not sealed it does seem that there are some some descriptions of the minors and medical circumstances which i don't need to be discussed and i like all sides to take appropriate discretion here and of course a either the child or the child's parents even when ronald writes in up in terminated in this case our argument is that the right to treat by the government actors here did not exist under the constitution it's not our argument it's not our case that the method of treatment or the means of treatment rose to the level of a one nine hundred eighty three violation but rather that the government discharged on april ninth two thousand and seven to some months during admission she returned ten days later and stayed another thirty days at the hospital there is no dispute that during that time period the mother's parental rights were had been terminated they were not terminated they stayed intact everybody agrees but during that time period the district government through the agents and the health care providers at the private hospital  operating under the color of state law first arrived in administered a number of anti psychotic atypical psychotic medications to a then seven year old they never received consent to do this they never saw from the nation from the court to do it they never asked the mother if they could do it and they even pressed that by going discovery in this matter that the hospital testify that they believed they had to get the consent from the parents but they asked the government the district government the district government and a number of occasions gave consent we have twenty five or so instances that we claim are the issue and there's about eleven consent forms from the district government that tha been produced in the case and the other times they say well we don't know where they are neither the district of columbia government nor a private hospital hospital operating under the state law can simply pick a child into custody and administer anti psychotic medications one point zero rights have not been terminated and to take a child beginning ministering those kind of medications to take anybody and begin ministering those medications of violates the fifth amendment due process right now importantly that would be the case even if the medication was prescribed appropriately of course in this case we do have other claims beyond the section one hundred three claim we have a medical malpractise negligence claim that is pending as well as a medical failure to obtain informed consent case those are not at issue here and the district court did not rule on those claims instead remanded them  court because of the state law of nature of them but here under this circumstance where there is no authority for the government to consent to this medication behalf of the child even if everything was done even if the experts at all agreed that the standard of care had been followed to a t it would still be a violation of the due process rights of this child because there exists a liberty interest in being free from these types of medications so again our argument is not that the negligence or the medical malpractise rose to such a height that it that creates that is not our argument in this case that would be as at least one court has said i think putting eight the font of ninety of ninety three on top of tort law state torah law that is not what our allegations are here the district court correctly stated in its opinion that the supreme court has emphasized time and again that the touchstone of due process is the protection of the individual against arbitrary action of government and that was citing county of sacramento over slowest five twenty three us equal just to look at it from the other perspective the child's taken by the district and then the child then the medical professionals say the child is at risk unless and i'm using that close but at risk or should receive certain kinds of treatment and it is evidence and the record suggests that was within the bounds of reasonable medical judgment i know you're going to contest that separately but what's wrong with all that in terms of once they have taken custody of a child to make sure that the child in other words if they hadn't given the treatment sure they hadn't given the treatment i could see you coming in and saying and wait a second but should have given some treatment to this child rather than allowing you know imagine  scenario certainly and i think the answer that your honor is the amount of time that has has passed during this period i would agree with your honor if we were talking about the first day of admission maybe the second day the third day there is a point in  claim about a part of our case the reason we think that that's not an appropriate claim is because in those instances what we learned in discovery those were often times reactions to the child putting herself in danger putting others in danger clothing staff and other children at the facility but when we're talking about the decision to medicate over a period of six or seven months here there is a time period where the deliberate indifference the indifference of the hospital or the government to go to court and say we need approval to be able to medicate or to bring the mother in and say we would like your consent to medicate appropriately under certain circumstances this is this is similar they indicated that well the policy was changed sometime between two thousand and seven and two thousand and nine well that's after after the fact cope until that point nobody has been able to articulate what that policy or or or procedure was so given the time period not just in india will come up with a policy or procedure but in this particular instance where the child was admitted for six months and they had the opportunity to say we need to go to the court because we are prescribe being administering anti psychotic medications to this child there was never an attempt to do that there was never an attempt to get or cruel there was nobody looking out for this child's fifth amendment  process rights only agency had custody right the child and family services agency agency had custody but parental rights and not been terminated at that point and they never wore the right that they had cause to use it reasonable to go in one of the parents lost a child custody of a child for an uncle act to count on the parent to make the decisions for them medical treatment perhaps not which in a court determined that as opposed to the agency itself without taking any steps to do that and again be but does it rise to the wall of to a difference again i could see their claim that actually would be if you're tired of a child's rights if a parent to his lost custody because of neglect is given the absolute veto over a child's medical care even though they've lost custody because of neglect are going to trust that person to make the decisions for the trial and that's certainly a valid one i think that's the point that was raised in the case quite honestly were that where the  supreme court was testing that sort of tension between the child's rights and the parents rights and ultimately was looking at the policies and procedures that were in place at the state to say stage and worse you know are these questions that a jury should be deciding as opposed to the court as a matter a lot and were entitled to i believe to the inference that those are facts that a jury could determine that didn't shock the conscience at that point in this court the truck the conscious idea so in your brief you say first year to find out there is liberty interest then you have to decide in order recover damages whether screen court has spoken to the fact that there is a liberty interest in being far away from these you know a lot of dick or whatever category yes yes but but normally as as you correctly point out in the doctrine first you identify the liberty interests decide where that's been violated and then you move on to the question of whether that constitutes violation of basically subsumed due process rights yes so is there no line in this case between those two things well i think the line your honor is the fact that over a period of six months nobody was that was attempting to get you to respect the liberty interest in other words we have we have children being taken into custody it is his respect for the liberty interest the the the administration of the medications although there is a liberty interest because of the timing because the needs of the child are wouldn't necessarily amount to a violation of it this is the balancing that has to happen that is the scuffles that in younger that it's the person's consent was overboard you also have to show or it has to be shown that the state didn't have a countervailing interest rate that's right so what's the how do we get to that second step in this case what evidence do you hear now that not only was the liberty interest violated block that it was done in circumstances where there's cameras asking where there wasn't enough there was plenty of time or in the other things well i think the simply the fact the time period of the of the admission in general of being over a period of six months and we have a state actor over six months continuing to medicate a minor in their custody when they know where the mother is recalled there is evidence in the record that the mother visited her child at the at the hospital and was there for certain meetings but never did she sign off at what point is the government just overreaching by saying this is in our we have the authority to do that to administer records without any consideration for inquiring of the parent who's here or or taking the step of going to court and saying we know printer rights haven't been terminated but we've seen this person this is the reason we want the authority to be able to administer these are these medications nobody ever took those steps over a period of time i mean that that i think is the question where you get this becomes a jury question of does that shock the conscience and that's again the butera case was a little different factually but the holding in it did was that when you have this time period it can go on to a point where you say this does rise to a due process violation and again just to contrast it with the seclusion issue in this case i can see that in those cases those are snap decisions were made if you don't have the time to respond to to see consent or seek court order but when the medication and again recall to the medication program was changed continually abouts more the subject of our medical malpractise claim but there was a change after change after change after change this was not one time where a medication was elected to be given was shown to be working and so it was continue this was your view would be that every time it's shades of some or maybe every time it's of mr rich i certainly think that well i think that the administration is the is is the issue i don't know that if it's prescribed and not given i don't think that that but i but every time there's this i think there is a point in time at during the stay during which in fact the you know perhaps and again i think this is a jury question but i think perhaps you draw the line  where the initial admission of i think it's a twenty one day order expires we still have five months of medicating this child the government just medicating medicating medicating and never going to the mother or the the agency instead and if people are saying we thought we had to go to them the parent we knew parental rights were terminated why did nobody go and ask for permission to do this and it's because there was just a  ignoring of constitutional rights and that's why the jury should hear that even if you know that the mother's parental rights and not in term if you believe that you should be seeking consent from the parent to give these medications and you don't do it few occasions you go to the government and say what we'd like to make this change will you consent and the government says sure will consent isn't that the definition of deliberate indifference towards one's constitutional rights this is over reaching by the government to medicate the child and never take the appropriate steps to have any constitutional authority to do it  undisputed is that the child and family services agency took custody over when she was seven years old due to threats on the clock that they had a court order in place providing them with the custody that wyatt had serious mental law they were interpreting and they made her that it is the beginning of the opinion it was a first impression case and what it was was there is legal custody the definition of legal custody the definition of residual parental rights and the definition of guardianship of the person of a minor i believe it's the third definition and it's the guardianship of the person of the minor that is the the entity that can provide consent it was not entirely clear at that time was that a residual parental rights or was that something that transferred with legal custody in fact in g k at that point in time see if a say was actually took the position that it did not have the legal authority it had why is that that seems curious because of the  record is not entirely clear here and i'm not i don't know that the plaintiffs fully developed when there were instances where there wasn't consent there was certainly a number of instances where their work consent and and so i it's just not clear on this circumstances where even there you would need consent for example the child came in on an emergency application and f d twelve so the medication she was prescribed at that time they could continue to provide to her without seeking consent from a parent or from the agency and there would also be times where the as needed the p r and medication would not need consent and they would not need consent or dosage changes i don't see anything in the record indicates that it was incorrect legally as to those things nor do i see sort of flush out in the record as to whether or not there were instances where consent was not obtained from c f a say that didn't have one of those exceptions i think in the end even if there was instances of medicating where there wasn't consent i don't know that that fits the shock the conscience test that we have here i think just having had it right i mean this is almost the opposite of the harvey case of the smith case where there was deliberate indifference because the agency that had custody of the child did not hear it we have the opposite of that here where we have the agency acting consistent with the medical recommendations consistent with the professional judgment and under young's bir we also have a situation here where i think if actually we need to be careful about saying that no one really knew what the agency or p r debbie was doing i think it's important to just note very quickly mrs jordan was fully aware of the treatment that was being provided me fully aware isn't her work that she was certainly aware of the treatment that was being provided at ph have you she testified that she attended monthly treatment team meetings she also to in the court records and ph have you was submitting records to the court that talked about th exercise that right for the child and so i don't think we're saying that it's not possible for that right to know this but when we're talking about a seven year old who can't you can't actually consent to it is it is a discussion of who can write the consent yarding we just heard creates factual disputes and we believe these are the types of factual disputes that do exist as far as who knew what the policy was when was consent sought does the failure to ask for consent rise to the level of shocking the conscience these are factual issues its horrors who knew what that should not be addressed on summary judgment these are the questions that our jury question and this is what shocks the conscience injury question i think it is refiner cases i'm not saying it's wrong but sounds like a legal inclusion well i think that even if you look at this court's opinion in butera talks about how there are different factual analyses that you can't put a pinpoint right on it and i think  when you have those i think you do become it becomes a jury question i am not aware of anything that says it's not a jury question or that it is or that it is a correct correct your honor just a couple who point to i want to be careful on younger because i think that that is the error report of the error that the district court made young burke talks about whether professional judgment can rise to the level of civil rights violations and in that case the question was awarded the medical professionals doing the right thing in their treatment plan that is not our argument i think this is where were a dispute with the trial court of the district court comes is that that is not our argument our argument is not as i said in the beginning even if the health care providers provided perfect care because they were not getting consent they can still violent due process or simply by saying well the the opposition to the government so that she was present at all the treatment means i'm not sure if that's the case i know she was present at some treatment meetings again though i think those you're you're not necessarily dealing with a  if the obligations on the health care provider as a constitutional matter to get consent then the consent the issue has to be explained and you have to educate or i don't know that it's appropriate to just say well she was there and she didn't say anything i think that's a factual  consented to the court honestly in conclusion there are countless factual issues in this case that need to be be resolved by the district court's summary judgment order should be reverse because the district court failed to consider this issue of getting consent for the treatment and instead look at the treatment in of the itself as the constitutional violation and that is not the claim that was before the court the claim is that the failure to get consent before you even get to treatment that's the constitutional violation not simply the manner of prescribing medications