[00:00:02] Speaker 05: Good morning, Your Honors. [00:00:03] Speaker 05: My name is Diane Weisberg. [00:00:06] Speaker 05: I represent Mr. Powell in this matter. [00:00:10] Speaker 05: I request two minutes for rebuttal. [00:00:13] Speaker 05: Okay. [00:00:13] Speaker 03: Please watch the clock. [00:00:15] Speaker 05: Thank you, Your Honor. [00:00:16] Speaker 05: I will. [00:00:17] Speaker 05: Your Honors, very simply put, what we're talking about in this case is a denial of due process. [00:00:25] Speaker 05: Mr. Powell was placed in a government database with no rights to affirm or object to that inclusion. [00:00:33] Speaker 05: He was told very simply, because he's not a parent, relative, or guardian of the child, he has no right to do process or a hearing. [00:00:44] Speaker 01: But as I understand it, your client received a notice of child abuse central index listing, right? [00:00:52] Speaker 04: That's correct, Your Honor. [00:00:53] Speaker 01: And getting that notice, he knew that was an administrative hearing and not a criminal hearing, right? [00:01:00] Speaker 04: That's correct, your honor. [00:01:02] Speaker 01: So the particularity of the notice is not an issue. [00:01:06] Speaker 01: So then the dependency court found that the child's privacy interests outweighed your client's claim for more detailed notice, right? [00:01:18] Speaker 05: Kind of. [00:01:19] Speaker 05: The first I did a request with the department itself [00:01:23] Speaker 05: The department said no. [00:01:26] Speaker 05: He wasn't a parent, relative, or guardian. [00:01:28] Speaker 05: I said, but you never interviewed him. [00:01:31] Speaker 05: You never investigated him. [00:01:34] Speaker 05: How can you place him in a government database with no due process? [00:01:38] Speaker 01: But just a minute. [00:01:39] Speaker 01: As I understand it, from viewing the record, the dependency court did find that the child's interests outweighed your client's need for detailed notice. [00:01:51] Speaker 04: Not detailed notice, any notice. [00:01:53] Speaker 01: And in fact said, if you want to do something about this, you should request a hearing. [00:02:00] Speaker 05: I did request a hearing, your honor. [00:02:02] Speaker 05: Within weeks of him being notified, he was in the database. [00:02:07] Speaker 05: The department said no for a year and a half. [00:02:10] Speaker 05: Then after the biological mothers case was allegedly done, [00:02:16] Speaker 05: which my client had no input in, all of a sudden they said, okay, we'll give you a hearing, but you can't have the records. [00:02:24] Speaker 05: You can't review the records. [00:02:25] Speaker 03: They allowed you to review them, but they didn't allow you to copy them. [00:02:29] Speaker 05: I didn't ask to copy them, Your Honor. [00:02:31] Speaker 05: I asked to be in a room alone with my client and the records, and they said no. [00:02:36] Speaker 03: Well, they just wanted to be in the room with you, but you could have reviewed the documents, right? [00:02:40] Speaker 05: But how could I have communicated with my client in front of them? [00:02:46] Speaker 03: I don't understand. [00:02:48] Speaker 05: I couldn't communicate with my client and ask him questions if they're sitting right there. [00:02:53] Speaker 05: I said, how about if I bring my client in, we sit down, you guys go to another room, and we'll review the records. [00:03:00] Speaker 05: And they said no. [00:03:02] Speaker 03: Well, you could have talked to him after you looked through the records. [00:03:05] Speaker 03: I mean, I understand that this seems very unfair, that someone [00:03:13] Speaker 03: could end up in a statewide database and multi-subbase databases when, you know, we don't know if there was evidence of any abuse or any abuse by him at all. [00:03:31] Speaker 03: But I think you still have the grievance procedure available to you. [00:03:36] Speaker 05: Not for a year and a half, Your Honor. [00:03:38] Speaker 05: For a year and a half, he remained in a database with no due process rights. [00:03:43] Speaker 05: Then, after the mother's case was allegedly resolved, which he was denied access to the dependency court, [00:03:52] Speaker 05: because he wasn't a parent, relative, or guardian, because that statutorily is the only people they have authority over. [00:04:00] Speaker 05: Why did they put Mr. Powell in a government database in violation of due process by not even interviewing him, by not asking him what his role was? [00:04:11] Speaker 05: It wasn't like they didn't have the phone number for him. [00:04:15] Speaker 01: Counsel, my worry is when you bring this to my court, I have to look at [00:04:22] Speaker 01: the process, what process you ought to be given. [00:04:26] Speaker 01: And in order to determine what process you ought to be given, I look at Matthew versus Eldridge, which is the United States Supreme Court case, which weighs factors about the process that you were supposed to be given. [00:04:45] Speaker 01: Number one, process private interest affected. [00:04:50] Speaker 01: This isn't a criminal hearing. [00:04:52] Speaker 01: It's an administrative hearing. [00:04:54] Speaker 01: Therefore, I don't know that that's a big deal. [00:04:57] Speaker 01: The risk of erroneous deprivation through procedures used and the value of additional safeguards. [00:05:06] Speaker 01: You were never denied a grievance hearing. [00:05:09] Speaker 01: You just argue you don't need to go to the hearing until you have evidence as you want it given to you. [00:05:14] Speaker 01: Is that correct? [00:05:16] Speaker 05: I didn't agree to go to the hearing initially because there was no hearing for a year and a half. [00:05:24] Speaker 05: There's nothing in the statute as written under WIC that says you have the right to leave somebody hanging limbo for a year and a half for your convenience or for your arguments or to prevent release of alleged allegations against you. [00:05:42] Speaker 05: How do you defend if you don't know what you did? [00:05:46] Speaker 05: That's completely absurd. [00:05:49] Speaker 05: And then if the court in answering the question about what service or [00:05:54] Speaker 05: rights you have, this is identical to what came up in Castillo versus the County of Los Angeles in 959 federal supplement 2D1255. [00:06:11] Speaker 01: They specifically- All I'm trying to do is get you to focus on the factors that I have to look at in order to determine whether you have a problem here. [00:06:24] Speaker 01: And that's why I'm trying to take you through there. [00:06:27] Speaker 01: I understand that you don't like what happened, but what we're really trying to do is, is there a private interest which was affected? [00:06:36] Speaker 01: Probably not. [00:06:37] Speaker 01: Is there a risk of erroneous deprivation through procedures used and the value of additional safeguards? [00:06:44] Speaker 01: You weren't ever denied the grievance hearing. [00:06:48] Speaker 01: Your argument to me is that you don't need to go to this hearing because you don't have the evidence yet and you don't have the evidence yet because they couldn't, they wouldn't let you just go in there and do it on your own without looking over your shoulder. [00:07:01] Speaker 01: That seems to be to be your argument. [00:07:03] Speaker 05: Well, your honor, that's part of it. [00:07:05] Speaker 05: But the all county notice that is issued and is statutory by the state of California specifically says this is 2366. [00:07:17] Speaker 05: Attempts to interview a paper trader or the reasons why the interviews did not take place Must be well documented in a case record to support whether an active Investigation was completed. [00:07:32] Speaker 05: They never did any investigation of my client They just took some information that they got from somewhere and dumped him in a database And why isn't that something that you could have? [00:07:45] Speaker 00: raised at the administrative hearing. [00:07:47] Speaker 00: If the process leading to the listing violated that provision of state law, could you not have raised that in the administrative hearing? [00:07:56] Speaker 05: I'm sorry, Your Honor, I didn't mean to cut you off. [00:07:59] Speaker 05: I did raise it in letters to the department. [00:08:02] Speaker 05: I very clearly raised it in letters to the department. [00:08:07] Speaker 05: They just signed it on. [00:08:09] Speaker 05: You can't just place somebody in a government database and wait a year and a half to say, okay, well, now you can come in maybe for an interview, but it's our way or not at all. [00:08:20] Speaker 05: Even the state of California requires due process. [00:08:23] Speaker 01: The problem comes in that there is a listing, and we know that. [00:08:32] Speaker 01: There can be a hearing if you wanted to go to the hearing. [00:08:36] Speaker 01: We know that. [00:08:37] Speaker 01: But you say you're not going to the hearing because, as I understand it, you weren't allowed to look at these documents without having the people who provided there were giving your client this listing look over the back as you were looking at those documents. [00:08:55] Speaker 05: No, they could sit and listen to what I asked my client why I was asking them. [00:09:00] Speaker 05: That's a violation of my client's right to counsel. [00:09:07] Speaker 01: I mean, how many ways can we... I mean, if you'd have gone to the hearing, you'd have been able to give all these arguments. [00:09:14] Speaker 05: But wait a minute. [00:09:15] Speaker 05: Let's stop and look at it. [00:09:17] Speaker 05: First of all, it's a year and a half after the fact. [00:09:21] Speaker 05: Okay. [00:09:21] Speaker 05: I have no idea what he was accused of except for a form that they sent him in the mail. [00:09:29] Speaker 05: You've been found liable. [00:09:29] Speaker 01: And you had a right to look at more, but it weren't going to do it as long as your client was going to be there and they were going to be there too, right? [00:09:37] Speaker 05: Tacky inclusion is quasi-criminal, no matter how you look at it. [00:09:42] Speaker 05: You are found liable without due process. [00:09:46] Speaker 05: There's nothing in the criminal code that requires you to sit around and wait a year and a half before you can face your accuser in a criminal courtroom. [00:09:55] Speaker 05: There's nothing in a civil court that requires that. [00:09:59] Speaker 01: If you would have gone to the hearing and successfully challenged [00:10:04] Speaker 01: the listing, that would have given you all the things that you wanted, right? [00:10:11] Speaker 05: I tried to successfully challenge it. [00:10:14] Speaker 05: I asked the court for the release of records. [00:10:18] Speaker 05: How many steps does somebody who doesn't even know they're in a database have to go through? [00:10:25] Speaker 05: in order to receive due process. [00:10:28] Speaker 03: Okay, Council, over your time, why don't we hear from the opposing Council and I'll give you a couple of minutes for rebuttal. [00:10:36] Speaker 05: Thank you. [00:10:46] Speaker 02: Good morning, Your Honours. [00:10:47] Speaker 02: May it please the Court? [00:10:48] Speaker 02: My name is Elise Okada and I represent County Appellees. [00:10:51] Speaker 02: Your honors, this case arises from a situation where Mr. Powell is challenging his placement on the Child Abuse Central Index, also known as CACI. [00:11:01] Speaker 02: He claims he was denied procedural due process when in fact he received notice and he received multiple opportunities to contest his claim. [00:11:08] Speaker 03: So counsel, I don't understand how this works. [00:11:10] Speaker 03: So they decide that he's, [00:11:15] Speaker 03: guilty of child abuse and can put him on a database and then he's on multiple other databases. [00:11:23] Speaker 03: And he's never even charged with having done anything. [00:11:27] Speaker 03: He's just because some investigator just went to the hospital and decided that a charge of child abuse, based on what? [00:11:39] Speaker 03: I mean, we don't even know. [00:11:41] Speaker 03: was substantiated, but he's never charged. [00:11:45] Speaker 03: So he doesn't seem to be able to contest this. [00:11:51] Speaker 03: I can understand why this seems unfair and wrong. [00:11:55] Speaker 03: I understand he had notice and an opportunity to be heard. [00:11:59] Speaker 03: So in our court, that seems to be what's required. [00:12:11] Speaker 03: It just doesn't seem right that a state agency can do that. [00:12:16] Speaker 03: And then other people look him up and he's denied other, you know, his, his work, his opportunity to go places. [00:12:25] Speaker 02: I understand the feeling of concern, how it feels, but that's where Canra was enacted after the Humphreys case to provide a process for which people that are listed on CACI, [00:12:39] Speaker 02: to oppose or contest that at a grievance review hearing which Mr. Powell refuses to show up to. [00:12:44] Speaker 02: Sure, we can say that because of the underlying child abuse case was ongoing, Mr. Powell was initially denied that grievance review hearing so that there weren't inconsistent outcomes with the underlying abuse case and with the CACI grievance review hearing. [00:13:03] Speaker 03: But who was the abuse case against? [00:13:04] Speaker 03: It wasn't against Mr. Powell. [00:13:07] Speaker 02: That's correct. [00:13:08] Speaker 02: It was the mother of the child. [00:13:13] Speaker 03: Right. [00:13:13] Speaker 03: So let's see evidence that he committed child abuse and belongs on the database. [00:13:24] Speaker 02: And this is all coming from, since we're on appeal from a motion to dismiss, we're taking the facts in light of Mr. Powell's complaint. [00:13:32] Speaker 02: And so from the facts, Mr. Powell was [00:13:38] Speaker 02: And from the complaint, obviously involved in the underlying child abuse case, which was the subject of why Mr. Powell was initially denied that grievance review hearing until that was completed. [00:13:52] Speaker 02: And so because the case is intertwined and the facts and the evidence intertwined, Mr. Powell wasn't able to have his grievance review hearing at that point. [00:14:04] Speaker 01: Well, as I understand it, and I'm just trying to make sure I understand [00:14:08] Speaker 01: The record, as I understand it, while they requested the hearing originally in June of 2023, they were denied because there was a pending child dependency hearing, correct? [00:14:23] Speaker 02: That is correct. [00:14:24] Speaker 01: And then when they again requested that in August, the same reason was given. [00:14:30] Speaker 01: That is correct. [00:14:31] Speaker 01: So then after the dependency hearing was over, [00:14:36] Speaker 01: Then the hearing was scheduled, right? [00:14:38] Speaker 01: That is correct. [00:14:39] Speaker 01: And that's the hearing she wouldn't go to because she didn't have the evidence and she didn't get the evidence because she had to go get it with her client there but somebody from the state overlooking all the things she was finding. [00:14:52] Speaker 01: That is correct, Your Honor. [00:14:56] Speaker 01: Well, how fair is that to her? [00:15:01] Speaker 01: Sorry, I'm... I mean, if in fact she can't even look at the stuff, [00:15:06] Speaker 01: without having you or your client overlook what she's looking at, how fair is that? [00:15:12] Speaker 02: So addressing that, the Juvenile Dependency Court already took under judicial review that very issue. [00:15:20] Speaker 02: And when Mr. Powell made the 827 petition for the records, they took into account that it was going to be used for a grievance review hearing and weighing the probative value of giving him the disclosure of the confidential files. [00:15:36] Speaker 02: with the confidentiality of the children's records. [00:15:41] Speaker 02: They determined that due process was satisfied without having him have the records. [00:15:48] Speaker 00: What is the purpose of the rule that, I mean, like he's allowed to, or his lawyer's allowed to look at them, look at the records, and he's allowed to be there so that they can both see everything that's in the record, but there just needs to be somebody, you know, listening in on what they say to each other while they're looking at it. [00:16:03] Speaker 00: What is the purpose that that serves? [00:16:05] Speaker 02: The purpose of that is because we're working with juvenile files and the confidentiality that comes with it, as in stigma that would come from release of those files. [00:16:15] Speaker 02: And if perhaps someone took a copy of it or made note of something in the file of the juvenile, that has long lasting effects on the juveniles. [00:16:26] Speaker 00: But you're allowing him to look at them, right? [00:16:28] Speaker 00: So I guess if he's allowed to see what's there, other than [00:16:35] Speaker 00: interference with the attorney-client relationship. [00:16:38] Speaker 00: What are you really achieving by having somebody in the room while he's looking at them? [00:16:41] Speaker 00: You know that you're not keeping them confidential from him because you know that he's looking at them. [00:16:45] Speaker 02: And I think that goes to the argument that if it's not a big deal for them to look at it, then what is the [00:16:55] Speaker 02: big issue with them taking copies. [00:16:57] Speaker 02: And I think that was what Mr. Powell's issue is here, is that he doesn't have access to the physical copies of the records so that he can defend himself at the grievance review hearing. [00:17:10] Speaker 03: It's not that... Well, if he were related to the child or the teenager, [00:17:18] Speaker 03: Would he have been able to have copies of the evidence against him or the files against him? [00:17:23] Speaker 02: That is not necessarily true. [00:17:25] Speaker 02: The, even if you are related. [00:17:27] Speaker 03: I'm just asking is, I mean, if you were related, does it make all the difference that he wasn't actually related? [00:17:33] Speaker 02: No, it doesn't make a difference. [00:17:35] Speaker 02: And it's the record as the first minute complaint reflects, he is related to the child. [00:17:41] Speaker 02: So he has. [00:17:41] Speaker 03: He wasn't allowed in the dependency hearing because he wasn't related. [00:17:48] Speaker 02: That was from what the complaints said. [00:17:52] Speaker 02: I'm not 100% sure if that was the actual reason why Mr. Powell was not allowed to be at the dependency abuse case hearing. [00:18:02] Speaker 02: That was between the child and his mother and not with the child and Mr. Powell. [00:18:11] Speaker 03: How is he related to the child? [00:18:13] Speaker 02: He is related through the mother. [00:18:15] Speaker 02: He is the mother's sister. [00:18:18] Speaker 02: My mother's brother. [00:18:20] Speaker 02: I apologize. [00:18:21] Speaker 01: I was going to say, he's not the sister. [00:18:23] Speaker 01: I apologize. [00:18:23] Speaker 02: If he is, that's a different deal. [00:18:25] Speaker 02: I thought he was the brother. [00:18:27] Speaker 02: He's the brother of the child's mother. [00:18:29] Speaker 02: My apologies. [00:18:32] Speaker 01: Well, what we're really weighing are the three factors that are outlined in Matthew versus Eldridge. [00:18:37] Speaker 01: And I guess you're saying that the government's interest, which is the victim confidentiality, weighed heavily such that, [00:18:48] Speaker 01: They couldn't have the pretrial discovery without having somebody in there to watch. [00:18:53] Speaker 01: Is that what you're saying? [00:18:54] Speaker 01: That's correct. [00:18:55] Speaker 01: Well, Melnick, which is our case, says that due process guarantees meaningful notice and an opportunity to be heard. [00:19:08] Speaker 01: but it doesn't allow for unrestricted pretrial discoveries. [00:19:13] Speaker 02: Is that your argument? [00:19:14] Speaker 02: That is correct. [00:19:15] Speaker 02: And the U.S. [00:19:16] Speaker 02: Supreme Court has multiple times said that due process only requires to apprise the interested party of their due process right and affording them the opportunity to contest those issues. [00:19:35] Speaker 01: So if I look at Andy I was worried because I thought maybe one of her arguments was that [00:19:42] Speaker 01: There was no way to know what was going to happen even if she succeeded in the CACI. [00:19:48] Speaker 01: I don't know how you say that exactly. [00:19:50] Speaker 01: In Idaho, it's CACI, but I don't know what you call it here. [00:19:53] Speaker 01: But Andy says, and that's our case, when a listing is successfully challenged, then the CFS updates the CWS, the CMS to reflect the unfounded determination, correct? [00:20:08] Speaker 01: That's correct. [00:20:12] Speaker 02: And I want to just hit a couple points why the district court's ruling should be affirmed. [00:20:19] Speaker 02: And without leave to amend, first it would be futile to grant leave to amend the first amended complaint because Mr. Powell cannot allege any more facts that he was denied procedural due process. [00:20:32] Speaker 02: He was given notice and an opportunity to be heard. [00:20:35] Speaker 02: I know there's an issue with how or what [00:20:40] Speaker 02: the procedure for reviewing records, but those are, is what due process requires, is a notice, an opportunity to be heard, and there's no additional facts that Mr. Powell can plead in a amended complaint to be able to overcome that. [00:20:56] Speaker 02: Additionally, Mr. Powell still doesn't provide substantial evidence about Monell liability against the county. [00:21:09] Speaker 02: And fourth, the district court was correct in granting qualified immunity to the individual defendants because there's no case that exists that would put them on notice that their conduct was a constitutional violation. [00:21:21] Speaker 03: Well, has he been cleared of this now through the dependency proceedings? [00:21:25] Speaker 02: That I'm not aware. [00:21:27] Speaker 02: I'm not, I'm not. [00:21:28] Speaker 03: Because I'm just wondering, like, it seems like it turned out that [00:21:34] Speaker 03: He wasn't actually guilty of child abuse. [00:21:37] Speaker 03: Why isn't the state just voluntarily take him off? [00:21:40] Speaker 02: Because we're still in this period where we're offering Mr., where we offered Mr. Powell a grievance review hearing. [00:21:48] Speaker 02: He refuses to not avail himself to that due process procedure. [00:21:53] Speaker 02: And so with that, until that closes out, we, you know, right now, [00:22:02] Speaker 02: his listing is substantiated by the notice that he was given by the reports in the investigation done. [00:22:08] Speaker 02: That's what he was given notice of is that the reports investigation reflect that his listing on CACI was substantiated. [00:22:18] Speaker 00: Could he still at this point request a hearing or is there some sort of time limit that's run? [00:22:23] Speaker 02: There's no time limit according to camera but I cannot make any representations because we are at this [00:22:31] Speaker 02: Juncture where we're here in this court versus an exhausting the administrative proceeding of the grievance review hearing and So because mr. Powell decided not to proceed that route and instead make his arguments here I cannot make representations that there is the county can do a grievance review hearing at this point since we he himself chose to go a different route than what was given to him and [00:23:00] Speaker 00: But I mean is there some statute that says you have to elect I mean I understand the county is probably unhappy that he chose to litigate in federal court, but that doesn't seem like a basis for denying him a hearing so what would be the [00:23:15] Speaker 00: Is there a statute of regulation that says you don't get a hearing if you've gone to court about it? [00:23:22] Speaker 02: So that's, and I appreciate your question, because the grievance, this would have been, this proceeding here, this case, was fail safe in the event he did appear for that grievance review hearing. [00:23:36] Speaker 02: He makes the allegations he's making here that he didn't receive procedure due process rights there. [00:23:42] Speaker 02: And instead, but we jumped that hearing, and now we're in federal court, besides exhausting the administrative process that he was offered and given the opportunity to contest everything that he's alleging in his complaint here at that grievance review hearing. [00:24:02] Speaker 02: And so I can't make representations because this is a different proceeding than what we're used to. [00:24:08] Speaker 02: Usually we would take those steps. [00:24:11] Speaker 02: We would have the grievance review hearing. [00:24:14] Speaker 02: We would go through that. [00:24:15] Speaker 02: And if Mr. Powell at that point determined that his procedural due process rights were violated, then he has a fail safe. [00:24:25] Speaker 02: If there's no further questions, Your Honor. [00:24:27] Speaker 02: Thank you, Council. [00:24:31] Speaker 02: Ms. [00:24:31] Speaker 02: Weisberg. [00:24:38] Speaker 05: Thank you, Your Honors. [00:24:40] Speaker 05: Very briefly, I want to emphasize something. [00:24:43] Speaker 05: The state of California has placed on CFS agencies, who are not the state, [00:24:50] Speaker 05: but an arm of the state, saying that a mandatory duty to conduct active investigations and the department shall not forward a report to the Department of Justice unless it has conducted an active investigation and determined that the report [00:25:10] Speaker 05: is substantiated for child abuse or severe neglect as to Mr. Powell. [00:25:17] Speaker 05: And that's California Penal Code 11169A. [00:25:22] Speaker 05: They took a statute, completely ignored it, and then placed the man in a database and want to leave him there for 99 years. [00:25:32] Speaker 05: interfering with his jobs, his right to adopt children, his right to hold certain jobs with government clearances, all of that because they put him in a database. [00:25:44] Speaker 05: Now, let's clarify the record. [00:25:46] Speaker 05: Mr. Powell is not biologically related to the mother or the child. [00:25:52] Speaker 05: I heard counsel for the department say he was her brother. [00:25:56] Speaker 05: He is not her brother. [00:25:58] Speaker 05: They are not biologically related. [00:26:01] Speaker 05: He was, however, until this happened, a friend of the family. [00:26:06] Speaker 05: Does the court have any other questions for him? [00:26:12] Speaker 03: No, thank you, Counsel. [00:26:13] Speaker 05: Thank you very much. [00:26:14] Speaker 03: Thank you very much. [00:26:15] Speaker 03: PAL v. County of San Bernardino will be submitted. [00:26:19] Speaker 03: Dedicado Treatment Center v. Etna. [00:26:22] Speaker 03: Life Insurance Company has been previously submitted and will take up [00:26:28] Speaker 03: Delgado versus the ILWPMA welfare plan.