Man: SJC-13015
in the matter of an impounded case.
-: Okay, Mr. Tennen.
-: Good morning, your honors.
Eric Tennen on behalf of the plaintiff-appellant.
Thank you for having us in the courtroom again,
it's nice to be here.
A DCF social worker wears many hats,
but perhaps none more important
than when they seek a court order to seize a child.
And in that instant,
they function outside of the judicial phase
as a complaining witness.
And a complaining witness is a role
that has never enjoyed absolute immunity.
This court should not change that.
The rule we seek is narrow.
It's not gonna open Pandora's box.
There's not a problem with social workers
constantly lying to get court orders.
But when they do, and it can be proven,
they should be held liable for that.
I think the problem, the disagreements here
and what the court is gonna have to grapple with
is how to define the social worker's function
in this case and cases like this, when they act in this way.
Because, like I said, they do wear different hats.
Some of the things they do might fall under the rubric
of absolute immunity.
But not everything.
Some of the things they do should fall under the rubric
of qualified immunity.
So the court is going to have to draw by analogy
and because it's just not a perfect fit, right?
We don't have prosecutors and police officers
where the case law is a little clearer
and helps us figure it out.
So let's talk a little bit about analogies
and how we should think about this.
-: Before we move to analogies,
can we talk about the statute itself?
Because the statute prescribes in specific detail
what needs to be in, you know,
the initiating document, right?
And it's not just the petition, but it's a specific,
specific facts needs to be alleged.
So I'm, I don't understand how we can not find this
as initiating the prosecution here.
So why don't you address that?
-: Sure.
I don't disagree that the statute sets out a process.
I just don't think that matters.
I think that's tangential to what the function is
when you're talking about immunity.
You still have to decide what function
the person is playing,
even if they're following a statutory scheme
that tells them what they have to do.
-: Well, but they're, the function is prescribed
by the statute which is defining the documents
that need to be basically the equivalent of an indictment.
It's defining what needs to be in that piece,
those pieces of paper to start the process.
So it just seems to me that we have to look at the statute
to define the function.
-: I see it differently, your honor,
and this is part of the problem.
And if you don't like my analogy,
then there's not much I can do about that.
But my analogy is it's not-
-: All you need to do is convince more people
that you're right.
So don't worry about me,
but you do need to address the merit.
-: Fair enough.
My analogy, it is more akin to a police officer
seeking a warrant to seize where they have to,
where there are statutes that say what you have to do
to fulfill a warrant.
We have case law that tells us what kinds of things
have to be in there.
It has to be particular what burdens we're talking about.
You have to have probable cause.
Sometimes in that process a police officer will go
and have an ex parte communication with the judge
just like they do in a DCF proceeding, right?
Where they say, can you explain to me
what you meant by this or that?
And they have that communication.
And then they have-
-: But what are, but don't we have a difference here?
'Cause basically, using this analogy, the statute defines
what needs to be in the indictment essentially.
And here the statute defines
what needs to be in this petition, correct?
-: Yes, I don't disagree with that.
-: So, but so why isn't it a, it's part of the prosecution
as opposed to part of the investigation?
I understand you could draw a firm line
of everything these DCF workers did
before they filed that piece of paper
and say that's only covered by quasi immunity.
But if the prosecute, if the document
that initiates the petition has to include this,
aren't they moving to the prosecutorial function
at that point?
-: So let me give you a slightly different analogy.
And this comes right from the case law.
So when you look at what is undisputed
in terms of qualified immunity and social workers,
at least through the federal cases,
we know that social workers enjoy only qualified immunities
when they take custody of a child without a court order.
So it is something that can be done on an emergency basis.
Massachusetts allows for that.
Other states allow for that.
A social worker can do that if there's an emergency.
I'm making a judgment
that I need to take this child right now,
and then have an obligation to get a court order
as soon as I can after that.
And that happens sometimes, maybe more than we think.
So when a case, when a social worker does that,
the cases are uniform.
It's only qualified immunity.
And there is a standard that they have to reach,
there's a constitutional threshold
for taking a child without a court order.
So that process, that function of making a determination
that this is a child that has to be taken from the house,
enjoys only qualified immunity
when it's without court order, you know,
sort of warrantless, if you will.
Why should it be different when they seek the court order?
They're functioning in the same way,
just the way they're going about it is slightly different.
Instead of taking the child on their,
on their own in the moment they're going to the court first.
But they're making the same sort of decisions.
They have the same sort of burdens,
which is they have to at least show
that there's an emergency,
that there's reasonable suspicion, things like that.
-: Well, the reason might be, you asked why, why would you.
And when you're dealing with the functional approach,
what you have is a concern in a very difficult decision.
The stakes are enormous.
The procedure is just, as Kafker said,
requires the affidavit,
that it's going to chill these social workers
in just the situation where there's enough trepidation
as it is.
-: I can't imagine a rule that says, "Don't lie,"
is going to chill social workers.
-: But they, yes, and that is true.
But there's perjury.
If don't lie is a big, a big statement.
That's a huge statement.
And that is absolutely right.
We got kids and parents at stake, and we also have perjury.
-: But it's the same, I mean, if we're,
if we want to talk about on this sort of that policy way,
it's the same rule we hold police officers to,
and no one, you know, thinks secondly about that,
which is when you seek a warrant, you must be truthful.
And if you're not, you could be liable.
That's the only-
-: And we know from the United States Supreme Court
and Catalina, we understand that there's a line there.
And I understand why you're arguing
you're on this side of the line
with your analogy to search warrants with police officers.
But there's a lot of United States Court of Appeals cases
going the other way because of the public policy concern
on the other side.
And this is nothing other
than a very difficult, difficult choice.
-: Oh, I know that.
I think, so let's clear up a couple of things
because there's a lot of cases that talk about
the seizure without a court order.
And those are in only one direction, qualified immunity.
Then when you have the cases where they first take out
or when they first seek the court order, like this case,
I think there is, there's not a lot of cases,
and to the extent they have cases,
they're fairly split, I think.
And if you want to talk policy
to the extent that plays a role in this,
and I think it plays a small role, not a large role,
because you know, function is function.
It is what it is.
But the policy, when you think about immunity
is absolute immunity is disfavored, right?
We do not want to just give absolute immunity.
We have to, it has to really be something
that was enshrined in the common law before we do that
because we do not like the idea of not holding people liable
when they should be liable.
So to the extent policy plays a role,
it seems clear that the policy is on my side.
There's a wonderful amicus brief by CPCS
that talks about the trauma that comes
with being taken from the home,
when a child is taken from the home,
the lasting effects of that.
How, you know, these seizures from the home
fall disproportionally on minorities and the poor.
And so all we are saying is
we understand that has to happen sometimes.
But if you're going to do that, you as a social worker,
you at least have to represent
the truth of what is going on.
And if you're gonna do it on your own without a court order,
which you have the power to do,
make sure you meet that threshold
of reasonable suspicion of imminent harm,
or, you know, as the test says.
Or if you're gonna go to a judge,
make sure you represent honestly what's going on
so then the decision is on the judge and not on you.
And if you think it should happen and the judge says no,
that's not your fault.
-: Well, but the decision,
the decision is on the judge anyway.
And so the judge is gonna decide
whether to separate the child from the parent, right?
Not DCF.
Although in your first analogy
when they take them without a process,
then they really are on their own.
And if they're doing it wrong,
they're not gonna have absolute immunity.
The only issue we're dealing with
is this statutorily required affidavit
to be attached to the initial document
that sets this process in motion.
That's all we're talking about, right?
And also they can be convicted of perjury
if they lie in court, correct?
-: I assume they can, although I will say I'm not 100% sure,
so don't hold me to this,
if they are under oath when they have an ex parte proceeding
with the judge or not.
I don't know enough about that process to know,
you know, how that works.
If it's just a proceeding
where they're explaining it or not.
I know when the police go in for warrants
they're not under oath.
-: And the policy is complicated because, you know,
we have lots of these cases where children are being abused.
And if the DCF worker is frightened
about beginning the process,
they're not gonna do anything.
I mean, and it's not just lying, that's easy.
The question is who's lying?
Are they lying?
Or are the parents lying?
And we don't know that until we try the case, right?
Eric: I disagree with that-
-: And this will short circuit everything under you,
this has the potential to short circuit the process, right?
If you're afraid of being sued and all that entails,
we don't start the process.
-: I do not think that there is a backlog of cases
ready to be filed because people are going to start alleging
that social workers are lying across the board
to get complaints.
A social worker needs to represent objectively
what that social worker knows.
If that social worker has been lied to by a parent
or something else,
that doesn't mean that she has misrepresented something
in an affidavit in an attempt to get a court order.
She's not, they are not liable for that.
It's only when they do not represent
what they objectively know so that they can get an order.
-: But these things are, these things are passionate fights
by both sides.
And sorting out the truth
is not the simplest thing on earth.
It's very difficult.
That's why we have a trial.
So these things are filled with accusations
and counter-accusations.
And the question sort of again is
is that affidavit part of the prosecutorial function or not?
-: I do think that looking only at the affidavit
and saying this is how we're gonna figure it out
is a little too formalistic.
It doesn't matter for functionality how you get there
or what you're doing.
It's literally just what is the function
of what you're doing?
Whether the statute tells you to do it this way or that way.
Whether it says to do it under oath or not.
Or that you have to include the parents' addresses or not.
Or whatever it is.
-: How can that possibly be true?
If the statute defines the prosecution process,
how can it be irrelevant to the function?
I just don't understand that.
-: Because the statute doesn't say
this is the prosecution process.
That's how you are describing it as a prosecution process.
-: What does the statute say?
What does the statute say has to be in that petition?
-: I don't know the details of what exactly has to be
in that petition, but I imagine it says
you have to set out the criteria that you need
to show that there is an imminent emergency to,
you know, for the court to issue an order
giving DCF temporary custody.
But it doesn't describe it as a prosecutorial function.
Nothing describes these proceedings as prosecutorial
because they're not.
This is not the Commonwealth prosecuting someone
for a criminal act.
This is the Commonwealth saying,
"We think there's a problem in the home
"and we're gonna step in to try and rectify this
"temporarily or permanently."
It's not a prosecution.
That's what makes this difficult.
The analogies are
we have to decide whether it's like a prosecution.
Not that it is.
It's like a prosecution 'cause the case law tells us
to do one thing.
-: Does that mean the DCF lawyers
are also not protected then?
Are you saying that the DCF lawyers are also only protected
by quasi, qualified immunity
as opposed to absolute immunity
because this isn't a prosecution, it's a civil proceeding?
-: DCF lawyers do not get involved
until after there's a petition.
Then they come in and represent the department.
At that point you are at the judicial phase.
I would not call it a prosecution,
but by analogy I'm willing to say the analogy there
is they are in the judicial phase
in which lawyers enjoy absolute immunity.
-: So we're only, so your view is then that this whole thing
you're either within the judicial immunity,
there is no prosecutorial absolute immunity in play
whatsoever in this process.
-: No, no, not that it's judicial immunity,
that prosecutors enjoy immunity
for being in the judicial phase.
Prosecutors, there are things
when they are not in the judicial phase
that they do not enjoy absolute immunity for.
So you can't just say it's a prosecutorial immunity.
It's still absolute or qualified
depending on where you are in the process.
-: But it's absolute or qualified, it's, the question is
is what we call the prosecutor's common law privilege
in play here at all?
It seems like you're arguing that it only applies
in the criminal process.
When a prosecutor in a criminal process,
he has a prosecutorial immunity,
not just a judicial immunity.
-: So I'm not arguing that, your honor.
What I'm saying is
in terms of trying to find the analogies here,
once you are in the judicial phase, we can call it,
you can call it prosecutorial immunity, that's fine.
The prosecutor enjoys absolute immunity
for any actions they take
once they are in the judicial phase.
A prosecutor does not enjoy absolute immunity
for functions and actions they take
prior to a judicial phase.
The case law talks about times
where a prosecutor can be liable.
So simply calling it prosecutorial immunity
doesn't answer the question.
It's how are you functioning?
Are you functioning as an actor
that is entitled to absolute immunity?
-: Which is a, are you functioning as a prosecutor
or are you functioning as an investigator?
-: Sure, we can, that's one way of thinking about it.
So what I'm saying in these cases is that
when the social worker goes to get a court order,
by analogy, I do not consider that being part
of the judicial phase.
So they don't enjoy the immunities that are enjoyed
when someone is in the judicial phase.
-: It's not, you're skipping a phase, there are three phases.
There's the investigatory phase,
there's the prosecutorial phase,
and there's the judicial phase.
We're dealing with not whether this affidavit
fits within the judicial phase,
it's whether it fits within the prosecutorial phase
of immunity.
Or is it investigatory, right?
That's the question we have to answer.
So if you want to put it that way, I would say it doesn't.
And again, because we know that if a social worker
does this same thing without a court order,
they have qualified immunity.
I don't see what difference her function is
when then she's seeking a court order
to do the very same thing
she only has qualified immunity for,
they only have qualified immunity for.
-: Okay.
Does anyone have any other questions?
Man: No thanks, Chief.
Thank you so much.
Eric: Thank you, your honors.
-: Mr. Boodoo.
-: Thank you, Chief Justice Budd.
And may it please the court.
When social worker Marcy Ploof executed and submitted
the affidavit in this case,
she performed a function that only she could perform.
And that, as a matter of Massachusetts law,
she personally had to perform
in order to initiate the case on behalf of the department.
So if we accept, as the appeals court did here,
and as courts across the country have held as well,
that a social worker is absolutely immune
for initiating the case,
it should then follow that the same social worker
in Massachusetts-
-: Well, it's not initiating it, it's prosecuting it, right?
There's a difference, right?
It, again, is my formulation incorrect
that there are three different phases?
There's the investigatory, there's the prosecutorial,
and the judicial.
And obviously the prosecutorial and the judicial
merge very quickly, but.
-: I think I agree with that formulation, Justice Kafker.
There is the investigatory phase,
there is the prosecutorial phase,
and there's the adjudicatory or judicial phase.
Cases like Imbler from the Supreme Court
and Butts from the Supreme Court
tell us that the initiation of the prosecution
is part of the prosecutorial phase.
-: Well, not all of it.
Some of it's got to fit within an investigatory function
like the function performed by the police
on the criminal side, right?
I mean, not everything.
It can't be that all of her investigation is protected
by the prosecutorial function.
Because then we've eliminated the first phase of this.
-: No, it can't be, Justice Kafker.
But the act of going to court to initiate the case
on behalf of the department
is protected by absolute immunity
just as a criminal prosecutor seeking an indictment
or me as a civil AAG filing a complaint
on behalf of the Attorney General's office would be.
Now here-
-: And your brother argues the first stage
where they appear ex parte,
this is before the affidavit stage we're dealing with now.
Do you think that's covered by the prosecutorial function
where they come in
and seek this kind of immediate ex parte relief?
She's acting as a prosecutor there?
Or is she acting as an investigator there?
-: So, Justice Kafker, I want to be,
I want to answer that question.
I also want to be precise about what happened in this case.
Obviously, the department under Section 51B
can take emergency removal
before filing the care and protection petition.
That's not what happened here.
What happened here was Marcy Ploof went to court,
had the ex parte hearing,
and then based on the Dudley Juvenile Court's order
took emergency custody.
So in this case,
the case initiation preceded taking custody of the child.
Now in the hypothetical my brother is discussing
where a social worker takes custody
before ever going to court, I certainly agree
that that would be a much harder case for us
as an absolute immunity matter
because we would not have the prosecutorial conduct.
Here Marcy Ploof was acting as a prosecutor
because in order to initiate the case
she necessarily had to sign the affidavit.
Now, in the Kalina case-
-: Counsel, could you just answer one question for me?
After the 51B process and the emergency removal
of the child, what happens?
-: So let's take this case for an example.
Marcy Ploof filed the petition and affidavit,
went into the Dudley Juvenile Court the same day
for the initial ex parte hearing with the judge,
the judge granted custody to DCF.
Now the next thing that happens under Section 24
is that the social worker is responsible
for notice and service.
-: No, I mean, what happens in the circumstance
where there isn't an initial petition to the court?
It's the emergency removal without seeking court approval.
-: In other circumstance that isn't this case?
Justice Georges: Right, what happens?
-: Right, so under Section 24 and Section 51B
DCF has to file a petition on the next court day.
-: Okay, that's what I'm getting at.
So I'm interested in your response
to Attorney Tennen's point of you don't argue
that under the emergency immediate removal
that there's absolute immunity, right?
-: We're not, we're not making that argument in this case.
I'm not prepared.
I haven't thought a lot about that, Justice Georges.
-: Well, that's important because his,
the analogy he's giving us is the functions are the same.
The social worker is performing the same function
when they're doing it without getting judicial imprimatur
as when they filed the affidavit
and begin a more formalized process.
They're doing the exact same thing.
So why in one you get absolute
and the other you get qualified?
-: Because the function being challenged here,
the basis for liability purportedly in this case
is that the case-initiating documents in the juvenile court
contained misrepresentations.
So the plaintiff in this case is challenging the removal
only indirectly.
What the basis of her claim is that
the case-initiating documents contain misrepresentations.
And that is what brings us into
the prosecutorial immunity cases.
Kalina is important.
And I want to talk about Kalina.
In that case, the prosecutor was not acting as an advocate
when she signed the affidavit.
So the Supreme Court tells us that the prosecutor was immune
for filing the motion, for preparing the affidavit,
but not for personally signing an affidavit
in support of an arrest warrant under oath.
-: And Kalina is tricky and it cuts somewhat against you too
because there the Supreme Court criticizes the prosecutor
for taking over the function of the police officer
which was to prepare the factual basis for this
and attesting to facts that the police officer should have.
Here that function is sort of being merged into one
because the DCF person is both the prosecutor
and the investigator, right?
That's what makes this harder than Kalina
'cause you, 'cause, right?
'Cause it's-
-: I think that's absolutely a fair characterization
of the role, broadly speaking.
In the social work context
the person who is the investigator
also becomes the prosecutor.
Cases like Chicopee Lions Club from this court
recognize that sometimes these functional roles do merge.
And so, for example, in Chicopee Lions Club
the DA was functioning both and simultaneously
as an investigator and an advocate,
but the advocacy component entitled the DA to immunity.
Kalina, I think is tricky,
but I also think it's inapplicable
because it was clear there
that the prosecutor wasn't acting as an advocate.
The Supreme Court tells us that she did not have to
and she was not required to sign that affidavit
in order to act as an advocate.
Here, by contrast, Miss Ploof necessarily had to be
the person who signed that affidavit.
The statutory language tells us
that it must be the petitioner
who provides the factual allegations under oath
in order to initiate the case.
This court's decision in the Lillian case
tells us the same thing.
So in order to be an advocate,
in order to serve the prosecutorial function,
Miss Ploof had to be an affiant.
And in being an affiant she was fulfilling
a necessary condition of being an advocate.
-: This case is hardly clear,
and the minority of circuits go against you.
But when you initiate proceedings with a C & P,
I understand that the procedure in Massachusetts
requires the social worker to have an affidavit.
But isn't the nature of that affidavit
sort of more like an arrest warrant than it really is
what you would expect to initiate proceedings?
And how much are we in our determination,
we're dealing with Section 1983 and the immunities issue,
as I understand, it's a common law issue.
Well, we're dealing with a federal statute.
But how much, if an arrest warrant
and a C & P affidavit are really providing information
that the affiant has
based on his or her own personal knowledge,
how much are we limited in this doctrine
by the particular procedures of Massachusetts C & P?
How much is that limiting our doctrine?
-: Well, I'll take both of those questions, Justice Lowy,
maybe starting with the second one.
The issue here arises under federal law, of course.
But at the same time, it can only really be decided
by reference to our state law
and the unique functional role that our state law assigns
to our social workers.
So there are cases on both sides,
but I think when we take a broad view of those cases
what we see is that they are really turning
in large part on the particulars of state law.
Now, with respect to the warrant,
the care and protection petition and affidavit
is not like a warrant.
The petition and affidavit
are not pre adjudicatory documents.
These are documents that are actually initiating the case
in the juvenile court.
In circumstances where Miss Ploof, as the petitioner,
is going to be subject to an adversarial proceeding
and cross-examination within 72 hours.
So if we're looking for an analogy to another area of law,
we think the right analogy is not to the warrant
but as the DC Circuit held in the Gray case,
it's to something more like a verified complaint
and a motion for temporary restraining order
asking for interim relief.
Now-
-: Can I push you on a variant of Justice Georges' question
which is, so if, when, before we get to this affidavit
and the filing of this piece of paper,
there's an investigation that goes on
and there are documents usually prepared.
Those of us who have reviewed a lot of these DCF,
there are huge amounts of, you know, at least emails
and paperwork going back and forth.
A lot of these things involve lengthy investigations.
None of that is part of the prosecution.
It's sort of part of the investigation.
But that's the basis for the affidavit.
I'm trying to understand.
We're gonna provide absolute protection for the affidavit,
but all the work that went into it
is not gonna be protected, right?
-: And this is one of the, if this is a dividing line,
I think, Justice Kafker, that's common
in the prosecutorial immunity world,
the classic prosecutorial immunity world too,
when a prosecutor seeks an indictment
or takes a case to the Grand Jury,
that is also necessarily based on
an investigative case file.
-: But Kalina sort of kept a clean division
by saying the prosecutors shouldn't be,
because the police do the investigation,
they should have, any kind of attachment
should have been done by the police.
It just seems like what we've got
is this statute imposes this onto the process.
And I just don't know if the, as Justice Lowy was saying,
sort of convert the common law privilege somewhat.
It seems to shape the common law privilege
the way our statute is written.
-: I do think it's all about the statute,
that the statute requires the social worker
to provide the factual allegations under oath
in order to initiate the case,
unlike with the prosecutor and Kalina.
Another case that I think is helpful on all of these points
is the Second Circuit decision in the Flagler case,
which isn't a social work case,
but it's one of the ordinary post-Kalina
prosecutorial immunity cases.
It's from New York.
And what the Second Circuit says
is where state law requires a prosecutor
to personally sign a factual affidavit under oath
in order to be a prosecutor,
in order to perform the advocacy function,
that is entitled to immunity.
And Kalina doesn't require a different result.
-: What's the name of that case?
-: Flagler, Flagler from the Second Circuit.
And that logic then gets picked up
in some of the social work cases, like for example,
Belsh from the Sixth Circuit,
which then became the binding law of the Sixth Circuit
in the Brent case which tells us
that when a social worker has to file
a case-initiating affidavit in order to be an advocate,
in order to serve the prosecutorial function
and actually start the case, that is entitled to immunity,
and Kalina doesn't require a different result.
So I think the Superior Court's judgment here
was very consistent with the letter of Kalina,
but also consistent
with the spirit of the Kalina case as well.
Because-
Justice Georges: So, counsel,
may I just ask you one thing?
-: Of course.
-: So let's just say we take your view.
And after the fact come to the information
that the social worker lied through their teeth,
and then somehow once that information comes out
a separate civil case is filed.
In your view, nothing could happen?
-: In our view, the collateral civil litigation
would be barred by absolute immunity,
which is not to say, Justice Georges,
that there are no consequences.
There should be consequences.
Justice Georges: What would be the consequences?
-: There are several.
First, all DCF social workers since I believe 2014 or 2015
have been licensed, the board, they are all subject
to professional consequences.
The board of registration makes both lying generally
and deceit to a court cause for serious discipline.
The department takes this very seriously
as an employment matter.
And maybe most directly and importantly of all,
there is what happens in the juvenile court.
There is contempt, there is perjury,
and there is more informal admonishment,
which I think is important when we remember that these are-
-: Okay, so, but all of those consequences may be personal
to the social worker.
But there isn't any vindication of the family
who had the child taken away.
And certainly there isn't anything that's done
to the trauma of the child
having been taken away wrongfully.
I just want to be, is that your understanding that there's?
-: That is not our position, Justice Georges.
Our position is that the avenue for that vindication
is at the 72 hour hearing in the juvenile court,
the very point of which
is testing the social worker's statements in the affidavit.
And in this case, in this case,
that 72 hour hearing was waived by the plaintiff.
-: And at that time, if your brother is right,
there is an absolute immunity.
Because the, again, the affidavit
and the petition haven't been filed yet.
We're still in the investigatory phase.
So they could be sued for what happens
prior to that affidavit, can't they?
I know you want us to indict
and say it goes beyond that affidavit.
But I think you may be asking for something you don't want.
Because at that stage it's probably in the investigatory.
Until that affidavit and petition is filed,
they don't have absolute immunity,
they have qualified immunity, right?
-: Actions that, actions that are wholly investigatory
are not entitled to absolute immunity, no doubt about it.
And I think you're referencing a portion of our brief
on the very last page and our point, Justice Kafker,
is merely that this court's decision in Chicopee
and the Supreme Court decision in Imbler merely recognized
that sometimes the line between what is investigative
and what is prosecutorial is hard to find.
This court's decision in Chicopee recognizes
that sometimes both functions
are performed at the same time.
I don't think, to be clear, that this is one of those cases.
We do just think that speaking too broadly about that issue
tends to misreflect the state of the case law,
both from this court and the Supreme Court.
-: But just to be clear, you're saying that
the family could be vindicated at the 72 hour hearing?
Mr. Boodoo: Absolutely, Chief Justice Budd.
-: And that's how you get around, I mean,
that's how you justify anything that happens after that.
-: As I believe both Justice Kafker
and Justice Lowy pointed out earlier,
the custody decision here belongs to the juvenile court.
And the way to test the juvenile court's initial decision
is at that 72 hour hearing.
And that is the place to test
the social worker's statements as well.
-: Thank you.
Does anyone have any further questions?
Man: No thank you, Chief.
Thanks so much.
-: Thank you. -: Thank you.