writers issue in this case is whether these social worker defendants are entitled to qualified immunity for their actions in an investigation of potential child neglect the district court wrongly denied qualified immunity on alleged violations of the th amendment substance of due process and procedural due process i'd like to discuss each of these in that order but st i'd like to begin with a brief overview of the circumstances of this case because the circumstances this case exampl precisely what qualified immunity exist to begin with your honor's the social workers work in front of the situation of all the newborn baby and a mother who tested positive for opiate use the mother also admitted to taking prescription cough medicine that was not prescribe to her so it's not a huge stretch for these social workers to believe that if she had a positive drug test and admitted to taking prescription medicine that was not described to her that maybe she was in fact abusing medication that's not much of a stretch to make it all the baby was said to be discharged from the hospital if the mother was abusing drugs that would obviously put the baby safety at risk the social workers needed to act quickly to ensure the safety of the baby and the other children at home they had no way of knowing at that point the mitchell hers was not abusing  you're the very st drug test came back positive for opiate use and at the time the social workers got involved that was the only test they had i mean the test thereafter i know there was one the initial  the the use of the prescription cough medicine was also a potential your honor but the social workers at the time they interviewed mitchell hers only knew that there was a positive drug test problem with the cases what three days later they know it's a false positive and they continue their their course conduct even though they're the basis for their initial actions shown to be incorrect that's the problem i have with the case not not that the initial three days when they thought there was a positive but afterwards when they in the face of all this evidence into their conduct anyway judge griffin i disagree with with the premise of your question because i don't think they did know was a false positive they had a positive drug test they had an admission from the mother that use me but she gave birth on the th and on the th they scheduled more tests and on the evening of the th the results of her additional urine test are reported which are negative and the next day the results of the umbrella call cord test come back negative so with then not much more than forty eight hours less we know that that it probably was a false positive and that was reported to the social workers well and then the they continued for two months after that to keep her from having full contact with her children unlimited contact with her children i disagree with a few of those facts of you're  correct that there were two negative drug tests so the the baby was going to be discharged from the hospital there was a positive test there were two negative tests and mother also admitted that she had used prescription medicine that didn't belong to her i think when you tell us she used prescription medicine that had been prescribed to her and it is possibly cough medicine i think i think you're stretching that argument just a little further than i'm willing to see it go well just i don't know we don't know exactly as on the record exactly what kind of  prescription medicine it is because some prescription cough medicine has coded in it which is an opiate but you don't even know whether that was coding and that she didn't know as crimean this is this is taking a few cherry picking a few facts and stretching them all out of reason well there are the top at the time they entered into the prevention plan all the social workers knew was this baby is going to be discharged in the hospital and the mother has tested positive for opiates they had to something there been a lot of instances in kentucky in recent years now wait a minute what day did the prevention plan and come into being it looks to me like it was the twelve no you are believe it's incorrect i believe was the tim believes it was the day after birth so the time of the prevention pla that the social workers knew was that there was a positive test the mother had admitted using prescription medicine was not prescribed to her and there were not negative tests they need they need to act quickly to ensure to investigate all right i'll give you that but when all these tests come back negative and i think it was hammer was told to lift the prevention plan what date was that well what day was that i believe my understanding is when the hair follicle test came back negative the plaintiffs informed the commonwealth of kentucky that we're not going to hear the plane anymore because we've got we've got our confirmation that it's a negative test and we're not going to adhere to it in the come with made no effort to enforce at that point they acquiesced in that i didn't say lift the plan and notify the parents well your honor i'm not sure that this is in the district court's opinion but the reality is the parents attorney went on vacation to europe and they had to come with had difficulty communicating with the attorney i believe there was a the hipaa release form that they needed to give to the commonwealth to get the official test results from the hair follicle test and when the attorney got back and all of this got taken care of i think i think the plane got lifted officially but the plane was never in forced again after the st it was in force for eleven days and these these social workers who need it felt like they needed to make a reasonable investigation of the situation there not talk psychologists keep that in mind we're looking at this through the hindsight know i mean they told the commonwealth of they were not going to get here to the plane any more and the commonwealth acquiesced in that the comment did not made no effort whatsoever to enforce the plan beyond that point the factual dispute and i'm not sure we even have jurisdiction this is a denial of qualified immunity and you can appeal that you have to appeal to your questions of the law in regard to the denial of qualified immunity and things like your arguments are all well that's a good point just different i disagree because all these fact questions we're talking about are ultimately irrelevant the legal questions and let me turn to those briefly the legal questions here our th amendment substantive process and procedural due process even under all the facts found by the district council and likely completely to agree with well well judge clayton dance your question you know i'm trying to answer the court's questions about what actually happened but to some to you're right all that all that's irrelevant we're stuck with the record  amounts to a a willful knowing violation of the law or from a constitutional standpoint clearly incompetent behavior that didn't happen here the district court essentially held that the social workers violated clearly established law because in the district courts if you force them into principles a pl social workers and the th of may well it does but the point is that the district court viewed the rights at stake much too generally and broadly in the case of district court the district of columbia versus what is be the supreme court held that clearly established means that a legal principle must be must prohibit the officials conduct in the particular circumstances before him it's not enough that a rule can be suggested by existing president it must be compelled by controlling authority or a the without the consent of the parents your honor i do not believe that there is any any consensus or clearly established law saying that's the case in barber v miller this court hill that it wasn't clearly established that warrantless in school interviews all the th amendment some courts have said  how long do we keep on saying that that there is an innate clearly established law well your honor i think that as i understand it the district court judge here said stop this there isn't any clearly established saying right now that you can't do that with children and from now on there will be clearly established that what he did i believe that's right your honor but that would apply to behavior that occurs after this point interviews with a social worker in a home of a teenager was not a seizure it was not even clear there's a seizure i'm not even sure that it's clearly establish there was a th member violation of this you know in the in the home you're in home territory your parents may be there but when they come into a school and take you out of class in front of all your classmates and put you in a room with the door closed and nobody there but the social worker what is a young child to think well  you're i think the point is there is no clearly established law saying that it's a th i'm a violation and it's the same with the subs and due process and procedural due process claims under the west be principles was pieces you've got to have some specificity there's got to be clearly established law on point doesn't have to the exact same facts was got to be pretty close and we don't have that here there's nothing there's no clearly established law remember the brown from the th circuit from earlier this year said that a balancing test is difficult terrain for a party having to prove a clearly established violation of law and that's what we've got with all these claims we've got balancing issues on both procedurally process and to due process and th amendment so there's no way if we're all the lawyers and judges in experts are all debating whether there was even a violation at all it's difficult to imagine how social workers who are trained in the law would know that their that their conduct was violating clearly established principles and i have to suggest to you that there was not a lot of good training in this case when when your supreme supervisor tells you to lift a plan and you don't do it that really you don't follow orders i mean what kind of training had they had i'm sorry i'm you don't have to answer that your time is up and may i answer your honor all right with me months after the umbilical cord or the hair follicle test because they didn't officially lift her for that two month period the point though your honor is that the right to oversee the care custom control the children was not affected during that period because the commonwealth made no effort whatsoever to enforce the plan during that period it wasn't forced their right to oversee the care custody patrol was not affected really ask you again i think we're getting into disputed fact again but did the parents know nobody was going to show up and take the children off to foster care and somebody from th or the social worker agency told them that they were only only income for a well i think on the record we've got i think the answer is no but the substantive due process clause does not it does not give them a right to be free from that worry it gives them a right to not be interfered with in the characteristic control of their children and that right was not interfered with beyond that point all right thank you very much morning honors morning paul hill on behalf of the shoulders family your honors i have to admit that i was curious as to what arguments that i would hear today from opposing counsel in order to justify what the social workers did to this family this case is going on three years now from that they the baby was born and over that time there's been more than two thousand pages of legal arguments generated and among those i've heard all the arguments i've heard there was because of the opioid crisis which really doesn't make any sense because of all the people the opiate crisis we know that holly was in one of overworked caseworkers doesn't again make much sense because they're wasting time if they're investigating somebody who's been proven not to be a drug abuser also heard it was a lawyer's fault but as it came down i guess what we heard at the end was their main argument there is no clearly established law there's no case on point and it all comes down to notice it comes down to fair warning for instance to paraphrase judge griffin  the flint michigan water case the lack of an outrageous act is precedent does not provide immunity where there it showcases the grievous in this of the act so just like in hope  pelzer in which the supreme court found that you didn't need a prior case of a prison guard tying someone up to a hitching post to give notice to that official that he couldn't do it and just like in plant flint michigan case and dared thank god we didn't require another public official poisoning the water supply it's apparent from the conduct that they cannot do that and that's the notice that's involved and we did and we provided our acknowledgment of what clearly established law was judge bertelsmann did that i believe in a well reasoned opinion and also in our brief we've noticed the fact that for instance in the smith versus william vegas the courts reasoning can be used in order to establish clearly established law so what we're looking for is fair warning to these officials so they know what they cannot do and just as a matter of practicality at least as far as cabinet workers and kentucky go it's not working one of the cabinet officials i do pose is robin brown campbell supervisor she's been with the cabinet in various capacities since two thousand and one she testified that she's received one hundreds of hours of training and trained other worker  workers i asked her this question and received this answer have you ever been trained or trained someone based upon any federal supreme court case or six circuit case of or or a six or court of appeal case as to what they can or cannot do in relation to dealing with families alleged to abuse of abuse or child her answer was not that i recall so what does provide these workers notice of what they can and can't do house and campbell said in a deposition you obviously can't open a case for no reason against anyone you need to reason in this case i think we can all agree that the hospital se the report that there was a presumptive positive urine screen of holly's drug test so and then they notified the cabinet the cabinet does kim it relies upon the kentucky statutes and their bible as they say which is their standards of practice guideline in their standards of practice guidelines that states reports of substance abuse are not accepted a reporting source provides supporting information that would cause a reasonable person to believe that the caretaker drug use is impairing their ability to meet the needs of their children so not even accepted let alone going to the hospital imposing the sanctions that they impose so that's a social worker's fair warning so what did they do and i believe reasonably receiving that report they went to the hospital and they they found holly in her hospital bed with their baby and they noticed a few things number one how they had been breastfeeding since within an hour of birth the baby was perfectly healthy holly denied any drug use she answered all their questions the medical staff at st east all told them that the baby was completely healthy some time later that day they actually spoke to holly the baby's doctor and the baby's doctor told them that the baby was completely healthy that there was no issues during the pregnancy that there was no concerns with this baby so they asked holly to submit to another drug test which she did which came back within a few hours and this was on a this was on it would have been on a friday night the baby was delivered on thursday so on friday night within one hour and a half the drug test came back negative they had a doctor's information they knew the baby was healthy on saturday during the day and bilk or tests which had been ordered came back now that's the be all that's the gold standard because that goes back five months and that shows that the baby was completely healthy and the how he didn't just any drugs and wasn't anything in the baby's system there was no need for concern and to get back to what the cabinet had to use so in order to find abuse it's not just drug use the step the standard in kentucky is the statute under the definition of abuse or neglect and what that is is the person is abusing the neglected chut in the clip that joe means a child whose health or welfare is harm or threatened when a parent engages in a pattern of conduct that renders the parent incapable of caring for the immediate and ongoing needs of the child including but not limited to have are in the prevention so the prevention plan thank you judge the prevention plan they had at the initial encounter they had her sign a prevention plan actually what happened was camera who'd been with the cabinet just a few months and still in training had holly get on the phone with allison campbell her supervisor prior to any prevention plan being signed campbell said until this big gets figured out you are no longer allowed to be around children without the approval of without proof supervisors without and then after you know how long have you been on heroin and let me get the help you need to help your child all the other things and then importantly what's distinct this case from william sash camera came by and said prevented in show the prevention plan which one page that requires holly will have supervised contact with all children by approved supervisors until notified by the cabinet supervision means i in earshot at all times two hundred and forty seven and then at the court which is importantly which distinguishes the case and so within a day they had all the information we just discussed they talked to the doctor the baby was healthy they had the drug tests come back and at that point on monday they went to the school went to two different schools children ages eight to nine year olds in a thirteen year old took them out of class one by one the school personnel personnel were not permitted to go with the children bottom into a small room and interview them close the door interviewed each one of them and i believe in the brief mention the children were fine they weren't scared well they weren't fine when they got home to their mother and that's been played and that's part of the proof in this case the children as you can imagine and when they ask you about your mom if she's in drugs with mommy and daddy fighting with each others or alcohol around the house they were scared they were scared something's going to happen they were going to be taken away or mommy going to jail and importantly on the th amendment issue at the point the cabinet workers went to that school to show chris family had achieved the unusual status of being proven innocent so one could certainly argue that if this court determines that it was ok for the social workers if it's court discuss to we should clearly establish them all if the court says it was ok to do what they did it's ok for them to go randomly and interview any chop based upon anything because here we have we have a presumption of innocence of every person in america why but i would argue that the shockers at that point were elevated above that because they can no workers knew for certain that there wasn't an  issue of abuse or neglect yet they continued to go in to that school and do that and in to argue again i believe judge daughter your question whether or not they  were told was told that she was off their plan no and it was a constant worry for her that's why she hired an attorney that's wise the attorney told her that she did not have to comply or sheep told her not to comply but warned her believe me they can come they can go ex parte to a judge and they could get an order any time and come get you so she continually called the cabinet yes to  would not release her and i would suggest the court to go through the camera records for them to say they weren't doing anything for that period of time they were calling david chokers ex wife they were in communication with him because she was upset they were contacting the children school did attempt to get records they were contacting the children's doctors to try to get records all during this two month period of time all with holly calling in saying can i please be released two months later she finally was your honour's for the purposes of of of what we're doing here these facts beg the following questions did the cabinet workers need fair warning to know that they could not threaten immediate removal of children in order to obtain a signature on a prevention plan did they need fair warning to know it was a violation of a family family's rights to present a prevention plan with a stamp claiming there was an arranged plan of foster care when there wasn't one did they need fair warning to know it was a violation to seize little children out of school in a terre gave them for a half hour  when they knew there was not any proof of abuse or neglect and i ask just a minute about the person now camera with the person who had the initial contact at the hospital yes campbell was the supervisor but was not at the hospital correct she was on the phone on the phone when who went to the school and interviewed the children hammer did at the direction of campbell and she took another worker with her  and you're telling me that cameron had been a social worker with that agency for just a few months a few months she had fourteen cases in which she prevented presented fourteen prevention plans all with the stamp on them this was her  st this was cameras st pregnant lady having a baby with an alleged drug issue case ok thank you in closing judge i've been reading and listening now for almost three years that was ok what happened here because there was no case directly on point there was no clearly established law well let's clearly give because that might give qualified unit to do the job if i misspoke apologize i'm not saying that there wasn't any clearly established law i'm just saying let's make it specific to this case so there is a case out there judge the arguments that we made in our brief in judge bertelsmann the brief really point to the to the fact that there was fair warning to these workers to do what they did that they shouldn't have done what they did all right ok thank you thank you very much in the room bott mr hill asked a similar question here today which is he said several times what provides a social workers notice of what they can and can't do that is a simple question where is the clearly established law telling them the what they did was clearly wrong this is a case about a judgment call question is not whether somebody did something wrong the question is whether somebody's valid and clearly established constitutional law such that qualified immunity should be denied and the answer that is no this court can still say that it's not ok what happened here and still plot qualified immunity the court can say that constitutional rights were violated mr hill so let's make clearly established law today well if if this court wants to say going forward this is ok then the court has the prerogative to do that but as we stand here today it was not clearly established in february twenty seven thousand that these were constitutional violations this court said in barbara that as of two thousand and eleven it's not a th amendment violation to interview children in school without a warrant nothing has changed since then there's no clearly established law on that th amendment  denied when children were not removed from the home to my knowledge the only time qualified immunity is or not is when children are actually removed from the home didn't happen here and your honor i'm not sure on the procedural due process issue later minute they weren't removed from the home but they were certainly the threat was their number one and number two there there was some kind of shield brought down between the mother and children well you're out of the interfering with her ability to supervise and control and also two things response that you're correct the threat was there but the commonwealth always has the authority to go to court and attempt to remove children when it suspects that there is neglect or abuse and i hope i didn't go to court here they could have but to be honest rathe thought it was more or less intrusive to enter the prevention plan because then the children would not be removed and let me point out also that the plaintiff got to pick who would help supervise miss shoulders it was her husband her mother in law that's not especially intrusive the social workers felt like that was a pretty reasonable al x against unreasonable interference with that relationship and why why isn't that clearly established because your honor its debts defining the right much too generally because the that right must be balanced against the commonwealth's right to investigate potential child abuse and child neglect and as the th circuit held in remember oh just this year when you've got a balancing test that that's that's especially when you should apply qualified immunity because you're in your nd guessing the work of these social worker point there really is no basis for continued best occasion as far as i could see well in hindsight we can say that judgement i mean what what is there i mean you had the initial test which was only a drug use but they continue to interfere with the family relationship without a basis at all well your honor i would say a couple things one the plans have an attorney during this process the attorney did not object to the provincial plan the attorney said let's do a hair follicle test and it's not clear to me what process they thought was due here that wasn't provided there briefing suggest that they should have had a hearing before the provincial plan hearings are not required in this circuit and lester going to remove the children from the home that didn't happen here  constantly getting these complaints from the parents not wanting to be in the plan i don't know if they needed further notice from the attorney but the case where you were saying that there was not  a case clearly establishing the right in line with what judge griffin was saying this troxel versus granville case from the united states supreme court has unequivocal court said in district of columbia vs was b and while there is a right of parents to oversee the care custom control of their children that right must always be balanced against the right of the state to investigate child abuse and child neglect and when you have a balancing factor issue then that is not typically a situation where you want to deny a qualified immunity because it's not obvious to the social workers when they've got a positive drug test that that they're right for parents to oversee care custom control children must bal must prevail in that case over the state's right to investigate child abuse there's just it's just not clearly established here there's no case on point for any of their claims and they didn't identify and i think we've really does have to be a case  were on notice that contaminated water out for public use violated the th amendment even though there was not another case where we found anybody had ever done that before there were certain actions that are so obviously violated of the constitution that the standard is whether defendants had fair notice of what they did violated the constitution and  judge pointed out that the right of a family relationship to be free of an reasonable interference by the government has been clearly established for a long time judge griffon i agree but we're talking about a very different circumstance is putting deliberately putting out tainted water for use by the public is a much more egregious situation then in a pub about interfering with a family relationship when the social workers know that the results are all negative well really is conclusive that there is no drug use here and that i think that's after the bulk of court test there really is no doubt i don't think and they'd never last persist with attempting to interfere with the relationship i don't think they knew that but i think it's important to point to the test well i think it's important to point out that they didn't know there was no be used because the district court found that the violation the clearly established violation of law was from the period after the hair follicle test came back ok but beyond that point the parental rights the printer right to govern the care custom control children was not interfered with after the hair follicle test came back and so i think we have cases summit thank you