[00:00:02] Speaker 00:
Good morning, Your Honors.

[00:00:03] Speaker 00:
My name is Deputy Attorney General Isaac Ickes, and I represent Amy Laskovic, Ivalonika Alvai-Harrid, and Dino St.

[00:00:10] Speaker 00:
Augustine, all employees of Child Welfare Services.

[00:00:14] Speaker 00:
Yes.

[00:00:17] Speaker 00:
I'd like to begin by discussing the second prong of the qualified immunity analysis, and that is whether a right was clearly established or not.

[00:00:27] Speaker 00:
Now, when we ask that question, the answer to that question is no, then it is not clearly established and qualified immunity.

[00:00:36] Speaker 03:
The problem you've got, we understand this principle really well.

[00:00:39] Speaker 03:
If I can jump right to it because this case is thorny.

[00:00:42] Speaker 00:
Yes, Your Honor.

[00:00:43] Speaker 03:
But we have recognized that there's a clearly established right to familial association.

[00:00:47] Speaker 03:
It's not unqualified and the question is gonna be the breadth of it.

[00:00:50] Speaker 03:
So could you cut to that level rather than talking about the 30,000 foot level?

[00:00:55] Speaker 00:
Sure, Your Honor.

[00:00:58] Speaker 00:
Now, on the level of the specific circumstances of this case, there is no clearly established right to the custody, care, and control of one's children while one is barred from contacting them by court order.

[00:01:13] Speaker 04:
Okay, let me stop you for a second and ask you.

[00:01:15] Speaker 04:
You're sort of talking about this broad generality, but there are really, as I see it, two separate time periods we're talking about.

[00:01:26] Speaker 04:
There is whether or not

[00:01:27] Speaker 04:
Removal was authorized by the TRO on December 20th.

[00:01:33] Speaker 04:
And then there's the separate issue of after the TRO was dissolved on December 31st, whether or not there was an authorization or justification for keeping BD in your custody.

[00:01:46] Speaker 04:
And so I really want to talk about these things as two separate time periods because I think the claim, as I read it,

[00:01:56] Speaker 04:
really talks about two time periods, not just sort of an overarching, was there an order authorizing removal?

[00:02:06] Speaker 04:
The reasonableness analysis asks whether there was an order authorizing it or whether or not there was an imminent danger or risk of serious bodily injury.

[00:02:22] Speaker 04:
But I think you need to do that analysis with respect to two separate time periods.

[00:02:25] Speaker 00:
Sure, Your Honor.

[00:02:27] Speaker 00:
Now, with respect to the first day of December 20, Family Court on Kaua'i had made a probable cause finding that abuse had occurred, threats of abuse were probably, were probable to occur so as to

[00:02:50] Speaker 00:
create a risk of imminent harm.

[00:02:51] Speaker 00:
There was already a probable cause finding made on that on the first page of the temporary restraining order.

[00:02:58] Speaker 00:
Now.

[00:02:59] Speaker 04:
Wasn't there, though, with respect to that, there was a TRO, but wasn't Leskovic rated, or didn't Leskovic rate David a three on a 51-point scale with respect to risk of harm?

[00:03:15] Speaker 00:
So the rating did happen, Your Honor.

[00:03:19] Speaker 00:
I think the critical difference here, though separating this case from the lengthy jurisprudence that we have in the Ninth Circuit, is that the order that was valid, that was issued by the family court barred contact between Hannah and BD.

[00:03:41] Speaker 00:
They could not be together.

[00:03:42] Speaker 04:
Okay, so you're relying on the TRO, not the risk of bodily injury or imminent harm.

[00:03:47] Speaker 04:
You're relying on the TRO.

[00:03:49] Speaker 00:
Well, Your Honor, I would, the TRO is one set of circumstances that we're relying on here.

[00:03:59] Speaker 00:
I would just also like to note that, yes.

[00:04:01] Speaker 03:
Well, I think it is an important question.

[00:04:03] Speaker 03:
I think it is a really important question.

[00:04:04] Speaker 03:
At the time of the child was removed, the initial removal on December 20, I think you say it two ways, and to follow up on Judge Desai's point.

[00:04:13] Speaker 03:
I think in one place, or at least one,

[00:04:15] Speaker 03:
the government takes the position that the child was removed because there had been a finding by the Superior Court in Kauai and a no-contact order imposed.

[00:04:24] Speaker 03:
But there's also a question about whether or not the state was invoking its statutory right to remove a child if there's an imminent risk.

[00:04:32] Speaker 03:
And I don't think you're consistent on that point.

[00:04:37] Speaker 03:
I just want a yes or no.

[00:04:38] Speaker 03:
Were you operating pursuant to both or one strand of authority?

[00:04:47] Speaker 00:
I guess the best answer to the question would be no to the second, yes to the first, but with some qualifiers.

[00:04:54] Speaker 03:
Okay.

[00:04:56] Speaker 03:
This shouldn't be hard and it doesn't intend to be tricky.

[00:04:58] Speaker 03:
You were operating apparently according to the No Contact Order and what?

[00:05:02] Speaker 03:
What's the qualification you want to give us?

[00:05:05] Speaker 00:
I just wanted to note that when, or I wanted to note that when Judge Seabright did view the video in this case, he did note in his order that the description given by Ms.

[00:05:21] Speaker 00:
Kaulukukui was

[00:05:25] Speaker 00:
essentially verified by Judge Seabright's viewing of the order.

[00:05:28] Speaker 03:
So he did... The judge was very clear about that, but I'm not sure how it helps you.

[00:05:32] Speaker 03:
What he was saying essentially is that there was a no contact order entered as Judge Desai pointed out, and Judge Seabright has said that was well-founded.

[00:05:40] Speaker 03:
He understood why that was entered.

[00:05:42] Speaker 03:
He called it disturbing and bizarre behavior.

[00:05:44] Speaker 03:
Okay, but back to what we're talking about.

[00:05:46] Speaker 03:
The first period that Judge Desai is trying to get you focused on, right beginning December 20th when the child was removed,

[00:05:52] Speaker 03:
you operated pursuant to, I think, the TRO, right?

[00:05:56] Speaker 00:
No contact order, yes, Your Honor, the TRO.

[00:05:59] Speaker 03:
Since we're going to look at that period, is there any question that the principal told the social workers that the child was not to be removed by the father, the father did not have custody?

[00:06:12] Speaker 00:
Is that a disputed point?

[00:06:16] Speaker 00:
point we're disputing right now.

[00:06:18] Speaker 03:
Okay.

[00:06:18] Speaker 03:
And then my second question is, did the defendants do anything to investigate why dad didn't have custody before they removed her?

[00:06:27] Speaker 03:
I guess they used the word transferred her into his care.

[00:06:30] Speaker 00:
No, the defendants did look into the matter, speak with Mr. Caliolalo.

[00:06:36] Speaker 03:
Beyond talking to the father, did they look into anything?

[00:06:40] Speaker 03:
Of course, there's a court record.

[00:06:41] Speaker 03:
There's a public record.

[00:06:42] Speaker 03:
And in fact, I think there's a history of these people.

[00:06:45] Speaker 03:
having quite a contentious history with child protective services.

[00:06:51] Speaker 03:
So I'm not asking about whether they talked to the dad.

[00:06:53] Speaker 03:
I'm trying to figure out whether they did anything objectively to investigate why dad didn't have custody.

[00:06:59] Speaker 00:
Now, trying to, I would just like to note that the order in this case was sealed.

[00:07:08] Speaker 00:
It's not a publicly accessible order.

[00:07:10] Speaker 03:
Council, my question is, okay, so they couldn't look there, but what did they do?

[00:07:12] Speaker 03:
Did they do anything?

[00:07:13] Speaker 03:
I'm just looking for anything in the record that tells me they did something.

[00:07:16] Speaker 00:
Spoke to the father, spoke to the mother, requested copies of the order from either of them, and did not receive from either mother or father.

[00:07:26] Speaker 03:
There was some paperwork that the social worker was shown by the principal Is that right?

[00:07:32] Speaker 00:
Yes, sir.

[00:07:33] Speaker 00:
What what did that tell the social worker now the social the?

[00:07:37] Speaker 00:
emergency card at issue here I Have it written down So the emergency card

[00:07:50] Speaker 00:
erroneously noted that Keahi o Lalo is prohibited from having any contact with BD.

[00:07:57] Speaker 00:
However, that's not a true statement.

[00:07:59] Speaker 00:
Looking at the actual text of the 2012 order, there is no no contact order between Mr. Keahi o Lalo and BD.

[00:08:09] Speaker 00:
The no contact order on the 2012 order barred contact between Keahi o Lalo and Hannah David.

[00:08:18] Speaker 00:
The premise is flawed to begin with.

[00:08:23] Speaker 03:
What the information available to the social worker in the principal's office was that in the event of an emergency, the child was not to be released to her father, right?

[00:08:39] Speaker 00:
I guess I would submit that the card said what the card said.

[00:08:42] Speaker 03:
And is that what the card said?

[00:08:43] Speaker 03:
I'm not trying to give you a hard time.

[00:08:44] Speaker 03:
Is that what the card said?

[00:08:45] Speaker 03:
And I understand your position is the card was incorrect.

[00:08:48] Speaker 03:
Is that right?

[00:08:48] Speaker 00:
Yes, your honor.

[00:08:49] Speaker 00:
From my notes, the card said father or father is prohibited from having any contact with BD and that was erroneous.

[00:08:58] Speaker 01:
With the mother, yeah.

[00:09:00] Speaker 01:
BD the daughter.

[00:09:01] Speaker 01:
With the daughter, okay.

[00:09:02] Speaker 01:
Yeah.

[00:09:04] Speaker 01:
Let me ask you this, what evidence do we have that any of your clients knew about the 2012 order and when did they know that?

[00:09:15] Speaker 01:
At some point, of course, they do know about it, but what's the earliest at which they could have known about that?

[00:09:21] Speaker 00:
So as far as the 2012 order goes, their first knowledge of it came from Hannah.

[00:09:30] Speaker 00:
Hannah told them, I have a 21-year TRO against Kiahiolalo.

[00:09:36] Speaker 00:
When?

[00:09:37] Speaker 01:
Yeah, what's the date?

[00:09:37] Speaker 00:
When Ms.

[00:09:39] Speaker 00:
Leskovich visited Hannah at her home.

[00:09:45] Speaker 00:
So, Mr. San Augustine inquired with Mr. Keaio Lalo about it.

[00:09:51] Speaker 00:
Mr. Keaio Lalo said, you know, I have a lot of paperwork I can give you.

[00:09:55] Speaker 01:
So, that's December 18th then, that they first are aware of that.

[00:10:00] Speaker 00:
Yes, Your Honor.

[00:10:01] Speaker 01:
And despite their being aware of this, then they do all these things.

[00:10:05] Speaker 00:
Oh, Your Honor.

[00:10:06] Speaker 00:
I can kind of go through the sequence of events.

[00:10:09] Speaker 00:
I think that might be helpful.

[00:10:11] Speaker 00:
Okay.

[00:10:14] Speaker 00:
They hear about a 21-year TRO from Hannah David.

[00:10:20] Speaker 00:
Ms.

[00:10:21] Speaker 00:
Leskovic tries to see if there is a TRO because those were the words that Ms.

[00:10:30] Speaker 00:
David used and there wasn't a TRO.

[00:10:36] Speaker 00:
You know, speculate what's going on was Ms.

[00:10:39] Speaker 00:
David misidentified the 2012 stipulated order as a TRO, which I guess is understandable.

[00:10:49] Speaker 00:
Now, on Kauai, Ms.

[00:10:52] Speaker 00:
St.

[00:10:52] Speaker 00:
Augustine spoke with Mr. Keahiulalo about, you know, are there any court orders that you want to give us, or are there any legal documents that, you know, we should have.

[00:11:03] Speaker 00:
Ms.

[00:11:03] Speaker 00:
Keahiulalo says, you know, I have a stack like this, I can give them to you, but that just didn't come about within, you know, the time between then and the school.

[00:11:21] Speaker 00:
Under 587A8 Hawaii revised statutes, the police generally in temporary foster custody situations will assume custody of a child, take it in, pass it to CWS who then receives the child.

[00:11:44] Speaker 03:
Is that what happened in this case?

[00:11:45] Speaker 03:
I understood you to say you did not act pursuant to the emergency statute.

[00:11:48] Speaker 00:
No, Your Honor, that's not what happened in this case.

[00:11:50] Speaker 03:
And had that happened, a bunch of statutory safeguards would have kicked in about timing and hearings and whatnot.

[00:11:54] Speaker 03:
But my understanding is that is not what happened in this case.

[00:11:57] Speaker 00:
No, Your Honor.

[00:11:58] Speaker 00:
Okay.

[00:11:58] Speaker 00:
Okay.

[00:11:59] Speaker 00:
So, at that first step, when the police under 587A9A received the child,

[00:12:11] Speaker 00:
One option is to formally, you know, pass over custody to the department.

[00:12:16] Speaker 00:
Another option is to resolve the matter informally.

[00:12:19] Speaker 00:
And, you know, one of these methods is with a parent who is willing to provide a home.

[00:12:27] Speaker 00:
And in this case, that's what was apparent to, I guess, the government officials on the scene was that there was a parent willing to provide a home, Mr. Keahiolalo.

[00:12:39] Speaker 03:
Probably have counsels that parent, they had indications from the principal, you know, dissent party that he didn't have custody and that there doesn't seem to be any attempt to investigate why he didn't have custody.

[00:12:52] Speaker 03:
So while I think there is, and certainly the district court thought there was strong reason for the no contact order to be entered.

[00:12:59] Speaker 03:
And I appreciate your clients are in the business of protecting children But surely there's an option to remove the child from the home if they thought that was necessary into place room in Somewhere other than with the father like you in foster care or or somewhere to keep her safe if that was that was the concern And I think judge our place her off island.

[00:13:18] Speaker 03:
They placed her on a different island.

[00:13:20] Speaker 03:
So that's quite something so

[00:13:26] Speaker 00:
I mean, there are numerous instances just throughout life and our running of society where children are not allowed to be with their custodial parent.

[00:13:40] Speaker 00:
They have to go somewhere.

[00:13:41] Speaker 00:
And not all of those children go into temporary foster custody.

[00:13:46] Speaker 00:
They can be informally placed with a non-custodial relative, for example.

[00:13:53] Speaker 03:
I said, yes, you're right.

[00:13:54] Speaker 03:
I'm a former Superior Court judge.

[00:13:56] Speaker 03:
I'm very familiar with that.

[00:13:59] Speaker 03:
And so your argument is that that's what they were doing here, and they were excused from checking out dad to see whether dad was a safe custodian, because why?

[00:14:08] Speaker 00:
Well, Mr. Stine Augustine did assess Mr. Kalilalo as a safe custodian when he visited him.

[00:14:17] Speaker 00:
This was prior to December 20.

[00:14:19] Speaker 03:
OK.

[00:14:21] Speaker 03:
I have another question, but I'm not sure if you've got an answer to yours yet.

[00:14:24] Speaker 01:
Well, my question is, at what point are they aware of the 2012 order?

[00:14:30] Speaker 01:
Because as soon as they're aware of that, I think they're in trouble in the sense of they should have known better.

[00:14:37] Speaker 01:
They should have known that that December 4th, much later order, really wasn't going to work.

[00:14:43] Speaker 01:
Well, as I read what the district judge did said, the district judge said, well, if they were aware of that earlier order, then I'm going to deny qualified immunity.

[00:14:55] Speaker 01:
And we're going to go forward and find out.

[00:14:57] Speaker 01:
And you just told me that they were aware of that order on the 18th of December.

[00:15:03] Speaker 00:
Your Honor, I think the critical distinction, however, is that they are hearing

[00:15:13] Speaker 00:
You know, one story from Hannah, hearing one story from Mr. Kea'u'u'olalo, the order is not publicly available.

[00:15:20] Speaker 01:
Well, publicly, I'm not sure, but I don't care about publicly available.

[00:15:24] Speaker 01:
When are your clients, when are these three people aware of it?

[00:15:29] Speaker 00:
Okay, my clients knew of the existence of an order from Hannah and Mr. Kea'u'u'olalo.

[00:15:37] Speaker 00:
Now, as to what specifically the order- I just, to be clear,

[00:15:41] Speaker 03:
to answer Judge Fletcher's question.

[00:15:42] Speaker 03:
My understanding is as of the 18th, they had been told about the order by Hanna, but I don't think they saw the order, and I think that's what we're trying to get at, until December 31.

[00:15:52] Speaker 03:
Is that correct?

[00:15:53] Speaker 03:
Yes, Your Honor.

[00:15:54] Speaker 03:
And that's the day the TRO was dissolved?

[00:15:56] Speaker 00:
The TRO was dissolved as to- No contact order as to the one we care about, right.

[00:16:03] Speaker 03:
Okay, so I don't know if you've got an answer to your question.

[00:16:08] Speaker 00:
Okay.

[00:16:09] Speaker 01:
Actually, that helps, because as I read the district court's order, he's trying to figure out, okay, when did they know about it so that we can charge them with knowledge of it?

[00:16:18] Speaker 01:
Maybe hearing about it vaguely is enough, maybe it isn't, and he says, I need more evidence on that, so I'm gonna deny qualified immunity at this time.

[00:16:28] Speaker 00:
So after December 31st, that is when CW has put into

[00:16:37] Speaker 00:
I guess, motioned the petition for a temporary foster custody.

[00:16:41] Speaker 00:
And the petition for a temporary foster custody was, you know, timely filed and ultimately was sustained by the family court.

[00:16:51] Speaker 03:
So could I stop you there?

[00:16:52] Speaker 03:
Yes, you're on.

[00:16:53] Speaker 03:
The December 31st hearing, at that point it's uncontested.

[00:16:55] Speaker 03:
They've got, and I think what they said is that that's the first time we saw the order.

[00:16:59] Speaker 03:
That's my understanding, so you can correct me if I'm wrong.

[00:17:02] Speaker 03:
And the TRO was dissolved.

[00:17:04] Speaker 03:
But there's still this concern about the child, because after all, there's this video that's very concerning about this incident, is my understanding.

[00:17:11] Speaker 03:
And so the question at that point is, what should they have done then?

[00:17:15] Speaker 03:
And I think you're just getting to that point and telling us that they then initiated an emergency custody petition.

[00:17:25] Speaker 00:
Yes, Your Honor, they did.

[00:17:27] Speaker 03:
And since the child was in Kwai, what happened?

[00:17:30] Speaker 03:
Where was she placed?

[00:17:31] Speaker 00:
At first, on Kaua'i, I understand.

[00:17:40] Speaker 03:
Where, in temporary foster care?

[00:17:41] Speaker 00:
Temporary foster care on Kaua'i, yeah.

[00:17:43] Speaker 00:
So not in Ms.

[00:17:45] Speaker 00:
Keaia Lalo's house.

[00:17:46] Speaker 00:
By the time the hearing on the petition came around, Child had been flown back to the Big Island.

[00:17:55] Speaker 03:
Well, Judge, I was trying to get you to look at these as two different periods of time.

[00:17:59] Speaker 03:
And so what's your best argument as to the second period of time, if it starts on December 31?

[00:18:05] Speaker 00:
I think the best argument here is that the family court, after hearing the evidence at a contested case hearing, sustained, ultimately,

[00:18:20] Speaker 00:
The department's petition.

[00:18:22] Speaker 04:
In the first instance, I don't think you can backdory on your justification because it was ultimately upheld or determined in the family court proceeding that it was permissible.

[00:18:32] Speaker 04:
What was the authority by which that removal occurred after the TRO was dissolved?

[00:18:41] Speaker 04:
Why was it reasonable?

[00:18:44] Speaker 00:
Okay.

[00:18:45] Speaker 00:
The December 31st hearing happened.

[00:18:49] Speaker 00:
There were no

[00:18:50] Speaker 00:
attorney generals at this hearing or anything like that.

[00:18:56] Speaker 00:
The order was brought to court by Ms.

[00:19:00] Speaker 00:
David's counsel.

[00:19:02] Speaker 00:
Ms.

[00:19:03] Speaker 00:
David's counsel emailed the order to a deputy attorney general other than myself.

[00:19:09] Speaker 00:
That deputy attorney general for the family law division

[00:19:12] Speaker 00:
then shared the order with CWS.

[00:19:17] Speaker 00:
CWS discussed, you know, what do we do about this?

[00:19:20] Speaker 00:
At that point, they had seen the video of Ms.

[00:19:27] Speaker 00:
David at the fire station assaulting Mr. Kahiolalo, and that was when the decision ultimately, you know, was forged to go ahead and file the petition for temporary foster custody.

[00:19:42] Speaker 03:
So there was an ongoing concern about the child safety, I take it, because of the video at that point.

[00:19:45] Speaker 03:
Is that it?

[00:19:48] Speaker 00:
Yes, Your Honor.

[00:19:48] Speaker 00:
In addition to, I guess, just concerns over Ms.

[00:19:53] Speaker 00:
David, some of her other behavior.

[00:19:57] Speaker 03:
So this is all in, this is a period of 21 days.

[00:20:00] Speaker 03:
And after the December 31 hearing, there were delays.

[00:20:05] Speaker 03:
Can you explain?

[00:20:07] Speaker 03:
I realize there's some holidays in there, but it's a very protective period of time.

[00:20:12] Speaker 03:
So there was a continuation of the hearing, the first hearing, I think, because Ms.

[00:20:19] Speaker 03:
David had not been served, I think.

[00:20:21] Speaker 03:
Is that right?

[00:20:22] Speaker 00:
The first temporary restraining order hearing, Your Honor?

[00:20:26] Speaker 03:
No.

[00:20:26] Speaker 03:
The first hearing on the petition in the new year for temporary custody.

[00:20:33] Speaker 00:
I believe the parties.

[00:20:36] Speaker 00:
met, I believe temporary supervision was awarded with strenuous conditions on Ms.

[00:20:43] Speaker 00:
David, and a return hearing was set for further testimony.

[00:20:48] Speaker 00:
I'm sorry, I wasn't present at those hearings, Your Honor.

[00:20:51] Speaker 03:
It was transferred to foster care on January 3rd.

[00:20:54] Speaker 03:
They filed a petition for protective custody on Hawaii on January 6th.

[00:20:57] Speaker 03:
On January 8th, the first hearing on temporary custody was continued till the 10th.

[00:21:02] Speaker 03:
I don't know why it was continued, but it was continued.

[00:21:05] Speaker 03:
And I think that might have been a service problem, but at any rate, at that point, basically, when the hearing was held, the child was returned with conditions.

[00:21:15] Speaker 03:
You're way over your time, and we've taken over our time with our questions.

[00:21:18] Speaker 03:
But before we hear from opposing counsel, I just want to see if there's anything further.

[00:21:21] Speaker 03:
I'm good for now.

[00:21:22] Speaker 03:
Okay.

[00:21:23] Speaker 03:
Why don't you have a seat, and we'll hear from opposing counsel.

[00:21:25] Speaker 03:
When you come back, we'll put two minutes on the clock.

[00:21:27] Speaker 00:
Thank you, Your Honor.

[00:21:35] Speaker 02:
Good morning.

[00:21:35] Speaker 02:
Thank you for the opportunity to appear.

[00:21:37] Speaker 02:
My name is Eric Seitz, and as you know, I represent Hannah David and her daughter, who I think now is 16 or 17.

[00:21:44] Speaker 02:
I have written out what I was going to say to you about how outrageous this was, but rather than tell you what we think about this case, in light of the questions, the factual issues that you've raised, I would, I think, prefer to entertain your questions.

[00:22:02] Speaker 02:
So where would you like me to start?

[00:22:04] Speaker 03:
I would like to know what right your client is asserting in the 1983 action.

[00:22:09] Speaker 02:
Well, obviously, her familial right to custody of her daughter.

[00:22:12] Speaker 03:
It was not an unlimited right, and it's not an unqualified right, and there's an order that had been entered in Kauai, finding that she was a danger.

[00:22:19] Speaker 03:
That's my paraphrase.

[00:22:20] Speaker 02:
Actually, no, that's not true.

[00:22:21] Speaker 03:
Well, there was a TRO.

[00:22:22] Speaker 02:
Temporary restraining order was issued in Kauai, ex parte, without any presentation.

[00:22:29] Speaker 03:
I know what ex parte means, sir.

[00:22:30] Speaker 03:
There had been a finding, and you're expecting social workers to parse this, and that's really a tall order.

[00:22:38] Speaker 02:
We had nothing to do with the TRO, obviously.

[00:22:42] Speaker 02:
The TRO was issued ex parte without informing the court that the person seeking the TRO had had all of his rights, all of his rights terminated with respect to this child.

[00:22:54] Speaker 03:
Some of those allegations go to a fourth defendant who's not in front of us.

[00:22:58] Speaker 03:
We're looking at the social workers today.

[00:22:59] Speaker 02:
I understand, but when you talk about a TRO, it was a TRO that was obtained, I would suggest fraudulently, and indeed the family court at the hearing and in his findings after the December 31st hearing was simply outraged about the way the matter had been handled.

[00:23:16] Speaker 03:
But remember what you were just reminded, opposing counsel was reminded by Judge Desai.

[00:23:21] Speaker 03:
We're looking at what people knew at the time.

[00:23:23] Speaker 02:
Yes.

[00:23:24] Speaker 03:
What the social workers knew at the time is that there's no contact order had been entered.

[00:23:28] Speaker 02:
In December 18th, by December 18th, there was a meeting that was conducted.

[00:23:34] Speaker 02:
It's reflected in the record in various emails.

[00:23:37] Speaker 02:
with the social workers from Kauai and the child welfare workers from the island of Hawaii.

[00:23:44] Speaker 02:
And it was also attended by a deputy attorney general.

[00:23:47] Speaker 02:
And there was a discussion had there, which they've been very protective of because they say it's covered by attorney-client privilege, but Sean Lathrop, who was the supervisor, who was a previous defendant in this case, clearly in emails before and after expressed serious concerns

[00:24:05] Speaker 02:
about the custodial status of the child and about whether or not there was authority to take any actions whatsoever with regard to custody of the child based simply upon a temporary restraining order that had obtained ex parte.

[00:24:22] Speaker 04:
Does it matter at all for your claim that the constitutional violation arose from the earlier date versus the later date?

[00:24:33] Speaker 04:
What does it matter?

[00:24:35] Speaker 04:
if the denial of qualified immunity is a result of the December 31st period of time after the TRO had dissolved.

[00:24:47] Speaker 02:
I don't think ultimately it matters at all, but again,

[00:24:51] Speaker 02:
The question has arisen and I think Judge Seabright makes some comments and he's simply wrong that he says that the child welfare people didn't seize the child on December.

[00:25:03] Speaker 04:
I find that sort of this disparagement of the court and calling the TRO fraudulent, all of these things frankly don't really help you at all and seems irrelevant from my perspective if what you're saying to me is that your claim is unaffected by the fact that the constitutional rights violated just the same.

[00:25:21] Speaker 04:
after the TRO was dissolved on December 31st?

[00:25:25] Speaker 02:
Yes, we believe that the constitutional rights were implicated on December 20th when the child was first taken without any prior notice and despite a finding by child welfare at that point that she was safe and secure and there was no imminent risk of harm to her.

[00:25:44] Speaker 03:
Okay, so this gets back to what Wright, your client, is asserting and you said the right to familial association, which is well recognized, but of course it's not unqualified.

[00:25:51] Speaker 03:
And so I'm trying to figure out, as of December 20th, you explained a minute ago your version of the facts about whether they did anything to determine why the father didn't have custody rights.

[00:26:07] Speaker 03:
Because I think it's uncontested.

[00:26:09] Speaker 03:
They'd at least been told that by the principal.

[00:26:11] Speaker 02:
Yes, they've been told that by Hannah, and there had been discussion apparently among themselves about that question.

[00:26:18] Speaker 02:
And they showed up at the school, the social workers, with dad, who they had arranged to bring for that purpose, and they called the Hawaii County police.

[00:26:28] Speaker 03:
Council, we have read these briefs really carefully.

[00:26:30] Speaker 02:
I understand.

[00:26:31] Speaker 03:
We've got timelines, we've got charts, we've got graphs.

[00:26:32] Speaker 03:
I'm trying to get you to answer the question, if I could.

[00:26:35] Speaker 02:
Yes.

[00:26:35] Speaker 03:
About that constitutional right, which is not unlimited.

[00:26:40] Speaker 03:
And on the day the child was taken, I'm trying to figure out what your best argument is.

[00:26:44] Speaker 03:
And so my understanding is that on that day, you think they had, and Judge Seabrot thought that what was pivotal was whether they had reason to know because they thought a fact finder could decide that they did know about the status of the custody order on that day.

[00:27:00] Speaker 02:
And apparently, at least for qualified immunity purposes, that is a disputed fact right now because they testified in their depositions they didn't know.

[00:27:10] Speaker 02:
But there is ample evidence out there to question whether that's true.

[00:27:14] Speaker 03:
So I think the toughest argument for you, and I promise we're tough on the other guy when he's at the podium too, but when you're at the podium, I have to ask you, your toughest argument I think is that what interfered with your

[00:27:27] Speaker 03:
client's right to familial association during this first period that Judge Desai has called our attention to is the findings that were made as a result of that fire station video.

[00:27:38] Speaker 03:
In other words, your client's right, which is not an unqualified right, was going to be infringed somewhat, I think opposing counsel would argue, was going to be infringed because of that finding that the child was in danger.

[00:27:49] Speaker 03:
The question was where was the child going to go when she was removed from your

[00:27:53] Speaker 03:
client's custody.

[00:27:55] Speaker 03:
If we were to find that on this record, what would you say about whether your client's constitutional right was infringed?

[00:28:03] Speaker 02:
First of all, I don't believe and no judge who's seen the video has decided that that was an adequate basis for removing the child.

[00:28:14] Speaker 02:
No judge has determined that.

[00:28:16] Speaker 02:
Eventually, in the family court on the Big Island, on January 10th, the judge looked at the video, came out and said, there is insufficient evidence to remove this child from the mother based on the evidence I've heard.

[00:28:31] Speaker 02:
And that was after a day and a half of testimony.

[00:28:33] Speaker 03:
I think conditions were put in place.

[00:28:35] Speaker 02:
Then she asked, would we stipulate and agree to supervision?

[00:28:40] Speaker 02:
And we said, yes, of course, because we don't have nothing to hide.

[00:28:44] Speaker 02:
Hannah has been a wonderful mother to this child, a single mother for all of her life.

[00:28:49] Speaker 02:
And we have no problem having other workers from CPWE stipulated that the people involved in taking the child would not be involved in the supervision.

[00:29:00] Speaker 02:
But we have nothing to hide, no problem, and they did supervise the child for a period of about four months, and they concluded that further supervision was not necessary.

[00:29:10] Speaker 03:
My next question is, what should they have done on December 31 when the TRO was vacated?

[00:29:15] Speaker 03:
They had this video that you've described from your client's perspective

[00:29:19] Speaker 03:
and they initiated a formal proceeding for temporary custody?

[00:29:24] Speaker 02:
Well, they didn't do it right away.

[00:29:27] Speaker 02:
They waited until, and it was a holiday weekend, I understand.

[00:29:30] Speaker 02:
But in the aftermath of what had happened, they could simply have gone to the family court judge, filed some sort of a petition for emergency custody, and had the judge determine whether there was an ample basis for that.

[00:29:44] Speaker 02:
They didn't do that.

[00:29:45] Speaker 02:
They left the child.

[00:29:46] Speaker 02:
The child left the courthouse.

[00:29:48] Speaker 02:
under very tumultuous circumstances with her biological father.

[00:29:54] Speaker 02:
And it wasn't until several days later after we filed this action in federal court

[00:30:00] Speaker 02:
And after there is chatter, which is also in the record from the social workers back and forth, uh-oh, we're in trouble now.

[00:30:08] Speaker 02:
Eric Seitz has taken this case.

[00:30:10] Speaker 02:
And you can see that in there, that going back and forth, now we have to do something.

[00:30:15] Speaker 02:
So then all of a sudden they went running to court on the island of Hawaii while a child was still in Kauai.

[00:30:23] Speaker 02:
And they filed the family court action which that judge ultimately heard and decided and returned the child immediately to mom.

[00:30:32] Speaker 02:
That's what happened.

[00:30:34] Speaker 02:
No judge has ever determined that it was justifiable to take this child from mother's custody.

[00:30:42] Speaker 02:
And they have argued various things at different times.

[00:30:45] Speaker 02:
They've argued that the TRO gave them authority.

[00:30:48] Speaker 02:
There's no legal basis for that whatsoever.

[00:30:51] Speaker 03:
Not the question, because they're talking about qualified immunity.

[00:30:53] Speaker 02:
I understand.

[00:30:54] Speaker 03:
The question is whether or not social workers could reasonably have made that mistake.

[00:30:58] Speaker 03:
Then it could be wrong, but just not unreasonable, and they'd still be entitled to qualified immunity, sir.

[00:31:03] Speaker 03:
Well, I think... They're not necessarily scholars in law.

[00:31:06] Speaker 03:
They do other things for a living.

[00:31:07] Speaker 02:
That's a triable issue, and when we get there, we will try the issue of what they knew, then they did the initial assessment and found out that the home was safe.

[00:31:17] Speaker 03:
Can I back you up?

[00:31:18] Speaker 03:
When you said it's a triable issue, the one that you're referring to now is the one that Judge Seabright has isolated, but I was asking a different question.

[00:31:25] Speaker 03:
Would it be unreasonable for social workers to rely on a superior court order from Kwai?

[00:31:31] Speaker 02:
Yes.

[00:31:32] Speaker 03:
Why?

[00:31:33] Speaker 02:
You're talking about the TRO.

[00:31:35] Speaker 03:
I am.

[00:31:36] Speaker 02:
One, because they already had in their records previous complaints, and that's also in your record, in the excerpts of the record.

[00:31:46] Speaker 02:
They knew about the tumultuous circumstances that existed between the parents going back to 2011.

[00:31:54] Speaker 02:
They knew that there were allegations of abuse.

[00:31:57] Speaker 02:
Now, there were no determinations, but they also, then that should have been sufficient to trigger a very careful analysis who has custody of this child and why.

[00:32:06] Speaker 01:
When you say they knew all these things, did they know or was it in the record the 2012 order?

[00:32:17] Speaker 02:
I don't think they had the 2012 order, the social workers.

[00:32:23] Speaker 02:
Gina certainly knew, the person from the police department who filed a complaint with them.

[00:32:27] Speaker 02:
But there was nothing that the social workers on Kauai knew, and there are in the emails... Until December 31, is that right?

[00:32:37] Speaker 02:
Apparently until December 31.

[00:32:38] Speaker 01:
Okay, I'm getting different answers then, and maybe I'm just mishearing these things.

[00:32:44] Speaker 01:
So we have the earlier order.

[00:32:48] Speaker 01:
that says no contact.

[00:32:50] Speaker 01:
I think that's a 2012 order.

[00:32:51] Speaker 01:
Terminates father's rights altogether.

[00:32:55] Speaker 01:
Exactly right.

[00:32:55] Speaker 01:
Yes.

[00:32:56] Speaker 01:
And I was told a moment ago that they were made aware of that on December 18th.

[00:33:01] Speaker 01:
You're saying they really were not made aware of that until the 31st.

[00:33:05] Speaker 02:
They were made aware of it in two ways.

[00:33:09] Speaker 02:
One, because

[00:33:10] Speaker 02:
The father admitted that he had lost custody back in 2012.

[00:33:16] Speaker 02:
Okay, so when did he admit that?

[00:33:18] Speaker 02:
I'm after some dates.

[00:33:19] Speaker 02:
He was first interviewed by them in connection with the talks, discussions about going over to pick up the child.

[00:33:25] Speaker 02:
So that would have been in that period between the 16th and the 20th of December.

[00:33:31] Speaker 01:
For me, and I may be misunderstanding some things here, but for me the issue on qualified immunity is at what point did the defendants here know that this December 4th order was actually fatally inconsistent with the earlier order that said no contact.

[00:33:48] Speaker 02:
Well, they certainly knew that by December 18th because Sean Lathrop raised those questions in the discussion and the meeting and in subsequent emails.

[00:33:58] Speaker 01:
In what form did they, I mean there's knowing and there's knowing, so what exactly did they know on the 18th?

[00:34:06] Speaker 02:
Sean Lathrop raised a question, first of all, as to whether or not they had evidence about who had custody and whether or not they could actually give the child back to the father.

[00:34:18] Speaker 02:
He also raised a question of whether or not the temporary restraining order was an adequate basis or procedure for them to take the child and give the child to father.

[00:34:29] Speaker 01:
Yeah, that's not quite my question.

[00:34:32] Speaker 01:
Do they at that point know about the earlier order that says no contact?

[00:34:39] Speaker 02:
They know that there were decisions made, but they don't have the actual order.

[00:34:44] Speaker 02:
They only know what the parents of the child both told them in their interviews.

[00:34:50] Speaker 01:
At what point did they have the actual 2012 order?

[00:34:54] Speaker 02:
When I sent it to them immediately after the hearing on December 31st.

[00:34:58] Speaker 02:
So that's the first time they see the actual lawyer.

[00:35:01] Speaker 02:
The actual lawyer, yes.

[00:35:02] Speaker 01:
They've heard about it before that.

[00:35:03] Speaker 01:
Yes.

[00:35:05] Speaker 01:
And my understanding of the district court's order really is he needs more evidence to determine at what point do they have it in a clear enough form so that they should have then been on notice that that was inconsistent with the December 4th order.

[00:35:19] Speaker 02:
That's in part what Judge Seabright suggests, yes.

[00:35:22] Speaker 02:
But again, I think these are very complicated factual issues because again, you have the social workers on the one hand going to my client's house and assessing it as a safe place.

[00:35:34] Speaker 02:
Then after December 31st, you'll see the emails, well, father is going to go back and try and get another order claiming custody.

[00:35:42] Speaker 02:
We need to go out there and change our assessment

[00:35:45] Speaker 02:
of Hannah David's safe house to enable him to do that.

[00:35:49] Speaker 02:
There are many ways in which we can show that these social workers were deliberately misstating and

[00:35:57] Speaker 02:
facts in an effort to help dad get the kid back.

[00:36:01] Speaker 02:
And they were not concerned about their obligations.

[00:36:04] Speaker 02:
They were just adamant.

[00:36:06] Speaker 02:
One of the social workers, Dino, I can't remember his last name, said in his deposition that he was really angry at Hannah because she was constantly calling and saying, where's my daughter?

[00:36:18] Speaker 02:
So at trial, these social workers will be shown to have acted in a disgraceful manner and to have misrepresented deliberately on a number of occasions what was going on and what they knew or didn't know.

[00:36:31] Speaker 02:
And for a jury to hear all that, in our view, will impact in a great detail as to how they determine liability and what that determination amounts to.

[00:36:44] Speaker 03:
Do you have any further questions?

[00:36:46] Speaker 03:
No, we have no further questions.

[00:36:47] Speaker 02:
Thank you.

[00:36:47] Speaker 03:
Thank you.

[00:36:49] Speaker 03:
Council will put two minutes on the clock.

[00:36:56] Speaker 00:
Thank you, Your Honor.

[00:36:58] Speaker 00:
First, I would just like to clarify that the 2012 order doesn't say

[00:37:04] Speaker 00:
no contact between Kiaiolalo and BD.

[00:37:07] Speaker 00:
It bars contact between Kiaiolalo and Hanna.

[00:37:10] Speaker 00:
So there's no language in the 2012 order that prevents Kiaiolalo and daughter from contact.

[00:37:22] Speaker 00:
Now the order did, within the order, Kiaiolalo did stipulate to give up his custodial rights.

[00:37:30] Speaker 00:
and visitation rights.

[00:37:32] Speaker 00:
However, there is no no contact provision between Keaulalu and the daughter.

[00:37:37] Speaker 03:
I think that's a critical It's also been referred to loosely as a termination of his parental rights.

[00:37:44] Speaker 03:
I do not believe his parental rights were terminated.

[00:37:46] Speaker 03:
Is that correct?

[00:37:47] Speaker 00:
There was no formal I'll take yes for an answer if that's right.

[00:37:51] Speaker 03:
It wasn't.

[00:37:52] Speaker 03:
Okay.

[00:37:52] Speaker 03:
Thank you.

[00:37:53] Speaker 03:
Thank you.

[00:37:55] Speaker 00:
Now I do

[00:37:58] Speaker 00:
Custodial rights here, whether or not Mr. Keahiulalo had them, I think it's a red herring because there's nothing in the state statute governing temporary restraining orders barring someone in Keahiulalo's position as a father, as a person with a child in common, as a person related by co-sanguinuity from seeking to petition the court for the order and receiving the order that he got.

[00:38:27] Speaker 00:
Nothing in state law to prevent Mr. Keaiaulalo from doing that.

[00:38:32] Speaker 00:
And I guess I just would also like to add that there's no clearly established law in our circuit that I could find and certainly I don't believe plaintiffs could find that discuss a situation such as this where a parent had a temporary restraining order, a court order on them barring contact from their kids.

[00:38:57] Speaker 00:
Cases that we're talking about, Wallace, Keats v. Coyle, those differ in a huge way from this one.

[00:39:11] Speaker 00:
And that is, those parents weren't enjoined from contact with their kids.

[00:39:17] Speaker 04:
Yeah, but you're ignoring the fact that at some point that TRO dissolved.

[00:39:21] Speaker 04:
So even if we were to agree with you,

[00:39:24] Speaker 04:
that the December 20th removal was authorized by the TRO, I think your bigger problem is that after it was dissolved, you can't rely on this argument anymore.

[00:39:36] Speaker 04:
And it doesn't sound to me like you have another argument to authorize the removal after the TRO dissolved.

[00:39:46] Speaker 00:
I think I need to clear just a couple facts up.

[00:39:50] Speaker 00:
December 31st, temporary restraining order hearing.

[00:39:54] Speaker 00:
Temporary restraining order is dissolved as to BD.

[00:39:58] Speaker 00:
January 1st, Mr. Seitz emails Ms.

[00:40:01] Speaker 00:
Sudo at the attorney general's office with a copy of the order.

[00:40:06] Speaker 00:
January 1st is a holiday.

[00:40:07] Speaker 00:
January 2nd, Ms.

[00:40:08] Speaker 00:
Sudo meets with CWS to discuss the matter.

[00:40:12] Speaker 00:
January 3rd, Mr. Seitz

[00:40:18] Speaker 00:
BD is removed from Keahiulalo's home, 4th, 5th, and 6th.

[00:40:28] Speaker 00:
Petition for temporary foster custody is filed on January 6th.

[00:40:32] Speaker 00:
So each of these matters happen within, I guess, the statutorily allowed time frame.

[00:40:43] Speaker 00:
And taking into account the video, Ms.

[00:40:47] Speaker 00:
David's behavior throughout the course of the last week or so between what had been going on, the petition was filed.

[00:40:57] Speaker 00:
And I do think it's very important that Ms.

[00:41:03] Speaker 00:
David stipulated to the court's finding that there was adequate basis to sustain the petition, to find that there was a,

[00:41:14] Speaker 00:
It was reasonable to believe there was a threat of imminent harm based on what was alleged.

[00:41:20] Speaker 03:
I have to stop you because we're well over time again.

[00:41:23] Speaker 03:
Thank you, Your Honor.

[00:41:23] Speaker 03:
We appreciate your argument, both of you, and we'll take that matter under advisement.