good morning to may it please the court my name is lisa human and i'm an assistant attorney general for the state of arizona i'm here today on behalf of my clients lori s linger for buckle tone and teresa patterson we are here today because mr livingston argues that speak up yes yes of course we're here today because mr livingston argues that when he came into d c s custody that my clients did not adequately investigate his date of birth and his age and if they failed to disprove his date of birth as it appeared on his federally issued identification well counsel the lipscomb versus simmons case will have a lot to do with this yes your honor will what's your interpretation of it but how does it apply here let's come to the simmons would go to the one of there are two so our position is that there's two alleged violations here the first is that there was a violation  mr livingston alleges that occurred when the dependency was prematurely closed and i can come back to that later lipscomb lipscomb what would apply to his allegation that my clients did not provide him with age restoration services and the reason that it is relevant here for really for mr livingston or what he claims it's relevant for is to establish or to to demonstrate that that right would be clearly established it is our position that my clients are entitled to qualified immunity because the right to age appropriate restoration services is not a clearly established right as you know qualified immunity would protect government officials for their reasonable mistakes s obviously so important here absolutely so the the phrase that mr livingston relies on from lipscomb is a child that's in state custody is entitled to minimally adequate care and treatment appropriate to the ages and circumstances of the children the problem with his reliance on that phrase is it was not the holding in the case the lipscomb case was actually an equal protection case it didn't have anything to do with the ages of children it didn't talk about the adequacy of the care that the children received while they were in state custody it didn't talk at all about restoration services or any of the other descriptions that mr livingston has for what those restoration services are for that reason that phrase although it has been quoted in other cases w not actually the holding in lipscomb and so that reliance is misplaced now mr living it is mr livingston's burden to show that right is a clearly established right and i the state would not deny the fact that phrase has showed up  several other cases the problem here is that it has never been shown to be clearly established in the in the sense that it is the law would be as the fact excuse me that the  in order to be clearly established the law must be tailored to the facts of the specific case and in heat in this case what we're talking about is whether or not my clients adequately investigated mr livingston's age and then provided him with the so called limits of that phrase is in other words if that were the holding of the case would that change things here no it really wouldn't and again and that's because in that case it did not the facts of that case were not in any way similar to the facts of this case what's required of the state when there is a special relationship as was the case here that there was a relationship between mr livingston in the state because he was in a custodial relationship with the case law tells us is that the state is required as is required to provide certain basic needs to a child and those basic needs include things like food shelter clothing medical care reasonable safety however none of the case law has gone into whether or not or how that should be applied in this in terms of age or what restoration services would be you know the order we do with the passage that the state must provide foster children and i'll quote minimally adequate care and treatment appropriate to the circumstances of the child i don't know how to how do we apply that passage here you would apply in the same way that it has been applied and in the other case law here on the ninth circuit and the way that the case law has applied it is that these children in foster care are entitled to certain basic human human needs and again those human needs that what the cases have shown are food shelter clothing etc if this court today decides to to include age appropriate care and age appropriate restoration services and this will be the first court to hold that and that's why my clients would be entitled to qualified immunity in this case  hopefully that answers your question with respect to the if the first the first alleged violation of course the prematurity alleged premature closing of the dependency we again would point to the dish eenie case which was obviously briefed in both of our briefs the dish eenie case is squarely on point with this case that the fourteenth amendment does not make it a violate or is a violation of the fourteenth amendment to close a dependency prematurely sheeny we saw social workers who mistakenly returned a child to his abusive father who then later abuse the child so severely that he would require treatment for the rest of his life despite  despite that fact the supreme court did not find that those mistakes served as a basis for for a fourteenth amendment violation for that reason the fourteenth amendment does not require that the state take children into its care it does not require that the state keep children in its care for a certain period of time and it does not tell social workers when they can release a child from its care so if the organization that took the charge of the boy was overloaded with people they just didn't have space and even though they knew he was fifteen or fourteen or sixteen they just let him go because there's just no room that's not a violation of his rights that would not be a violation of his fourteenth amendment rights if there was a problem with it would be it would be soley limited to state law but that's not the allegation in this case the allegation is of course he has due process substantive due process rights were violated by closing the dependency early and again because we saw similar similar circumstances to cheney could liken to our case here and dick cheney the social workers made a mistake and they returned the child to to his father and there were obviously grave consequences from that again despite that fact the supreme court did not find that that was a fourteenth amendment violation likewise here even if we believe and as we must because this is on a motion to dismiss all of the allegations in in plaintiff's complaint if my clients made a mistake and prematurely closed that dependency that would not serve as the basis for a substantive due process violation under the fourteenth amendment  so it's your position that under no circumstances is there any obligation by c p s workers to take care in any way about the correct age of the people or that of the children who are in their care not not one that's clearly established your honor and again that's because despite the fact that that phrase again we don't deny that that phrase has appeared but that phrase was it was dictum in law in lipscomb and then it's been cited in a few other cases but in all of those cases they reference the the duty to keep the child safe from i mean by and large all of the other cases that use that phrase are cases in which a child was being abused in some way and foster care that's not this case this case is about whether or not the child mr livingston was receiving something called restoration services if this court finds that a child should be entitled to age appropriate restoration services then of would still be entitled to qualified immunity but we would request some guidance as to what to do when there is conflicting evidence as there was in this particular case because of course again we had mr livingston's aunt in the federal identification that clearly noted that his date of birth was one thousand nine hundred four going back to the clearly established issue another thing that i did want to point out was the fact that the ninth circuit says that in order for it to be clearly a clearly established right the law must be such that every reasonable official must understand that what he or she is doing violates that right again my clients did not would not have had an understanding that relying on mr living and or relying on his federal identification would have violated his substantive due process rights indeed not only my clients who didn't didn't know that but as as we know from the third amended complaint neither did law enforcement officials from the city of phoenix and one of the other cities in the phoenix metro area and neither did the arizona state superior court who also used the federal identification to establish his date of birth so for that reason your honors we would request that this court reversed the district court's as it was in the stablished well two prongs i guess to the extent that mr livingston claims that the that closing the dependency early was a violation our position is that simply isn't a violation of the fourteenth violation of the fourteenth amendment to close a dependency that's what we saw in the case where again in that case the social workers close to dependency early and yet the fourteen or excuse me at the supreme court did not find that that was a violation of the fourteenth amendment the supreme court goes on to note that the fourteenth amendment does not transform every state law tore it into constitutional violation so if there was something wrong with the fact that my client's closed mr living dependency early whatever it was it wasn't a fourteenth amendment violation and then to your second point your honor the are the allegation that my client did not provide mr livingston with age appropriate rehabilitation services we would argue that if that is a right it is not a clearly established right now and there's for thank you your hon six in the tomasky case in two thousand and ten the court came out and we're talking about the right the child has in state custody when they take the child into state custody and it spelled out that that right is minimally adequate care and treatment social workers had to piece of information one the advice of the end which was never changed and number two the federal id which had the same date of birth correct your honor and they had the federal id when he went into custody which indicated he was two years older he's saying all the way along no that's not correct so the second they take him into custody he's telling him that further  was older and why shouldn't the social workers or the department rely on the physical evidence of the id as well as the oral testimony of the app because they had significant evidence and information given to them that they documented themselves and wrote that they knew about indicating that he was two years younger from being to minutes of in size from being a second grade level you have a psychiatrist his age has to be investigated because it's not right you had an investigator from the court make the same indications the court found with all that information or information they had at their hands that they took no action to determine what his age was before they aged him out of c p or d c s care and custody this so there was a whole series of facts that the court relied upon these people had information and didn't take any action determine his age and as a state  i don't know what at least in our complaint what information the aunt provided them what was in the complaint what we've laid out is they had the federal id that was obtained from the aunt when they came in the united states from liberia so i what they had when he came in which was and united states documents that had his age i guess that's the first part of my question and i if you respond to that and secondly the scope of the obligation that would be imposed on these workers as i read the the complaint his age is correct wage was eventually determined by dental forensic analysis so talked a bit if you would about the scope of the obligation that you are imposing on  on these defendants the scope of the obligation a simple age appropriate services age appropriate care i mean in terms of determining age factor he was originally came into juvenile court supervision for criminal matters before he went into care and custody and he was evaluated found to be competent to stand trial because of where he was at is is is you know he was incompetent and so the evaluators by the court and psychologists were the ones involved in that and they're all coming this guy is too young he is not the age that's on the federal records so that's the starting point then he the abuse allegations occur with the mom he ends up in the jail for about a year he ends up in the juvenile court i mean the d c s care and custody or from the very beginning they're getting the information that he's under that age is not correct from very good sources plus the physical evidence they had in front of him and they document that they knew they knew they knew that but they decided well he may be fifteen but we're going to age him out it's not like the court and to shane if you look at that one the court ordered him back to the child back to the father s had no choice but to give the child back to the father of assault of the child in this case aging out as eighteen just age out and so knowing that the caseworkers allowed him to age out then he gets arrested spends time in maricopa county fourth avenue jail as a minor but he's in adult jail and he pleads guilty to get out then ice takes him because now he's got a felony well they actually listen to him they listen to him the feds do so they do the forensics the dental t act age then they say hey we can't do anything they send him back and ultimately it was the immigration lawyers and some court appointed criminal lawyers who were able to get all that correct because he was a minor you know i understand all that i read the record my question to you is are you imposing on this fee p s workers as a child comes in with a residency card telling what his age is from the united states the obligation to do a dental forensic analysis to determine to make sure that that is the age he he is my argument is that if you have reasonable information birth certificates or something like that federal yes you can rely upon in determining the care you're going to provide to the child that's age appropriate care but if you have information credible and reliable information that that's not accurate this is providing schooling this is providing services to a child to help them develop it we can't walk away from that is of course said they cannot show a blind eye to that because they need to provide as as the standard says but he seems to me or seems to me you're asking us to take a blind eye to the federal id and the information provided by using what you know what we're talking about isn't the standard and whether it's clearly establish what we're talking about is deliberate indifference which is knowing the risk and not doing anything about it and that's what the court found let me just read to you what the judge said the necessity of ascertaining a child's age in order to meet the duty of providing age appropriate care therefore seems clearly enough that a reasonable caseworker would have known that turning a blind eye to the evidence that a child was younger than he was then his recorded age likely result in age in appropriate care and treatment we're talking about not year that care treatment what are you can provide to the child if you've got it information as a c p s caseworker that that is not correct you should take action it's not a this is the state of arizona they have the ability to do everything that the feds did and do it quickly when he was being arrested they we do this all the time in juvenile court get experts to come in and look at issues and find out determine it but in this particular case they knew this they documented it but decided you know what we don't want to deal with this issue we're going to age amount so they took a fifteen year old and took him and you say that's enough to establish deliberate indifference you're dealing with a qualified immunity crime here yes i think that's enough to establish delivered a difference because it has the knowledge they knew about it credible evidence and they did nothing when they decided to age amount say that's not it's not a court order kicking him out they said ok we're going to leave him eighteen is there any evidence in the record that that he was in second grade level when he came in which would he would have been in their mind about seventeen when he came in he's in second grade level they knew that his instructors they put him in education had told him that hey that's not the right age for him that needs to be fixed ok and they document this not us they put in the report they document this in the decision making their case not what they're going to do then you add on to that the stuff and the complaint argues they knew from the evaluat from the juvenile court in the psychiatrist from the juvenile court is that absolute knowledge no but it's absolute that there is a problem it's absolute that i should look into it and ask you questions no to deliberate indifference has as an element subjective knowledge of a risk right and then indifference to that risk what risk was there and turning him loose your honor that he cannot e it is is your position that there is a subject of knowledge that this individual will commit a crime your honor he had a history of that so that's your position well no i just answered that one particular point he had a he had a history of that our case isn't about him being having a rider not having a right to remain in juvenile court cassie that's not our allegation and we didn't if you read our complaint that's not in there they cite a paragraph saying that we say our case it's not as nothing to do with our case our cases when he was in their care and they have the information and you're providing education and you're providing other services they have a duty and obligation but there might be  i don't will he had in the past and they knew who the kids were he was around they knew he didn't understand what the legal system something's going to happen to that kid that is not a good situation i can't s something that's going to happen is not subject to the knowledge of a pretty precise risk your are let's go back what is the risk it isn't that we're going to put an eighteen f fifteen year old kid out in the street ok the crime if he's in custody he's under the care treatment of a case manager he's in a home where they're watching him twenty four hours a day he goes to school but they commit a crime i suspect i only say that because of his prior history you can ignore his prior history that did the rest that he had the fact that he was incompetent to stand trial was the risk that he will never be competent what's the risk that he could harm society what's the risk that he is not going to be a productive member of th society and cannot be a productive member of society because they put him in grades that are too high for him they put him with adult kid boys who are influencing him you know so those are the they have an obligation i think it's clear that the constitutional right knowlton talk about if you would what what or what didn't miss henman or home and i'm sorry spent most of her time on which is that even if there is such a right which she just spewed it was not clearly established is  you believe it makes it clearly established or is there some other case or cases that you want to be first or if you look at the to mosque ace this specifically says as clearly as that this right you have them in state custody so that now we have a duty an obligation that's the general and they say what is the duty an obligation to provide adequate care it is age appropriate adequate care and the thomas case says that was well established that was well established back in one thousand nine hundred six but that's a very generalized statement is it not so how do you take that statement and start and say it's a clearly established right that the c p s worker should have known your hour for you to the white case in the casella case where they talk about their attacking  the excessive force on the fourth amendment rules being too general and they talk about that a general rule is assuming you say that my this rule is gentle i say it specifically because it gives them dollars you need to provide age appropriate services and that's right when ours is right on  fours but say it's not say it's a general one those cases are pretty clear that a general one can still be sufficient if it gives guidance late gives them knowledge that they by their actions would be violating the constitutional right if you do not i mean i can you see the argument is a good faith you don't have to buy the age appropriate services to a child the c p s caraquet city i think i think that is pretty much common question is what how much do you have to do to sigur out the age when he comes in with a residency card with an with an age and nothing without other significant evidence that requires you then to do so ok and that and i think that's pretty clear but the other side i'm going to go back to the white harris cases for a second because i've got just a few seconds left is that they talk about if you're you know excessive force reasonable force necessary in the circumstances they said there's a lot of cases where that's too general and we can deal with that but they said if it's obvious if the violation is obvious then we it's sufficient this is obvious you're not providing you had information you should have acted on it the the the duty required you to act on it i'm going to finish with one last thing this case is not about determination i mean about right to remain in state custody it's not our issue it's not our allegation if you go back within the plant we didn't allege that so you could rule one way or the other on that i don't think it's relevant to our case because ours is about i just have a few points that i'd like to clarify the district court when it denied our motion to dismiss some qualified immunity as to my client's here noted that the failure it is true that the court in any did order that the child be released back to the parent but that was based on the recommendation of the social workers in that case and so that the state the same analysis applies there as would apply here in this case  the next thing that i wanted to clarify is that the fourteenth amendment as your honour's know was intended on a check as a check against governmental abuse of authority there's really only two exceptions to that case and that is the special relationship exception which we had discussed a little bit earlier and the state created danger exception neither of those exceptions would apply here to show that this right age appropriate services was clearly established the thomas case although it was one of the cases that did quote the lipscomb phrase minimally adequate care and services appropriate to the agent circumstances of the child the thomas case again was a case about a group of girls who were being abused sexually and physically abused by their foster parent it had nothing to do with what age they were or how to determine what their age should be or what types of services they should receive in foster care for that reason that cannot serve as a basis  demonstrate that that right is a clearly established right and that's why my clients are still entitled to qualified immunity with that unless the court has any additional questions i will waive the rest of my time