was had actually been diagnosed as having multiple emotional and behavioral conditions a little different from being disabled yes that's true your honor i think yes he had been diagnosed as having a multitude of behavioral and emotional disorders starlix fault that's the key to stay on that point yes in the romeo case from omeo versus west young a younger person involved had some mental disability and was diagnosed as having mental disability and may have had post traumatic syndrome he may have had a d h d so there's a lot of evidence that all these issues go to his aspect and his response and psychological way my question to you is where is the evidence that there was a volitional disability so that the man the young recognize by the fact that social worker nancy cammy as being sexually reactive what does that mean as far as his ability to determine to choose whether to engage in for a child of this age thirteen years old as a matter of law he was legally incapable of voluntarily engaging in a sexual act now he was only able to give consent to a sexual act but was there some nervous or physical condition which implied his being able to choose whether to engage in sexual act or not or if you are you say as a matter of law a person under the age of consent is quote sexually reactive and therefore  is not responsible for his acts when attacking a younger child you can't mean that you know first of all what your question your an overwhelming urge to engage in a sexual act and that is included in the technical term sexually reactive hoot who testified to that content you know there is no such testimony i have no facts are you using some sort of medical dictionary to tell us what the term sexual reactive contains or is this just your interpretation of the term sexual reacted in the circumstances of this case  i'm not talking about the term i'm talking about the content of the term right where do you get the content of the term that sexually reactive means lacks normal ability to clearly and voluntarily engage in sexual act read into it by the following we're all familiar either by our direct experience or indirect experience with the jobs that parents have to protect children and teenagers from their own proclivities that is to say we all think or most of us think it's quite a bad idea if we have a fifteen year old boy who is quite infatuated with a fifteen year old girl for the parents to go away for the weekend leaving them alone with the house to do whatever they're going to do in the house and if the parents do go away and if the thirteen year olds then engage in volitional acts that get them into trouble all used all fashion term maybe i blame the fifteen year old but i actually when the parents even more in a sense that's the situation we have here translated into a more dramatic and sort of more and more difficult circumstance you're saying well they should have known better than to put him into a situation where you would be tempted to do what he was likely to do having said that i wish you case law that helps you get to the point of attaching responsibility i'm not even yet to the question of immunity i can't case being in state custody did not have the ability to walk away he was held by the state has a person in custody who has a mental disability because romeo had a mental disability had to be wrapped up to stop that case that he had suicidal intention that the state having that individual in custody had a duty to provide reasonable safety against his own acts to kill himself and i would note that in that case there was no real quibble but the fact that as your honor indicated the question of voluntary yes i mean it was never to an individual in state custody extends to an obligation to protect him from harm to himself and again the obligation is reasonable safety  and greater sensitivity and they take an earl and move them out of the stone house and put him in and two other treatment facilities run yes how would that have failed from what happened after he attacked seven would leave in the same place in other words what damages oh no your honor i think absolutely not a huge distinction  that this placement did not occur is that correct ok he would have been placed in a treatment center and more prattle probably under their system with the foster parents without the company  really criminal detained juvenile detainment still ready to mental institutions in las vegas where he truly received sex offender therapy and i having been a foster family with children my question to you is who was the doctor who tested who would testify who did testify in by declaration that that would have been sufficient treatment for calamity he received needed therapeutic treatment in an institution but what you also received was way more that was only negative he suffered there's in the jury would make that finding is the jury would have full authority to make the finding that his time getting therapeutic treatment was not  held in a jail as this is a thirteen year old child the isolation and sense of being rejected by the foster placement where he had been the years of detain the juvenile camp where he was made to finance and felt isolated never having a foster parents figure anything any parent figure from the age of thirteen until he reached adulthood all of that was caused by this placement had molested there's just her and each other at that point the court and heard in order that james and girl both have sex offender specific evaluations and follow through with the evaluators recommendation was in response to that your honor i would say the spending family herself reported to the court in early december that girl was not staying with other children she didn't disclose to the court that she had in fact several days before placed him in a home not only when he was with younger children but when he was forced to share a bedroom with another young child the young male child so she no your honor i'll be presenting the argument today thank you i'm sure you've read the briefs briefly we just have three main arguments the first one being that this does not rise to the level of a constitutional violation we greet that young berg was extended by the case of i believe it's k h versus murphy the protections and the right to the constitutional right to reasonable safety does extends to children in the foster care system in this case the facts do not rise to the level of a constitutional violation our second main point is that  who committed a bad act and should not profit or be all the damage is flowed from his commission of a bad act and he should not be allowed to profit from that the immunity because it would not have been clear to a reasonable person under the fast and situation of this particular case that they were clearly violating earle's constitutional rights and that of course stems from the fact that earl had  right and or the constitution and under federal laws such as kept to be placed in the least restrictive environment let me ask you this and i want to come back to a version of your second point that is to say that all should not be allowed to were just were full of folk wisdom on that point and it's clearly deeply embedded in our society partly i want to know what we might mean by bad hack now there are some bad acts that are or acts that are forbidden by law or forbidden by moral structures that are so called victimless or as you say the only victim is the person who does them for example there's or in many instances a sort of a condemnation of suicide so that's a bad i think it's gone away a little bit but there's a kind of nation in many instances of masturbation and so on i want to put to one side for the moment the victimhood of kevin and i put only one side for the purpose of argument here but what i'm after is trying to figure out they had not very much to prevent that from happening would he have a cause of action for having been put in an environment where he was not safe to him the reason i say it this way as it is a violation of my act he derives pleasure from it nonetheless it's very dangerous and also for purposes of this hypothetical that in fact he kills himself as sometimes happens is there a cause of whether they are whether they erred on the side of caution as they did in this case but i leave it up to you to draw exactly where the bright line yes but it's interesting that you brought that point up because i would like to talk about exactly what is in the record that nancy gammy and franz ito knew at the time and we have in the record but before we get to that for a moment let's let's go back to see what was the circumstance in which he was placed into home with two children one of whom was there so i think at that time the nine year old boy and he was placed in the same bedroom with a nine year old boy and given his truck i'm stance as if all that was available to be know had been known at the time of that placement by those who did the placement or had been known by the sloan parents i don't think anybody would have placed him in that bedroom they probably didn't really know enough or they really didn't know enough in time but i think under the circumstances it was fairly predictable if they'd really from a from things that were noble yes your honor they say hindsight's twenty twentieth's course and and i'm looking bad they do not here trying to attach blame and i'm really trying to figure out sort of inevitable sequence and i'm going to try to read into is this notion going have to look at what they knew at the time and if you look at the appellant's own complaint which i submitted in a supplemental excerpts of record at page fifteen nineteen  december nineteenth of one nine hundred ninety seven the foster parents took earl to his appointment with the sexologist the sexologist again indicated that as long as earl was getting necessary treatment they did not have to worry about the safety of their children in fact the sexologist only concern was that they would spoil earl too much we know that earl had been in a residential treatment center prior to even being removed from his parent's home that his diagnos in the excerpts of record submitted by palin's at page two six one and again at page seven to six and i didn't bring it up here with me but the diagnosis is are that the things that they're worried about is assaultive behavior has post traumatic stress disorder but when he was in residential treatment prior to being placed in the sloan's home the sexual reactivity was not and the diagnosis we also have at the excerpts of record page eleven sixty eight there was prior to the placement in the sloan home the team m t the sloan's were told about earl's temper tantrums earlier had two prior placements when he was removed after being removed from his parent's home he was placed in a foster home where his temper tantrums and assaultive behavior led to him being removed he was placed in an emergency shelter with volunteers of america at those two prior placements there was not that the sexual reactivity the sexual acting out they we were really concerned with earl's assaultive behavior and that was the focus of the treatment but at the same time you can see with frans ito's treatment of her all she is trying to  we also have at page three seventy four of the excerpts of record earl's own testimony from his psychiatric evaluation where earl tells the foster child not to tell the evaluator asked him why did you tell him that earl says because i knew it was wrong and i didn't want him to tell so we have a kind of a combination of did they know at the time they knew that that earl had some serious psychiatric issues they had placed him in a regular foster home that didn't work out so he was up one level he was do we have a similar do you protect girl from your honor i think we do have a duty to protect earl from hurting himself but we don't have the duty to protect our oil from temptation it's it and i think that's almost where you kind of have to draw the line i mean if earl is hitting himself or if i was banging his head on the wall then we have to put a rubber mat on the wall so he doesn't  it on the windowsill even though that is to say you're not supposed to tempt him with cocaine so you can't say in a blanket way you have no duty to protect him from temptation question is what is the temptation was the degree of the temptation was that of  what is the the trigger for triggering that duty against self harm is there any trigger or would you have it when ever you have a child because i don't think there is any bright line test but i think you have to look at the  diagnosis and i have i think you have to make reasonable efforts to treat the diagnosis while keeping the child in the least restrictive environment we can't take children into foster care and institutionalize all of them and tie their hands behind their back if they happen to trigger mental disability is and that would romeo was all about and i would have to agree with you when i was saying yes but we have to look at what we knew about above average intelligent we're not dealing with somebody who didn't know the nature and consequences of his own actions and the it's ok to me i was thinking it's almost like a chicken and egg argument  but your position is that there is no but one trigger that triggers the scope of the duty or in marjah scope of the do the two to protect against self harm that it is always an issue of circumstance if that's true no you move because the circumstances are the facts which a jury should then you wait well your honor i think i pointed to the  it clear in earl's diagnosis that he was at risk to this particular harm to himself and i think when you have perhaps an inmate in custody who is clearly depressed you have a duty to take away their two laces and to take away their belt in this case in hindsight this was not a good placement for earle but when you look at the diagnosis at the to the parents no we think he's ok you have a diagnosis that doesn't include the sexual reactivity you have treatment team and that's at the excerpts of record page eleven  six discussing earl's current problems and really the current problems that they're focusing in on are his assaultive behavior and his temper tantrums they do talk  about the sexual acting out he had had any sexual acting out in his previous foster home his brother james had admitted to it but they didn't seem to think that it was something i was aware of but they didn't think it was a current problem with earl so are you just saying it's the amount of knowledge that is available to the state in other words there's a duty to protect a child in custody that's in the state's custody from self harm the constitutional requirement at all times in this just the amount of knowledge that the state has with respect to the child's mental state or proclivities or whatever that would determine whether that duty was breached or not is is that the theory i think it is the diagnosis it has to be the reasonableness under the circumstances and it always has to be balanced where the duty to the issue of safety has to be balanced with the duty to place the child in the least restrictive environment here they're saying that earl should have been you shouldn't knowing that he should have been institutionalized but yet when you institutionalized him you suffered harm question your honor for the legislature i think children that come into the foster care system are already in a lot of instances are already damaged and we leave it up to the professional mental health providers and in compliance with legislative directives to do the best that we can with limited  it's i would never argue that the state is a good parent but certainly some situations rise where the state has to step in and try to be a better parent than the biological  in fact should go to the jury as i understand counsel and she admitted that it depends on the circumstances it was her legal that it depends on what was two days i believe after the placement that he was not safe with other children how much more clear could it be that they knew this day she said it was that he was not safe with other children  that was their evidence that the safety was related to the violence and the tantrums as opposed to i mean it wasn't clear what the lack of safety related well your honor excuse me if i could grab the quote from the report to the court in her report she stated that quote will not talk about the sexual acting out that he was involved in and she further stated on the next page had has a history of sexual perpetrating on younger girls but he does not remember that next sentence he moved a great deal of therapy to be able to deal with it and to reach the point of being safe with other children so i would submit your honor that the evidence that that indicates clearly that that she did him as not being safe sexually with other children you know you