look at a twenty six standard it looks at under one minute ball is it plausible we don't have all the details are going of all the facts we don't need all those facts right now and which aspect of what you allege there's been some discussion raised by my colleagues about some what was done what was not done and it's controverted is that best case you have as the controverted facts or something it's pretty clear on the represented and repeatedly stated that peter beverly were not committed to r t this is not true they devoted their personal resources their personal time were completely devoted to him and can that's the kind of conclusion it would be unusual for a court to look at though that seems to be the sort of thing that the worker is supposed to be deciding or considering it you're going to begin to go back and second guess them rather than beginning it with an objective fact that we have that's a remarkable statement couples to have a family would need to have it through adopted in foster children that your honor that's the other thing you know and it doesn't matter because we're not going to decide the case on the basis but this record doesn't suggest question in the cases before us but i say it because i know the foster parents in the courtroom and i want to know that the record doesn't suggest they didn't love the judge if you're honest and we appreciate how difficult this is for them