good morning may please the court my name is rebecca with dean i'm appearing on behalf of the county of alameda diane mosse and sue me who are the appellant's in this case and i'd like to reserve four minutes of my time for arising out of what is undisputedly the very tragic death of his minor sister while they were both in foster care in the th circuit it's been determined that si milwaukee word held neither the legislative history nor supreme court precedent had found an interest for siblings that was consonant with that found for parents and not the st amendment familial association claim is analyzed the same as the th amendment familial association claim because what the man decision said was that it's analyzed under the same exact standard regardless of whether it's pled under the th amendment or under the st amendment so and again the district courts are interpreting it in that manner well i mean you know they can be  way they want that's their prerogative it's but you're correct it's not binding it's not binding on them and it's certainly not binding on us i would argue your honor that that the right to familial association even without man it's been discussed in the same exact manner it's been analyzed in the same exact manner within the familial association case law regardless of whether it arises under the th amendment or the st amendment now i would i would admit that there is some murkiness on that issue because the court sort of a little bit different they saw it a little bit different and  you know there has been some when you're looking at the st amendment claim for familial association we've also got some cases out of this court the idea kay case and the erotic service provider case in the k and it said well that's required i under those you case it's required and i would like to is to say that there's a sort of a that it's that it's a settled issue within the circuit but i don't think i can because be distinguished because in that case the there was some petitioning activity that could be interpreted as expressive your standing argument really only goes to the st amendment for me yes another claim as well as oh yes he does he does your standing argument doesn't go that well we have kind of a different standing argument that goes to his his own claim yes your honor and i can address that he  for basically the right to a feat to be free of abuse in the foster care setting yes exactly the nature of the emotional distress  the complaint in the compline yes the emotional distress articulated in the complaint i believe it was anxiety fear i don't know that there was anything in particular no no or is there any diagnosed post traumatic stress disorder or anything from a caregiver that was alleged in the comply i don't think there was anything diagnosis alleged in the complaint that i'm recalling at the moment no your honor i recall it being just just general kind of a free form freestanding yeah it's like no this was developed this is all this it took place on a motion to dismiss or on the complaint correct on the pleading on the pleadings that there could be allegations in the complaint regarding treatment or diagnoses or something more specific regarding i'm not emotional distress it was a lengthy complaint and i'm not i could go through it and look for that you know that allegation or not it's not coming to mind i'm not really i'm kind of i'm just asking you what you recall that yeah i'm not recalling that there was a specific allegation in the what has been alleged correct yes and your honor it's our position that that the complaint does not create and are adequate adequately pleat a violation of judge murphy said he alleges that he suffered injury right well your honor i think you have to look at what the type in the district court was required to take that is true yes we're right we're not just you know you and you ask collateral appeal yes because she denied your claim for qualified immunity all right but your argument here is focused at the allegations in the complaint that's a twelve b six you're on i think trying to kind of backpedaling get back to my standing argument on the th amendment claim what we're arguing is that the plaintiffs claim of injury in this case relies entirely on witnessing what happened to sr so for the qualified immunity rubric we still have to determine whether or not there was a constitutional violation so that's your point is you're trying to talk about whether or not there is your is your claim that is your argument that he used to if he proved all these all of these allegations jury were to find all that there was a no that's not my that's not the claim your honor the claim is that his damages flow not from a violation of his own personal rights but solely from witnessing the violation of his sister's constitut a this exposure to the but there is no factor being placed in that situation there's no fact pled that he was actually exposed to methamphetamine there's no fact i thought i thought they found the bag with the happened and there's no way that we take it is true that it does have to be taken as true there's no allegation that he was present in the room wherever that piece of metal was in the house and he was when that the exact time it was found his sister passed away that's what's been alleged that's what's been alleged but again if you take away his violation of his sister's rights he has no there has there's no violation of his constitutional rights it's completely dependent and so it's we're arguing it's not a violation of his own personal constitutional right are you trying to distinguish between households lso exposed to observing observing sexual abuse to observing all kinds of other bad things are you trying to distinguish the two households what you're doing you're saying all we have here is men i think that's one distinction that can be made your honor but also i think if you look at the arch aletta case out of the th circuit that realize the question should be related only to association rights as opposed to say equal protection rights or some other right that derives from the th amendment is actually expressed in the th amendment we have several cases interpret ing  amendment interference as deriving the contours from the th amendment but not the source as the th amendment the source of the association claim is the st amendment but that begs the question why should there be a different analysis on the in on whether or not the companionship aspect should be reserved in the st amendment context who we have specifically ruled out that relationship is the serving constitutional protection for th amendment purposes what's the difference between the th amendment and the st amendment that shit result in a different outcome than war in this case the difference is articulated by the supreme court in roberts and then in j c and then coming forward from them in terms of what an intimate relationship looks like an intimate relationship has necessarily emotional detachment  that the sibling relationship was worth was that the civil relationship should be covered so i don't understand why you think roberts would make a difference in the st the mimic context is the wart panel already considered robbers in the context of the work of the minute i'm not a reason why there should be a distinction there th amendment claim for of familiar association most commonly comes up in  situation where you have a death most of the time by the hands of police and when you have a death by the hands of police there's a federal corollary leitch of wrongful death claim in a state law that is the th amendment association claim if we look at the th circuit jury instruction it doesn't even have a c enter real requirement it's tied back to whatever some type of underlying claim might be the st amendment however has very specific characteristics that are required to allow for the int association to exist the size the exclusivity and certainly family when we have a right to live together by grandparents domestic partners same sex couples  domestic relationships that are one gender or another all of those folks have been determined to have a right under the st but not the th kids and only in this court have already been decided that the and the st amendment do not merge they are separate if they are separate therefore we are talking about a separate type of right and a separate analysis that would apply to the plaintiff who would have the th amendment the same claim that you are pursuing all of the all of the children in the home who were present all of them a sort of th amendment cause of action for emotional distress based on danger positing for your client could any of the any and all of the children who were present in that home could any or all of the bring the same claims that you're bringing on behalf of your client i don't believe so why not because there's a sibling relationship that is an intimate family relationship and not only that we're talking about a relationship where you have somebody in state custody all of the other children are in state custody as well and if the theory is that your client suffered emotional distress why would their emotional distress because that in their case they didn't have their relationship with the sister that is very clearly described in the complaint the children have lived together since birth but their biological mother the children were removed together from their biological home two weeks before four days after the children were removed j p sr started acting very strangely was clearly impaired was required to be hospitalized overnight we could amend to say there was at least one other instance of drugging that appears to have happened during this two week period and this was the only family he knew the emotional attachment that talking about the st amendment i am or the th amendment family association and emotional distress so it sounds like you're peddling your claim to the familial relationship i really hate i'm pegging which claim triggered by all of these violations you have said you have a separate claim for emotional damage no you're right there's only that really emotional distress just flows from whatever injury you may have but you said the reason why the other people the other children wouldn't are the same they were there in the home when the drugs were found and they had emotional distress because of that with they have a cause of action if they were put in an unsafe place if they lacked adequate care they were older they also did not come from a home i mean the facts are obviously relevant facts make claims or don't so i don't know if they would because they were older they were supervised by a different county the other county that came in to monitor them have been monitoring them for years i don't know what facts would support their claim so i'm sorry and i can't answer the question only as you let me do my own follow up question on that would explain to me the essence of your th amendment they created danger determined by a hospital that there was amphetamines and this little baby girl's drug sister rather than do anything that was required under the th amendment either because of a special relationship and a foster child right to be put in a safe placement or because of the danger creation of not being put into a more dangerous situation either way j p was put back or had to stay in this home he had no choice he wasn't going to work he had no choice he couldn't say i want to move i want to change jobs he was required to stay in that home until and for much longer than was necessary because here this the county and here were going into cars ation and more facts but the county had numerous requirements to insure the safety of these children in this home was the state created a danger to j what was the state created danger specifically that he would be exposed to the toxic effects of and find a means that had already been found in his sister's but and what  harm that he suffered the harm he did at the front of the jury what are you going to ask them to compensate you for the compensation for i am going to ask him to compensate for the fact that he and his sister were alone in that home not j p presents with life long emotional trauma founded in a lack of trust he was told in that home by the county defendants that he was safe he is going to suffer for the rest of his life that something bad is going to happen to him or ones around him because of what happened to him a matter he is going to be connected to what happened to him in that home for those two weeks for the rest of his life so can you break that down or can you say that tell me their case the strongest case that supports your argument that the harm that was suffered by your client j p is cut nies a ball under the th amendment what's your strongest case lives and their exposure to a traumatic experience that can have an indelible effect upon their emotional and psychological development and cause more lasting damage than many strictly physical injuries is the talk about the th amendment yes it does it talks spoke to that issue and i feel that that case is probably our strongest case on that if the th amendment claim is allowed to stand in this case other juveniles in custody pretrial detainees arrestees anyone who's in the state custody to sue for emotional trauma for witnessing unpleasant events or other people's injuries while they are  witnessing harm being done to his father so there was clearly a relationship there that was arguably more of a protected relationship than a sibling relationship so i don't think that that a material distinction thank your hono