good morning to avoid for the appellants the coxes despite his finding that both federal law and state law required the state to provide for safety of the children despite the undisputed fact that the state did not provide that safety and despite the fact that the district court found that under both federal and state law the question of whether or not they provided the safety was a question of reasonable notice the district court nevertheless dismissed all of the claims in this case and doing so the district court erred in granting absolute immunity it erred in granting qualified immunity and it construed facts and frankly assumed facts which were not in the record construing certain facts against the non moving party for all of these reasons on this dyno bo review we are asking this court to correct those issues to return this case to the district court for adjudication the way that it should occur with the jurors deciding whether or not the safety that was provided to these boys was reasonable under the circumstances the district court as i mentioned correctly noted that it's well established that a child within the care of the state is o cemented that years before the events of this case that the state owes a duty of reasonable care to the children the counsel it seemed to be to me that the briefing got into some cross talk  yet there's the complaint that includes a negligence claim and then three different theories of negligence one of which had to do with a possible report of abuse but the other two did not is that a fair characterization  no i don't believe so we're talking about the state law and joining us now the state law claims the allegations were these that there's a clearly established duty under state law to provide for safe protection of the children count on that's what i'm trying to get you to focus on the that then your honor the key to this case really is that the state has repeatedly case after case year after year has come before this court and the courts of washington state and they make the same claim every time we don't owe a duty the only duty owe is under the statute twenty six forty four which requires merely that we act reasonably in placement decisions or removal decisions the state has made that claim for years and the state courts of washington have shot it down time after time after time as has this court the foundation of our state tort claims law in two areas one a special relationship existed this is been the law of washington for a long time that it applies to children who are in school it applies to you this who are under the care of the church it applies to people in mental institutions it applies to people in nursing homes it applies to folks who are disabled and are under the judge's order was a superseding intervening cause which relieved the defendants in this case of their obligation to provide safety and the court erred in that on a number of fronts number one the court assumed without evidence in the record the judge nelson had as much information as the law enforcement officers who were warning the social workers that they had concerns about the safety of the boys that judge nelson had as much information as the coxes who had known josh powell for years as his own sister who obviously had known him for many many years the court assumed that the judge knew that visitations were regularly occurring at the powell house when the record does not support that whenever you look through a brief and you see statements of fact without citations to the record as a red flag and if you go back and look at those statements that the state has made about what judge nelson knew about the actual supervising or supervision i'm sorry this visitation location you will find that there is one statement in the record buried within a twenty two page size ten font single space report by dr manley that there was one visit to the house where the social worker was there where the jail was there and where manley was there the colloquy before judge nelson on the february first hearing did not include a statement that visitations were going on mother's disappearance right yes your honor and require they be supervised certainly recognize that there was a danger there was a concern the question was now what right yes the first psychological report had come back and had given a relatively clean bill of health and i would say except in that way the second of course much more concerning so the judge required that the visitations be supervised and no one is second guessing always within the social worker's discretion yes there is nothing in the record that suggested judge nelson ever change that their duty under state law was to make sure that those visitations were reasonable their own policies required that in supervised visitations they either occur it is secure or the s h s facility or at a facility that has been approved for its safety for the children that ladder never occurred in this case so under the circumstances the judge assumed that the court was saying to the social workers it's ok for you to have this at josh's house despite the fact that the court had never been informed that there had not been a safety check at the location despite the fact  s event could occur your honor this is a matter for the jurors to decide yes it may have it may have been that the social workers got there and found that the jails statement about the home appearing to be staged would have come to them and said you know it does look like this home is staged there are potentially weapons in the home it would be simple for him to grab the kids and run or get the kids locked into a part of the house there had been some even with the earlier visitations there had been would have occurred correct that's correct and that was not told to the family law judge correct no your honor nor was the family in july judge informed the josh powell was repeatedly violating her order about not ranting about the coxes about leaving the mormons out of it about not talking about the ongoing litigation all of these things that the court had said in the original visitation order it was very you know i'm sorry the court said it was extremely concerned about the social workers simply did not provide the court that information and that's at the heart and let me get back to your question if i may very quickly your honor that is at the heart of the h b h case and the  question is could a jury have found that if they had done things the way they were supposed to if they had had a supervisor who was actually capable of intervening as opposed to the one that was there if they had actually checked to make sure that it was a safe much the discussion of immunity but what your strongest argument is for deliberate indifference well there's no question that the social workers knew of a unobjective risk nothing had changed since these boys were taken into custody absolutely nothing had changed there was still a question as to whether or not josh powell was involved in the pernod griffin voyeurism and steve bell cells in fact everything had gotten worse because after that they the social workers came to understand that the west valley police had secured these incest you'll pornographic images off of josh's computer showing parents and their and their children engaged in really horrific sexual activity that was brought to the court that amendment came to the court i think on january thirty one and there was a the hearing was february once the next day that's right and the court ordered was clearly concerned in order to dismantle testing so my question goes to how did when you see a risk so what did they know they know the boys had been had been telling their grandparents that they like to sleep in the nude in that they had done that with their dad and then you get incest and incest was pouring from utah that's a big problem they know they believe judge follows already killed one family member that means there's a risk out there attorney along in the placement dependency hearing specifically said it was the worst abuse you could impart upon a person outside of doing it to them in addition there was no devious sess meant undertaken by the social workers despite that being their own policy despite the fact that they knew that there had that they believe there had been substantial d v within the home despite their own policy saying that a d estimate needs to be done at every step of the proceeding what did they do it in investigated all rocky stevenson the c p s investigator closed his file is unfounded before manley's report came back before he'd seen any of the information from utah the first part of the second the the first report thank you there was no supervisor check in other words griffith hall who under d s h as his own guidelines was supposed to be somebody who was trained to make sure that they understood what they were doing griffith hall had never done a home visitation before she had only done visitations at secure facilities their own policies required the person to be able to intervene for the safety of the children griffith hall was sixty five years old  sixty five year old people but yeah but when you've got a sixty five year old female or male for that matter versus a thirty five year old dad in a circumstance where they're isolated and the father has ample opportunity to secret the kids or lock you out or do things that is not somebody who can intervene for the kids so the question is was there a question of whether anyone could have intervened for these children this is a heart wrenching case it is a heart wrenching c so i'm going to reserve a little bit of my time but i do want to finish up with your question about deliberate indifference there was a sea of known object of risk from law enforcement from the c from his sister from the phnom graffiti all of the risks were a risk from josh powell to his kids those risks did not diminish through the course of the dependency up until the day that he slaughtered those boys  jury needs to be able to determine whether in the face of all of those risks the state was deliberately indifferent in not moving visitation back to a secure facility and not assuring that you had a supervisor there who could intervene these are jury issues of reserve the remainder of my time thin an argument order asking counsel to address and your opponent did some recent cases that deal with the duty of the state correct correct and you've obviously read those decisions in fact in the h p h case you were counsel for the state that argued that case right correct why didn't you file a supplemental citation with a score regarding h b h well it's pending before the state supreme court and it's not you don't think you have an ethical obligation to tell this court when there is published opinions of washington state court going absolutely against your position i don't believe ideas we have to dig it out you know my office had this case we've got numerous appellate attorneys and ethical attorneys that are all part of the panel that week and for some reason it was not considered supplemental authority that was pertinent to the t case the underlying facts of this case that unlike law govern this case it's b h doesn't govern the law of this case either for the state claims let alone the federal claims you know we were usually pretty flexible when counsel miss cases or in this circumstance where the briefing ended before the decisions came out and sometimes lawyers come in and tell us that they weren't aware of the decision you argued the case in front of the washington court of appeals correct and you didn't feel it was necessary to tell us about it it doesn't apply to this case the dates b i don't understand you have an argument about whether it does or does not apply it apply we thought after our research it applied to the facts of this case whether you can distinguish it or not but you have a personal ethical obligation to tell the court about opinions written opinions and bear on the issues before the court my apology you understand my concern i do go ahead with your good the this or circus robida to carry out the february first two thousand and twelve order which required that the supervised visitations continue and remain as is at the pole residen that the social worker didn't have to discretion well she's acting in the capacity as as as a monitor or a supervisor visitation she had to go forward if she thought the boys were in danger she couldn't stop the visits if these other boys were in danger she could have stopped the visit well this is discretion function by definition count the the two points first the it was known to judge nelson the got eleven report made it very clear that the visits were occurring at the pole residence and had been since november which that's  know if you want to explore this under nine hundred eighty three there is the discretion assuming there is the discretion to deviate from the court's order after february first that discretionary decision is protected by qualified immunity unless there's a clue established that you are not answering my question ok you want is it released the state's position that there was not sufficient discretion in that social worker's job description will say visitations but what i'm much more interested in is whether or not you are defending the ruling in the district court that the that the social worker didn't have discretion to deviate this if the social worker did ok so assuming the sort of social worker had discretion to deviate that decision is protected in the one nine hundred eighty three analysis because it's a discretionary decision which doesn't violate a clue established constitutional right and as as far as the state law there is not a state law application which which would apply to whether or not the social would or would not exercise that discretion so let's talk about nine hundred eighty three the discretion whether or not to deviate from the court's order or how to implement the court's order from february first is protected unless unless there's a constitutional right which directs that essentially every social worker would know that failing to deviate from the court's or from the plan that was in place violated a clearly established constitutional right the burden is on the plainest provide the contours of the right and  that failing to alter the visitation plan that was had been in place since november was was violating that constitutional right and there simply has not been any case law put before either of these courts which demonstrate that that decision was violat any allegation of abuse or neglect that just what pollard physically harmed his children and did probably because there was a whole range of information that was not given to the family court judge here in washington well she was not told the family law court was not told that joshua pals own sister feared for the safety of these children in the presence of her brother is that correct that's correct the the juvenile court did having these two points that i like to make in response to this the juvenile court did have in front of it the criminal file from the pierce kind of superior court which outlined the reasons for the probably cause in the search warrant which got the whole process started which is not something the social workers had so this is the same information that would provide we've got in the disappearance of susan powell that the that the police officers would have been the family members might have and from that you're talking about  and he was filing i'm sorry that he was making these comments disparaging comments but two points about that one if you look at the hearing from february first by that point in time those comments had largely had been essentially been abated they were no longer part of the visitation process and there was no safety concerns that were being reported by the visitation supervisor you also had the juvenile court also had the psychological evaluation of course of dr manley and the a dent into that psychological evaluation juvenile court and the s h s should employ when they are balancing that the parent's fundamental right to have visitations with their child as well as the needs of the family towards reunification and safety anderson i'm sorry maybe on information that's provided from many sources dr manley but most importantly from the social worker and so the case that you and i forget the name you talked about all these allegations of abuse that's information that's put into the hopper and then determined by the dependency jet but that information if it never gets to the dependency judge well for instance not doing the safety investigation you're saying and  agree with you and we search the record it's like in a footnote in it's also in passing in dr murray's report that these visitations are being taken in taking place now in palls home and have then there's no indication that the children have been running ahead of the social worker and entering the home without the social worker first you know being inside the home and so forth all this information is not provided to the judge so how can her order then be a reason to order that's based on all of the important information because the body of the evidence that was before the judge at the time documented his report the criminal file the guardian letter reports the reports from various parties combined with the applying the law correct well bright but the facts were given the facts that the judge did have the district court properly ruled that adding to that hunches and believes regarding the dangerousness of joshua powell based on the same information the court had which was the information in the criminal file would have changed the outcome of the of ordering supervised visits really don't have to debate about that do we as in the dependency court judge told us what she would have done if she had been informed of all this information i don't believe that dependency court has indicated that a dependency court indicated in the declaration that that she signed that she didn't review all the information that was was submitted  to and she review the guardian a little report i think the point of that is that in reviewing the guardian eleven report the juvenile court was aware that the visitations were occurring in the poll resident it's important it's important to note that at the october twenty six hearing it was openly discussed in open court that the visitations were going to move towards the pole residence and that the court signed an order which said that visitation may be expanded upon agreement of the social worker and the guardian ad litum this is typical language in retained discretion but i have another question for you counsel there is much made much discussed in the briefing of the boys running ahead on many visits i think eight or nine visits running ahead to go into the house and with hindsight of course we know there were very tragic consequences to that but it strikes me as a two edged sword one indication of the boys weren't fearful of their father is that they were happy to see their father and that they were running ahead  the state make make that argument before the district court but that shouldn't the boys running had should not have been a cause for concern i don't i don't believe i made that argument when we were in the briefing or or an oral argument i didn't because what it what it does show at the with the social workers in the decision at the time was that they were not afraid of their father they were anxious to see your father that's the whole point that's the point and so so we're now with the with with with terribly tragic hindsight of course looking back on and saying arguing not that in its isolation but the fact that there's no security or safety inspection so they're running ahead to see their father and it could be interpreted as a positive for the father but in conjunction with the fact that they're arguing you don't home inspection like a biological home in the first place and second place that you did have a guardian ad litum that did visit the home prior to the october twenty sixth hearing so they were the guardian ad litum was out there and then you had of course the visitation supervisor that was there every week for three months running monitoring the visits and had there been a safety concern had the visitation supervisor thought something was wrong that should know certainly would have been reported to the social worker and to the attorney assistant attorney general who was at the hearing on february first criminal conduct of the father was the intervening pardon why didn't the state argue that the father's criminal conduct was the intervening cause the father's i mean intentional conduct is what is is a superseding intervening cause of the  that's the state's position that there is no special relationship between social workers and children in dependency status as a judge as engineers what your own court of appeals said about that absent proper monitoring by the state the foster child is wholly exposed to the will of the foster parents whether that will is a blessing or a whore in this setting the stage is the last watchman of the foster child's well being a more compelling illustration of that they sees of the special relationship is hard to imagine that is what they said yes and that's under review that's pending before the state supreme court argument will be in the middle of it and rest is the decision you didn't think we needed to know natural parents or what is your position on y h v h doesn't apply because this is a visitation with the with the biological parent that they just that's governed by a completely different set of stats in a completely different body of law and it depends on why was supervised then visitations are typically supervised in this case of it that is the main reason the visitations were supervised reworded as part of the parenting assessment of joshua powell to make sure that he wasn't in gauging the disparaging comments and that sort of thing or just the comments there was a concern about him being in the presence of his children and surprise i don't know if there was there was a concern based on him being violent towards his children supervise it had to be a finding and that was the boxes checked that the children risk of danger enough so that was that the justification for requiring surprises a taishan with the natural father right correct but it wasn't it wasn't based on any reports or allegations of abuse of physical abuse directed towards  i want to touch very briefly on the qualified immunity issue the standard for this is reasonable care reasonable safety for the children which is very very similar to the law enforcement use of force standard of reasonable force under the circumstances there's a reason t qualified immunity is almost always an appropriate and use of force situation it's because the jury has to decide whether or not the force was reasonable so to hear did you say almost always inappropriate that's right your honor qualified immunity is granted law enforcement standard what else did they not know or did they know about this number one forced jacobson specifically said she was concerned that josh might take the kids and flee from the scene they knew the kids were talking about their mom mommy's body was found in the desert they knew josh powell reacted very strongly to that he was backed into a corner he had just been ordered to undergo a psychosexual of evaluation and a polygraph he had failed the child  helped them figure out whether he was a risk was not a valid test the c p s workers failed to even review the divorce file the expert witness that the plaintiffs pulled and got and i think had they reviewed it is there something they would have found there that you think would have changed this outcome i yes your honor i believe that they would have they would have found that he had threatened to kill his mother with a knife when he was younger that he had killed animals before all classic signs of people who can snap people who can do very violent things none of this information ended up in front of judge nelson however the state says the judge nelson had the opportunity to review the same criminal files that simply not in the record the search warrants were sealed the law enforcement officers who told the social workers that they had concerns about the kids safety they had access to those there's nothing in the record that shows that judge nelson had that to ascertain where these visitation should go on the body of evidence that the state argues ignores all of these disputed factual issues ignores all of the information that the social workers had that they never gave to judge nelson it takes away from the jurors ability to come to the conclusion that judge nelson would have done something about this if she had been informed of all of these risks this is exactly what