Legal Case Summary

Okay, number 13-7140, Carla Doe at L, appellate, versus District of Columbia at L. Mr. Harrison for the appellate, Ms. Anderson for the appellate. May I plead for it? Make Harrison for the Doe appellate, I would like to hear three minutes for the battle. The only reason there was no basis for the Sarmaric Judgment decision below, because for their constitutional claims. I have to talk a little while, I think, or you may. I'm sorry, Aaron. There was no basis for the Sarmaric Judgment decision below for the constitutional claims, and at least two of the torque claims that were genuine facts and dispute at minimum. And there were legal reasons why the Sarmaric Judgment already motioned for judgment on the pleadings being granted was legally an error for the other claims. In terms of the Doe process claim, there's nothing in the record that would support a justification for the district's failure to have a pre-deprivation hearing, to allow the Does of the Aherd, as the White Removal of at least Oliver and Ann, was not justified from the home. The district had 21 days or so, a little longer, that they could have sought a pre-deprivation hearing. They chose not to do so. When they did seek a hearing on the complaint for a new lifetime abuse, it took them only a day to acquire the hearing, and then they know paper to complain when it happened. So, in this case, there's no, I mean, if you look at child specific, child specific analysis, on what was the district's basis for removing Ann versus removing Oliver versus removing the two twins, the older children. You don't find a basis, let's take Ann to start. There's nothing in the record that would justify removing Ann. Remember Ann was the youngest child. I didn't hear an argument in your brief that we should focus only on Ann. I hear it now, but I did not hear this argument before, unless I've forgotten. Well, you may be a correction on that we didn't make an Ann specific argument. That's right, and that's what you're making now, a specific one. So, it's really too late to focus only on that. The other side hasn't had a chance to brief this argument. So, if you could make the argument that you made in the brief, I think you'd be on a better ground. I will do so, Yarn. So, the investigating social worker Miss Williams had made findings put in the faces record that there was an adequate safety plan in place after the dose had reported, discovered, and then reported the abuse by the older children. As they put alarms on the younger children's, yours, Ann and Oliver's

. They had removed Wayne and Sarah, the older children from the home and the temporary locations outside the home. And Miss Williams interviewed the children. She visited the home and talked to the parents. She was the only district official who did a field investigation, the interviewed witnesses. And the only official who put findings in the official record, which is their procedure in the faces database. And her findings were the safety plan is adequate. There's no immediate danger to the children. Let me interrupt you to ask you what you believe the legal standard is here, because my reading of the cases is that there's probably at least three different legal standards that have been used by the circuits. It's a circuit court of appeals. Some of them have said or have suggested that if there's reasonable, articulable suspicion that abuse occurred, that that's all you need to remove children from the home without, without a hearing. I mean, you need to have a hearing as soon as possible after that. But haven't some of them said that that's all you need. I mean, others have said that you need. There needs to be a finding that it's an emergency. But there are some that seem to not really require that. What do you think the right standard is? What if we were writing this, what do you think we should say to standard is and what cases should we rely on? I think that's the key question, Your Honor. The standard, I believe I should apply here, is this circuit standard for Fourth Amendment Service and Seizure generally, which is there has to be exigent circumstances before there can be a search and seizure on an emergency basis. That standard really shouldn't be changed. There's no reason to change it for the specific fact application of removing children from the home by an agency. If the agency has an opportunity to go to a court and have a pre deprivation hearing and to show its evidence supporting the need for removing the children in question, then there's no emergency. And here there was no emergency. The agency had plenty of time. The safety plan was in place. The investigator had relied on found the safety plan was adequate. So, you know, where's the emergency? The managers had needed. The police clearly said that the risk is moderate, but there were dangerous signals. Correct

. And the parents wrote a letter saying that they no longer could provide parenting for these four children. That is partial name correction, Your Honor. It would be the older twins, Wayne and Sarah, that the deal parents said they can no longer be able to parent because of the inability to afford the proper therapy and treatment for those particular children. It wasn't a point of the letter that if money wasn't provided, grandmother could no longer take care of Carla and the other party could no longer take care of Robert. I think it was Sarah, Your Honor, said Carla, but you're correct. I'm sorry. I'm very sorry. Sarah and Wayne. Yeah, you're correct. Right. I think that's correct. So, wouldn't that give the agency the idea that if the agency wasn't able to or prepared to provide money that those twins could be going back to the House? There was the potential that at some point in time in the future, the twins would return. However, what we're talking about in the situation of a pre-deprivation hearing in family, these family courts, it doesn't take more than a day to get a hearing. That's on a different, I think this was back to Judge Wilkins' question, which is, there are some circuits that say that if there is time to get a warrant, you have to. Right? But you agree that there are some circuits that say precisely the opposite, that you do not, that that is not an element of the test. That's what the 11th Circuit said in Kerni, and I think the 1st Circuit said. In fact, expressly rejecting the 2nd Circuit's other view. There is a difference, a split in the circuits on whether time to have a pre-deprivation hearing is even a factor. That's right. So that's the case. So, what I like to you to focus on now is the qualified immunity question. Okay. And under qualified immunity, it has to be clear to a reasonable official that the conduct was unlawful. Right. So, if a reasonable official is looking around and sees a split in the circuits, we have held that that is not sufficient to make the person lose their qualified immunity. So, just for the purpose of this discussion, if you would leave out the argument that there was time for a hearing and just go to the question of whether there was an exigency. I think that is the question, whether there were exigenced circuits

. And this circuit's law was not ambiguous on four-comment search and seizures in other context. In all contexts, there's no reason to believe that standard would change for this context. So, I think the district was unnoticed of that law. So what are the exigenced circumstances? Well, the only thing the district has identified in the record were the meetings the managers had. After Miss Williams, there, shows in field investigator reported back that the safety plan was adequate. There was no immediate danger. They were then talking about the potential for, as your other points out, a way in search of return at some point to the home. And that might pose a risk even with the safety plan in place. They speculated that for some reason the dose to professionals who had reported the abuse when they discovered it immediately removed when it's error from the home and then put these alarms on the doors and increased supervision during the day and convinced the social worker this plan was adequate. As soon as they would not implement the safety plan that they had just created. What is it fair at that point? I appreciate at the end that everybody's concluded that the dose were unaware. But you have children advising that for four years they had been abused. For four years they had been abused. The younger ones had been abused by the older. And then we later learned, in fact this was something social worker didn't even learn. This occurred after she had left, that the older of the youngest had abused the younger of the youngest. Right? So unreasonable at that point to doubt the words of the parents. I'm not saying that I want to be clear in the end everybody greased the parents didn't know. But given that information, that is where you have a household where there's that level of abuse for that long, was unreasonable to be suspicious of the parents? Suspicious to the point of wanting to make for the inquiries, I think for the inquiries may be warranted. The question is, though, is that an exigent circumstance, or can that inquiry be conducted with the safety plan in place? Well, but when you say safety plan, you mean alarms on doors. Now, Pizzouac, right? That's the safety plan. No, well, that's part of the safety plan. Well, the older children were removed physically from the home. Yes, but you sent a letter, not you, but the send a letter saying, that payment for service is going to run out on September 30th, and that for the grandmother, she can't keep the kid much longer. So we have no idea whether that could occur at any moment. We also have a letter. I want to interject some kind of, sorry, it says you mentioned the letter

. You sent that letter only applied to two of the children. But I have just looked at it again, and my initial tape, or it was, that's not correct. You said you had to correct me. This line, which is, for some page 522, the children are kind of a very last sentence. I'll trust you, if you're on it, we'll quote it. But we are no longer able to continue to parent them now. Four children with such significant needs. I haven't seen them either. Be limited to two children. I understand your honor's reading. What the doge were saying though was, we can handle the two younger children without the older two children present. We can't handle all four at the same time, including the two older's who have these problems. We can't afford to treat. That was our intent. There may be some ambiguity in how they stated it. So I understand your honor's reading. But I believe that's not what was intended by that communication. But they did not, but that's part of the record on which the agency base its decision to remove the children. Well, so the question then is not what their subjective intent was. Whether the agency had number one probable cause and number two a sound basis for thinking in emergency situations. Understand the point, Your Honor. But I don't think there's anything in the record that would indicate the agency actually read that letter like your honor read it, because they were in communication with the doge. But to test again for myself anyway, I only want you to think about the qualified immunity question. And for that, it's what a reasonable agent would do, not what any particular agent did. Right. So if you could reasonably read it the way Judge Randolph says that's part of the part of what we have to take into account. Well, if it's a reasonable read, you read that way

. That's a different answer, but it understood. With the entire record that the agency had, including their interviews with the doge parents, including what Miss Williams conducted, I don't think a reasonable agency official could believe that the doge were about to give up all four of their children. I don't think there's any any basis for an official to conclude that now. It's a different question whether the record indicated that the two older children that had been placed out of the home might return because of these financial limitations. That question is raised. So then the question is, is does that create an exigent circumstance? And the appellate's answer is no, because all they needed to do was call the doge, the agency, and say, you know, can you make sure that the two older children don't return home until we have this pre-depression hearing? And the doge would have said yes. And that depends on trusting the doge at that point, which does the trust doesn't come until later when they get a chance to eat. So I think the interview to the kids and find out that the doge didn't know about this. It seems, I mean, here's the evidence that I'm worried about. Okay, you tell me what's wrong with this. So we have this going on for four years. We have the possibility that the older kids will come back at any moment. Well, we don't know what moment, right? All we've been told is that they no longer can pay to keep one. All right, so that seems to be a reasonable social worker, might conclude it could be at any moment. There are also visits to the grandmother's house. We don't know whether the younger kids will visit the grandmother, where one of the kids, the abusers, is staying. We have alarms on the doors. There seems to be two problems with that. One is the trust for the doge at that point. But second, presumably the kids are not in their room all day long. Correct. I mean, unless that would be a different kind of abuse, right? Right. So what happens when they're not in the room all day, during the rest of the period? So those are the things that doesn't strike me like the usual case where you don't really know whether there's, you know, a molestation going on or not. And something has to, here we know everybody concedes and that agency knew at the time that there was a large amount of molestation going on. And I have to say from the other side, if there had been a mistake and the molestation continued, no one would think the agency acted reasonably by not taking the kids out right away. Usually the DC agencies are criticized for the opposite thing you're criticizing them for. That is for not getting on it right away and protecting the kids

. Well, I understand your owner's point, but the social worker in question here, you know, concluded that there was no immediate danger. So the real question is could the concern your owner identifies and by the way, the safety plan involved increased the provision during the day. The record reflects the social worker concluded that and found it was adequate. So although they're not in the room all the time, there were other provisions. So the real question is, you know, is this some kind of emergency? Are there agents in circumstances or can there be less emergency procedures used? I'm sorry. I just know. That's all right. No, as long as we ask you questions, as it was heard from the last argument, if you were here. I doubt it was pretty far. Thank you. But isn't the question whether a different social worker could also, with a different conclusion, also be reasonable? Well, I think so. But the question is what in the record would allow a different social worker to make that conclusion? You have the manager speculating in meetings, not based on their field investigation, in contradiction to the social worker's findings. And, you know, those meetings happened after those protected activities. You know, this is a summary judgment determination. And you've got these these fact sequences that suggest the agency was fine, leaving the kids in the home until their protected activity occurred. And then they started looking for a reason. Well, now you're going into a different argument, right? This is no longer a fourth amendment argument. So let's do one at a time. Oh, well, I do. Is there protected activity you mean they're complaining and not a more version of your retaliation argument? I do. Okay. So on the fourth amendment, and we're in qualified immunity, and the Supreme Court has made clear, we are to look, in fact, as reversed us when we didn't do this. We are to look at this first and to look closely at this question. And the only issue is not the issue here is not what people subjectively thought about what a reasonable person would do under the circumstances. Right. And the question is with the established law in the DC Circuit regarding exxion circumstances, and with the social worker's findings, or the evidence that would have been presented to another reasonable social worker from that same record, that there was no rush. I mean, you're only talking about a day or two difference, and that's really the question

. But doesn't take more than a day or two for another molestation to happen? Well, and only. If the circumstances had remained the same, your honor would be correct. But with the two older children removed or with the instigators of the molestation, with the alarms on the doors, that not only Miss Williams found acceptable, but we are positioned as a reasonable social worker, we find that acceptable. And there's nothing in the record of the contrary, nothing in the face of the database of the contrary. You know, if there really was different factual findings by the agency, where are they in the record? They should be in the record, and the fact that they're not is quite telling. Let me ask you this. Let's assume, for the sake of argument, that there is qualified immunity of the individuals. You still had a claim against the district, that's correct. Because Brenda Donald Walker made the decision to remove the children. She was a policymaker, and therefore the district has liability. That claim would remain an outstanding qualified immunity being recognized. And I say, I don't see that in a brief either. Now, opening brief does not mention municipal liability underman now. There's just not a word in here. I had the same question as Judge Wilkins, but I don't see it. There's no such to this issue at all. Your only discussion is about individuals. I think, Dr. Arna, that was because we thought it was a non-issue for the district. So it was what? A non-issue for the district. Qualified immunity wouldn't apply as a defense to the district. So we didn't address it because it wouldn't be an applicable defense for it. But what happened with the, in the district court, maybe I may back out of the disposition wrong. Then the district court grant summer judgment for all defendants, including the district. It did, but I don't believe the qualifying immunity defense was a basis for dismissing. No, but there must have been some basis, the district court. I think the district court's basis was that it found that there was no fourth amendment or fifth amendment claim

. But he's still on the list. Oh, there were no genuine facts in his view. So he do appeal that, fogged. But don't you also need to, to have argued about no liability here in your opening brief in order for us? You do argue about qualified immunity. So, well, I felt it was included in our argument on the genuine facts and dispute under each of the claims. And we may have, maybe we weren't as explicit as we should have been as saying that applies to the individual defendants in the district. Okay. I have further questions from the panel. No, thank you. Thank you. Good evening. Good evening. Morning, Your Honor, Stacy Anderson. On behalf of the district and the individual and the defendants, we'd ask that the court affirms a summary judgment in the district's favor in favor of all of the defendants in this case. With respect to the fourth amendment, fifth amendment claim, the district's position, there was that there is that there was no constitutional violation here, that the removal of the children was in fact supported by exigent circumstances. And the decision to make the removal of the time it was made was reasonable under all the facts and circumstances of the case. In particular, at the time the removal decision was made, the agency was aware of the pervasive nature of the abuse ongoing abuse for a period of four years involving multiple different children and perpetrators of the abuse. There's been much discussion this morning about social worker Williams and Williams report. At the time she made a report in recommendations, she was not privy to all of the information the agency had at the time of the removal decision. In particular, she was not aware of the imminent possibility that the older two children would return to the home. Her finding of lack of risk to the children was predicated upon the absence of the two older children from the home. Again, the agency was repeatedly told by the do's that their return was potentially imminent. The second factor that she was unaware of was the fact that Oliver Doe had been perpetrating abuse on end of that disclosure was made after Ms. Williams conducted her investigation on October 8 or 9 when the children underwent forensics interviews. So Ms. Williams was not privy to all the information. But didn't, didn't, at J

.A. 590, Brenda Donald Walker, who is a person who you say made the decision on October the 20th to remove the children from the home. She testifies that the basis for the removal was a potential for unsupervised visitation by Oliver and Ann with Sarah over at the grandmother's house where Sarah was staying. That's what she says was the, was the immediacy. Was that that unsupervised visitation could happen? Correct, Your Honor. Okay, she's a decision maker and she says that that's the reason. And I guess correct. Okay, so on October the 20th, the CFSA workers show up at the house at 9 o'clock. It's a school night. It's a Wednesday night. These are a second grader and a fourth grader. Presumably they're in their jammies. They're at home the, the, the Sarah that Brenda Donald Walker is worried about is at the grandmother's house. What's the exigencies in that there's going to be some sort of unsupervised visitation between the fourth grader and second grader and Sarah who's at another house. When you can go to court the next morning, what's the exigencies in that, the course of that next 12 to 14 hours? Again, Your Honor. I don't think that that Miss Donald Walker's decision to remove is predicated solely upon. Well, that's what she testified. She was aware of the other factors as well. Your Honor, and this is your check. She, she was asked what was the reason and that was the answer she gave. And again, Your Honor, she was again having been deposed five years after the fact was somewhat vague on her recollection. But it was undisputed that all of the persons who participated in the jury. Well, couldn't the reasonable jury conclude that if that's the only reason that she gave, that that's the only one that they should credit. And that there was no reason that believe then that there was, where that, that, that a reasonable jury could conclude. That there was no exigencies over the next 14 hours or so before we could go to court. If that was the, if that was the concern. Again, the standard is one of objectiveness

. So whether a social work proposition, all the information that was available to her had an objective basis for making the decision. If that were- I'm not talking about qualified immunity. I'm talking about just a constitutional violation. Anya, and it's an objective standard on the fourth amendment reasonable to standard is one, as an objective standard, the subjective intent of the officers is not generally relevant to the inquiry. It's a question of whether an officer possessing all of the information available to the decision maker would have a reasonable basis for that decision. And again, I think the record is clear that there were several factors and they just recorded reading and finding that there were several factors that were available to the agency, and on which the agency relied in making that decision. Was that simply solely the contact between the children and the grandmother? Who was Michelle Jones- Bridgman? I apologize, your own Indian here. Michelle Jones-Bringman, she was this- the woman we're talking about, supervisor, is that right? She was. She's not- she's not an indefendabit. Yes, she was a supervisor. And she testified at 574. We at that point did not have the ability to control when the other children could return home. There was a safety plan put in place at that time. We couldn't enforce it. We couldn't make it happen. And again, because the accident going on for so long, there was a concern for the children's safety. Correct. And Bernadonna Walker was privy to this information. Again, her memory was somewhat foggy on the specific facts. So in looking at the totality of the record, there were meetings between many, many people. This information was all conveyed. This information, I think, was factored and at the time of the decision making. And we get that from looking at the other witnesses' testimony. Jones Brighamon also says that the removal was for investigative purposes. Correct. And there was so many- So that the kids would be out of the home so that they couldn't be coached and that the parents, you know, they would be able to interview them, I guess, outside of the presence of the parents. That was- that wasn't a fact or so. But again, Bernadonna Walker doesn't say that. Again, her memory was somewhat foggy five years after the fact is in the specifics. But those were conversations that I think is undisputed occur between Bernadonna Walker and the staff members who participated in the numerous meetings to discuss the appropriate or practical reasons. My point is this is to drill down to the brass tax. Even if we assume that there's qualified immunity of the individuals, there's still a potential for liability of the district because Bernadonna Walker was a decision-maker. And there the question is, could a reasonable jury find that it wasn't objectively reasonable to take these kids away at nine o'clock in that evening when they could have been in court by 11 o'clock the next morning? Isn't that the question? There are several responses. The district gets asserted, Mimonelle defense below, the district court did not reach that issue. So the premature at this point for the court to get to the ultimate question is to whether or not Bernadonna Walker qualifies in the context of her decisions. In this case, is a district policymaker or not? Aside from that, again, you're on, I think, the totality of the information available to the agency at the time the decision was made has to be taken into account. That information included the fact that Oliver had been abused and and remained in the home. That information included the fact that at any point in time, Sarah could be returned to the home when the grandmother determined she was no longer able to care for Sarah. And also Wayne could be returned to the home at any point in time because the funding for his placement had run out. So, you know, you talk about overnight. It's not without outside the role of possibility. Those events could have occurred overnight. And looking at whether or not there's existing circumstances, the agency, the question about the agencies at the time the decision is made. And at the time the decision was made, these children faced a substantial risk of harm, either from remaining in the home, just Oliver and Ann alone, or through the possibility of Sarah and Wayne returning at any time. They get it was the those who emphasized that the possibility of waiting in Sarah returning was imminent and very real. So I don't think- No, I would- No, I would- No one said that the those gave us reason to believe that these kids were going to come home before we could get the court the next day. I don't think there's anything that expressed, but that was certainly a factor again, the Internet to the decision making process. So- The record does the record show anything to indicate why you couldn't have gotten the warrant before entering the home at 9pm? There was no evidence regarding the process by which a warrant, our court order could have been obtained, the time frame that that would have required that was just simply not presented to the decision. Where did the agency go? Where did the agency go? What about the security report, John? Yes. Yes. My understanding would be- I am 24 hour duty. There are certain disappear records. I just see wrong call for emergency warrant applications. But again, there's no evidence in the record is what the usual customary time it would have taken to get award

. But again, Bernadonna Walker doesn't say that. Again, her memory was somewhat foggy five years after the fact is in the specifics. But those were conversations that I think is undisputed occur between Bernadonna Walker and the staff members who participated in the numerous meetings to discuss the appropriate or practical reasons. My point is this is to drill down to the brass tax. Even if we assume that there's qualified immunity of the individuals, there's still a potential for liability of the district because Bernadonna Walker was a decision-maker. And there the question is, could a reasonable jury find that it wasn't objectively reasonable to take these kids away at nine o'clock in that evening when they could have been in court by 11 o'clock the next morning? Isn't that the question? There are several responses. The district gets asserted, Mimonelle defense below, the district court did not reach that issue. So the premature at this point for the court to get to the ultimate question is to whether or not Bernadonna Walker qualifies in the context of her decisions. In this case, is a district policymaker or not? Aside from that, again, you're on, I think, the totality of the information available to the agency at the time the decision was made has to be taken into account. That information included the fact that Oliver had been abused and and remained in the home. That information included the fact that at any point in time, Sarah could be returned to the home when the grandmother determined she was no longer able to care for Sarah. And also Wayne could be returned to the home at any point in time because the funding for his placement had run out. So, you know, you talk about overnight. It's not without outside the role of possibility. Those events could have occurred overnight. And looking at whether or not there's existing circumstances, the agency, the question about the agencies at the time the decision is made. And at the time the decision was made, these children faced a substantial risk of harm, either from remaining in the home, just Oliver and Ann alone, or through the possibility of Sarah and Wayne returning at any time. They get it was the those who emphasized that the possibility of waiting in Sarah returning was imminent and very real. So I don't think- No, I would- No, I would- No one said that the those gave us reason to believe that these kids were going to come home before we could get the court the next day. I don't think there's anything that expressed, but that was certainly a factor again, the Internet to the decision making process. So- The record does the record show anything to indicate why you couldn't have gotten the warrant before entering the home at 9pm? There was no evidence regarding the process by which a warrant, our court order could have been obtained, the time frame that that would have required that was just simply not presented to the decision. Where did the agency go? Where did the agency go? What about the security report, John? Yes. Yes. My understanding would be- I am 24 hour duty. There are certain disappear records. I just see wrong call for emergency warrant applications. But again, there's no evidence in the record is what the usual customary time it would have taken to get award. But the evidence in the record is that when they showed up at 9, they had a petition that said be in court tomorrow at 11, right? That was an administrative function on part of the agency. Their superior court is in session daily to hear a petition, our paper, neglect cases. It's a standing, a standing arrangement court. And when the conversation began on the 19th, right, they could have delivered a petition to them then and said, see you on the 20th, we'll let the court decide, right? The decision to remove was made on the 20th. I think that's interesting. But there were conversations on the 19th saying we want you to voluntarily place your these kids in the 21-day, kind of in a voluntary 21-day placement, because we have concerns about their safety. Correct. There were those conversations. But on the 20th, when the dose refused to voluntarily place the children in the CFSA's care, the decision at that point was made to remove the children. And the question for the exigent circumstances analysis is, were there sufficient exigent circumstances at that point in time for which the district could remove the children without seeking a court order? It's a balancing, it's a risk assessment. It's a question of whether or not the actions of the district officers were reasonable in believing that any further delay would expose the children to an unreasonable degree of risk, and that the risk was imminent that Oliver at any point in time could abuse Anne, that Sarah and Wayne at any point in time could be returned to the home and perpetrate the abuse. And it is a question of reason, I think, on this record, the agency. Did anybody say that they thought that there was a risk of Oliver abusing Anne in the next 24 hours? There was not that express explicit statement. I didn't see it anywhere. No, and it's, no, there's not, but it was certainly. I didn't see anybody say that that was a basis for acting within that night. I get it. I agree that there's not an explicit statement to have. What did that prevent? Was there another removal proceeding at the grandmother's house for Sarah? She was removed as well. Yes, fine. Was there a October 20th? Yes, Your Honor. That has been challenged. I know it hasn't been challenged, but what's the basis for removing her from the grandmother's house? She's not threatening to abuse any other children. No, but she was also a victim of abuse as well, so she was removed for her own safety. She was the victim of Wayne's abuse. And when did Wayne get removed? He was already in a foster home? Correct. For which funding had run out, an out-of-state placement with a non-CFSA approved provider, for which funding had run out, and which funding had been provided, I think, by the district to a certain point, but that funding sources had run out, and the do's were unable to contend to that placement

. But the evidence in the record is that when they showed up at 9, they had a petition that said be in court tomorrow at 11, right? That was an administrative function on part of the agency. Their superior court is in session daily to hear a petition, our paper, neglect cases. It's a standing, a standing arrangement court. And when the conversation began on the 19th, right, they could have delivered a petition to them then and said, see you on the 20th, we'll let the court decide, right? The decision to remove was made on the 20th. I think that's interesting. But there were conversations on the 19th saying we want you to voluntarily place your these kids in the 21-day, kind of in a voluntary 21-day placement, because we have concerns about their safety. Correct. There were those conversations. But on the 20th, when the dose refused to voluntarily place the children in the CFSA's care, the decision at that point was made to remove the children. And the question for the exigent circumstances analysis is, were there sufficient exigent circumstances at that point in time for which the district could remove the children without seeking a court order? It's a balancing, it's a risk assessment. It's a question of whether or not the actions of the district officers were reasonable in believing that any further delay would expose the children to an unreasonable degree of risk, and that the risk was imminent that Oliver at any point in time could abuse Anne, that Sarah and Wayne at any point in time could be returned to the home and perpetrate the abuse. And it is a question of reason, I think, on this record, the agency. Did anybody say that they thought that there was a risk of Oliver abusing Anne in the next 24 hours? There was not that express explicit statement. I didn't see it anywhere. No, and it's, no, there's not, but it was certainly. I didn't see anybody say that that was a basis for acting within that night. I get it. I agree that there's not an explicit statement to have. What did that prevent? Was there another removal proceeding at the grandmother's house for Sarah? She was removed as well. Yes, fine. Was there a October 20th? Yes, Your Honor. That has been challenged. I know it hasn't been challenged, but what's the basis for removing her from the grandmother's house? She's not threatening to abuse any other children. No, but she was also a victim of abuse as well, so she was removed for her own safety. She was the victim of Wayne's abuse. And when did Wayne get removed? He was already in a foster home? Correct. For which funding had run out, an out-of-state placement with a non-CFSA approved provider, for which funding had run out, and which funding had been provided, I think, by the district to a certain point, but that funding sources had run out, and the do's were unable to contend to that placement. The only option available, according to the does, was for him to return to the home. Did Wayne, was Wayne removed from that placement on the night of October 20th? No. He remained in his Virginia placement, keeping in mind that the infancy petition was filed the day after the removal. And at that point there was some court intervention and supervision over both Duane and Sarah which, I think, would have been consistent with the same- Why wasn't he removed for the same reason that Sarah was removed? I don't believe that he was a victim of the abuse. In fact, was the perpetrator of the abuse? The other children were removed, you know, out of his reach, so to speak, his removal was not necessary. I'm just wondering if the theory, maybe I didn't hear you correctly, was that Sarah's return to the doughnut was imminent. And therefore that's why the children had to be removed. Did you say that? Yes, yes. Why doesn't Sarah's removal from the grandmother solve that problem? Well, again, there are several components to the removal decision. One of them was the investigative component involving Ann and Oliver. So there was a need to get Ann and Oliver, who were the victims of the abuse outside of the home to investigate. The underlying allegation against the parents was failure to protect them from the abuse or failure to properly supervise them. And so there was an investigative component to Ann and Oliver's removal as well. And that's again, in any case where you have a victim of child abuse or neglect in the home, it's typical that the child that's removed, I'm trying to go to the medical evaluation to be interviewed to investigate the nature of the neglect and abuse that's been alleged in the home. The negotiations that were going on with the parents, those were over voluntarily turning over the kids or what was that? Yes, there was a mechanism where the parents could have voluntarily placed the children with CFSA, which would have obviated the need for CFSA to remove the children themselves, it unilaterally. And was it the failure of those negotiations that meant that there wasn't going to be another way to protect the children? I mean, I mean, so, Runner, I think the way I view the record is the parties didn't dispute that there was an ex-execency in this case. The dispute was over what the proper means to protect the children was. CFSA's view was the children need to be placed in custody with CFSA foster providers. The parents view was that CFSA's fund-wains placement in Virginia should fund Sarah's placement of private school of their choosing, and that would address the concerns of the sexual abuse. And CFSA simply disagreed, but that was the appropriate approach to protect all four children from the risk of further abuse. And is that an act of 20th that became clear that there was not going to be a voluntary turnover that the only alternative was to make the children? Is that, is that, yes? That's an accurate, I think. And then again, that that's the point at which the removal decision was made. And then question then becomes, do we delay that removal to seek a court order? Or do we now know that the parents are not going to cooperate and having all of the concerns that are described in the record about the potential failures in the safety plan, other risk of Sarah-Wayne returning, and in all of her involvement with each other, all of those factors, they justify the district proceeding without a court order. And this district, to be both as a matter of Fourth Amendment considerations, as well as qualified immunity considerations, that the decision was objectively reasonable given the totality of facts and circumstances, in this case. But even if we agree with you on qualified immunity, we would have to reach the issue of whether or not there was a constitutional violation such that a claim could potentially survive against the district, right? Yes, again, we raised Moanell below. And it has not been re-raised here. The district court did dismiss the charges against the dark plans against the district based on its conclusion

. The only option available, according to the does, was for him to return to the home. Did Wayne, was Wayne removed from that placement on the night of October 20th? No. He remained in his Virginia placement, keeping in mind that the infancy petition was filed the day after the removal. And at that point there was some court intervention and supervision over both Duane and Sarah which, I think, would have been consistent with the same- Why wasn't he removed for the same reason that Sarah was removed? I don't believe that he was a victim of the abuse. In fact, was the perpetrator of the abuse? The other children were removed, you know, out of his reach, so to speak, his removal was not necessary. I'm just wondering if the theory, maybe I didn't hear you correctly, was that Sarah's return to the doughnut was imminent. And therefore that's why the children had to be removed. Did you say that? Yes, yes. Why doesn't Sarah's removal from the grandmother solve that problem? Well, again, there are several components to the removal decision. One of them was the investigative component involving Ann and Oliver. So there was a need to get Ann and Oliver, who were the victims of the abuse outside of the home to investigate. The underlying allegation against the parents was failure to protect them from the abuse or failure to properly supervise them. And so there was an investigative component to Ann and Oliver's removal as well. And that's again, in any case where you have a victim of child abuse or neglect in the home, it's typical that the child that's removed, I'm trying to go to the medical evaluation to be interviewed to investigate the nature of the neglect and abuse that's been alleged in the home. The negotiations that were going on with the parents, those were over voluntarily turning over the kids or what was that? Yes, there was a mechanism where the parents could have voluntarily placed the children with CFSA, which would have obviated the need for CFSA to remove the children themselves, it unilaterally. And was it the failure of those negotiations that meant that there wasn't going to be another way to protect the children? I mean, I mean, so, Runner, I think the way I view the record is the parties didn't dispute that there was an ex-execency in this case. The dispute was over what the proper means to protect the children was. CFSA's view was the children need to be placed in custody with CFSA foster providers. The parents view was that CFSA's fund-wains placement in Virginia should fund Sarah's placement of private school of their choosing, and that would address the concerns of the sexual abuse. And CFSA simply disagreed, but that was the appropriate approach to protect all four children from the risk of further abuse. And is that an act of 20th that became clear that there was not going to be a voluntary turnover that the only alternative was to make the children? Is that, is that, yes? That's an accurate, I think. And then again, that that's the point at which the removal decision was made. And then question then becomes, do we delay that removal to seek a court order? Or do we now know that the parents are not going to cooperate and having all of the concerns that are described in the record about the potential failures in the safety plan, other risk of Sarah-Wayne returning, and in all of her involvement with each other, all of those factors, they justify the district proceeding without a court order. And this district, to be both as a matter of Fourth Amendment considerations, as well as qualified immunity considerations, that the decision was objectively reasonable given the totality of facts and circumstances, in this case. But even if we agree with you on qualified immunity, we would have to reach the issue of whether or not there was a constitutional violation such that a claim could potentially survive against the district, right? Yes, again, we raised Moanell below. And it has not been re-raised here. The district court did dismiss the charges against the dark plans against the district based on its conclusion. There was no constitutional violation. So, yes, the petitioner in the mail. You didn't raise Moanell, no body raised Moanell because Moanell wasn't the grounds for the decision below, right? That's correct. It wasn't correct. It certainly was an issue that was pressed below, but it was not passed upon by the district court. So, that's explanation for why posing counsel brief doesn't have Moanell, and I didn't understand at the time, no, I get it. So, but does that mean we have to decide a constitutional a question or can remand to the district court if there's no Moanell liability, it won't matter whether there's a Fourth Amendment. That is, if the person's not a policymaker or and-or if there isn't a policy and-or, or if there isn't deliberate difference, we don't, we wouldn't need to reach the constitutional question, right? Certainly, on if you could make this findings. Well, I wouldn't be us, I beg it. That would be on a remand to the district court. Right. It would, yes. I mean, there's already an indication that the district had a policy that you don't have to get a warrant before removing children from home. No, you're, I think again, that's a very good question, I think the district's policy is absent, exigent circumstances. You need a warrant or a court order to remove children. I think the district's policy is squarely in line with the Fourth Amendment requirements, Fifth Amendment requirements. The question here is- Where's the evidence of that? I would, I would direct the court, I think, to the CFSAs regulations and the statute. Is that that regulation you? Your Honor, I apologize off the top of my head, I don't know, but I don't think, I mean, I'm safe in saying the district's policy is not to remove without a court order, absent, exigent circumstances. The question here is whether or not the exigent circumstances existed. But even, assume for the moment, it's getting more interesting as we go along, because it's all stuff that we haven't discussed in the briefs. But assume for the moment that there was time to get a warrant, number one, and two, that the law is, that when there, which we have not yet made, but that the law is that you need to get a warrant, does the district have a policy that, even if there is time to a warrant, get a warrant, you don't have to. I take it from what you're saying, is they don't have that policy. Not that I'm aware of your honor. So that at the best, this is either a breach of a policy that requires getting a warrant or it's a situation where there's no policy. That's a possible question. Because if that's true, you're not liable under Monel, right? If you either breach the policy in this one case, or if there was no policy one way or the other, in this one case, there's no Monel liability just because, even if individuals violated the Fourth Amendment in this case, am I wrong about that? Yes, no, I think you're analysis of the question. I just want to

. There was no constitutional violation. So, yes, the petitioner in the mail. You didn't raise Moanell, no body raised Moanell because Moanell wasn't the grounds for the decision below, right? That's correct. It wasn't correct. It certainly was an issue that was pressed below, but it was not passed upon by the district court. So, that's explanation for why posing counsel brief doesn't have Moanell, and I didn't understand at the time, no, I get it. So, but does that mean we have to decide a constitutional a question or can remand to the district court if there's no Moanell liability, it won't matter whether there's a Fourth Amendment. That is, if the person's not a policymaker or and-or if there isn't a policy and-or, or if there isn't deliberate difference, we don't, we wouldn't need to reach the constitutional question, right? Certainly, on if you could make this findings. Well, I wouldn't be us, I beg it. That would be on a remand to the district court. Right. It would, yes. I mean, there's already an indication that the district had a policy that you don't have to get a warrant before removing children from home. No, you're, I think again, that's a very good question, I think the district's policy is absent, exigent circumstances. You need a warrant or a court order to remove children. I think the district's policy is squarely in line with the Fourth Amendment requirements, Fifth Amendment requirements. The question here is- Where's the evidence of that? I would, I would direct the court, I think, to the CFSAs regulations and the statute. Is that that regulation you? Your Honor, I apologize off the top of my head, I don't know, but I don't think, I mean, I'm safe in saying the district's policy is not to remove without a court order, absent, exigent circumstances. The question here is whether or not the exigent circumstances existed. But even, assume for the moment, it's getting more interesting as we go along, because it's all stuff that we haven't discussed in the briefs. But assume for the moment that there was time to get a warrant, number one, and two, that the law is, that when there, which we have not yet made, but that the law is that you need to get a warrant, does the district have a policy that, even if there is time to a warrant, get a warrant, you don't have to. I take it from what you're saying, is they don't have that policy. Not that I'm aware of your honor. So that at the best, this is either a breach of a policy that requires getting a warrant or it's a situation where there's no policy. That's a possible question. Because if that's true, you're not liable under Monel, right? If you either breach the policy in this one case, or if there was no policy one way or the other, in this one case, there's no Monel liability just because, even if individuals violated the Fourth Amendment in this case, am I wrong about that? Yes, no, I think you're analysis of the question. I just want to. But isn't the individual the head of the agency? The individual is the head of the agency that's. That's not the policy maker. I'm interested in what that moment is. I guess the question is in the context of the decision making in this case, what she acting as a district policy maker. And I don't think it's a hard festival that every decision made why someone who holds a policy making position within the district government is sufficient to subject the district to Monel liable. And I think the analysis is a little bit more nuanced and involved in that. And that's why, perhaps it's appropriate for the district court to consider the issue in the first place. What she's done in this case is to enact a policy or to do something which may be consistent with the policy. And not most of the Monel cases are policy cases. Correct. They're not supervising prisons. They're failing to give training. They are allowing beating of prisoners as a policy. This is a different, it seems like a different. It's exactly. It's a decision in the individual. I don't actually know, but it seems like all the Monel cases I can remember look like ones of repeated activity, which a policy maker either goes along with or announces. Correct. Correct. And again, I don't think there was a policy announced in this case. It was a decision made in an individual case based on unique facts and circumstances presented to the director at the time she made the decision. So I don't know that, you know, it's labeling her as a policy maker, establishes Monel liability under those circumstances. I do want to just get back to your, the premise on your question about whether or not there's sufficient time to get a warrant. I think that's not quite the question that you that needs to be asked. In that abstract sense, there's always time to get a warrant. The question is at what cost? It's a balancing inquiry. The government has a counter-vailing interest in here in protecting the health and safety of very vulnerable children

. But isn't the individual the head of the agency? The individual is the head of the agency that's. That's not the policy maker. I'm interested in what that moment is. I guess the question is in the context of the decision making in this case, what she acting as a district policy maker. And I don't think it's a hard festival that every decision made why someone who holds a policy making position within the district government is sufficient to subject the district to Monel liable. And I think the analysis is a little bit more nuanced and involved in that. And that's why, perhaps it's appropriate for the district court to consider the issue in the first place. What she's done in this case is to enact a policy or to do something which may be consistent with the policy. And not most of the Monel cases are policy cases. Correct. They're not supervising prisons. They're failing to give training. They are allowing beating of prisoners as a policy. This is a different, it seems like a different. It's exactly. It's a decision in the individual. I don't actually know, but it seems like all the Monel cases I can remember look like ones of repeated activity, which a policy maker either goes along with or announces. Correct. Correct. And again, I don't think there was a policy announced in this case. It was a decision made in an individual case based on unique facts and circumstances presented to the director at the time she made the decision. So I don't know that, you know, it's labeling her as a policy maker, establishes Monel liability under those circumstances. I do want to just get back to your, the premise on your question about whether or not there's sufficient time to get a warrant. I think that's not quite the question that you that needs to be asked. In that abstract sense, there's always time to get a warrant. The question is at what cost? It's a balancing inquiry. The government has a counter-vailing interest in here in protecting the health and safety of very vulnerable children. So to answer the question, was there time to get a warrant? That's just not, that's only half of the, the equation. The question is, is the warrant requirement, is there an exception to the warrant requirement present given the government's counter-vailing interest in protecting children from an immediate sea of harm? I understand, but the second circuit is squeezed with the position. The second circuit does suggest that it is a hard and fast rule that the 11th. And the other two circuits, as I slide it, go the other way. So I'm only puzzling over whether we need to decide that question for this circuit or not. I don't believe so, you're under, again, under the qualified immunity standard. Certainly, that resolves the issue of whether the law was clear, established. And then again, I just wanted to make the point that in deciding what district policy is or asking that question, it's just not simply a question of how much time the district would have available to it. So explain to me what the argument is for the exigency, if the district had simply taken Sarah, the older girl, out of the grandmother's home and placed her in the foster care and left Oliver and Ann there from 9 o'clock PM till 11 a.m. the next morning when they were going to be in court. Again, there was testimony that they were concerned about the safety plan that was in place. And I think given the fact that Oliver had subsequently been found to have been abusing Ann, the leaving Oliver and Ann in the home together was a relevant consideration and to contribute to the exigency. But no one said that. No one expressed this said that, but again, it's an objective inquiry in whether a reasonable social worker possessing all of the information. And there's no dispute that the agency and the decision makers, I think, were aware of this fact. It's just, you know, after five years, you know, five years after the fact during discovery deposition, the recall just wasn't what it was. But no one said that they thought that the safety plan was deficient. In this respect, they said they thought that the safety plan was deficient. And when pressed, what they said was what Brenda Donald Walker said was that the safety plan would not prevent the two younger kids from going over the grandma's house and having unsupervised visitation with the older sister. Nobody said that they thought that the deficiency in the safety plan was that Oliver might be able to sneak out of his room and abuse Ann. I get no one expressed this stated that your honor is correct. That is not. Well, they've had umpteen depositions and affidavits and everything else to express that if they thought it. What they've described is what they thought that the deficiency in the safety plan is what they said. So, should we conclude that that's what their basis was? I think again, your honor, the totality of evidence. There was testimony that there was an investigatory aspect to the decision to remove the children

. So to answer the question, was there time to get a warrant? That's just not, that's only half of the, the equation. The question is, is the warrant requirement, is there an exception to the warrant requirement present given the government's counter-vailing interest in protecting children from an immediate sea of harm? I understand, but the second circuit is squeezed with the position. The second circuit does suggest that it is a hard and fast rule that the 11th. And the other two circuits, as I slide it, go the other way. So I'm only puzzling over whether we need to decide that question for this circuit or not. I don't believe so, you're under, again, under the qualified immunity standard. Certainly, that resolves the issue of whether the law was clear, established. And then again, I just wanted to make the point that in deciding what district policy is or asking that question, it's just not simply a question of how much time the district would have available to it. So explain to me what the argument is for the exigency, if the district had simply taken Sarah, the older girl, out of the grandmother's home and placed her in the foster care and left Oliver and Ann there from 9 o'clock PM till 11 a.m. the next morning when they were going to be in court. Again, there was testimony that they were concerned about the safety plan that was in place. And I think given the fact that Oliver had subsequently been found to have been abusing Ann, the leaving Oliver and Ann in the home together was a relevant consideration and to contribute to the exigency. But no one said that. No one expressed this said that, but again, it's an objective inquiry in whether a reasonable social worker possessing all of the information. And there's no dispute that the agency and the decision makers, I think, were aware of this fact. It's just, you know, after five years, you know, five years after the fact during discovery deposition, the recall just wasn't what it was. But no one said that they thought that the safety plan was deficient. In this respect, they said they thought that the safety plan was deficient. And when pressed, what they said was what Brenda Donald Walker said was that the safety plan would not prevent the two younger kids from going over the grandma's house and having unsupervised visitation with the older sister. Nobody said that they thought that the deficiency in the safety plan was that Oliver might be able to sneak out of his room and abuse Ann. I get no one expressed this stated that your honor is correct. That is not. Well, they've had umpteen depositions and affidavits and everything else to express that if they thought it. What they've described is what they thought that the deficiency in the safety plan is what they said. So, should we conclude that that's what their basis was? I think again, your honor, the totality of evidence. There was testimony that there was an investigatory aspect to the decision to remove the children. There were other concerns, you know, with Wayne returning to the home. Your initial question was, well, why can't we solve this by removing Sarah? But we also have the Wayne issue as well. Well, you didn't even take Wayne out of that placement that night. We didn't because we could remove the other three children at which point Wayne no longer had access to them from his Virginia placement. So, if the, and as the key perpetrator, the need for services from CFSA, we're not in a line with the victim. Well, even the next day after you went to court, you didn't remove Wayne from that placement. Delinquency proceedings were initiated the next day. He would have been subject to court supervision through the Delinquency Proceedings. The record doesn't reflect whether his placement changed the result of that. But there was court monitoring, I believe, of his contact with the other siblings, which would have obviated the concerns, with simply leaving it to the dose to decide or leaving it to the, you know, the dose safety plan as a mechanism to protect the children. Before you sit down, I had one more question. And was there anything that the parents did or said on or about October 20th that raised an alarm? I think what, what, what, October 20th represented the culmination of the meetings in discussions with the parents, which ended in the determination that the parents were unwilling to voluntarily place their children with CFSA. Given that there was no willingness to voluntarily make that placement and knowing that Sarah and Wayne's placements were not stable, CFSA, I think felt compelled to act at that point in time based on that information. There's nothing to be on. Not the, not, no, I don't believe so. And I, come back up. We're discussing with Judge Wilkins the question of what the reason of Donna, I can't remember what her name is. I've read a daughter Walker. Does it matter? I thought that the rule was what would an objectively reasonable social worker do? Not the actual subjective reasons of any social worker in the same way. Ren says it doesn't matter if the reason the car was stopped was because we wanted to get the drugs as long as an objective observer would say they broke a traffic law. Am I bringing the analysis wrong? No, no, Your Honor. I hope I try to convey that point. Why do you get down, but I thought that it's exactly the district's position that it's the totality of evidence of the case. It's not just totality. It's who was looking at it. It's not what an individual actually looked at. It was what available to a reasonable observer is

. There were other concerns, you know, with Wayne returning to the home. Your initial question was, well, why can't we solve this by removing Sarah? But we also have the Wayne issue as well. Well, you didn't even take Wayne out of that placement that night. We didn't because we could remove the other three children at which point Wayne no longer had access to them from his Virginia placement. So, if the, and as the key perpetrator, the need for services from CFSA, we're not in a line with the victim. Well, even the next day after you went to court, you didn't remove Wayne from that placement. Delinquency proceedings were initiated the next day. He would have been subject to court supervision through the Delinquency Proceedings. The record doesn't reflect whether his placement changed the result of that. But there was court monitoring, I believe, of his contact with the other siblings, which would have obviated the concerns, with simply leaving it to the dose to decide or leaving it to the, you know, the dose safety plan as a mechanism to protect the children. Before you sit down, I had one more question. And was there anything that the parents did or said on or about October 20th that raised an alarm? I think what, what, what, October 20th represented the culmination of the meetings in discussions with the parents, which ended in the determination that the parents were unwilling to voluntarily place their children with CFSA. Given that there was no willingness to voluntarily make that placement and knowing that Sarah and Wayne's placements were not stable, CFSA, I think felt compelled to act at that point in time based on that information. There's nothing to be on. Not the, not, no, I don't believe so. And I, come back up. We're discussing with Judge Wilkins the question of what the reason of Donna, I can't remember what her name is. I've read a daughter Walker. Does it matter? I thought that the rule was what would an objectively reasonable social worker do? Not the actual subjective reasons of any social worker in the same way. Ren says it doesn't matter if the reason the car was stopped was because we wanted to get the drugs as long as an objective observer would say they broke a traffic law. Am I bringing the analysis wrong? No, no, Your Honor. I hope I try to convey that point. Why do you get down, but I thought that it's exactly the district's position that it's the totality of evidence of the case. It's not just totality. It's who was looking at it. It's not what an individual actually looked at. It was what available to a reasonable observer is. Yes, Your Honor. That is correct. Therefore, Ms. Williams' subjective impressions are not controlled. But couldn't the reasonable jury say, okay, it's objective. It's what would a reasonable person think was a problem with the safety plan. But if that can't they consider what someone's subjective beliefs were in considering whether something is reasonable, objectively reasonable? I think generally the test is an objective one in the end of the case. The case was clear that the subjective views of the individual are not the relevant or decisive factor. I mean, they don't say that they're decisive. I don't know that I've ever seen an instruction that says it's not relevant, that you can't introduce that evidence. No, I mean, I certainly could have introduced the evidence. I just, the standard is one of objectiveness. An officer cannot execute it himself by simply saying that he had objectively, or he had, you know, his reason is controlled. And I didn't intend to violate constitutional rights, therefore. Or, you know, so I mean, I think certainly the evidence could come in, but whether or not it would be appropriate for the jury to base its decision on that. I question that because it is an objective standard and they are obligated to consider the totality of the evidence. I think certainly the scoring, it's an overview would be obligated to look at the totality, the record in this case, and all the evidence that's available to CFSA at the time, the removal decision was made, and answering whether or not its decision was objectively reasonable? Other questions? Okay, thank you. Thank you, I wish we had the court of firm. Does the Pellent have any time left? Just like in the last case, we'll give you two minutes. Thank you. In terms of what an objective social worker would have in front of them to make this decision, the Pellent's view is that that question is answered by quite as any agencies official record. And in that case, it's what was entered by social worker, Laura Swiliams, the individual perceptions, speculations, statements of manners in these meetings were not entered into the record. They weren't fact-fired. Well, wouldn't a reasonable social worker, there was a report that all of your Oliver had abused hand. So they would have that, whether it was discussed or not discussed, a reasonable social worker would have that. That is correct. And I think that is actually in the record

. Yes, Your Honor. That is correct. Therefore, Ms. Williams' subjective impressions are not controlled. But couldn't the reasonable jury say, okay, it's objective. It's what would a reasonable person think was a problem with the safety plan. But if that can't they consider what someone's subjective beliefs were in considering whether something is reasonable, objectively reasonable? I think generally the test is an objective one in the end of the case. The case was clear that the subjective views of the individual are not the relevant or decisive factor. I mean, they don't say that they're decisive. I don't know that I've ever seen an instruction that says it's not relevant, that you can't introduce that evidence. No, I mean, I certainly could have introduced the evidence. I just, the standard is one of objectiveness. An officer cannot execute it himself by simply saying that he had objectively, or he had, you know, his reason is controlled. And I didn't intend to violate constitutional rights, therefore. Or, you know, so I mean, I think certainly the evidence could come in, but whether or not it would be appropriate for the jury to base its decision on that. I question that because it is an objective standard and they are obligated to consider the totality of the evidence. I think certainly the scoring, it's an overview would be obligated to look at the totality, the record in this case, and all the evidence that's available to CFSA at the time, the removal decision was made, and answering whether or not its decision was objectively reasonable? Other questions? Okay, thank you. Thank you, I wish we had the court of firm. Does the Pellent have any time left? Just like in the last case, we'll give you two minutes. Thank you. In terms of what an objective social worker would have in front of them to make this decision, the Pellent's view is that that question is answered by quite as any agencies official record. And in that case, it's what was entered by social worker, Laura Swiliams, the individual perceptions, speculations, statements of manners in these meetings were not entered into the record. They weren't fact-fired. Well, wouldn't a reasonable social worker, there was a report that all of your Oliver had abused hand. So they would have that, whether it was discussed or not discussed, a reasonable social worker would have that. That is correct. And I think that is actually in the record. But the safety plan is in the record. The safety plan has provisions that would handle the concern about Oliver attempting to reach hands-room in the evening. There were no findings of fact to the contrary regarding safety plan deficiencies in the record. So there's nothing really for an objective social worker to look at in terms of fact findings that would support this emergency removal. Now, the dose were willing to keep Wayne and Sarah in their external placement long enough for a court hearing. There's nothing in the record that indicates the dose were going to snap when Sarah out of their placements the next day. And that in fact was not the plan and had the agency simply said, we're going to have hearing tomorrow. Can you make sure Wayne and Sarah stay in their placements? The answer would have been simply yes. Is that, is that any discussion one way or other in the record of that? I think the record only reflects to some extent when those placements change, not the willingness. Now, the dose did not object to placement of Wayne and Sarah into the custody of the district. And the district is sort of painting with a broad brush again that those objected to turning over the children on the 19th of October voluntarily. Well, that was only true for Oliver and Ann. It wasn't true for Wayne and Sarah. Now, in terms of the investigating purpose. So the discussion, the earlier discussions that there would have to be a way to be sure that the kids could go back and forth to the schools that they were in and that they would be able to keep the same therapist they dropped all those requests? I don't believe they dropped all those requests. But I do think they were willing to have custody of Wayne and Sarah take place. But they wanted certain services to continue for Wayne and Sarah for their well-being. I think I heard the district say that the parties didn't, there wasn't dispute about the exigency. That's obviously not correct. Regarding Oliver and Ann or certainly well. It seems obvious that there's a dispute. That's why we're here. I appreciate your honor and I appreciate your patience. Further questions from the bench? Thank you. We'll take a matter under submission.

Okay, number 13-7140, Carla Doe at L, appellate, versus District of Columbia at L. Mr. Harrison for the appellate, Ms. Anderson for the appellate. May I plead for it? Make Harrison for the Doe appellate, I would like to hear three minutes for the battle. The only reason there was no basis for the Sarmaric Judgment decision below, because for their constitutional claims. I have to talk a little while, I think, or you may. I'm sorry, Aaron. There was no basis for the Sarmaric Judgment decision below for the constitutional claims, and at least two of the torque claims that were genuine facts and dispute at minimum. And there were legal reasons why the Sarmaric Judgment already motioned for judgment on the pleadings being granted was legally an error for the other claims. In terms of the Doe process claim, there's nothing in the record that would support a justification for the district's failure to have a pre-deprivation hearing, to allow the Does of the Aherd, as the White Removal of at least Oliver and Ann, was not justified from the home. The district had 21 days or so, a little longer, that they could have sought a pre-deprivation hearing. They chose not to do so. When they did seek a hearing on the complaint for a new lifetime abuse, it took them only a day to acquire the hearing, and then they know paper to complain when it happened. So, in this case, there's no, I mean, if you look at child specific, child specific analysis, on what was the district's basis for removing Ann versus removing Oliver versus removing the two twins, the older children. You don't find a basis, let's take Ann to start. There's nothing in the record that would justify removing Ann. Remember Ann was the youngest child. I didn't hear an argument in your brief that we should focus only on Ann. I hear it now, but I did not hear this argument before, unless I've forgotten. Well, you may be a correction on that we didn't make an Ann specific argument. That's right, and that's what you're making now, a specific one. So, it's really too late to focus only on that. The other side hasn't had a chance to brief this argument. So, if you could make the argument that you made in the brief, I think you'd be on a better ground. I will do so, Yarn. So, the investigating social worker Miss Williams had made findings put in the faces record that there was an adequate safety plan in place after the dose had reported, discovered, and then reported the abuse by the older children. As they put alarms on the younger children's, yours, Ann and Oliver's. They had removed Wayne and Sarah, the older children from the home and the temporary locations outside the home. And Miss Williams interviewed the children. She visited the home and talked to the parents. She was the only district official who did a field investigation, the interviewed witnesses. And the only official who put findings in the official record, which is their procedure in the faces database. And her findings were the safety plan is adequate. There's no immediate danger to the children. Let me interrupt you to ask you what you believe the legal standard is here, because my reading of the cases is that there's probably at least three different legal standards that have been used by the circuits. It's a circuit court of appeals. Some of them have said or have suggested that if there's reasonable, articulable suspicion that abuse occurred, that that's all you need to remove children from the home without, without a hearing. I mean, you need to have a hearing as soon as possible after that. But haven't some of them said that that's all you need. I mean, others have said that you need. There needs to be a finding that it's an emergency. But there are some that seem to not really require that. What do you think the right standard is? What if we were writing this, what do you think we should say to standard is and what cases should we rely on? I think that's the key question, Your Honor. The standard, I believe I should apply here, is this circuit standard for Fourth Amendment Service and Seizure generally, which is there has to be exigent circumstances before there can be a search and seizure on an emergency basis. That standard really shouldn't be changed. There's no reason to change it for the specific fact application of removing children from the home by an agency. If the agency has an opportunity to go to a court and have a pre deprivation hearing and to show its evidence supporting the need for removing the children in question, then there's no emergency. And here there was no emergency. The agency had plenty of time. The safety plan was in place. The investigator had relied on found the safety plan was adequate. So, you know, where's the emergency? The managers had needed. The police clearly said that the risk is moderate, but there were dangerous signals. Correct. And the parents wrote a letter saying that they no longer could provide parenting for these four children. That is partial name correction, Your Honor. It would be the older twins, Wayne and Sarah, that the deal parents said they can no longer be able to parent because of the inability to afford the proper therapy and treatment for those particular children. It wasn't a point of the letter that if money wasn't provided, grandmother could no longer take care of Carla and the other party could no longer take care of Robert. I think it was Sarah, Your Honor, said Carla, but you're correct. I'm sorry. I'm very sorry. Sarah and Wayne. Yeah, you're correct. Right. I think that's correct. So, wouldn't that give the agency the idea that if the agency wasn't able to or prepared to provide money that those twins could be going back to the House? There was the potential that at some point in time in the future, the twins would return. However, what we're talking about in the situation of a pre-deprivation hearing in family, these family courts, it doesn't take more than a day to get a hearing. That's on a different, I think this was back to Judge Wilkins' question, which is, there are some circuits that say that if there is time to get a warrant, you have to. Right? But you agree that there are some circuits that say precisely the opposite, that you do not, that that is not an element of the test. That's what the 11th Circuit said in Kerni, and I think the 1st Circuit said. In fact, expressly rejecting the 2nd Circuit's other view. There is a difference, a split in the circuits on whether time to have a pre-deprivation hearing is even a factor. That's right. So that's the case. So, what I like to you to focus on now is the qualified immunity question. Okay. And under qualified immunity, it has to be clear to a reasonable official that the conduct was unlawful. Right. So, if a reasonable official is looking around and sees a split in the circuits, we have held that that is not sufficient to make the person lose their qualified immunity. So, just for the purpose of this discussion, if you would leave out the argument that there was time for a hearing and just go to the question of whether there was an exigency. I think that is the question, whether there were exigenced circuits. And this circuit's law was not ambiguous on four-comment search and seizures in other context. In all contexts, there's no reason to believe that standard would change for this context. So, I think the district was unnoticed of that law. So what are the exigenced circumstances? Well, the only thing the district has identified in the record were the meetings the managers had. After Miss Williams, there, shows in field investigator reported back that the safety plan was adequate. There was no immediate danger. They were then talking about the potential for, as your other points out, a way in search of return at some point to the home. And that might pose a risk even with the safety plan in place. They speculated that for some reason the dose to professionals who had reported the abuse when they discovered it immediately removed when it's error from the home and then put these alarms on the doors and increased supervision during the day and convinced the social worker this plan was adequate. As soon as they would not implement the safety plan that they had just created. What is it fair at that point? I appreciate at the end that everybody's concluded that the dose were unaware. But you have children advising that for four years they had been abused. For four years they had been abused. The younger ones had been abused by the older. And then we later learned, in fact this was something social worker didn't even learn. This occurred after she had left, that the older of the youngest had abused the younger of the youngest. Right? So unreasonable at that point to doubt the words of the parents. I'm not saying that I want to be clear in the end everybody greased the parents didn't know. But given that information, that is where you have a household where there's that level of abuse for that long, was unreasonable to be suspicious of the parents? Suspicious to the point of wanting to make for the inquiries, I think for the inquiries may be warranted. The question is, though, is that an exigent circumstance, or can that inquiry be conducted with the safety plan in place? Well, but when you say safety plan, you mean alarms on doors. Now, Pizzouac, right? That's the safety plan. No, well, that's part of the safety plan. Well, the older children were removed physically from the home. Yes, but you sent a letter, not you, but the send a letter saying, that payment for service is going to run out on September 30th, and that for the grandmother, she can't keep the kid much longer. So we have no idea whether that could occur at any moment. We also have a letter. I want to interject some kind of, sorry, it says you mentioned the letter. You sent that letter only applied to two of the children. But I have just looked at it again, and my initial tape, or it was, that's not correct. You said you had to correct me. This line, which is, for some page 522, the children are kind of a very last sentence. I'll trust you, if you're on it, we'll quote it. But we are no longer able to continue to parent them now. Four children with such significant needs. I haven't seen them either. Be limited to two children. I understand your honor's reading. What the doge were saying though was, we can handle the two younger children without the older two children present. We can't handle all four at the same time, including the two older's who have these problems. We can't afford to treat. That was our intent. There may be some ambiguity in how they stated it. So I understand your honor's reading. But I believe that's not what was intended by that communication. But they did not, but that's part of the record on which the agency base its decision to remove the children. Well, so the question then is not what their subjective intent was. Whether the agency had number one probable cause and number two a sound basis for thinking in emergency situations. Understand the point, Your Honor. But I don't think there's anything in the record that would indicate the agency actually read that letter like your honor read it, because they were in communication with the doge. But to test again for myself anyway, I only want you to think about the qualified immunity question. And for that, it's what a reasonable agent would do, not what any particular agent did. Right. So if you could reasonably read it the way Judge Randolph says that's part of the part of what we have to take into account. Well, if it's a reasonable read, you read that way. That's a different answer, but it understood. With the entire record that the agency had, including their interviews with the doge parents, including what Miss Williams conducted, I don't think a reasonable agency official could believe that the doge were about to give up all four of their children. I don't think there's any any basis for an official to conclude that now. It's a different question whether the record indicated that the two older children that had been placed out of the home might return because of these financial limitations. That question is raised. So then the question is, is does that create an exigent circumstance? And the appellate's answer is no, because all they needed to do was call the doge, the agency, and say, you know, can you make sure that the two older children don't return home until we have this pre-depression hearing? And the doge would have said yes. And that depends on trusting the doge at that point, which does the trust doesn't come until later when they get a chance to eat. So I think the interview to the kids and find out that the doge didn't know about this. It seems, I mean, here's the evidence that I'm worried about. Okay, you tell me what's wrong with this. So we have this going on for four years. We have the possibility that the older kids will come back at any moment. Well, we don't know what moment, right? All we've been told is that they no longer can pay to keep one. All right, so that seems to be a reasonable social worker, might conclude it could be at any moment. There are also visits to the grandmother's house. We don't know whether the younger kids will visit the grandmother, where one of the kids, the abusers, is staying. We have alarms on the doors. There seems to be two problems with that. One is the trust for the doge at that point. But second, presumably the kids are not in their room all day long. Correct. I mean, unless that would be a different kind of abuse, right? Right. So what happens when they're not in the room all day, during the rest of the period? So those are the things that doesn't strike me like the usual case where you don't really know whether there's, you know, a molestation going on or not. And something has to, here we know everybody concedes and that agency knew at the time that there was a large amount of molestation going on. And I have to say from the other side, if there had been a mistake and the molestation continued, no one would think the agency acted reasonably by not taking the kids out right away. Usually the DC agencies are criticized for the opposite thing you're criticizing them for. That is for not getting on it right away and protecting the kids. Well, I understand your owner's point, but the social worker in question here, you know, concluded that there was no immediate danger. So the real question is could the concern your owner identifies and by the way, the safety plan involved increased the provision during the day. The record reflects the social worker concluded that and found it was adequate. So although they're not in the room all the time, there were other provisions. So the real question is, you know, is this some kind of emergency? Are there agents in circumstances or can there be less emergency procedures used? I'm sorry. I just know. That's all right. No, as long as we ask you questions, as it was heard from the last argument, if you were here. I doubt it was pretty far. Thank you. But isn't the question whether a different social worker could also, with a different conclusion, also be reasonable? Well, I think so. But the question is what in the record would allow a different social worker to make that conclusion? You have the manager speculating in meetings, not based on their field investigation, in contradiction to the social worker's findings. And, you know, those meetings happened after those protected activities. You know, this is a summary judgment determination. And you've got these these fact sequences that suggest the agency was fine, leaving the kids in the home until their protected activity occurred. And then they started looking for a reason. Well, now you're going into a different argument, right? This is no longer a fourth amendment argument. So let's do one at a time. Oh, well, I do. Is there protected activity you mean they're complaining and not a more version of your retaliation argument? I do. Okay. So on the fourth amendment, and we're in qualified immunity, and the Supreme Court has made clear, we are to look, in fact, as reversed us when we didn't do this. We are to look at this first and to look closely at this question. And the only issue is not the issue here is not what people subjectively thought about what a reasonable person would do under the circumstances. Right. And the question is with the established law in the DC Circuit regarding exxion circumstances, and with the social worker's findings, or the evidence that would have been presented to another reasonable social worker from that same record, that there was no rush. I mean, you're only talking about a day or two difference, and that's really the question. But doesn't take more than a day or two for another molestation to happen? Well, and only. If the circumstances had remained the same, your honor would be correct. But with the two older children removed or with the instigators of the molestation, with the alarms on the doors, that not only Miss Williams found acceptable, but we are positioned as a reasonable social worker, we find that acceptable. And there's nothing in the record of the contrary, nothing in the face of the database of the contrary. You know, if there really was different factual findings by the agency, where are they in the record? They should be in the record, and the fact that they're not is quite telling. Let me ask you this. Let's assume, for the sake of argument, that there is qualified immunity of the individuals. You still had a claim against the district, that's correct. Because Brenda Donald Walker made the decision to remove the children. She was a policymaker, and therefore the district has liability. That claim would remain an outstanding qualified immunity being recognized. And I say, I don't see that in a brief either. Now, opening brief does not mention municipal liability underman now. There's just not a word in here. I had the same question as Judge Wilkins, but I don't see it. There's no such to this issue at all. Your only discussion is about individuals. I think, Dr. Arna, that was because we thought it was a non-issue for the district. So it was what? A non-issue for the district. Qualified immunity wouldn't apply as a defense to the district. So we didn't address it because it wouldn't be an applicable defense for it. But what happened with the, in the district court, maybe I may back out of the disposition wrong. Then the district court grant summer judgment for all defendants, including the district. It did, but I don't believe the qualifying immunity defense was a basis for dismissing. No, but there must have been some basis, the district court. I think the district court's basis was that it found that there was no fourth amendment or fifth amendment claim. But he's still on the list. Oh, there were no genuine facts in his view. So he do appeal that, fogged. But don't you also need to, to have argued about no liability here in your opening brief in order for us? You do argue about qualified immunity. So, well, I felt it was included in our argument on the genuine facts and dispute under each of the claims. And we may have, maybe we weren't as explicit as we should have been as saying that applies to the individual defendants in the district. Okay. I have further questions from the panel. No, thank you. Thank you. Good evening. Good evening. Morning, Your Honor, Stacy Anderson. On behalf of the district and the individual and the defendants, we'd ask that the court affirms a summary judgment in the district's favor in favor of all of the defendants in this case. With respect to the fourth amendment, fifth amendment claim, the district's position, there was that there is that there was no constitutional violation here, that the removal of the children was in fact supported by exigent circumstances. And the decision to make the removal of the time it was made was reasonable under all the facts and circumstances of the case. In particular, at the time the removal decision was made, the agency was aware of the pervasive nature of the abuse ongoing abuse for a period of four years involving multiple different children and perpetrators of the abuse. There's been much discussion this morning about social worker Williams and Williams report. At the time she made a report in recommendations, she was not privy to all of the information the agency had at the time of the removal decision. In particular, she was not aware of the imminent possibility that the older two children would return to the home. Her finding of lack of risk to the children was predicated upon the absence of the two older children from the home. Again, the agency was repeatedly told by the do's that their return was potentially imminent. The second factor that she was unaware of was the fact that Oliver Doe had been perpetrating abuse on end of that disclosure was made after Ms. Williams conducted her investigation on October 8 or 9 when the children underwent forensics interviews. So Ms. Williams was not privy to all the information. But didn't, didn't, at J.A. 590, Brenda Donald Walker, who is a person who you say made the decision on October the 20th to remove the children from the home. She testifies that the basis for the removal was a potential for unsupervised visitation by Oliver and Ann with Sarah over at the grandmother's house where Sarah was staying. That's what she says was the, was the immediacy. Was that that unsupervised visitation could happen? Correct, Your Honor. Okay, she's a decision maker and she says that that's the reason. And I guess correct. Okay, so on October the 20th, the CFSA workers show up at the house at 9 o'clock. It's a school night. It's a Wednesday night. These are a second grader and a fourth grader. Presumably they're in their jammies. They're at home the, the, the Sarah that Brenda Donald Walker is worried about is at the grandmother's house. What's the exigencies in that there's going to be some sort of unsupervised visitation between the fourth grader and second grader and Sarah who's at another house. When you can go to court the next morning, what's the exigencies in that, the course of that next 12 to 14 hours? Again, Your Honor. I don't think that that Miss Donald Walker's decision to remove is predicated solely upon. Well, that's what she testified. She was aware of the other factors as well. Your Honor, and this is your check. She, she was asked what was the reason and that was the answer she gave. And again, Your Honor, she was again having been deposed five years after the fact was somewhat vague on her recollection. But it was undisputed that all of the persons who participated in the jury. Well, couldn't the reasonable jury conclude that if that's the only reason that she gave, that that's the only one that they should credit. And that there was no reason that believe then that there was, where that, that, that a reasonable jury could conclude. That there was no exigencies over the next 14 hours or so before we could go to court. If that was the, if that was the concern. Again, the standard is one of objectiveness. So whether a social work proposition, all the information that was available to her had an objective basis for making the decision. If that were- I'm not talking about qualified immunity. I'm talking about just a constitutional violation. Anya, and it's an objective standard on the fourth amendment reasonable to standard is one, as an objective standard, the subjective intent of the officers is not generally relevant to the inquiry. It's a question of whether an officer possessing all of the information available to the decision maker would have a reasonable basis for that decision. And again, I think the record is clear that there were several factors and they just recorded reading and finding that there were several factors that were available to the agency, and on which the agency relied in making that decision. Was that simply solely the contact between the children and the grandmother? Who was Michelle Jones- Bridgman? I apologize, your own Indian here. Michelle Jones-Bringman, she was this- the woman we're talking about, supervisor, is that right? She was. She's not- she's not an indefendabit. Yes, she was a supervisor. And she testified at 574. We at that point did not have the ability to control when the other children could return home. There was a safety plan put in place at that time. We couldn't enforce it. We couldn't make it happen. And again, because the accident going on for so long, there was a concern for the children's safety. Correct. And Bernadonna Walker was privy to this information. Again, her memory was somewhat foggy on the specific facts. So in looking at the totality of the record, there were meetings between many, many people. This information was all conveyed. This information, I think, was factored and at the time of the decision making. And we get that from looking at the other witnesses' testimony. Jones Brighamon also says that the removal was for investigative purposes. Correct. And there was so many- So that the kids would be out of the home so that they couldn't be coached and that the parents, you know, they would be able to interview them, I guess, outside of the presence of the parents. That was- that wasn't a fact or so. But again, Bernadonna Walker doesn't say that. Again, her memory was somewhat foggy five years after the fact is in the specifics. But those were conversations that I think is undisputed occur between Bernadonna Walker and the staff members who participated in the numerous meetings to discuss the appropriate or practical reasons. My point is this is to drill down to the brass tax. Even if we assume that there's qualified immunity of the individuals, there's still a potential for liability of the district because Bernadonna Walker was a decision-maker. And there the question is, could a reasonable jury find that it wasn't objectively reasonable to take these kids away at nine o'clock in that evening when they could have been in court by 11 o'clock the next morning? Isn't that the question? There are several responses. The district gets asserted, Mimonelle defense below, the district court did not reach that issue. So the premature at this point for the court to get to the ultimate question is to whether or not Bernadonna Walker qualifies in the context of her decisions. In this case, is a district policymaker or not? Aside from that, again, you're on, I think, the totality of the information available to the agency at the time the decision was made has to be taken into account. That information included the fact that Oliver had been abused and and remained in the home. That information included the fact that at any point in time, Sarah could be returned to the home when the grandmother determined she was no longer able to care for Sarah. And also Wayne could be returned to the home at any point in time because the funding for his placement had run out. So, you know, you talk about overnight. It's not without outside the role of possibility. Those events could have occurred overnight. And looking at whether or not there's existing circumstances, the agency, the question about the agencies at the time the decision is made. And at the time the decision was made, these children faced a substantial risk of harm, either from remaining in the home, just Oliver and Ann alone, or through the possibility of Sarah and Wayne returning at any time. They get it was the those who emphasized that the possibility of waiting in Sarah returning was imminent and very real. So I don't think- No, I would- No, I would- No one said that the those gave us reason to believe that these kids were going to come home before we could get the court the next day. I don't think there's anything that expressed, but that was certainly a factor again, the Internet to the decision making process. So- The record does the record show anything to indicate why you couldn't have gotten the warrant before entering the home at 9pm? There was no evidence regarding the process by which a warrant, our court order could have been obtained, the time frame that that would have required that was just simply not presented to the decision. Where did the agency go? Where did the agency go? What about the security report, John? Yes. Yes. My understanding would be- I am 24 hour duty. There are certain disappear records. I just see wrong call for emergency warrant applications. But again, there's no evidence in the record is what the usual customary time it would have taken to get award. But the evidence in the record is that when they showed up at 9, they had a petition that said be in court tomorrow at 11, right? That was an administrative function on part of the agency. Their superior court is in session daily to hear a petition, our paper, neglect cases. It's a standing, a standing arrangement court. And when the conversation began on the 19th, right, they could have delivered a petition to them then and said, see you on the 20th, we'll let the court decide, right? The decision to remove was made on the 20th. I think that's interesting. But there were conversations on the 19th saying we want you to voluntarily place your these kids in the 21-day, kind of in a voluntary 21-day placement, because we have concerns about their safety. Correct. There were those conversations. But on the 20th, when the dose refused to voluntarily place the children in the CFSA's care, the decision at that point was made to remove the children. And the question for the exigent circumstances analysis is, were there sufficient exigent circumstances at that point in time for which the district could remove the children without seeking a court order? It's a balancing, it's a risk assessment. It's a question of whether or not the actions of the district officers were reasonable in believing that any further delay would expose the children to an unreasonable degree of risk, and that the risk was imminent that Oliver at any point in time could abuse Anne, that Sarah and Wayne at any point in time could be returned to the home and perpetrate the abuse. And it is a question of reason, I think, on this record, the agency. Did anybody say that they thought that there was a risk of Oliver abusing Anne in the next 24 hours? There was not that express explicit statement. I didn't see it anywhere. No, and it's, no, there's not, but it was certainly. I didn't see anybody say that that was a basis for acting within that night. I get it. I agree that there's not an explicit statement to have. What did that prevent? Was there another removal proceeding at the grandmother's house for Sarah? She was removed as well. Yes, fine. Was there a October 20th? Yes, Your Honor. That has been challenged. I know it hasn't been challenged, but what's the basis for removing her from the grandmother's house? She's not threatening to abuse any other children. No, but she was also a victim of abuse as well, so she was removed for her own safety. She was the victim of Wayne's abuse. And when did Wayne get removed? He was already in a foster home? Correct. For which funding had run out, an out-of-state placement with a non-CFSA approved provider, for which funding had run out, and which funding had been provided, I think, by the district to a certain point, but that funding sources had run out, and the do's were unable to contend to that placement. The only option available, according to the does, was for him to return to the home. Did Wayne, was Wayne removed from that placement on the night of October 20th? No. He remained in his Virginia placement, keeping in mind that the infancy petition was filed the day after the removal. And at that point there was some court intervention and supervision over both Duane and Sarah which, I think, would have been consistent with the same- Why wasn't he removed for the same reason that Sarah was removed? I don't believe that he was a victim of the abuse. In fact, was the perpetrator of the abuse? The other children were removed, you know, out of his reach, so to speak, his removal was not necessary. I'm just wondering if the theory, maybe I didn't hear you correctly, was that Sarah's return to the doughnut was imminent. And therefore that's why the children had to be removed. Did you say that? Yes, yes. Why doesn't Sarah's removal from the grandmother solve that problem? Well, again, there are several components to the removal decision. One of them was the investigative component involving Ann and Oliver. So there was a need to get Ann and Oliver, who were the victims of the abuse outside of the home to investigate. The underlying allegation against the parents was failure to protect them from the abuse or failure to properly supervise them. And so there was an investigative component to Ann and Oliver's removal as well. And that's again, in any case where you have a victim of child abuse or neglect in the home, it's typical that the child that's removed, I'm trying to go to the medical evaluation to be interviewed to investigate the nature of the neglect and abuse that's been alleged in the home. The negotiations that were going on with the parents, those were over voluntarily turning over the kids or what was that? Yes, there was a mechanism where the parents could have voluntarily placed the children with CFSA, which would have obviated the need for CFSA to remove the children themselves, it unilaterally. And was it the failure of those negotiations that meant that there wasn't going to be another way to protect the children? I mean, I mean, so, Runner, I think the way I view the record is the parties didn't dispute that there was an ex-execency in this case. The dispute was over what the proper means to protect the children was. CFSA's view was the children need to be placed in custody with CFSA foster providers. The parents view was that CFSA's fund-wains placement in Virginia should fund Sarah's placement of private school of their choosing, and that would address the concerns of the sexual abuse. And CFSA simply disagreed, but that was the appropriate approach to protect all four children from the risk of further abuse. And is that an act of 20th that became clear that there was not going to be a voluntary turnover that the only alternative was to make the children? Is that, is that, yes? That's an accurate, I think. And then again, that that's the point at which the removal decision was made. And then question then becomes, do we delay that removal to seek a court order? Or do we now know that the parents are not going to cooperate and having all of the concerns that are described in the record about the potential failures in the safety plan, other risk of Sarah-Wayne returning, and in all of her involvement with each other, all of those factors, they justify the district proceeding without a court order. And this district, to be both as a matter of Fourth Amendment considerations, as well as qualified immunity considerations, that the decision was objectively reasonable given the totality of facts and circumstances, in this case. But even if we agree with you on qualified immunity, we would have to reach the issue of whether or not there was a constitutional violation such that a claim could potentially survive against the district, right? Yes, again, we raised Moanell below. And it has not been re-raised here. The district court did dismiss the charges against the dark plans against the district based on its conclusion. There was no constitutional violation. So, yes, the petitioner in the mail. You didn't raise Moanell, no body raised Moanell because Moanell wasn't the grounds for the decision below, right? That's correct. It wasn't correct. It certainly was an issue that was pressed below, but it was not passed upon by the district court. So, that's explanation for why posing counsel brief doesn't have Moanell, and I didn't understand at the time, no, I get it. So, but does that mean we have to decide a constitutional a question or can remand to the district court if there's no Moanell liability, it won't matter whether there's a Fourth Amendment. That is, if the person's not a policymaker or and-or if there isn't a policy and-or, or if there isn't deliberate difference, we don't, we wouldn't need to reach the constitutional question, right? Certainly, on if you could make this findings. Well, I wouldn't be us, I beg it. That would be on a remand to the district court. Right. It would, yes. I mean, there's already an indication that the district had a policy that you don't have to get a warrant before removing children from home. No, you're, I think again, that's a very good question, I think the district's policy is absent, exigent circumstances. You need a warrant or a court order to remove children. I think the district's policy is squarely in line with the Fourth Amendment requirements, Fifth Amendment requirements. The question here is- Where's the evidence of that? I would, I would direct the court, I think, to the CFSAs regulations and the statute. Is that that regulation you? Your Honor, I apologize off the top of my head, I don't know, but I don't think, I mean, I'm safe in saying the district's policy is not to remove without a court order, absent, exigent circumstances. The question here is whether or not the exigent circumstances existed. But even, assume for the moment, it's getting more interesting as we go along, because it's all stuff that we haven't discussed in the briefs. But assume for the moment that there was time to get a warrant, number one, and two, that the law is, that when there, which we have not yet made, but that the law is that you need to get a warrant, does the district have a policy that, even if there is time to a warrant, get a warrant, you don't have to. I take it from what you're saying, is they don't have that policy. Not that I'm aware of your honor. So that at the best, this is either a breach of a policy that requires getting a warrant or it's a situation where there's no policy. That's a possible question. Because if that's true, you're not liable under Monel, right? If you either breach the policy in this one case, or if there was no policy one way or the other, in this one case, there's no Monel liability just because, even if individuals violated the Fourth Amendment in this case, am I wrong about that? Yes, no, I think you're analysis of the question. I just want to. But isn't the individual the head of the agency? The individual is the head of the agency that's. That's not the policy maker. I'm interested in what that moment is. I guess the question is in the context of the decision making in this case, what she acting as a district policy maker. And I don't think it's a hard festival that every decision made why someone who holds a policy making position within the district government is sufficient to subject the district to Monel liable. And I think the analysis is a little bit more nuanced and involved in that. And that's why, perhaps it's appropriate for the district court to consider the issue in the first place. What she's done in this case is to enact a policy or to do something which may be consistent with the policy. And not most of the Monel cases are policy cases. Correct. They're not supervising prisons. They're failing to give training. They are allowing beating of prisoners as a policy. This is a different, it seems like a different. It's exactly. It's a decision in the individual. I don't actually know, but it seems like all the Monel cases I can remember look like ones of repeated activity, which a policy maker either goes along with or announces. Correct. Correct. And again, I don't think there was a policy announced in this case. It was a decision made in an individual case based on unique facts and circumstances presented to the director at the time she made the decision. So I don't know that, you know, it's labeling her as a policy maker, establishes Monel liability under those circumstances. I do want to just get back to your, the premise on your question about whether or not there's sufficient time to get a warrant. I think that's not quite the question that you that needs to be asked. In that abstract sense, there's always time to get a warrant. The question is at what cost? It's a balancing inquiry. The government has a counter-vailing interest in here in protecting the health and safety of very vulnerable children. So to answer the question, was there time to get a warrant? That's just not, that's only half of the, the equation. The question is, is the warrant requirement, is there an exception to the warrant requirement present given the government's counter-vailing interest in protecting children from an immediate sea of harm? I understand, but the second circuit is squeezed with the position. The second circuit does suggest that it is a hard and fast rule that the 11th. And the other two circuits, as I slide it, go the other way. So I'm only puzzling over whether we need to decide that question for this circuit or not. I don't believe so, you're under, again, under the qualified immunity standard. Certainly, that resolves the issue of whether the law was clear, established. And then again, I just wanted to make the point that in deciding what district policy is or asking that question, it's just not simply a question of how much time the district would have available to it. So explain to me what the argument is for the exigency, if the district had simply taken Sarah, the older girl, out of the grandmother's home and placed her in the foster care and left Oliver and Ann there from 9 o'clock PM till 11 a.m. the next morning when they were going to be in court. Again, there was testimony that they were concerned about the safety plan that was in place. And I think given the fact that Oliver had subsequently been found to have been abusing Ann, the leaving Oliver and Ann in the home together was a relevant consideration and to contribute to the exigency. But no one said that. No one expressed this said that, but again, it's an objective inquiry in whether a reasonable social worker possessing all of the information. And there's no dispute that the agency and the decision makers, I think, were aware of this fact. It's just, you know, after five years, you know, five years after the fact during discovery deposition, the recall just wasn't what it was. But no one said that they thought that the safety plan was deficient. In this respect, they said they thought that the safety plan was deficient. And when pressed, what they said was what Brenda Donald Walker said was that the safety plan would not prevent the two younger kids from going over the grandma's house and having unsupervised visitation with the older sister. Nobody said that they thought that the deficiency in the safety plan was that Oliver might be able to sneak out of his room and abuse Ann. I get no one expressed this stated that your honor is correct. That is not. Well, they've had umpteen depositions and affidavits and everything else to express that if they thought it. What they've described is what they thought that the deficiency in the safety plan is what they said. So, should we conclude that that's what their basis was? I think again, your honor, the totality of evidence. There was testimony that there was an investigatory aspect to the decision to remove the children. There were other concerns, you know, with Wayne returning to the home. Your initial question was, well, why can't we solve this by removing Sarah? But we also have the Wayne issue as well. Well, you didn't even take Wayne out of that placement that night. We didn't because we could remove the other three children at which point Wayne no longer had access to them from his Virginia placement. So, if the, and as the key perpetrator, the need for services from CFSA, we're not in a line with the victim. Well, even the next day after you went to court, you didn't remove Wayne from that placement. Delinquency proceedings were initiated the next day. He would have been subject to court supervision through the Delinquency Proceedings. The record doesn't reflect whether his placement changed the result of that. But there was court monitoring, I believe, of his contact with the other siblings, which would have obviated the concerns, with simply leaving it to the dose to decide or leaving it to the, you know, the dose safety plan as a mechanism to protect the children. Before you sit down, I had one more question. And was there anything that the parents did or said on or about October 20th that raised an alarm? I think what, what, what, October 20th represented the culmination of the meetings in discussions with the parents, which ended in the determination that the parents were unwilling to voluntarily place their children with CFSA. Given that there was no willingness to voluntarily make that placement and knowing that Sarah and Wayne's placements were not stable, CFSA, I think felt compelled to act at that point in time based on that information. There's nothing to be on. Not the, not, no, I don't believe so. And I, come back up. We're discussing with Judge Wilkins the question of what the reason of Donna, I can't remember what her name is. I've read a daughter Walker. Does it matter? I thought that the rule was what would an objectively reasonable social worker do? Not the actual subjective reasons of any social worker in the same way. Ren says it doesn't matter if the reason the car was stopped was because we wanted to get the drugs as long as an objective observer would say they broke a traffic law. Am I bringing the analysis wrong? No, no, Your Honor. I hope I try to convey that point. Why do you get down, but I thought that it's exactly the district's position that it's the totality of evidence of the case. It's not just totality. It's who was looking at it. It's not what an individual actually looked at. It was what available to a reasonable observer is. Yes, Your Honor. That is correct. Therefore, Ms. Williams' subjective impressions are not controlled. But couldn't the reasonable jury say, okay, it's objective. It's what would a reasonable person think was a problem with the safety plan. But if that can't they consider what someone's subjective beliefs were in considering whether something is reasonable, objectively reasonable? I think generally the test is an objective one in the end of the case. The case was clear that the subjective views of the individual are not the relevant or decisive factor. I mean, they don't say that they're decisive. I don't know that I've ever seen an instruction that says it's not relevant, that you can't introduce that evidence. No, I mean, I certainly could have introduced the evidence. I just, the standard is one of objectiveness. An officer cannot execute it himself by simply saying that he had objectively, or he had, you know, his reason is controlled. And I didn't intend to violate constitutional rights, therefore. Or, you know, so I mean, I think certainly the evidence could come in, but whether or not it would be appropriate for the jury to base its decision on that. I question that because it is an objective standard and they are obligated to consider the totality of the evidence. I think certainly the scoring, it's an overview would be obligated to look at the totality, the record in this case, and all the evidence that's available to CFSA at the time, the removal decision was made, and answering whether or not its decision was objectively reasonable? Other questions? Okay, thank you. Thank you, I wish we had the court of firm. Does the Pellent have any time left? Just like in the last case, we'll give you two minutes. Thank you. In terms of what an objective social worker would have in front of them to make this decision, the Pellent's view is that that question is answered by quite as any agencies official record. And in that case, it's what was entered by social worker, Laura Swiliams, the individual perceptions, speculations, statements of manners in these meetings were not entered into the record. They weren't fact-fired. Well, wouldn't a reasonable social worker, there was a report that all of your Oliver had abused hand. So they would have that, whether it was discussed or not discussed, a reasonable social worker would have that. That is correct. And I think that is actually in the record. But the safety plan is in the record. The safety plan has provisions that would handle the concern about Oliver attempting to reach hands-room in the evening. There were no findings of fact to the contrary regarding safety plan deficiencies in the record. So there's nothing really for an objective social worker to look at in terms of fact findings that would support this emergency removal. Now, the dose were willing to keep Wayne and Sarah in their external placement long enough for a court hearing. There's nothing in the record that indicates the dose were going to snap when Sarah out of their placements the next day. And that in fact was not the plan and had the agency simply said, we're going to have hearing tomorrow. Can you make sure Wayne and Sarah stay in their placements? The answer would have been simply yes. Is that, is that any discussion one way or other in the record of that? I think the record only reflects to some extent when those placements change, not the willingness. Now, the dose did not object to placement of Wayne and Sarah into the custody of the district. And the district is sort of painting with a broad brush again that those objected to turning over the children on the 19th of October voluntarily. Well, that was only true for Oliver and Ann. It wasn't true for Wayne and Sarah. Now, in terms of the investigating purpose. So the discussion, the earlier discussions that there would have to be a way to be sure that the kids could go back and forth to the schools that they were in and that they would be able to keep the same therapist they dropped all those requests? I don't believe they dropped all those requests. But I do think they were willing to have custody of Wayne and Sarah take place. But they wanted certain services to continue for Wayne and Sarah for their well-being. I think I heard the district say that the parties didn't, there wasn't dispute about the exigency. That's obviously not correct. Regarding Oliver and Ann or certainly well. It seems obvious that there's a dispute. That's why we're here. I appreciate your honor and I appreciate your patience. Further questions from the bench? Thank you. We'll take a matter under submission