good morning david brody from the county of san diego for the appellant county of san diego and i would like to reserve three minutes for my chicken pox when children are removed from their parents care due to suspected abuse or neglect and they're placed in protective custody the parents and children's rights to be together during that time are diminished the parents don't have a right to be together with the child and everything that happens during protective custody and they don't have the right to be with the child when they're having a routine medical exam when that exam is for the purposes of protecting that child's health and the health of the other children in that protective custody environment that's the context that this case is in the children in this case had routine medical exams and they were not the sexual abuse exams that were dealt with in the wall of speech spencer in the green vs camera cases those cases dealt with an investigation of sexual abuse where the purpose of those exams was to find out whether those children had suffered sexual abuse so part of the purpose could be general health and safety and part of the purpose could be investigatory right yes but i think that's talking about what the exam actually was so during that exam the doctor and it's nancy graf the pediatrician here she is looking for signs of abuse or neglect but the purpose is to protect the child's health these exams were primarily for that purpose as well as to make sure that there were no communicable diseases brought into the regular the rest of the children who were there just sort of as background weren't there three decisions in san diego that is dated that the county process needs for conducting medical examinations at polanski aged the fourteenth amendment while this case was pending or or even before was filed no there was only one case and that was the parks versus county of san diego that had been decided when this incident happened this was in two thousand and ten parks was back in two thousand and four and that since then they understand polanski has changed its procedures in its consent form yes so i guess my question the background question i have is why are you still litigating this case when when you've already changer procedures and to conform with what the courts have said held in other cases well we did change the procedures that was after this what we case in two thousand fright  litigating this case because we don't believe that the parents have a constitutional right to be present at that exam and we had numerous reasons why we felt like the government had a compelling interest to do the exams as they were being done at that time  the exams in this case as i said happened in two thousand and ten and the county had compelling interest to provide for these children's health because the county had a duty to provide adequate medical care for these children who were in the county's custody and the county needed to have these exams as quickly as possible after the children came into poland ski and that was for the health of that child as well as the health of the other children who were  there the two cases that i referenced the wallace case in the green case the exams in those cases were fundamentally different than the health exams that we're talking about up louis and so there's two layers of examination when you're sort of th first general exam the nursing assessment right yes that's for a general health contagious diseases and that's that's primarily for anything obvious and critical needing right now and they've checked for life so that's one of the but these exams were not those sexual abuse exams that were dealt with in the other cases those cases were the exams were focused on trying to determine whether abuse had occurred or not and the focus of those exams was on the genitals they're trying to decide are these girls have these girls been sexually abused and obviously the entire exam is focused on that we have naked girl lying on a examination table with their feet up and  scope and magnifying glass and photographs being taken of her genitals of course this court in wallace and green found that those exams are potentially traumatic and the courts in those cases cited evidence studies showing that those types of exams could be traumatic that is not the case in this situation it is a completely different context in protective custody the exams are completely different there's twenty two points on these exams and there are basic health care exam that a child would have in a private pediatrician's office there is no focus on the genitals as there is in those sexual abuse exams and there's no evidence that these type of exams that were done it  potentially traumatic to the children that are not potentially traumatic to a child as described by dr graf very vividly in her deposition in this case and by the way dr nancy graf was the director  spread the label and she's looking for concentric indications in the height that is at sexual abuse examination position is that these are not just friends like exams but they're also health exams for the children but the in addition to the the junk gentilly exams they're drawing blood all of these children there they're doing p p d exams looking for work basically it's a tuberculosis exam they're doing drugs screens regardless of the allegations there were no allegations in this particular child the physical examination period and all the cases cited by both parties indicate this implicate the fourth amendment and there's they are considered searches regardless that's number one and number two every case that cited cites says that parents have a fundamental constitutional right to make important medical decisions for their children that is you know that is a a precept that goes back to hundred seventy nine people have a right and people have a right to be present when their children are having medical exams done and they have a right to make a decision about whether those exams take place but let me clarify your position it's that there's no objection to the sort of routine general health assessment the initial screening that was done right you're not asking us to go that far it's that the nature of this was in part investigatory and that triggers the fourteenth amendment concerns that i get your position greg that that is our position here out of there we have not challenge the the nursing assessment in this case by the way the nursing assessment is taking the temperature of the children and checking the children for measles and mumps not the doctor's examine next day they're making sure that the children don't have lice they're making sure that all of that to the case before they're placed into the general population the kids are then after that nursing assessment when the kids first get there they're then placed into the general population and then it's up to twenty four hours later before this intrusive and invasive examination is done by the doctors now an examination of the children they didn't the next day the parents were actually in court while this examination was taking place and it wasn't until after the court hearing that the that the parents were asked to sign these consent forms which really are not consent forms they do not tell the parents that they're going to have they're going to do a physical examination the children the consent form simply says that they are going to the children need treatment  that they can they can treat their children while they're in the custody of the county and there's a little box to check that says if you would prefer that your children be treated by your physician by their physician please mark this box which they one thirty four yes one thirty four i believe you'll see at least a half dozen instances where dr graff says that she is doing an investigatory medical examination but that's why it is so important that the defendants read wallace and they read green very narrowly both wallace and green say that parents have a right to make important medical decisions for their children exam there's no question that this is a forensic exam at least in part but but the parents have a right to make decisions for their for their children in this case is the poster child for the the need for judicial oversight of those kinds of examinations these kids should have never been removed in the first place and the fact that they were on a faulty warrant just  just emphasizes the fact that the courts need to step in and determine whether or not these kinds of intrusive exams are done so is it your position that they need parental consent whether or not the child needs immediate medical attention or complaining of some sort of some sort of problem you know they for instance they come across musicals if a child comes in and complains that their back hurts or other parts of their body hurt of course they can examine those children and see and  er treat but this is not what happened here they're on a fishing expedition it one of the other things that happened during the course of this the litigation the court mention the litigation that we've talked about here over the course of the last fifteen years in this case we have finally got a copy of the contract and after that discovery and this case had closed then a case that the county is required requires these doctors to do these kinds of examinations and they call them evidence or examinations interestingly the court referenced this work with this office what would the county changed its  i think that it's really important that the court render a decision telling the county that these examinations are unconstitutional so they don't go back to doing it the way they work for different jurors jurors look at this th examinations and determine if they were unconstitutional they are we ask this court to finds find that that way and render a decision in favorite place by the way we're asking the court to  one of the missing elements here is the proof that this type of exam shocks the conscience that the county was deliberately indifferent to the clearly established rights of the plaintiffs that's what's required for fourteenth amendment violation that these which were primarily for medical needs of the children somehow shock the conscience because the county was deliberately indifferent to any clearly established rights there was not at the time and there is not now any clearly established right for parents to be present at these types of examinations the examinations in wallace and green were described by the court in mueller this court in mueller versus ocker as soley for investigatory purposes they're trying to determine whether abuse or neglect happen or whether sexual abuse happened that is not the case in these in these exams as we talked about the doctor did say that she does look for signs of abuse or neglect but the purpose is for the health of the child that is not the case well that's tied to the dual purpose exactly do purpose of looking for signs of abuse or neglect but for the purpose of protecting the child's health it's not like in wallace and green where that purpose was as part of an investigatory criminal investigation of whether the parents were guilty of sexual child abuse or not what difference does it make if you have an into an examination that's solely for investigative purposes versus and  examination that's piggybacked onto a health and welfare check what why should there be a distinction between those two scenarios one of the issues is the governmental interests involved here where there is the health interests involved that's a compelling interest by the county because we want to make sure that these children are healthy when they're going into the rest of the population the testimony was that these children often have not been provided much health care throughout their lives and the doctors a plenty have discovered many serious health conditions so there's a very compelling governmental interest in this case to protect the health of the children and that's part of that component that is not present in those exams that are solely for investigative purposes those types of exams in the wallace and green cases are focused on criminal investigations and the government does not have the interest in protecting the health of the children that they do as they do in the political case the court in this court in wallace said that those exams the parents have a right to be present at those exams because they're potentially traumatic and they cited evidence that that they are traumatic for young girls and because the parents may have the need to make medical decisions that's not the case in the political exams the doctors of the are not providing treatment at that time if there's any condition that is discovered the parents are contacted and they are part of that this isn't making process and that's pursuant to state law it's only if the parents refuse to provide treatment that the county could get a court order to provide the treatment and obviously that's not in this case the county does have important interests and did at the time of these exams in the efficiency of exams we're talking about pullin ski where thousands of children have come in throughout the years and every day there's more children coming there we need to as quickly as we can determine that that child does not have any anything like chicken pox or tuberculosis that could be spread throughout the rest of the children and it is important to have those exams quickly as soon as the doctor arrives there rather than trying to contact the parents and see when they're available and all of those things that can delay the exams and and the district court judge in this case noted that is a concern as well and the exams were were held in a confidential area of pullin skee where it where parents were not allowed to be there because other children at the facility were there and there was no provision at the time for those exams to be held anywhere else because i will make sure i understand we're talking about the second example act yes the doctor's exam now for the doctors exam there are they inspect the general area the rectal area of these children externally yes now normally i mean i have two kids and we take them in for basic checkups that i can't say has never happened that's not the usual check up for little kids so in terms of a welfare check is that typically what they would do to make sure they don't have lice or tuberculosis we know that's part the first exam by the nurses right lice the second one by the doctors is tuberculosis but also it is a full body check from head to toe and that's and that's as advised by the american academy of pediatrics so they do say that for investigatory purposes or for that sure that no not at all this is says for the an exam a medical health exam for a child entering foster care they should have a full body exam and clipping all clothing taken off and a check of the genital and rectum area so that is part of a a typical exam that the a p recommends for children entering foster care i think they also say when appropriate as part of the care plan the child welfare agency birth parents should be encouraged to be present in health care visits and to participate in health care decisions yes and that is that that issue that the wallace court talked about where if parents need to make health care decisions the pullin ski exams do not involve the need to make health care decisions because if the doctors do notice anything they are contacting the parents they are involved in the based on my experience i think judge owens is correct in that it's not the sort of physical exam  that's not what she testified to but i think she said the entire exam last about ten to fifteen minutes and the form that we have which is part of the evidence showed the twenty two points of the exam the genitals as one of those twenty two points and we do have the case in this case that one of the children at least did not have that part of the exam at all because she was too squirmy and another child only had the part of that is very like or six i think three in three and six six at the time i yes and there is also testimony that the children would throughout their time at political you have other things where they were on clothes such as bathing or changing their diapers things like that so when we're talking about  be present at treatment of their kids fundamental right yes and i think what we're saying is that the parents rights are diminished somewhat when they're taken into protective custody and the parents don't have a right to be there order we want authority to do these tests to do these exams and the court order said the exam should be done in compliance with the american academy of pediatrics recommendation so the county was not on its own just doing these these exams the county had that court order that said you may do these exams and they did and try to get consent from the parents that's also for the medical care the consent form says if our child needs medical care we would like to have either private physician or somebody else provide that care and the parents in this case did list their private physician so that if there was anything found in these tests that needed treatment they would contact the private physician and the parents to provide that care all right