good afternoon members of the panel my name is thomas carer i represent the green family the appellant's in this case thank you for the opportunity to be heard in accommodating mother nature  in looking at the parties a statement of the facts in their briefs their appellate briefs i realize that perhaps the panel is wondering if the parties are not two ships violation of the family's integrity under the fourteenth amendment the defendants their bellies have gone at length to a reciting the underlying state court proceeding not the federal trial from which were here on appeal and they recite a number of state court procedures in particular you know if you could just tell me wh as i understand it the case got near you had a number of claims in the original complaint yes your and judge christensen narrowed the case down quite a bit right yes right the applique implementation and application of the treatment plan and the theory and your theory for why the violated your your client's constitutional rights could you explain that to me the theory is that family had as substantive they were constitutional on their face what the defendant approved court approved yes what the defendants did here defendants lots and filson is they applied the treatment plan unconstitutionally in other words how they insisted that the family the parents admit they harmed their child literally injured their child by having unnecessary medical procedures done on her now we have the there's there wasn't any any and i thought i understood your i think i do understand your argument i went to the plane where in the plane and i don't know if i have the right plan but but the one i have the front me is from july isn't your honor speaking of the treatment plant of the tree court ordered by the state twenty thousand zero six five believe it was zero six that was finally when the treatment plan was court ordered there was a is there something in this plan that you contend the defendants used to force the greens to admit they had injured their child yes where where is that in the pla defendant's lots and filson insisted that goal number five of the treatment plan well number five i don't have the exact x x or page that under that goal that the parents had to acknowledge and expressly confirm that they had harmed their child by obtaining unnecessary unnecessary medical procedures that was not what the state courts treatment plan intended and in fact had we had the opportunity to examine the defen  and the fact that the the department these social workers applied this treatment plan in a manner that forced the parents to incriminate themselves and to admit harm that there was no evidence had occurred well you're kind of throwing everything against the kitchen sink here and i mean one of the things that the supreme court cautioned us about is you have to establish a constitutional right that is file a did and we've been cautioned not to define that too broadly and so this concept that they have a right to family integrity i fear is defining it too broadly and and so and then you need to have clearly established supreme court law on that point so what supreme court how are you defining a bright is are you defining just the right to family integrity is that the right that was violated under the substantive due process of the fourteenth amendment yes it's one of our most sacred right what is the supreme court case that establishes the right to family integrity you know apologize i do not have recall a citation of that right off the top my mind and i don't want to spend time going back to look for that citation i will say that this circuit has clearly not a circuit it's got to be supreme court the supreme court what supreme court case it isn't that that's the whole thing that the ninth circuit's always getting slapped on it's not our president you know it's you have to define the right narrowly enough and then it needs to be clearly established by u supreme court precedent not by ninth circuit precedent your honor i don't know the citation as i stand here but they're having the same we've got  and that has been carried forward in this circuit and it has just come to my attention more recently we had a case that came out where  in pauls v green it won six f s up sorry strike that hardwick v county of orange eight forty four after eleven twelve where in this court the circuit embraced that fundamental integrity that right to fundamental family integrity and in particular within judicial proceedings social workers  are it's unconstitutional for them to lie or provide false evidence in initiating a petition for abuse neglect evidence is not the claim here and if i could finish your honor there's further in that case held that during the judicial proceedings that the social workers are not protected by caused by judicial immunity if they are not carrying out their quads i do dish will functions and the lack of the the function that these social workers were carrying out was to force the parents to incriminate themselves and it meant they harm  when that's not what the treatment plan said that is so you said paragraph the goal five of the treatment plan in it had to deal with once the treatment team determines that michelle has adequately discussed and explained her role in the issues which caused e g to be adjudicated a youth in need of care and made a sufficient cause on her treatment plan blah blah blah it doesn't say anything here that she's going to have to admit injury or anything like that precisely your honor and that's what the story it doesn't say that doesn't say that she that mrs green has to admit that she injured her child and no respect for a no constitutional court would green sought treatment she had to go to a psychiatrist dollars of the kind of stuff and as they tried to work with her what did they do that you presented what proof did you present that they somehow or other did something agree just that violated the constitution that violated the constitution really forcing the parents to incriminate themselves in order as a condition is such that successfully complete their treatment plan in order to get their child back and so that's what they did they held their child over their head i thought what they wanted him to the psychiatrist testified that what they wanted her to do was to acknowledge that she suffered from this condition  syndrome the testimony of the show's social workers and the state court proceeding was and in particular the lats had we had the opportunity to cross examine defense's expert about the exhibit twelve and the court's findings in her testimony social worker how do you what's testified that because they failed to admit they harmed their child they didn't successfully complete that treatment plan ok so that's and you told that story you know what you're complaining about is you doing it would you really complain if you can get to use the super period or the distance state district the admission of defense's expert dr jenny and the social the head of the department sara korbel way to testify because not only is there testimony irrelevant but it's highly prejudicial and it it also it's not irrelevant because you're calling in to your calling into question their behavior about what they did and abuse proceeding we're talking about state law and with a what is what was this the trial that we're reviewing what was the what was the cause of action one thousand nine hundred three right correct ok and what did you have to prove you had to prove that they violated a constitutional right and that it was clearly established so they've got to be able to defend themselves as to what they did and then it's up to the jury to decide that i mean you brought it it's front and  leave at this and that is that the the case i cited to you again also when we talk about a clearly established stablished right is that the social workers are mune all only in the event of carrying out quite as they dish will functions more importantly they waive the immunity this is the fourth shot they've taken yet qualified immunity in this you representing the family i represented them also in the state court proceedings in answer to the course inquiry of what specifically did they do i can identify from exhibit twelve which are the findings and conclusions of the state district court judge in returning the child to the family after a five day trial in which the court identified several elements of the state's conduct which had we been able to introduce it in evidence could have argued it to the jury and cross examined core belief actively she's the division head of the department who brought this case to be and is also an attorney and had i been able to use that exhibit in cross examination of her i would have been able to show that finding in fact number nineteen and but the opinion to not determine whether the department had proceeded in good faith so and we were reviewed that for abuse of discretion correct and so you have to tell me how the district court abused its discretion in limiting references to the state court's opinion on cross examination because one of the things that you can say is hey i don't want to get into a whole mini trial over something else and in that sixty six page decision the determination was whether parental rights would be terminated or not which they prevailed on that but it doesn't but that's not race judicata as to the issues that you have to decide in in one thousand nine hundred three case the duty of good faith reference by the district court they did in regard to the duty of incrimination i'm reporting to the record where had we been able to use this when i read mr green's testimony that he testified that that was what he was they were upset about if they wanted them to basically fess up to a crime yeah yeah if they heard that the injured their child as a condition of passing the requirements so that i was going to do that because we didn't do it we didn't harm or child we were working with doctors yes right yes and as a condition of passing the plan to the department satisfaction he had to admit that he harmed a child that was a condition of it and the district court in this exhibit which i could not introduce in evidence describes how that happened at paragraph  law number eighteen it's our record page one ten the district court describes the fifth amendment right of the family to remain silent and yet the condition of the state of montana was they had to admit to incriminating evidence of child abuse proving that they violated that right and it seemed to me when i was reading all this stuff that what the part wanted specially mrs green to do w control that's what i not that they were forcing them to admit that they intentionally injured their child it is the latter because ideally you know it's like a he think he testified or somebody was talking about the twelve steps or whatever you know they're part of the the process of getting control of the whatever with whatever condition she suffered  from i can also cite to several different parts distribution of law in this exhibit that answers the court's question how the district court found that the family's right to unity in your honor in response to your questions about  citations to the clearly established right there those cases are cited by us on pages twenty seven twenty eight and twenty nine of our brief they involve meyer vs nebraska prince versus massachusetts corporally the expert in mit that the district court found at the manner in which the department implemented this plan and forced the family to admit to harming their child which is not done and was a violation of the right to family integrity not in compliance with the plan and a violation of their fifth amendment right to be free of self incrimination ok thank you i'll get it one of you a chance for rebuttal thank you judge max davis for lute i disagree with with my colleague mr karem there were ships passing in the night on this i think we're both focused on the same issues and frankly judge callahan i gree with you cannot hundred three jeopardy it doesn't exist and this case should have been just because there's an you know the one thousand nine hundred three claim doesn't mean there's any criminal connotation by that part of the judge but he used the word jeopardy and that relates to well i'm sorry for criminal cases no i'm not suggesting a little kind of i'm suggesting liability the district court let this case go to trial on a const on the merits of a constant of an alleged constitutional claim and i and so they had to prove up their claim deliberate indifference to violating the substantive right of family integrity i agree in our case law knowledge recognizes such a right for purposes of just the first step it recognizes that that right exists but it also recognizes that that right is not unconditional yes of and so they have to prove it by deliberate indifference which is almost it which is one of the extreme levels of proof standard only arose after a state district court had taken little e g d from her parents in june of two thousand and five well yeah and judge christiansen said you know i'm going to go after that understood and they dropped it they had dropped the right to the original social worker who was involved in the decision in billings in may of two thousand and five two to tell mrs green you cannot take your daughter out of the hospital and then the next week court civil proceedings were begun in bozeman and galton county to remove e g from her parents and put her in a foster care and that was confirmed in several successive proceedings and so again my point going back to two picking up on judge callahan's exchange with opposing counsel is where is this right so clearly defined by the decision of the united states supreme court that once a child has been removed by a court extending the parents for all the pope panoply of due process rights that it's so clearly established for the purposes of nine hundred eighty three liability well that but ok but you're approaching this from it seems to me all right you have the trial ok and then you got to trial issues to the district court abuses discretion allowing dr jennings and serach or belated testifies to expert witnesses the second issue is did they just record abuses discretion and not allowing the greens to use the state court opinion in cross examination then lastly you raise did the district court error in denying letson filson qualified immunity i was jumping to  well ok so the counsel for the green seems to indicate because you didn't immediately file qualified immunity and you actually went to trial and qualified immunity is to protect you from going to trial that you still can't claim that i'm not sure that's a correct statement of the law but so from your perspective i guess i think you're asserting there's two ways that you fail you can prevail on the first two issues if the district court didn't air or you can forget about the first two issues and say they were entitled to qualified immunity and then you're have to get to the first two issues m i a wrong or right  are right and you can take it even one further step that if we're wrong on the first two issues you can still dismiss the case based on qualified immunity so i don't know if i'm repeating it or giving you a third choice but clearly and i  conduct and i think there's a wide scope of relevance under those circumstances if you're being super super the experts well my understanding the defendant that you're saying that the experts were you were presenting evidence  had been medically abused and her health improved when she was removed from her parents and let's and filson properly handled the treatment plans while e g was in state custody yes and i think the record reflects that ms lutes consulted with a colorado pediatrician dr donna rosenberg who said this was a case in the term was munchausen syndrome by proxy it's dr jenny didn't like that term and used medical child abuse but it's basically the same conduct the because of a psychological deficit psychiatric deficit in the parent that they projected on to the child the need for unnecessary medical care that that was the problem and then s for quite a long time right what was going for a lot child was gone from the child was i am from june of zero five until basically january of zero eight yes right now when the child came back she didn't have a it was it took some longer period of time there had to be testing done it's called motility testing to make sure you know when you're getting your large intestine has been disconnected from the digestive system for an extended period of time over several years will it work if we pull out that the bag that proves successful then the surgery was performed in denver i forget the exact date but it was after several years and it and the surgery was successful so on this december fourteenth two thousand seven opinion they wanted to cross examine on it that they just want to put the whole opinion to evidence well i understand because they wanted to offer it as an exhibit exhibit judge christians and i think very correctly determined it isn't something that of wh can take judicial notice under a rule to a one it's not an adjudicative fact and it it opened a pandora's you know beyond that it opened a practical pandora's box i mean the plaintiff wants to say we want to try this narrow issue of  plaintiffs the greens having been forced to incriminate themselves as a condition of getting their child back i'd like you judge pays i don't think that's a correct reading of what the social workers were trying to do in two thousand seven but but more importantly it would have you know everything the idea that this would be a nearly trite case everything became you know we would be litigating the entire proceeding over to an f yours based on judge brown she was offered to prove what to prove that the this was real that the conditions that prompted miss lutes and miss filson to want to have the greens come to grips with what had happened was legitimate that it wasn't something created out of whole cloth some kind of malicious conspiracy to take their to e g away from her parents for no good reason well it's mental health and by proxy is something that the normal person would know what it is with out an expert testifying i think my understanding from the social workers is they had some rudimentary knowledge of it but no you need some pretty specialized medical opinion and that's why they reached reason and again we had i think seven different topics on which we proposed to have misc or believe testify and she she only testified on the last two six and seven  conduct no they're not acting maliciously they're doing their job properly to do this to take these steps and the other pointed out raises each one of these steps i mean what they're facing liability they were acting and hand in hand with the county attorney and we have presented her i mean if she's the one who filed the petition to terminate parental rights ms dudek and again there's no evidence that miss filson or miss loose control the county attorney and eighty three liability for that pursuing that which is the lead to the creation of exhibit twelve is is is is is one step further away from from the the basis for there being any one nine hundred eighty three liability i mean just get farther and farther away and again to go to a i go back to my point this case yes i think judge christiansen erred by failing to dismiss it on qualified immunity grounds there are cases which the cases which the green cite pearson versus callahan and mitchell versus forsyth the two supreme court cases don't stand for the proposition that you somehow waive your nine hundred eighty three rights by not and obviously particularly would judge anglin as a trial judge you know we are you have no control over when the judge decides that and he did decided on the eve of trial we made a calculated decision then with witnesses coming or whatever we were going to go to we would go to trial but preserve that i don't think there's any jurisprudence or says you know by going to trial when you could have stopped the trial and sought an interlocutory appeal you waived it that that seems to be the argument in those two supreme court cases do not say that so we haven't waived it and the point is if it's if it's the kind of right the gives rise to an interlocutory appeal it seems to me it's an implicit concession by the this is an important right and i mean you can be raising but i think the case like goes on to say that it if you get when you get a qualified immunity analysis after trial and you're down to the second step you look at the facts that were presented at trial oh absolutely other than with the alleged in the summary judgment with alleged no disagreement a factual predicates of change when it gets dry but we get back to as judge callahan suggested and you've suggested that you know if we're wrong on the evidence or shot in response to mr davis reference to the waiver of the immunity defense and again he references  callahan that court held that if the case is allowed to go to trial after final judgment that defense is effectively  their expert dr jenny testified effectively that m s munchausen syndrome by proxy was junk science and that they ought to have relied on in fact gave the opinion that in federal district court that child medical abuse is a proper diagnosis that this is an ass ex post facto opinion and theory that the the defendant's edwards come up with testified in the underlying state case what the what the defendants did not have you before them is this new theory of medical trials abuse that this is a new case and i will say this is right new case is this is a separate new case brought under a federal civil rights statute where you allege that the defendant violated your client constitutional rights you had the burden of proof yes your honor due process violation which is really tough it is tough and that is why it's so prejudicial that these two experts who are allowed to testify would the  defendants were allowed to do is put the plaintiffs in a tenuous situation to have a second trial and put on a defense to this now collateral trial issue introduced child abuse  this constitutional case issue and that they were allowed to mislead the jury and confuse the issue confuse the issue with a constitutional one against a state issue ok think we got it thank you thank you counsel we appreciate your argument the matters