morning your honour's i'm chris welsh with the san diego county office of county council i'm here this morning representing a social worker maya bryson and her supervising social worker cheryl birdland what we're addressing here today would be first the exigency and the  removal of the two year old son of the reynolds family and the next issue of qualified immunity when we look at existence see under the circumstances of this case we're looking at a social worker making two decisions she's using judgment is the reasonable cause to believe that a child is in imminent danger of serious bodily harm that's the first part next she's making a calculation with the people posing that danger have access to harm the child during the time it would take to get a protective custody warrant that's what maya bryson and cheryl burton are dealing with next the third component would be they need to consider is there a less intrusive means then removing the child into temporary protective custody here the setting provides exigency because we have a six week old infant at the hospital a tiny baby and it turns out that baby has been reported by the doctor at kaiser hospital and the doctor concludes that their largest bone in that baby's body is broken the femur and there's no explanation for it so the doctor has an emergency after hours called me and he says i suspect as a doctor this is non accidental trauma so think about what that means the biggest bone in this infant too young to crawl or walk or even roll over has the biggest bone in her body fractured and we have a medical doctor saying non accidental that's intentional child abuse that resulted in that injury that's what he suspects maya bryson the social worker goes out to kaiser hospital after hours and she investigates intel midnight we have six pages of a single spaced log of her investigation course we later find out that there was something else going on in your in your view a perfectly plausible conclusion as to how this happened right it's perfectly possible and if we get into hindsight then we're cheating the concept and ignoring understand social workers viewpoint i understand and i want to make sure that we understand that that's not the only way this going to happen and it turns out it happens in a different way so the social workers relying on a medical doctor saying that he suspects it is intentional the social worker does the investigation that night after hours she stays at the hospital tell about midnight she needs with the mom separately with the dad separately with the doctor she views the infant she talks to the child abuse detective who investigating and she gathers information until the point where there's a decision point and the first decision they made was to place the hospital hold to protect the six week old infant so that the parents could not do any further harm to the infant that decision has been upheld by the lower court and so what we're here today about is the next decision and that is what about the two year old sibling now do we have exit and see for the two year old sibling so what is the investigation showing about the two year old well we have only three people who had contact with the infant that day when the fracture reportedly occurred the mother the father and the grandfather so those three people cannot be ruled  for how this happened but we know there's a small group of three people who are the suspected abusers and then we have the circumstance where what is their explanation they say well as a family we have no sleep we stayed up until four in the morning the mom's been stressed none of this has gotten better since that morning when the infant was reportedly harmed and so you're looking as a social worker at the prospect of who is with the two year old the two year old is with the grandmother and the parents are leaving the hospital their parents have access to that two year old the grandmother has access to that two year old and so we have a dental year old did have access to the baby so it's possible that the two year old is responsible for the injury but of course it's also possible that any one of the three adults morris responsible it might be possible that a two year old could be responsible because the two year old was there but no one's ever suggested a way that a two year old could have broken the five on  but the social worker is looking at ok we have a decision point now do we let the two year old be subjected to unprotected access of the grandmother the father in the mother or do we take action to protect that two year old and then she has to think ok do we need to take action in the time it would take to get a protective custody warrant from the court but instead using i have one other question to you there's a suggestion in the time of this decision ok in the supplemental excerpts of record at page seventy two the social worker notes that night at the hospital when she interviewed the mother the mother of the infant said that the grandmother had her when she was fifteen she hopped from mother to father to grandmother to uncle she had been abused her aunt was a glorified sociopath broken cracked her job and she described her mother as an unfit parent that's the mother's description of her mother who was the grandmother in the scenario ok that was known to the social workers at the time and yes that's in her notes that night and so now it becomes a judgement call will the two year old be in danger in the time it takes to get a protective custody war in san diego at midnight on a weeknight there is no protective custody weren't available and so the social workers thinking in the hours or days it would take to get a protective custody weren't what happens with this two year old the two year old's going to be subjected to the three potential abusers that's dangerous that's and so the child is removed even if you were to find a question of fact on the issue of exits and see qualified immunity would protect the social workers here because there is no consensus in the cases as of two thousand and ten when this occurred that would establish that the social worker was breaking the law or doing something unconstitutional and making this decision to remove the two year old and so the law requires the pelleas here to prove that there is a consensus of cases that clearly established at the time of this action that it was unconstitutional and we don't find that consensus of cases from the wallace case and other cases we get an overview describing what existence is but you don't get as required in the more current cases the s p case the kirkpatrick case you don't get down to the level of the specific facts of this case they have not met their burden of providing a similar case law was similar facts involving an infant at the hospital with a severe injury and then the decision being made about a sibling and they don't have case law that says the mother the father and the grandmother all the people with access to this two year old are the suspected potential abusers and so this is not something where the case law as of two thousand and ten had been clearly established and so if you look at the argument here they're trying to look at this from a high up level  only and incompetent plainly incompetence social worker would go ahead with the removal of the two year old and that's not the status of the law that's not the case law specially as of two thousand and ten  if you look at the cases on existent see the cases that we've been talking about each one of them has a different aspect to it than this case and many of the cases it would be one parent is suspected why remove the child from the other parent who's not even a suspected abuser we don't have that here in some cases they'll say there is no risk of serious physical injury you're worried about bottle rot or some sort of neglect that's not going to change in the time it takes to get a warrant and other cases they have the social worker admitting i could have gone to get a warrant and the child would have been safe during the time it would take to get a protective custody want none of those are our matching the facts of this case we have  at midnight deciding what to do knowing that it could take hours or days to get a warrant and knowing that the three potential abusers are in a circumstance where they're converging on this two year old and we have the underlying case where the district court has a firmed that six week old it was reasonable to hold that six week old and to treat that six week old as if the parents were abusive and could not have further access to the six week old what's the difference now with the two year old the two year olds very young tender age where you're not able to protect yourself she munich eight well you're not able to defend yourself or or do anything but rely on those adults and so this is the circumstance that my bryson was confronted with that i'll save some time to respond ok thank you interesting because it does not match what happened at the night of this incident the night of this incident no one suspected that ms holland was abusing this child the evidence for that is th two hours after they removed h r from her custody she then went to the hospital unsupervised and spent the next five days there unsupervised with are now the defendants tell you that they were required to make mom and dad leave because mom and dad were suspected of abuse and they had to keep her keep them away from the from the newborn well if they suspected ms holland of abusing the child why was miss holladay allowed to spend five days unsupervised with this child in it and you know what that suggests is that maybe they didn't go far enough not that they went too far i mean if you can look at it either way they see the grandmother and he ch n have been alone with the injured baby during the day in question and it wasn't known if there had been abuse which ones have been the abuser and there is this history of the grandmother that that ms holland was abusing had abused our or it had broken her leg there is no evidence whatsoever at the time of this incident that they considered her to be a suspect and so for them  and what we've done here is we've kind of this is this is a something that they've created for the civil case that in the in the juvenile court case she spent the next five days with this child and then once the child was released she and the maternal and the paternal grandmother spent the next six weeks or so taking care of this child nope nobody ever suspected that ms holland was abusing this child on the night of this incident the stuff about about heather's mother being abusive when she was young she was fifteen years old well that that that may be that can explain something but it doesn't mean do you disagree that that is part of what was in the notice in the interviews of the social workers have well it's part of the note your honor but it wasn't even raised in their opening brief they didn't raise this issue until the reply br but if they are careful reasonable in what they do they're protected from liability well your honor all the cases in the circuit every single one say that you are required to do it reasonable investigation and have articulable evidence before you remove a child and each child has to be each one of those children have to be evaluated individually that's what that's what every case in this district and what level of suspicion of danger is required to justify the social workers doing what they did immediately and they don't have to be certain no you know this is a judgment call so ha level of suspicion of the have to have that they have to have the suspicion that that individual child is in imminent danger of serious bodily injury right so under these circumstances miss holland has the two year old social worker comes to the house and literally rips this baby out of her arm screaming and doesn't ask her any questions doesn't doesn't ask her anything about our by the way doesn't say you know how are was injured do you do you have any explanation for what happened here do you you know were you in the room how long were you there doesn't say can i talk to h r they they've said in their in their papers that he was a two year old well he was actually two and a half and anybody who has been around it two and a half year old knows not only are they verbal you can't keep him quiet well they could i've had a lot to two and a half year olds my own children my grandchildren i know two and a half year olds yeah they're verbal and when they choose to me the sometimes unreliable witnesses shall we say sure but they could have at least asked they ask h r you know ask him questions they could have asked to see and they could have asked to look at him they could have asked to sit in with the parents have said that they intended to spend the night at the hospital it was the county that forced them to leave there that was completely against the policies and practices of the county and in addition to that that was easily resolved all the social worker had to do  unconstitutional law but under the under the policies of the county and the state of california has laws which track wallace on that they are they have to evaluate each child individually in that shermer whether or not that particular care taker is a risk to that child they didn't do that here it was absolutely no evaluation done a frazier zero and you know the doctor who did this evaluation was an emergency room physician of the children are ours too small to have any sense of what happened h r will grow up without a memory of about who knows what gets imprinted i'm very sympathetic on the other hand the defense in this case are charged with protecting the children and there's a lot they don't know what they do know gives them some reason to suspect that the father or the mother or even possibly the grandmother was responsible and if something bad had happened at the grandmother's house those those those social workers would have been blamed well your honor i'm not saying that they should have gone to the social  to the grandmother's house and interviewed her investigated evaluated but they didn't do that they made the decision to remove this child before they had done any of that they didn't go to the house with the intention of doing a further investigation they would do the house with the intention of removing the child and again they are required to do an individual lies investigation for each child that's what the law requires and you know it at the very least in this case  very least this court should affirm that social workers have an obligation to do an individual ised evaluation because one of three things happened here either the social worker completely disregarded county policy and state law and the constitution and went in and picked these kids up to pick this this child up without doing a full and valid evaluation or she completely disregarded the policies of her of her own county which again track say when you put a hospital hold on a child you have to evaluate the other child to make a determination whether that child was in danger or three the counties policies and practices with regard to training on that issue are deficient in any of that there's a complete and full investigation a reasonable investigation before they remove the child seems to me that our mandate here today is actually quite narrow that we have to assume the facts as you would like them assumes and take those facts and determine whether or not there is any law that was clearly established at the time that even under your version of the facts they're entitled to qualified immunity would agree that's the inquiry today i with your honor well with the exception that the county has continued to ask for some sort of a  statement from the court that it was real but the social workers did was reasonable and our position is what they did was not reasonable well we don't have a full factual record yet on that is that in that that is you that is correct i mean the really as i see it and my colleagues maybe in conference will tell me i'm i'm i got this wrong or maybe not even now is that we take because this is not a very narrow interlocking torrie appeal an exception to the usual rules about appeals that they're trying to appeal the denial of summary judgment and so we take  facts and we and we say ok based on that version the facts was it clearly established back in two thousand and ten and that's really well i had my understand that because the reason i ask is the appeal right now reasonable under the circumstances and then go to the second prong and say even if it was unreasonable to do what they did was unreasonable we find that social workers have qualified and you know i agree and i think if it were a summary judgment have been granted in favor of the city i think we would have a much broader mandate but here the summary judgment was do not act so the bandwidth that the other side has to argue is actually much narrower than in the typical situation where if summary judgment were granted that's when you thank you the excerpts of record of page one twenty four contains the declaration of maya bryce and the social worker and she says that night given the facts reported to me by the parents we could not rule out the mother the father or the grandmother as possible perpetrators because all three had been present during the time frame when the fracture apparently occurred and so there is evidence before the court undisputed that the thought process of the social workers was to consider the grandmother and the group of potential abusers the declaration this is paragraph seven of my of bryson's declaration she does says we discussed h our situation instead of automatically taking him into protective custody once a hospital hold was placed on his sister that's the appropriate process that's what was done here in light of the investigation the evidence about the grandmother returning to the hospital some hours later that's not known to maya bryson at the time she's making decision that's an example of hindsight if you look at what's required of an investigation that night there's nothing that requires them to go talk to the two year old the wallace case says there should be a reasonable investigation under the circumstances in light of the injury in the context and the timing involved and here it's midnight you have a severe injury to the infant and the timing involved is the two year olds with the grandmother right now and the parents are on their way in so we cannot get a protective custody warrant the social worker is looking at this conflicts of circumstances and having to make a judgment call she calls her supervisor who helps and makes that decision this is not a situation where we need to go investigate because it's a fifteen year old and maybe the fifteen year old can defend him or herself or has a story that adds to what the investigation what the parents told us this is a two year old who's home and the investigation that wallace and the other cases required doesn't extend to let's go talk to the two year old the he has been an investigation regarding the grandmother and her own daughter says she's an unfit parent you know the talk of the two year old to i don't know how realistic it is to expect you're going to get a useful narrative out of a two and a half year old child with midnight to tell you what happened right and at least that's in the reasonable range for a social worker to agree with the statement you just made and then finally on the bandwidth of the facts that we have we're looking at the social workers investigation that night and the facts the main facts are coming from the doctor which are undisputed and from the mother and the father and so in a sense we're using their own statements and their own facts we're not getting into outside facts that that are in front of the court the social worker had the facts that night from the parents and from the doctor from investigation at the hospital that justify exigency and that would set the factual setting for this court to dot look have they met their burden of showing a consensus of clearly established case law and if they have not these social workers are entitled to qualified immunity did you want to say anything about the recent case of things called kete horses coaled for the kits case i believe i received yesterday just came out that's on a motion to dismiss and so they're accepting everything in the complaint as truth there's nothing in the complaint that provides defenses for the social workers but that case this court is careful to point out