please the court this entire case rests on allegations that a judge was misled to order the temporary removal of children based on child abuse but there's nothing alleged about the affidavit supporting the removal that was misleading the affidavits accurately describe a physical injury to a boy eleven year old boy a black eye and they recount his explanation of what happened my mother hit me in the eye after saying better get your review paperwork for school whatever alternative explanation there may have been for the black eye that is for the adversary process not a constitutional challenge to the basis for removal ok you jumping and that's appropriate but so you aren't saying we should wait for a marrow and you're not saying we should vacate remain and because qualified immunity wasn't looked at in the first instance you're saying go ahead and dive into the fourth amendment franks issue and if you reconstruct the south a day that that that's where you want to go i'm happy to discuss and know what your per your what your favorite ruling if you were writing it would be go ahead and get to the fourth amendment in franks at seem to be are your starting as your honor the court has everything that it needs right now on this record to rule for my clients that they're entitled to dismissal the point about remember i'd like to redress briefly because of course in the romero case of the discussion that centers on a situation where there are there was essentially zero or atlas or moving no i don't remember well i just i guess some there's a lot in the briefs about the fourteenth amendment in the fourth amendment but it seemed to me that pretty much we've said clearly established that if there's a fourth amendment violation that would be a procedural due process violation so we can simplify the case to that look at gates look at war nicky to and just go right to the way you began your argument if texas except framing the question incorrectly if we put that information in for the texas court that was given the affidavit is it plausible that there was a fourth amendment injury because the four elements of two sixty two one zero one might not have been found it is not possible ok and if it were plausible it wouldn't have been able to be resolved at the state that it was right at the most into dismissed you know ok so you've got to establish that putting all that stuff in that she says was left out still doesn't make it plausible that a texas court wouldn't have issued that emergency child removal order i think that i think that's right  in other words the plaintiffs would have to point to some misstatement or omission that but for that content the the basis also say that the mother the father the sibling all said it was an accident and yet miss hudson didn't tell the texas any of that instead she made the affirmative misrepresentation that the father said ok i'll take the kid into a safety protocol with me because of the injury so that that looks to me and not just a mission that's a false statement going to you know how do you respond to that i respond to that by saying that the plane are still under that reconstructed affidavit doctrine haven't shown that materiality because there's still a core of undisputed your honor i don't think that's the character characterization of the allegation complaint doesn't say that the father the sibling and the mother all said it was an accident instead of a deliberate physical abuse the the alligator the key allegation is it's the word intentionally i underlined by the no one disputes there were some physical encounter between the mother and the child and the child again made an outcry of abuse and if we're talking about especially a qualified immunity posture where you've got an investigator who is presenting what happened here there's no clearly established points that the qualified immunity then then then we would just let the district do that the first instance possibly so if we're going to jump ahead how is it not relevant to tell a court oh again with the four to sixty two elements the last one is things other than removal and yet if i remember hudson south a david said every time i went to her she hid and yet in the complaint she says no i was in a movie i wasn't wasn't there well that that would  pretty relevant to decide if things lesser than taking it from the mother would be relevant facts like that where the mother was i mean what is challenging is things that are decided through the adversary process not undermining the basis for probable cause what is it is to be done i think for nicky to is the closest analogue but of course it's unpublished in a more nikita the court said we can look to the reconstructed affidavit doctrine under criminal probable cause and apply it in this one a key two says fourth amendment franks but then the analysis of what has to go into it is texas family code two sixty two one zero two and then maybe that may be true but it's an awful case regardless but that's what gates pointed to also fair enough but if if if that's the standard you would still have to looks at something that negated the basis for the statutory factors negative any of the fore but again the key word negated and the plaintiffs haven't brought that slide because you've got the black guy you've got the child making a call to police reporting abuse at the hands of his mother he's got an explanation that this he's been hit by the mother and maybe there is an alternative explanation within the mother's knowledge that she would like to present but that's not a basis to negate probable cause it would be like in the criminal context where someone is laying on the street making a complaint to a police officer you know i i've just been beaten up this person over there beat me up that goes in the you know probable cause affidavit it would be like faulting that officer for not including the alleged perpetrators account of what happened  no no he just he felt i mean it it doesn't just because there's another possible explanation for what happened doesn't negate the basis but if i pass hairsplitting i mean it's plausible that it would right you're saying dearborn that's ok a complete lie to get the removal of out whatever it was sexual harassment that's that's that's acceptable whereas here it's not even plausible that saying that three different people said it was an accident just telling the court that as opposed to the social workers narrative that nope father greed i want to be very clear we're not saying that what happened in the more sources dearborn case was ok i think that was very problematic what happened was a complete fabrication right i know that i think that whether you accept that that was not ok what happened and i know what you're seeing there for the logic the fourth member lation is acceptable there because it was a complete fabrication but this is something less and i'm saying but we're still at a stage where all they have to do is a sort of plausible for the moment injury that is laws a bill that had to a court would have thought these are material facts that i would like to have known that if instead of the father saying it was an injury the father said i think it was an accident again morrison is not a fourth amendment case that had to do with due process that sort of constant shocking behavior when you've got a complete fabrication of evidence that's one thing this is not a fabrication of evidence case this is at most a fourth amendment question you've got a father who i'm not i don't believe there's any allegation that he observed what happened and you've got another account from the mother who in this situation is a very interested party potentially the perpetrator of the abuse  addition that this is primarily dealing with omission that that other constructions of what happened were not stated to such that the magistrate would been aware of it but is there potentially false statement in this af that's not what happened i mean that's for the adversary process that doesn't make it a constitutional violation there are different things and you'd have to negate the basis for probable cause he keeps the public cost but it's not the if for example the fourth element is what i'm focusing on or under texas law you have to make sure that there are lesser alternatives to removal but miss hudson said told the texas court that the mother agreed that the child should go to the father and yet in their complaint she's saying she did so that goes pretty directly didn't they getting that fourth all thing as good but it doesn't your honor because it the end of the day the the allegation  is that that social worker one of the child to go to the father and that that didn't happen like the ultimate thing that needed to happen to prevent removal it seems to be from the allegations was that the child one child the problematic incident that there's had to be some sort of time with the father for some sort of counselling course a bit but it didn't happen there was it there was the child was removed the child is now back in the custody of someone who by the child's own description has has hit him in the eye in the act of abuse it regardless again if i can turn to the qualified immunity part of the argument briefly and the question is just the reasonable ness of an investigator in this situation there's certainly no clearly established case law that you can't look at a child who has an obvious black guy who's telling you my mother hit me in the eye if you're saying you better get your paperwork for school  n not look at that situation and think a you know there's a probability that this is some abuse and look at the other statutory factors for example their militias disputing that you need to remove a child that has been physically abused from the issue is no reasonable officer would think you can lie to a texas court in order to get a removal order they know that they know frank's that's clearly established well you've accepted that whole framework is the framework is fine but it it doesn't apply here in the pla have not explained or alleged a way that they fall short of frank's and a reasonable investigator acting in the states a very important interest of keeping kids safe from physical abuse that could could look at a situation like this and and very reasonably say that there is a basis for this temporary removal there's no complaint about the procedure followed under state law in this case that there's that ex parte order and then there's a hearing held to confirm the basis for removal and after that was held the removal continued for some period of time but there's no claim that the procedure was not followed there's no claim that the procedure itself was insufficient to protect anyone's rights most there's an interest in family integrity but there's also an important countervailing state interest in protecting kids from child abuse if you're just talking about the reasonable ness of an official like like my client you've got the child who is saying that i've been hidden the and whatever alternative facts there may be none of them negates the basis for that injury the observed injury plainer says have not pointed you to any authority that would make that presentation of the facts unreasonable and they've certainly not presented any authority that it would entitle them to the parent or the alleged abuser to a sort of shading of the facts in a way that would suggest no abuse so if there are no other questions homeless at school barbara marx was a work for c p s taking care of force to children in till he acted out of line and they took that right away from a because she had a problem child at her house and who needs certain drugs so he doesn't get violent or mad in this situation barbara was in her bedroom with the baby and george was acting up when she tried to push him out of the room and he got a black eye by accident he called the police the police came by and told barbara he should spanked and told the kid to clean up the mess that's important and then all of a sudden we have miss hudson who interviews a child at school without any consent of the parent and of according to our complaint he told her it was an accident and she knew he was a problem child that's very important she knew this she knew the mind was a problem child and then if you look at her affidavit it's all complete lies and one of them was no reasonable efforts to prevent removal there was no effort physically abusing her son she loves her son she was just trying to get him out of the room because the baby was there  and and the i said in the complaint the father even said it was probably an accident and barbara marx did not agree to let her child go live with the husband because he was incapable of caring for that for  the child because he never gives in his medication now what's interesting here why they take three children including a baby well instead of rhetorical questions what would help me is just narrow the constitutional argument down the district court we should affirm the district court because you plausibly alleged a constitutional violation as are and finish the sentence ok violation to what that the children removed unreasonably in violation of their for the moment rights and the mother has a fourteenth amendment right in the custody coextensive with the fourth amendment right yet and it seems to me texas or the attorney for mrs hudson today is accepting that framework but the is ok give me all your omissions and misrepresentations put them back in the affidavit and it doesn't negate any of the four elements the texas law requires to remove a child so why did you give me the single most important fact that if put back in that affidavit would've meant that to sixty two wouldn't actually if you only give me your best one the best one was she doesn't physically abuse or child she did not physically a social worker why is that a fact it seems to me that it's true you're not disputing it that the boy did say that that he was hit by his mom except that's what we allege on complaint but i think what's important your honor if you would have told the court well he was hit in the eye but it was an accident that court probably would have issued that ex parte order and then the other items in it that are important in my opinion barbara mark refused to open the door when defendant hudson showed up they weren't even home they were at the movie theater watching star wars and like i said barbara never agreed they wanted i guess miss hudson in their affidavit said she wanted the kids to go live with the father and that barb would not agree to it because her husband is incapable of taking care of the children and that's one of the main issues and also you run a deal at the temporary ex parte removal until you have a hearing right i'm taking the child out we can get everybody in here find out what's happening even if i'd known they now say it's an accident a lot of people persuade their children to say it was an accident and until i can get the child and her body in the court let's have a hearing why don't you take the risk of leaving the child there because the so sure can knew your honor it was an accent and did not disclose it to well just the sausage or worker tells me the judge that the parents say it was an accident i'm not sure i'm not going to necessarily accept that as a judge i want to take the risk put the child in safe custody until we can have a hearing but your honor if they knew the child was a problem child which is important they from a judge's perspective a child has a physical injury has called the police has made the allegation and i don't care what everybody says after the fact until i can have everybody in and sorted out i'm going to remove that child that's just me ok but let me if i move when they have the hearing miss hudson didn't even show up she was on vacation and there was no hearing how do you cross examined and after david when the when when the social workers not there all we had was mr denton who basically testified it was a serious injury and it wasn't that was the only testimony and it was a very important she got her kids back four months later when a new social worker took over and the new social worker told the well we should never take the kids begin with but you just might want to forget about this and move on that's why she got a kid's back not through any court order they gave the kids back yet you know you talk about several different but i haven't and i maybe some allegation in your complaint but but it looks to me it on the face of the affidavit these are truthful statements about what hudson had been told what she actually believed or not i maybe change the story at some point but what is relevant in front of the judge and it is era constitutional violation by not showing all the conflict in points that other people who may have their own interests and what they want to say what they had indicated so where is this looking at the next court hearing what are you saying is the cost attritional violation not what you think is a false statement in there but what would have  been knowingly false that you have alleged in that affidavit at the time that it was made in whatever month it was and and when the export removal hearing or exporting removal occurred i would say you're making the assertion that she physically abuses her her or her child now once you hear physically abuse is that's a huge if i was a judge i would say take the child but if she would have said well it's not physically  physical abuse it a poking i and it could have been an accident maybe it was an accident this is what i was told by the child judge might say well i won't write the order i need to consider it but when you say the assertion physically abusing your child that you for a judge and it's fair that if you are physically and using your child that child should be taken we are looking at the four elements of two sixty two correct yes so you're saying the element that would have been it is the first one that there was no imminent harm and had three people been put into the affidavit of saying it was an accident the judge might have agreed i don't have enough proof of imminent harm that is correct or yes you're not making an argument as to the fourth element that there were alternatives to removal would it have been both wrong and they could have been i agree with the first one this also was autonomous they should not have been taking that and the alternatives hudson didn't give the the court the opportunity to consider that because hudson said the mother agrees it should be removed go to the dad that's contradicted i was alive and because hudson says the mother was hiding from me but instead the complaint says that it was a way to movie have a lot of warrant in the fifth circuit we have the morris vs the a born where we had a teacher who lived and they took a child away for i believe a year or two but here is four months you know at the point dearborn is not that shock the conscience complete fabrication and his argument is here the kid said i got hit by my mother and lo and behold he did have an eye injury that's correct that's not at all shock the conscience but that's just a really close call and you want to judge to have all pertinent narratives new information relating to it may be a plausible for the moment but it doesn't seem to be a plausible dearborne shock the conscience argument in that respect yes but if if the social workers omitting a lot of lot of substantial facts that none of the whole case comes down to did a lot of substantial facts get omitted when you still have the kid saying my mother hit me and lo and behold there's an injury that's what it is correct  and it may be that that that that isn't a plausible for them and argument those may have been better things to put in but they may not negate anyway that's a closer it's closer call and then if and then you're out for the other issue would be well ok let's say it was a close call for the child who started the problem why would you take the baby and why would you take the other child you know that's and using the same is the same statements in those there was three affidavits filed and they were there with a mirror image of each other i think that's another issue with respect to well and but i still believe this still a constitutional violation based on this whole episode of a sequence of events and she was even at the hearing to testify thus there was no ability to cross examine him nothing was resolved there was no issues pinpointed there was no litigation of it actually just this was an accident they were there like you said this was an accident and we told the c p s investigator was an accident but because my understanding is they did not the hearing was like a minute because the social worker did not show up this is my understanding of how that court with on that day i don't see why i put that on the social worker that the parents could have said at that hearing i want my a call then she could to subpoena them that they had an opportunity for a hearing and the judge still didn't give the children back but the really there was a hearing on paper but there was a hearing because the social worker was on leave she did not show up i don't understand how that precludes the mother from saying i did not have my child he now concedes it was an accident here's what happened i can  the judge has a will or does it poorly isn't hutchings responsibility at an end for any kind of constitutional obligation or if not sort of explore that with me what we don't know if i understand  she should not have we believe she has a constitutional violation because she took that she took three children right to to tell me why the family hearing doesn't at least in the effect of her violation regardless of where there might be some remedy for the time period we're going to use and all of that somebody else's responsibility because you want it it was never litigated and she did not show up i think that's important she could have shown how that fit into the force and fourteenth if we're right that there was an intervening cause because the state district court judge got involved and said you don't make an ex parte order permanent hat there was a period we're just looking at the time between the the ex part the saying nothing really like i said nothing really got ruled out you know and wasim we disagree you know stand against him ok that's just the same we disagree on it and we're if we did we're looking at the time from the time that she would swear out that a cut off point from the hearing this still a one like a one month delay but as it was at least a one month that the children removed and they went with the with the with the father and all the the well the two children went with the father the baby went to a foster home somewhere up in by the woodlands in texas and when she finally got the child back the child got some problems right now pushy was gone for four months and the other two children were moved to a noose different school district they were bullied then when they come back that they had some problems readjusting because they were removed from their mother and put into a bad situation with their father who really didn't want them because he couldn't take care of them that's the issue for that one month but i see what judge southwick is saying about possibly cut off of liability from the time of the x party through the through the time they were they were removed but respect to making omissions and statements franks which you're on it said before there's also city and county of san francisco versus she and supreme court case two thousand and fifteen there's also snow filed on behalf of your client this is this was an accident i say it's an accident that the child who's injured now says it was an accident and none of what the social worker said was true about that was that put in front of the state district court judge before the hearing as our record rather but i'm not sure i don't believe so but she hired some attorneys that filed appeals with the appear with the appellate court but they never got to rule on it because the children were removed  ere returned four months later i'm sent to the district court the district court judge what did that judge have in front of him or that i don't know honestly thank you something that looks like what your honor was describing in those records i just don't have more information on that but i think the result of that would be that what's left out there is this a child who said my mother hit me in the eye and has a black  and called police and you know if the court just does this reconstructed affidavit exercise and goes through some of the most important facts and the most important thing is that the other side is set or are at play that the mother doesn't physically abuse her children and i don't think you can add that in a way that would negate the fact that the child has described physical abuse being hit in the eye or that it's not a serious injury these are essentially characterizations you've got observe ations personal observations from social workers from officials obviously there are there have been advanced different explanations for what happened or things that were within the plaintiff's own zero knowledge that they want to fault the social workers for not the breaks case law if anything is a really strict reminder to government officials that before you sees things and people especially for as long as a month a child from a parent you give the court that's going to authorize the seizure everything positive and negative you can't just say well here's my story that most presents the mother as an abuser but every piece of contradicting evidence that's a characterization it's an opinion it's not reliable i'm just not going to tell the court about it because i want to get that order and i want to see the job so i think you are very understating the importance of what frank does all this characterization criticism is for a judge to have it is not for the social worker to weed out what it doesn't believe it's for a judge to have at the appropriate hearing  stage here we're talking about an ex parte order where the judge has to keep children safe based on this core of undisputed allegations and if eight child is is has a black eye and is telling investigators my mother hit me in the eye and you can look at the of the statutory factors what if there happened to be a police officer in the room that sought and it didn't happen but the child still said it did happen and the child had a black eye i could to so sure just not put that neutral observers observation suppose there are going to be closer cases like that one where you know we have sibling and a father and the mother who did this is what you tell judges and then then they say ok i'll take responsibility you have authority to remove the child because i've considered everything if they're always going to have authority to seize children if they can excise out anything that's at all problematic i don't think that's a fair characterization of the out of of the allegations here you have  this alleged perpetrator of the abuse so not a neutral witness someone another child who very well may be within the zone of danger herself for the risk of abuse not a neutral witness and a father who for all appearances wasn't wasn't no one is reliable except the social worker the child the child's own description of being in eleven year old boys saying my mother hit me in the eye it is difficult to imagine any reasonable social worker going into a situation like that and thinking that clearly established law requires her to shade or include any of those other pieces of supposedly evidence in the affidavit in a way that would suggest  dear made to your honor's point about whether there were alternatives for removal it for that brief time that ex parte order to protect kids from abuse there sometimes there just maybe not be an alternative and here i think the court has focused a little bit on some agreement with the father allegations that the father was going to take the kid as an alternative or just look at what's alleged to have happened whatever was agreed to or not agreed to allegedly the kids were not allowed to be with the father that did not pan out for one way or the other the kids were still in the mother's possession and looking at that the judge is left with no conclusion but the fact that children who were allegedly abused are still in the possession of the alleged abuser let me ask you zappa david back in december looking through it there is nothing would you agree there's nothing in the affidavit that would cause raise a question w about whether the child was actually hit by the mother the mother you know guards would happen and you could read the affidavit says in different ways and knocked on the door and she did not answer maybe she's saying she thought she was you are ordering for you there is clearly established or just as a constitutional issue generally is that of you know social worker in presenting this kind of affidavit can present just the negative information without any concern about a whole a right whether has to be a strong evidence as my colleague mentioned the very reputable person who will do so at all and disagrees we gardeners know who you say the law is clearly established or the constitutional violation requires or allows the constitution allows no contrary information all contrary information to be left out of the affidavit that every as we've that people in this want to work with would know they could do that i would not know they could not do that i think there at some level there starts to be information where it starts to become material but we're nowhere close to that level of allegation here again because the what do you mean by that at some stage it would be an obligation but factually we just not there but it's that it's that things like well she observed that the lights being off knowing the door but we were at the movies i mean these are just your characterizations of observations or are counting one a victim and not including suppose a testimony from people who are interested or didn't observe it so thank you