seizure that's because the standards for removing a child without a warrant are different from the standards governing the court's probable cause determination that the the legal basis for the claim i'm asking why the claim resides with the mother as opposed to the child and nobody raises the issue in this case but we recently had an inbound case involving this issue and it seemed clear to us in that case that later down the road right and we know that there's nothing further so that they take the child from the hospital she's the child is with the mother in the hospital and they come in and they remove the child from the mother's care that's correct and that's i thought that was a substantive due and i was just curious because i think the actual right not to be seized without a warrant belongs to the child as opposed to the mother but go ahead i do want to thank you so we have that issue and then your honor the when you look at the record there is nowhere near record starting from child custody hearing in february through the trial where the court even address the warrant was so and we know in fourth amendment claim if if you're right and the mother then can and in three days later there's a hearing in the child is taken away by judicial officer or whether the decision is confirmed by a judicial officer it's for those that there was three days of deprivation yes three days but then again there was a temporary custody hearing that really occurred in february in january three days later it's my understanding there was not a court hearing it was eighteen this is a quote of their order was approved by the chair it looked like it w yeah it was done remotely but it was signed two and a half months later that's that's an open issue it may well but it looks like the judge certainly was involved i mean i don't think we just had a at some point the judge was involved in that determination it's clear i'm sure but again i don't know for sure and then well then you know somebody then just stamp the judge is like i doubt it but i just don't  affirmed and the evidence in this state proceeding as i understood it largely consisted of what you say are the lives of the defendants so it must and must include superior court have to have found that some of those statements were true where you run out if we go evidence presented in a prior judicial proceeding and that's because of the identity of issues required when when something is known to a government official that is materially different than what is stated an additional hearing that issue was never well let's let's take one of the claims just to be one of the claims is that your client used narcotics ok and somebody testifies that your client use narcotics and the judge finds that your client narcotics and therefore that's a reason to terminate parental rights and what you're not saying use now discovered it was a lie you contested it it was a lie throughout the proceeding you said i didn't we didn't state when they presented their case and the social worker this had a lot of other evidence they did not bring that evidence up so your so your argument is not that they lied but rather that they should have that there was their obligation to report of harm by the hospital but that was not true there was no evidence to show it put on and that was so that the way i understood what happened at the at the custody at that  the temporary hearing when the judge took evidence in miss dale testified is that she adopted her titian and all the statements in the petition that right and she was actually on a way to becoming a great parent until the state seized the second child which was right at the hospital three days later was did the district court deal at all with some of the timing of these two things is this contemporaneous they did a district court deal with all in this case with issue preclusion arising from the seizure of the other child they never they never addressed because because he'll be against you based on other stuff but this that would be open for the court to consider and remit would it not that's correct that there was no there was no litigation over that issue nor like i said like in the briefs the fabrication of evidence and if you go to  the reason i ask is that there seems to be a finding that about a month before a p was born your client was using her well and you want to she was on a drug again those allegations know how this is i'm talking about the jackson roughly the same time period your client was using drugs and her other child was taken away from her for that reason i think there may be an issue because her effect to that to this case i was asking whether the judge relied on that i  don't know i don't know but i think i think the main issue is these issues were never truly litigated in the court if they were litigated them in a different outcome ins in turn in nor to sever parental rights in this case what must be alaska trial court have necessarily decided all that they can decide is that based on based on the issue she should not have rights to a child and that's an issue that that the federal court must treat as true yes determination but not how we got to the term mission that was issued your honor that will be good ok and that's the reason why we have the  please the court i'm with pat same assistant attorney general for the state of alaska on behalf of the defendant applebee's in this case jeanette dunkel is asking the court to work her two million dollars in money damages based on what she characterizes as an improper  removal of her drug explosive new or in from her custody followed by what she calls a kangaroo court proceeding in the alaska state courts that was allegedly infected and directed by false statements of the defendant social workers although she admits that it may well have ben in her daughter's best interest to terminate her present all rights she nevertheless wants to use the federal courts to really get the issues of her parental fitness deal first with the word seizure if you will but i don't see how the state court could have possibly child was was that removal that maintaining the child in state custody was that's a very present further harm to the child which is necessarily a finding that harm has occurred and in fact that we're going to includes a no contact provision that even under mean our contention is if you look at that word or which incorporates the idea that there has been harm to the child that removal and continued removal is necessary to prevent french i've actually severance case you can't you can't be g custody but then for the court to nevertheless have to having a certain people custody to place the child back with the parents right so there are circumstances where what the court is saying is we have probable cause to believe the child is in need of aid but nevertheless we don't see a significant enough danger that means the child can't be in the home child was in the hospital in this case the child was in the hospital when she was removed how long after birth three days was the mother on our way out to case well what the record reflects your honor and what the state court found was that the mother was using drugs as the court pointed out that was she was a daily heroin user during her pregnancy that the child born at thirty eight weeks that four pounds ten ounces that the court specifically found that was because of the drug use that couldn't be explained by a prescription several weeks earlier which was her explanation  that and in fact her complaint admits that she was never the less breastfeeding the child she has drugs in her system she is breastfeeding the child and that is acute and immediate harm to the baby that justifies the  terminations trial there's simply no way the court could have reached those conclusions and ultimately terminated the rights without finding those statements to be credible it if she is not a credible witness there is no bas in my system you know employers i do she get to bring a nine hundred eighty three suit saying yeah they found that but they found it on for seven years she doesn't it's it's that was necessarily litigated and decided in the child and eight case because otherwise there is no child in case there is no longer life the the the determination order and all the child in need of aid workers indicate that the court found to the social worker statements to be credible and that is an issue that was litigated and decided and we've stated cases to the court holding that social worker credibility is always an essential issue sure in a child should be fairly credible but this th perjury if you well because again your honor if if the trial court had believed that the witness says statements where perjury is then there's no basis to hold the child there's no basis for state custody there's no basis for terminations and this is was well she had numerous opportunities to cross examine the witness about that and she had opportunities herself to testify about that issue and to call witnesses that would delve into the suppose of lies and create that and the fact that she failed to do that at any point to make that showing and to convince the court that there was that these were false statements is now conclusive and binding upon her and asked reclusive effect and to the extent your honor that the legal doctrine doesn't preclude the case the equitable considerations should and that's the reason we've made the argument that the court should extend the had to be humphrey equitable doctrine to encompass this type of proceedings i mean at its essence miss douglas argument is this child was removed several hours too revocation and what the court said in footnote ten was the issue of in the license revocation was whether the administrative law judge exceeded his authority in looking at the social worker reports whether they were true or not and the issue in the section one thousand maybe three case was whether there was deliberate fabrication of evidence in this case there's no disconnect there could be issues that were live in gated in the child in need to be a case come down to was the child in danger and that is the same issue that is sought to be really the gate here so there's no disjunction there and one of the things that's notable about this case is there is no showing of any change in circumstances at any time i mean some of the court substantive cases  are are ones in which between the time of removal and the time of trial or were between the time of well there are some change of circumstances some reason to believe that in fact the removal hold of miss dale credible to that extent he didn't rule on credibility on anything else although we couldn't have removed custody simply under the basis of being credible on the extent of trying to get a hold of or could that's what he said in well doubt it's not what he said he says i find it credible to that extent but surely in in several parental rights he had to find something more even if the social worker couldn't get a hold of her what what you want to understand but these hearings only last less than two hours so it's very difficult in a two hour time frame to question with respect to use of heroin i take it your client's defense is that she was on a treatment program and that this is was in her blood from treatment well that's one issue plus the kidney surgery she was on with respect to all those issues didn't she have a fair opportunity to raise those in the in the severance proceedings when the state said you're here when the baby's got her when it's system couldn't she have said here's my excuse well you're on it does it and so i'm not sure why it is that issue wasn't fully litigated already because in the end in child custody cases terminations the the trial is on extensive it's not like wanted to know that it  was she prevented from saying wait a minute are hundred of these may look bad but i've got an excuse i had surgery that's why this is there these are nothing she just discovered she knew that back then didn't she yes yes had she had