child protection service investigator interviewed the babysitter the wife and the children and ordered the seizure of the children which resulted in five pounds for two of the children and twenty two months for the last  decision came down after we found our medical plight after we filed our response to the motion to dismiss we informed the court prior to the hearing with the supplemental authorities letter about and again i argued at the hearing right thing like that the child did not complain about continuing pain there was no neglect the children care of a baby sitter there was no imminent threat the parents were not at home there's no past history of spanking according to the wife no past history of child protection proceedings no criminal history mr mitchell is an educated affluent african american man so it's all customers children in a family order the c p s investigator borling classified national in the proceeding verbal ie as a black man unfit to be a parent because black families are too quick to spank their children additionally the c p s investigator according to the records particularized constitutional injury as their children removed from their custody allegedly without probable cause that's our claim causation chief judge holmes and that case child abuse investigator finnegan these competing interests we have adopted the rule that's a rule less rule for all the districts to follow but when a state official pursuing a child abuse investigation takes an action which would otherwise unconsciously sumeet disrupt family integrity or she isn't tell the qualified immunity if such action is properly founded by a reasonable suspicion of child abuse we're back to probably cause and that of course is that exactly the situation and the allegations here so then have due process arguments and facial challenges in but i just want to confirm that finnigan is that what you win or lose on whether or not finnegan applies to this case no with respect use reasonable force against search children to crack them just like teachers and so i think quickly well look at the statutes and problem with the statute says you have to read and when once you read them you'll see what i'm talking and you go back to the criminal statute you see that there's an affirmative defense that's allowed in criminal proceedings for a parental parent using reasonable force to disciplining a child but then it's very specific under the child protection statute but those affirmative fences are omitted they're not allowed so in minnesota you can have a seizure of a child for child abuse that's not criminal but still a justification for se car but in the criminal and the civil proceedings those affirmative fences are excluded so seizure can occur for any parent raising any for a child causing any pain to the child all the protect the spanking of children these are deep blue states who are saying look when he sees a child you're breaking up a family this is there's something about religiosity here this is just practical we have lots of children's immediate removal of what were those allegations thank you your honor so at documentary eight paragraph twenty eight dollars plaintiff admitted that he had spanked the child at paragraph ninety there is an admission that the to the crime of malicious punishment of a child and an alford plea means that while he did not want to admit to the actual weather today whether or not he would plead guilty or not to that particular allegation but that he recognized that it was likely that if the case were brought before a jury he would be convicted of the crime of malicious punishment of the child finally the complaint is clear throughout that there were substantial allegations of longstanding physical abuse lodged against mr kill mr mitchell your honor ultimately dakota county not became aware of those other allegations but it doesn't mean that there were substantial allegations of abuse that you had essentially he said she said  situation here with regard to these children and under minnesota's child protection statutes number one consideration is the best interests of the children let's let's take this chronologically what was known at the time that the police came to the home while the parents were out removed the children or what did they know at that time thank your honor and that question might be better for the dakota county defendants as well so i don't want to cut too much of their time because my clients were not involved at that time i think that's important as to why my clients are entitled to absolute quiet like jewish community in this case but at that time there was a call to the court a county police that there had been a significant beating of a child the child in a good beating or spanking a significant beating he was he alleges he had been beaten with a belt that was the allegation that the police were made aware of and as a result dakota county immediately remove those children based off that information at that time and again i'll leave it to dakota county to address that issue because my clients were not involved my individual clients your honour's are entitled to absolute quiet by judicial immunity they were both court appointed in this case not to advocate for dakota county not to advocate for mr mitchell but to the court in coming to a determination on the best interests of the children and as a result my individual clients derby and trotzky sir are entitled to the absolutely robust immunity absolute judicial immunity but let's move to the facial constitutional claims your honor counts one through six the district court correctly dismissed those claims for lack of standing and your honor had asked the question about standing plaintive did not directly answer that question because there are no factual allegations in the complaint to provide standing for they are about that they are under certainly impending risk of future and sportsman of those statutes against them similarly the association does not have standing so for any association to have standing they must lead at least one one of their members has standing in an individual capacity to bring that claim and in this case the complaint alleges and i quote that the associations have had with the child protection system and quote there is no discussion as to what those experiences were there's no discussion as to how those experiences have anything to do with minnesota statute and they certainly don't say anything about a quote ordinary bottom spanking that any association member engaged in an ordinary bottom spanking and frankly in the face of the complaint mr mitchell did not engage in an ordinary bottom spanking because that's not what the factual allegations that were being lodged at the time that the complaint that is a as applied procedural due process claim it is not alleged against the state but the standing requirement is different of course for prospective injunctive relief rather than as applied claims and the complaint is crystal clear that claims one through six are in fact at the plight claims and as a result this court need not and absolutely should not address the merits of those claims because there simply is no jurisdiction now despite the fact that there isn't any jurisdiction on those cla they simply must respond to plaintiff's argument that minnesota law prohibits reasonable and moderate physical discipline because that is absolutely misconstruction of minnesota law in the cast let me ask you about that on page twenty of your brief you state just that minnesota statutes most certainly do not prohibit reasonable spanking try to crack the behavior of a child yet on page two of your brief you directly quote ordinary spanking with quote physical abuse so which is your honor i'm not exactly sure what plaintive means by him saying what an ordinary spanking is what minnesota law expressly allows in both the chips statute so the child protection statute as well as the criminal stat at the statutory provisions that we provided that minnesota law does not prohibit reasonable and moderate physical this is it includes spanking would that include a spanking yes i think it would your honor particularly if it does not result in injury would you agree that page of your brief is incorrect your honor i have certainly apologized to the extent that you disagree with the phrasing in my briefing a spanking that does not result in any injury to the child is not discipline there is not abuse under minnesota law and importantly that's ready please the court counsel my name is william topped and i represent the various dakota county of pelleas including ms borland and i'm going to address right off the bat this issue of probable cause i would like to pull the court back a little bit because we're not arguing today about the merits of plaintiff's case we're arguing about what's in the complaint and whether the complaint states a claim under it so if we look at the complaint what does the complaint say it talks about bruising it talks about redness it talks about other allegations of abuse this is what the county knew at the time that the children were removed from mr mitchell's home i would like to state th county didn't remove the children the police officers did upon the call so if we're talking about probable cause here that's what the complaint states that's what we have to go by and if we're arguing about whether or not the county is entitled to discretionary immunity under finnigan it st asked to have probable cause we think that the complaint with the allegations that are in it states probable cause and so with that i would like to focus on the a munity defenses that dakota county a pelleas have and there are three a sovereign immunity official immunity and absolute immunity so we're talking about sovereign immunity we're talking discretionary act that balance public policy considerations economic and social considerations and if you look at the complaint the complaint alleges essentially discretionary acts analysis one of the facts that we know what's the law and then how do we apply the facts to the law that is at its very core discretion and so we've got allegations in the complaint of discretionary acts under the sovereign immunity there has to be a balance in the public policy considerations and we propose that those policy considerations exist here on the one hand you have mr mitchell is alleging that he has a right to bring up his trial as he so chooses so you've got that policy consideration but then you've got the state's policy consideration of the welfare of the child when you've got these reports of bruising hitting a child with a belt redness all of these things so the the dakota county a pelleas or a wayne all of these things when they're making their decisions on what to do and that is the very act of discretion that's what their job is to weigh the estrada and i'd like to have you tell me what she knew at the time she filed that which i believe was on february th because it was my understanding that on february th the county was aware of all the facts regarding all of these factors come into play sometimes where there's smoke there's fire and you have to take these things into consideration you just can't after handedly dismiss them simply because they come from a person who  less than a credible person you have to is it true that a court in new jersey had told her to stop making false child abuse accusations i am unaware of that being in the complaint your honor if that's what the complaint says that's what the complaint says and this is what i keep coming back to is that what is the complaint say we haven't gone through discovery nobody has depositions been taken we don't have a record one where the other all we had were the allegations in the complaint and so there's a lot of allegations a lot of  talking outside of what's actually in those two hundred dollars plus paragraphs and so i think at the end of the day we really need to come back and say what does the complaint allege what is the law and how does that work out at least at this particular stage and unless the court has any additional questions i have no further comments they were going to go back to the statutes and the it the attorney general's office has represented something which is not accurate so the attorney general reference statute section six o general said my friend she came in and said that this definition of child abuse is modified by six hundred and twenty six point five five six subdivision true but the definition of child abuse there isn't war and there are three