ok we're going to call the first case harry hamilton versus nicole bromley mr h committing i believe so your honor that's about two and a half years from now yeah ok why don't why would we expect twice a reasonable to expect that your client will be deprived of custody when he has maintained custody as i understand it for over two years continuously yes your honor my client currently has physical custody of the child pursuant to a one line order of the state court i should  mention to the court as far as the appellate record is concerned the governing order is that a parole twenty fifteen order from judge williamson i have recently learned that there is a more recent order it's not substantially different  that it's from january twenty sixth seen it says that physical custody shall be with the father and unlike the prior order which said that the mother was to have no contact the current order says that the mother can have contact with the child as the child desires  you challenging not knowing i'm simply stating well all right but that doesn't help us i don't think as to whether the case was moved you your client has had custody for over two years correct correct so why is fifteen so over two years but he's had custody for almost three years no i mean did the only thing events happened about two and a half years ago and he retained he maintained physical creditors that's when this lawsuit was filed in november that's correct yes so circumstances have changed dramatically since the time this suit was filed yes ron and i think that actually goes to a reasonable expectation that circumstances could similarly change dramatically over the next to a half years how my clients mother is involved in his life she is now starting to i'm sorry my client's child's mother is seen as  child from time to time my client and his mother and his wife are sorry and the child's mother are not on speaking terms there's continued domestic strife between my client and if his child's mother end already suffered injury and he is now seeking relief to address the injury that he suffered he's not seeking damages correct he seeking declaratory relief yes you are that's forward looking re think and you want us to opine now and give you a declaration forward looking relief about some unknown crawl that you believe will occur in the coming months with the ex you know in the record reflects in the in response to complaints that my client needs about the conditions if you hate in sort of at the snap of the fingers decide it's a completely terminate his rights without any sort of process or procedure so when you f is not asking for injunctive relief they're asking for a declaration of something that may happen in the future i think it would be a declaration about something that already has happened in the past and is reasonably expected to  future and not seeking damages based on what happened in the past correct you're ok it sounds to me it sounds to me that this is very close to what the supreme court has decried as an advisory opinion which we're not in the business of giving well i would respectfully suggest you noted that this case is very similar to this court's opinion in winston by winston versus the children in the services of delaware county  structurally i don't recall where the parents had the child was removed from the parents custody and the parents filed an ancient eighty three suit alleging that that violated their constitutional rights while the case was pending th father to retain physical custody of the child and both the district court in this court in that case said that the fact that the father had regained physical custody of the child did not move his claim for declaratory relief because his injury was reasonably expected to recur is your client subject to monitoring conditions by the state court not that i'm aware of your honor but they weren't winston yes the the custody was returned to the parents objected and did c y s forcibly take your client the child from your client that happened in winston right a yes the the parents were not the parents were disposed of the time in the state presented to hearing to custody of the child and also in winston the parents challenge specific policies of c y s that they thought infringe their constitutional rights correct they didn't challenge the would be the visitation policies i don't know asked us leading for word the visitation rules and that they told him that there were no and he showed up pursuant to a schedule to meet being with a couple of days later and made certain complaints in the next morning got a phone call from mr bromley that said under threat of police involvement you are no longer allowed to have contact with your child can you cite any cases from mr orcutt or other circuit courts that have held that a constitutional toward can be successfully pleaded the claims that a government entity has no policy i e i cannot off the top of my head your honor what i would suggest is that the policy is that it was  the discretion of the state employees and that the policy allows the state employees to terminate rights but it's not that's not written anywhere correct and i think that you're saying i mean now you're saying something different a minute  said the policy problem is that there was no policy now you're saying maybe you're saying it was a practice of the county i guess what i'm trying to say are is that the the policy seems to be that there are both strict rules  that policy was a clear violation of his constitutional rights and and the lack of a policy is precisely why he needs a clear tory relief in this case because the defendants need to be told what they can and cannot do to violate or to determine that you have jurisdiction yes i started my argument with younger because that was the sole basis of the district court's decision i ok so would you agree with that statement we first need to look at as to whether or not this case before we move on to the question of younger abstention yes or ok when you're talking about younger and talking about younger of sentient what is your argument on that is the district court correct in abstaining on their younger no you honor i think that in the wake of the supreme court's decision it's strange i think that district court made it clear legal error in determining that this category is appropriate for younger abstention this would be the third prong of yours aren't the third no i think in this case how would that fit into the third prong is if i'm misreading obscene was violating a custody order in the court tried to hold him in contempt and she sued and said this contempt proceeding violates my first order that with the we saw the reference custody with the father was a february second two thousand and fifteen order so we have an isolated incident that happened two and a half years ago that hasn't happened since in addition i would like the winston case argument that there is an absence of a policy and that's the problem i'm not aware of on earth any authority for that i think what happens here is if it's an isolated incident then it's in can reason the court can reasonably expect that this will happen again because we don't need we don't i'm not exactly sure we claimed deprivation of mr hamilton's rights or it was had it was unclear in the district court well it's  aware the last custody proceeding that take took place or custody order on the docket have been debating equitable distribution issues but there's still a possibility that the acrimony will continue and the mother would seek to have custody altered right yes of course and if that happened i assume your answer is that well if mr hamilton felt like his rights were violated in a constitutional sense of that time the court house doors are open and he's free to rather is it relates to judge once for the seems to be an official capacity claim this is far as i can tell it's not clear and certainly without an ongoing continuing violation of federal law any official capacity claims against the state judges are going to run into a thank you mr daley thank you will hear from mr johnson on behalf of bromley time is going to be directed to the younger immunity issues as it is here in spirit good spirit was not talked about the lower court decision and that's probably a fault that correct on that would still be prudent for this court to remain on the case we're not in the business typically of evaluating those tests in the first instance and it would be helpful to this court would it not to one gets you into the third pro indicates that we're looking at a state court proceeding we're not just going to look at the state court typical we're in the middle case we want to make sure that it's almost rising to the point of something that is that is communicating the  individual to do something like a content that's also was mentioned in that proceed state court costs zach leaders are all right but you'd agree with you not that the pendulum has swung a little bit at least back in the other direction based upon the supreme court's decisions right i would agree with that your honor and i think i think therefore we do need to look at has already mentioned the lower court and i think we are all in agreement erred by not addressing the sprint case and the factors that forth and strange and as we now are human and our brief  child then makes an allegation of abuse which i think is important to know factually which is how the child ends up in the care of youth haven because neither parent is able to agree as to a third party to be able to monitor the child's welfare while c y s is able to do a complete investigation and so what mr hamilton is complaining about we actually question what d process violation there might be there is no policy or a procedure he's articulated the action actually stems from direct quick action on the part of an emergency petition being granted an a chance that the lawyer would be pleased to get it your client there could be the potential i think i would that happen tell us i know you don't necessarily want that to happen or maybe you're indifferent about it i don't know but how would that happen it's actually a voluntary placement so quite frankly if the juvenile would have been free at some point in time to have left the facility it is a voluntary placement he was not placed their own person to a court order it was agreed upon by the parents primarily mom who have emergency custody at the time under that november time which placed him in the care of youth haven so it was a voluntary placement i think the concern arises from m hamilton when he's no longer able to contact his child there we do have sort of a conflict of faction owners in that we believe mr hamilton was offered the policies from youth even chose not to review them and then when he was in violation of them was complaining about the fact that his contact was cut off only while he was at the center mostly for the protection of the other children who were at the center at that time so the only way  temporary order of custody is concerned about his children being taken out of the country by his now mother is his ex wife or his wife at the time and was seeking relief from the federal court to more less and doorstep it as any but also a a stronger  t of the order by the u s marshals i think mr hamilton is seeking to have the federal court come in and interrupt what is clearly a state court issue in that emergency petition and the investigation by c y s versus what you  court review in the adult versus new jersey which was truly more of a due process argument the plaintiffs that was a class action and the plaintiffs were arguing about the state of new jersey's family court process but wealth of notice of hearing the inability to cross examine the other party the inability to add additional evidence into the record clearly falling much more specifically into a due process argument on a systemic issue within their court system than what we have here are our argument is mr hamilton one of the federal court to come in and sort of overtake the outcome that he didn't like from the state court dismissed on a motion to dismiss fact discovery could very well shed light on what is what exactly you think how we might he see a lot of these cases where you know someone can plead there was a policy either there's a policy in writing which you haven't pleaded you could've found not right perhaps your honor i mean ok my friend alleges that he was offered that he asked what the policy was and he was told that there was right in what you call your talking specifically about the center county for judgments would mention there has been a sea change of facts in this case leaving to go back to that so your goes back to our prime my prior question as to what you're seeking so you get the answer as to what the policy is agency where the children go where the children live there how strict ok you know nothing happened if it hadn't been for the court i'm not sure that's necessarily true i mean i think that you see them in c y s interact with children you know there could have been no pending custody proceedings and had my head my client's son decided to flee his mother's house and go directly to use haven and then my client shows up and wants to have contact with him and they say no we don't like your complaints you have to leave that would have been the same substance of his claim the violation of his parental rights without any court involvement at all yes i'm still struggling to find out how that answer impacts his lawsuit because this  lawsuit is about the severance of his paternal contact in a day here in the future in the future drugs which are correct on the on the reasonable expectation just as the court found winston that so and again there's a chain of events that need to occur just there needs to be some sort of strife between child and father and or child father mother that's step one right yes your step two is that  the county the wheels of the state get involved in that strife yes or step three is that wheels of the state somehow choose to mediate that strife by placing this child that you think of and again or another shelter or another shelter and then step four is that that that shelter does not afford your client the appropriate access to see his son yes your honor and i think that all of those s elements were at play in winston ok cool all right i think we understand your argument very well thank you judge draw through anything from the other mr hines no i didn't ok thank you thank you i thank you all counsel for the excellent argument and again the court thank you for your patience this afternoon we're going to take a very brief recess while the next case is getting set up with these oh i'm sorry  oh thank you for for serving pro bono and helping the court in this matter thank you for the opportunity or