children he didn't adopt them from saying that wrong please correct me what stand it was you have to be involved in what happens to them and their life generally for mr women doesn't at this moment have a lot of standing as to what happens to the children while mr woman is here appealing is something that he has quite a bit of standing for which is his denial of access to the court system by commissioner mccarthy under his due process rights and  infringement of his right to marry and associate with his fiance in this mom who's the mother of the children he's not married to those women are living in common law with her to have come along to california to have common law in california i believe it's seven years and all the mystery woman has been living with her for a substantial parata personally as an excuse me has he held her out to be his wife because that's one of the requisites of common law marriage i believe the time period isn't enough that certain i believe the time period that is passed that they've been living together is that enough that we would even reach that is that a relatively new statute or used to be in california in the old days you did not have to tell you there was no such thing as common law marriage in california i could be wrong o constitutional right of access and he wants to he wanted to he wanted to participate in the in the dependency proceedings is that what he wanted what he was looking to do was to would say that first of all it's not necessarily relevant what exactly mr wynn was trying to do with the court the fact is the commissioner mccarthy put together a personal list of pro se individuals including mr w and instructed the clerks to refuse any access to the court for those individuals i can't tell you the number of times of the trial court judge both in the state court and in the district court that i ordered the clerk's office not to accept his you know not to accept  basis standing to come in to that closed proceeding i understand that the courts have gone and said some foster parents do grandparents to want to cajun although as you recall the supreme court has sort of limited that parents obviously do i think which it is asking where does just some guy who says well i'm her fiance and so i want to be part of this juvenile court closed proceeding where does he have the right to come in and yes no right in the proceeding well then we can forget about the judge part of this thing we can go to the maybe more interesting part well mr whitman had been the proceeding we're talking about is mr whitman applying to be and in fact the social worker on the case at that time mr women as the guardian of the child that issue and this woman before this had been allowed was not the guardian or the guardian ad litum my career he was not at that point but the proceeding which he was excluded from was the proceeding which the social worker was proposing that he be appointed guardian and previous proceedings for this child he had been allowed to attend this was the first that he was excluded from not just as a quick procedural matter as you your honor to be to the ranch mismatch you know i will be splitting the issues and i will be addressing the judicial issues and will be splitting the time even later if your honour's appear to find the other area more interesting we'd be happy to change that whatever guides you see fit to provide until she moves from his home in effect they are forbidden from marrying let me ask a question it seems to me at least the used to be this way in the old days when i was a juvenile judge and the last change the law but it looks like it's more now anyway supervision of the court this was ever the letter was sent actually over one year after the children had been removed from the house when no allegations of abuse had been made against mr whitman and the letter does not state that there are any allegations of abuse against mr when the letter states only that they feel that he has a poor role model now being a poor role model is no excuse for violating someone's constitutional rights and his mind is left in a situation where she is forced to choose between her children and potentially being able to  role model in the house are you saying the california juvenile court could not issue a plan that unless he changes he can't be back in the house with those kids or we're not going to send them home i'm not saying that at all and those are not the fact back to the district court and conduct a discovery be permitted to discover the e mails and the correspondence was taking place against him by these social workers be able to flesh out the type of personal vendettas that were taking place  cats you there are several questions that you have to answer even if there is a constitutional right you down in the next question was it clearly a stab leashed at the time of the conduct an issue here h the social worker why wouldn't and given the concerns that judge brinn and this is just raised why wouldn't a reasonable social worker want to be reasonable for a social worker in this situation to think that when they're considering the best well i believe that these social workers if they are you know experts in their field they would understand in a family context that since one thousand nine hundred four in the roberts case and then following with rotary the right to intimate association is not limited to family situation they would realize that to come in and interfere with a family situation where a man and his fiance are living together and raising these four children in their home living together out of the family and this is something that they should take very seriously and i do castle but he has no obligation he's living with her but he's not obligated to do it and he want to pick himself up and walk away that would be the end of it again and he has a right to say don't you know right now if you have no basis to proceed against him for example as a wife against the husband juvenile court had found the following subsequent to a contested hearing in a dependency court that megan in india had been or were at risk of being sexually abused in this to witness home that all four children were not protected boys wanted to visit with him that is what the juvenile court found and as your honor made note of earlier the court is the person who has the court has been authority to determine whether the reunification plan has been satisfied and determined whether to reunite this children with their mother and in this case according to mr whitman's own allegations in his original complaint and excerpts of record at page two zero six and  alleges that commissioner mccarthy during a court hearing told barbara eddie that letter should be disregarded so i'm baffled as to how this letter instilled fear in mr analysis barbara eddy actions in sending the letter to kelly lynn ma violate a constitutional right that's the first step and if that answer to that first question is yes then we're to move on to determine whether the light the law the right was clearly established in light of case law in the case specific context well in this case there was no constitutional violation of mr whitman's rights when facts that i mentioned earlier but the court also said at some point i believe according to mr whitman's original complaint the letter was sent in july of two thousand and that the hearing was in december of two thousand and they steering where commissioner mccarthy said this letter can be disregarded and according to mr whitman's allegations commissioner mccarthy and you know this was a twelve six we don't have the transcript or any affidavits in the record but mr mccarthy our commissioner mccarthy allegedly sa were that was filed with the court the answer that question is no because there was there was no constitutional violation by barbara eddy sending that letter to kelley land ma but even if this panel is prepared to say that it was a constitutional violation at least in terms of from july two thousand through just ember two thousand that time period let's move on to the second question which is was the law clearly established in the cases cited by mr whitman include loving versus virginia and the blocky which involved statutes or regulations that directly and substantially interfered with their right to marry and that's not the case that we don't have a statute here that directly protected association that the court did not decide whether that such a relationship was a protected one the court concluded that further that the right to free association is not absolute and that in some cases this right must give way to a compelling government duties with respect she was the reunification social worker her duties are to ensure that these four children are protected and that before they're returned to a home that is a safe environment for him and the state has a compelling interest in ensuring that those children who have been removed in are involved in dependency proceedings they are protected it's their duty to do that and so there was no the craft case could not have put barbara adding on notice i see that i am i have exceeded my allotted time so unless the court has further questions i think i should give that attorneys at the table an opportunity to speak thank you very much good morning your honor my name is john divine i'm with the california attorney general's office and i represent judge edwards and commissioner mccarthy both from their superior court of california for the county of santa clara i believe the court correctly court's decisions or judgments and in this instance mr whitman the event that he now complains about this october ninth hearing he indicated both that the oral hearing on the motion to dismiss and in heller briefs that he had taken that decision with the california court of appeal and the california supreme court and those were both in there and they did not buy those respective courts finally document is if you'd usually function and therefore entitled to division immunity with the with the insurmountable jurisdictional barriers with the political immunity provision the district court appropriately granted both judge edwards and commissioner mccarthy's motion to dismiss thank you with all of the defendants in the current release is that it was brought up in the oral argument that this case should be remanded i mean obviously i believe it should not be remanded as to state defendants but that the issue and only purpose of remaining aunt would be to have a discovery in a time for a change of evidence with regard to this issue of the fact that mr whitman in this march you scared to be married but i would put forward that according to their own supplemental briefing this issue with regard to fear of reprisal getting the children back is actually moot because according to their own supplemental briefing out of the four children the child the baby at the time india ma has been part of a finalized adoption and she's been adopted out megan the daughter is now living with her father in georgia and that child the mother has terminated her prenter rights daniel is eighteen years old and my understanding can agree thing is remaining with the foster family but he is eighteen and the last well that is jason and it's my understanding from the briefing as well that he is living with his mom mr whitman so that the whole idea remain and so we could have a full discovery as to the issues and why they are not marrying for fear of reprisals not getting the children back is actually moot because the one child that is available to live with them is in fact living with them and they're still not getting married to the adoption for the younger one when completed it is my understanding that that was completed sometime ago early on in the december of two thousand so you know therefore mr whitman and his mom had every reason to continue to fear what actions the social workers would take against them following the entry of this letter into the record and indeed