right our fourth case for this morning is elizabeth sebastian against davis and others sympathetic reading of the record that no find or fair could reasonably rule in the unsuccessful move and so what we're aware of that standard believe me and we're also where the fact that you didn't file a response and so we take the facts as they were presented in the motion although still as the district court correctly said reading them in the light most favorable to the non movement nonmoving but can you tell me what disputed issues of fact you think are there given the legal standards that govern intervention when there's a concern that a child might be in need of assistance from the state absolutely  is born which is september the twenty seventh of two thousand and ten and by that time the earlier visit to first just swedish covenant facility and then to the university of illinois medical center has already happened and there's a lot of troubling information at the hands of the social workers the d c s staff people the social worker at the hospital davis and it seems to me they are they're doing what state law contemplates they should do they have immunities under state law and it's hard for me to substantive due process problem here so i i you know i the court did minutely cite many factors but as this court knows the factors there can be considered and must be considered are only those known to the decision maker at the time the decision is made so any of that didn't count i mean he are you men we should her mother and she read reviews sebastian's medical records well that is incorrect she and the appleby's actually did a careful job in their summary judgment materials they never contended they at the entry davison viewed all of the medical records andrea davis testified exactly as to what she considered when she made the determination to report elizabeth's a best and she did you receive the one she did consider she said that on that one occasion   lizabeth was easily triggered was hostile and and angry hadlow insight into her psychiatric needs demonstrated a lack of support and ending argued with her mother bright and those states well the  includes davis the brief filed on behalf of the board of trustees of the university of illinois and davis also indicates that her sesame and takes into account the recent psychiatric hospitalization the potential exacerbation of conditions in the postpartum period that's great talk at one o two paragraphs twenty five and twenty twenty seven twenty five through twenty eight essentially sets forth those things they at she relied on and the question is was there was that reasonable for considered good faith report and warm stance one question under and prof whether there is there was a good faith report made and she determined there you have to actually look at ankara and see what it says in charms of what is considered neglect what is th future risk of harm and so forth you know what bothers me about your position on things bother me about the whole thing but we have a line of cases that i'm sure you're very familiar to take affirmative action you wind up with the tragedy that happens and to shane so states passed laws like the states are trying to say to the social workers you are protected if you are on the side of caution and a reasonable person would think looking at this set of red flags are this set of data whatever you want to call it that further investigation is called for you're free to do that we don't want to put a thumb on the scale of leaving children unprotected and it seems to me that's a very rational state policy and it's very hard for me to see why that violates anybody's substantive due process rights in theory you're absolutely correct and we have to be concerned about the welfare of children and it is in fact a compelling interest when we look at the substantive due process argument it's a compelling interest but that does on the part of the state  facts because you could give me certainly if the child is taken from the family nobody would dispute that's a very significant interference that's not what happens here davis talks to her the d c s people child her being conclude that she needs to in home intervention which catholic charities provides for some number of months before the indication is unfounded and the child's never taken their it's true but because there is this permissible statute because it really is it it's i believe andrea davis did first or she did she did not follow the me and gates of and corrupt marian fontana if we just look at her testimony alone and actually our expert  here we're dealing with neglect and neglect in in the rubric of future possible possible future risk of harm is that there must be a likelihood of injury as the apt of neglect or abuse so what's the burden on somebody in davis position to make a final resolution based on all of the evidence that could be collected versus more of a probable cause kind of thing or reasonable suspicion of things saying i've seen enough we need to look into it further i'm not the final decision maker but more needs to be done yeah i think again there  balance there she does not have to have proof of anything she just has to he have specific articulable facts that she can point to that really get to the essence of what this person is charged with which is a future risk of harm now so see this is a subjective test or an object of test what a reasonable person looking at these things under angle raw it appears to be a subjective test under although i would disagree that that's appropriate but be that as it may but under the constitutional framework it's certainly in a good objective tests what would i if she if she if there's some will full failure she may be subject to criminal prosecution if she if she uses her discretion and somehow thing happens down the road no i don't believe she would be  prosecutor might ever make a mistake about her state of mind or if a tragedy were to occur and there were a public outcry for to hold somebody accountable for the child's tensions here but this is also it seems to me a situation where you belong has got to give somebody in ms davis a situation an awful lot of latitude to err in either direction we have to be very careful when we talk about what for the evidence of bad faith is that she did not consider any of the mitigating factors presented in this case which the law requires she did not consider she she did not consider and in fact testified that she just would disregard the opinion of the psych psychiatry asked who saw mr best in the hospital and determined that she was no threat to the child  she acted in bad faith when she held certain things against miss a best to which prohibits specifically anchor prohibits the they are the men may not consider the attitude or the hostility of the  neglected child is defined in section three and i ask that you look at how neglect how the how a reasonable social worker would understand good morning marilyn bush on behalf of the university of illinois andrea davis and splitting my time with mr siegel who represents the c f s so i have a camera here obviously our first argument is that  the apple and has forfeited any argument she can make a comment to dispute our motion for summary judgment based on the fact that she has failed to respond at all and that she has conceded in fact in her brief that the state in effect set forth this true be that as it may i think that the facts are the facts and you can still draw inferences in favor of one side or the other we have plenty of cases where somebody fails to file the proper fifty six point one response in the case isn't over at that point no i agree i think that judge simon noted as in if his stated now are back in his court it brought up the exact basis and reasons why andrea davis made the referral that she ask you in terms of the substantive due process claim i looked carefully to your brief and did not see that u i c ever asserted that it's a arm of the state isn't u i c a state institution that is right so why is there a ninety three action going on against you i see and that's one hundred percent sure your honor it's well i'll tell you there's a case called will against michigan state police it says the state is not a quote the plane the airplane it has basically focused on the rights of the mother i think that what we're looking at here is the rights of the child and now obviously the dyad together as the under again this points out but to be at the the reality is that the rights of the child were pretty preeminent in dave's mind and the fact that she was going home with the mother under the circumstances that she was concerned about why weren't the phone call why was she entitled though to disregard one of the xmas balance pointed out to disregard the limited to that minute i mean i'm sure it was long well i think the basis for the psychic psychiatric evaluation was to determine whether or not this best so could be committed in voluntarily that's why the terms are being used as to whether or not she was a harm to herself or others the bone or ability of the newborn the fact that she actually didn't have a place to go initially when she was talking about the pics she had no place to go her mother finally stepped in so she could go home with her but the bottom line is did andrea davis after good faith in making this referral we believe that it is very very clear that she did and that she is and you were at least disputed about the availability of the home and that it was an appropriate home for the child and i understand your position maybe she she might have thought that was she rational in thinking that there was a problem when the mother's right there the mother was right there and they were having this intense argument the entire time that that the mother the mother data entry was in there with the mother and  besta subsequently and even with marian fontana who was davis supervisor met with them she said that the mother kept denying that that her daughter had any psychiatric history when it's actually a long psychiatric history and she said it's just her temperament but the but the records proved otherwise so i think that the under you know concern for the child was that the phone call was made whether or not the c f s intended to take up that call or do something with it  is is up to them but the phone call itself was not that much of an invasion of the mother to familial relationship and certainly the anchor still does protect her and just to be clear davis has no further involvement after the phone good morning and then as the court counsel i'm assistant attorney general evan siegel on behalf of gloria being now leader childs of the illinois department of children and family services this quarter for the firm of the district court and conclude that my clients are entitled to summary judgment and at a minimum qualified immunity under either result there are no disputed facts in this record because the best as for the them showing that either trials were being acted on concert truly indeed they were doing just what they were supposed to they were doing their jobs correctly and lawfully they acted under the well established law in this circuit to protect the health and welfare of baby elizabeth suggest that there was some discussion in the briefs about changes in the statute over the years and the extent to which i guess that of the overall environment that the child was going to is a component of that maybe you could say something as i guess this was during the time that environment wasn't singled out as it's a factor and i believe your honor you're talking about the decision to indicate sbastien which was made in november after the investigation occurred this is not part of our  my understanding is there was there were changes in the law that were made or ordered by the illinois supreme court in twenty thirteen if indeed all  arguments on this point concerns as best i can follow it the idea that in two thousand and thirteen can the illinois courts rule that as of twenty twelve after the events in this case the defendants were supposed to have knowledge that as of one nine hundred eighty environs factors were not present but first of all all of those events happened post the critical period of time here which is the fall of twenty two so from a qualified immunity standpoint and these are all state law arguments that have nothing to do with federal constitutional rights my clients did not have a reasonable basis to conclude that anything they were doing was patently wrong or incorrect there must be a close fit and force that means the cases that are deemed to provide new or different ri of course the actors must be on the all must have knowledge of the changes in law none of that occurred here so at the time of the indication so best beat being in trials had a great wealth of knowledge having investigated in the hospital and having then afterwards accessed the medical and psychological records from university of illinois hospital then from the hospital before swedish gove covenant now we thought we've had other cases in which we're not sure how realistic this is to be honest but in which we've said well if if you go to a parent and say if you don't do x then we're going to take your children away that somehow isn't coercive i mean it seems pretty worse to me actually but that's basically what she was told if you don't agree to have these in home services then we may be forced to remove the child from your right what and what happened here was during the four day window of the hospital stay childs have you spoken to her supervisor made the offer to suggest to have these intact family services are to face the possibility of not the not the absolute certain but the possibility of further action that would require sound formal procedure absolutely and would require the invitation of the state attorney and proceeding in juvenile court that did happen but i want to emphasize that intact family services is a very unofficial unobtrusive offer of a range of options designed to protect the welfare of the child in the home do we cases where the court held that it's better for parents to have a range of options under a safety plan then that then it is to have no options now a safety plan can involve the removal of the child from the worker all kinds of moderate intrusions short of total removal and then at the far end of the spectrum there's a separation so  negotiation in a settlement or to a plea agreement the offer to take this less intrusive array of services weighed against the possibility of removal in no way shape or form is a constitutional violation of what point in the process you presented in a benign way but what point in that process is the parent entitle to legal counsel if he or she can't afford it in with an intact service as your own or in these negotiations well you know we've got we'd like you to accept these intact family services but if you don't then we might have to consider more formal proceedings that could wind up temporarily or potentially even permanently separating you from your child so i think it's  individual parents when it went to retain counsel they don't have a right to ever have a terminations or parental rights process are they entitled to the appointment of him yes i do not know the answer to acquit and this is a civil proceeding so i don't know when a right to counsel would would kick in if you don't think the state could permanently and apparent parent's right to a child without counsel for an indigent parent services one of those is references to legal representatives so financial assistance help with substance abuse and legal aid as well in it in that intact family services offering so best to it being a child were doing their duty when they investigate it's the best of it at both points at both critical points during the offer of intact family services and later at the indication at the at the moment in the hospital in late september when that offer was made child's head there were three common threats to the decision that was the best as observed mental health it was h unwillingness to acknowledge it or to treat it and then there was the record what at least three health professionals and two hoss little's had recognized including test results from psychological and talks a lot toxicological examinations all this became known to my clients from september to november and the more they investigated the more concrete became their knowledge that's the best it was ill equipped to care for a newborn child on her if it's offensive that console gets up here and suggest that my client was ill equipped to care for her child there has never been any finding at any time that she was ill equipped to care for the child but they had a attitude is the kind of shows up the the problem here we have very real concerns about children being kept safe but we also hear very real concerns about governmental agency or agents abusing their power and using qualified immunity or good faith and what he have you as an excuse is this court recognize the unquestionable compelling state interest in protecting children of ten three years from being abused may not be used as a pretext for arbitrary governmental intrusion into the private affairs of its citizens and what i'm asking this court to do is look at the record and carefully determine what did this young tree davis consider when she made her determination she told she told me in her deposition and there in the statement of facts what did gloria bean and all and her and the other defendants thank you and so forth no she did a chapter list they had showed in that it's part of the record exactly what she considered and i think the aspect of the mental health aspect was that she was