United States Court of Appeals,

Ninth Circuit.

Jeffrey R. GOLIN, Elsie Y. Golin, Nancy K.Golin, Plaintiffs-Appellants,

v.

Clifford ALLENBY (Director of California Department of Developmental Services

("dds"); in his official and individual capacity; H.Dean Stiles (Of-fice of

Legal Affairs of California Department of Developmental Services) in his

individual and personal capacity, County of Santa Clara ("csc"); Jamie

Buckmaster (Santa Clara County Adult Protective Services ("aps")); Jose

Villareal, Malorie M.Street (Santa Clara County Office of Public Defender

("opd")) each in their official, individual and personal capacities; San

Andreas Regional Center, Inc. ("sarc"); Santi J. Rogers, Mimi Kinderlehrer,

Tucker Liske (San Andreas Regional Center), each in their individual and

personal capacities; Nancy J. Johnson (Berliner Cohen); City of Palo Alto; Lori

Kratzer (Palo Alto Police Department) in her Official and individual capacity;

Embee Manor, Edna Mantilla in her individual and personal capacity; and does 1-

50, Defendants-Appellees.

No. 04-15900.

December 15, 2004.

On Appeal from the United States District Court for the Northern District of California

Joint Brief and Argument of Appellants

Jeffrey R. Golin, Elsie Y. Golin, Plaintiffs-Appellants Pro Se, Personally and in their capacity as Next Friend for daughter Nancy K. Golin, Appealing District Court's Order Granting Defendants' Motion to Dismiss, Jeffrey R. Golin, 13736 De Leon Ave., Santa Nella, CA 95322 Phone (650) 814-6284, Fax: (209) 826-5410, e-mail: eclectikl@earthlink.net

TABLE OF CONTENTS

TABLE OF CONTENTS ... i

TABLE OF AUTHORITIES ... iv

STATEMENT REGARDING ORAL ARGUMENT ... ix

STATEMENT REGARDING ATTORNEYS' FEES ... x

STATEMENT OF JURISDICTION ... 1

A. BASIS FOR DISTRICT COURT'S SUBJECT MATTER JURISDICTION ... 1

B. BASIS FOR COURT OF APPEALS JURISDICTION ... 1

C. FILING DATES AND TIMELINESS OF APPEAL ... 1

ISSUES PRESENTED FOR REVIEW ... 1

REVIEWABILITY AND STANDARD OF REVIEW ... 4

STATEMENT OF THE CASE ... 4

A. CHARACTERISTRICS OF THE FAMILY ... 4

D. DAUGHTER ABDUCTED FROM HER FAMILY BY STATE ... 6

E. ILLEGAL SECRET DETENTION; MALICIOUS PROSECUTION ... 10

F. SECRET STATE CONSERVATORSHIP PETITION ... 13

G. INTERIM CONSERVATORSHIP, CHARGES DISMISSED ... 13

H. STATE TEMPORARY CONSERVATORSHIP IMPOSED ... 15

I. CONSERVATORSHIP TRIAL: PARENTS V. STATE ... 17

J. SUCCEEDING PETITIONS FOR APPEAL ... 27

K. CURRENT STATUS OF NANCY GOLIN ... 28

FACTS RELEVANT TO ISSUES PRESENTED ... 31

SUMMARY OF ARGUMENT ... 31

ARGUMENT ... 32

I. THE COURT BELOW ERLOW ERRED BY DENYING PRO SE APPELLANTS FAIR OPPORTUNITY TO BE NOTIFIED OF DEFICIENCIES AND OPPORTUNITY TO AMEND ORIGINAL COMPLAINT ... 32

II. THE COURT BELOW SPECIFICALLY ERRED BY FAILING TO GRANT PETITIONER'S REQUESTED LEAVE TO AMEND ORIGINAL COMPLAINT TO AVOID ROOKER FELDMAN BARS TO JURISDICTION ... 34

III. THE COURT BELOW EXPOSED ITS BIAS TOWARDS THE STATE AND AGAINST PRO SE LITIGANTS, AND PROCEEDED DESPITE A VALID DISQUALIFICATION CHALLENGE UNDER 28 U.S.C. § 144 ... 37

IV. THE COURT BELOW ERRED HOLDING PARENTS HAVE NO STANDING TO REPRESENT THEIR DEVELOPMENTALLY DISABLED DAUGHTER AS NEXT FRIENDS OR AS GUARDIANS AD LITEM ... 39

V. COURT BELOW ERRED BY DENYING PARENTS OPPORTUNITY TO OBTAIN COUNSEL TO PURSUE GUARDIAN AD LITEM STANDING ... 45

VI. ROOKER FELDMAN ABSTENTION DOES NOT APPLY HERE ... 46

A. PETITIONERS MADE VALID APPLICATIONS FOR LEAVE TO AMEND TO REMOVE CLAIMS BARRED BY ROOKER-FELDMAN AND YOUNGER WHICH SHOULD HAVE BEEN GRANTED ... 47

B. EVEN HAD APPELLANTS NOT AMENDED AS PROPOSED, EXCEPTIONS TO ROOKER-FELDMAN CLEARLY APPLY HERE ... 47

1. THE STATE COURT TRIAL WAS A CONTESTED CONSERVATORSHIP PROCEEDING RAISING DIFFERENT ISSUES SEEKING A DIFFERENT RESULT THAN RAISED HERE ... 47

2. THE PARTIES TO STATE COURT PROCEEDING ARE DIFFERENT FROM THE DEFENDANTS HERS, GIVING FURTHER PROFF THAT THIS IS A DIFFERENT MATTER ... 48

3. STATE COURT DID NOT AFFORD "FULL AND FAIR" OPPORTUNITY TO LITIGATE FEDERAL CLAIMS AND PROVIDE DUE PROCESS, REQUIRED FOR ROOKER-FELDMAN PRECLUSION TO APPLY ... 49

4. PETITIONERS RAISED FEDERAL ISSUES IN STATE COURT, WHICH WERE NEVER ADDRESSED ON THE MERITS AS THE STATE COURT EXPRESSED DISDAIN FOR FEDERAL CLAIMS ... 52

5. THE INJURY COMPLAINED OF HERE DID NOT ARISE FROM THE STATE COURT JUDGMENT ITSELF ... 52

6. FEDERAL COURTS HAVE EXPRESSLY AUTHORIZED JURISDICTION ARISING FROM 28 U.S.C. § 1343(A) OVER CASES INVOLVING CIVIL RIGHTS AND CIVIL RIGHTS CONSPIRACIES UNDER 42 U.S.C. § 1985 ... 53

VII. YOUNGER ABSTENTION DOES NOT APPLY HERE ... 54

A. THE ISSUES AND CLAIMS IN THE PRESENT CASE ARE DIFFERENT FROM THOSE IN THE STATE COURT MATTER ... 54

B. SECTION 1983 EMPOWERS FEDERAL COURTS TO EXERCISE JURISDICTION IN COLLATERAL PROCEEDINGS NOTWITHSTANDING YOUNGER ... 55

C. YOUNGER FIRST PRONG IS NOW NO LONGER SATISFIED, STATE COURT APPELLATE PROCEEDING IS NO LONGER ONGOING ... 55

D. DOMESTIC RELATIONS EXCEPTION DOES NOT APPLY HERE AS EXEMPLIFIED BY RUBIN, ANKENBRANDT, AND THOMAS SO FAILS THE SECOND PRONG OF YOUNGER ... 57

E. THE COURT BELOW ERRED HOLDING THAT THE THIRD PRONG OF YOUNGER IS SATISFIED HERE, HOLDING THAT DUE PROCESS WAS NOT DENIED IN STATE COURT PROCEEDINGS ... 64

VIII. THE COURT BELOW ERRED FAILING TO CONSIDER PLAINTIFF DISMISSAL SATISFYING HECK FACORABLE OUTCOME PREREQUISITE FOR PARENTS' CLAIMS OF MALICIOUS PROSECUTION ... 64

A. THE COURT BELOW ERRED PERMITTING DEFENDANTS TO INTRIDUCE NEW ARGUMENTS AND FALSE FACTS AT THE HEARING WITHOUT SUFFICIENT OPPORTUNITY FOR PLAINTIFF REBUTTAL OR BRIEFING ON THE FACTUAL BASIS ... 64

B. THE TORT OF MALICIOUS PROSECUTION WAS COMMITTED AND IS CLEARLY SHOWN IN THE AVAILABLE RECORD ... 68

C. MOTHER'S OWN CLAIMS OF MALICIOUS PROSECUTION

WERE ERRONEOUSLY REJECTED BY COURT BELOW ... 70

D. THE PARENTS CLAIMS FOR MALICIOUS PROSECUTION WERE DISMISSED ON ERRONEOUS GROUNDS THAT PROSECUTORS HAD SUFFICIENT PROBABLE CAUSE TO CONTINUE PROSECUTION ... 70

CONCLUSION AND RELIEF SOUGHT ... 72

STATEMENT OF RELATED CASES ... 73

SIGNATURE PAGE ... 1

STATEMENT OF COMPLIANCE REGARDING RULE 32(a)(7) ... 1

CERTIFICATE OF SERVICE BY MAIL ... 2

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

U.S. Constitutional Amendment I ... 40

U.S. Constitutional Amendment IV ... 49

U.S. Constitutional Amendment VI ... 3, 24, 50

U.S. Constitutional Amendment VIII ... 31

U.S. Constitutional Amendment XIV ... 49

U.S. Constitutional Article III, Section 1 ... 54

CASES

Ad Hoc Committee of Concerned Teachers v. Greenburg # 11 Union Free School District, 873 F.2d 25, 30-31 (2nd Cir. 1989) ... 42

Aetna Life Ins. Co. v. Lavoie415 U.S. 813 (1986) ... 38

Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1530 (9th Cir. 1995) ... 33

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ... 43, 58

Armstrong v. Rushing, 352 F.2d 836, (9th Cir. 1965) ... 32

Barber v. Barber, 62 US 582 (1859) ... 58

Blair v. Supreme Court of Wyoming, 671 F.2d 389, 390 (10th Cir.

Blake v. Papadakos, 953 F.2d 68, 71 n.2 (3d Cir. 1992) ... 54

Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) ... 33

Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir.1991) ... 70

Cheung v. YouthOrchestra Found. of Buffalo, Inc., 906 F.2d 59 (2d Cir. 1990) ... 46

Childrens v. Mineta, 205 F.R.D. 29 (2001) ... 46

Chrissy F. by Medley v. Mississippi Department of Public Welfare, 883 F.2d 25 (5th Cir. 1989) ... 42

Coates v. Woods, 819 F2d 236, 237 (9th Cir. 1987) ... 57

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976) ... 56

Conservatorship of Roulet, 23 Cal.3d 219 (1979) ... 28

County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959) ... 55

Crowford v. Washington, 124 S.Ct. 1354 (2004) ... 24

Csibi v. Fustos, 670 F.2d 134, 137 (9th Cir. 1982) ... 57

Developmental Disabilities Advocacy Ctr., Inc. v. Melton, 689 F.2d 281, 285 (1st Cir. 1982) ... 45

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) ... 36

Doe v. United States, 58 F.3d 494, 496-97 (9th Cir. 1995) ... 33

Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977) ... 64

Fouche v. Louisiana, 504 U.S. 71, (1992) ... 50

Franklin v. Murphy, 745 F.2d 1221 (9th Cir. 1984) ... 34

Friendlander v. Friendlander, 149 F.3d 739 (7th Cir. 1998) ... 43

Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir. 1989) ... 42

Gerry v. Giles, 82 F.3d 1362 (7th Cir. 1996): ... 52

Gold v. Superior Court of Marin County, 90 Cal.Rptr.161 (1970) ... 27

Gonzales ex rel Gonzales v. Reno, 86 F.Supp.2d 1167, S.D.Fla. (2000) ... 45

Guarinov. Larsen, 11 F.3d 1151, 1161-62 (3rd Cir. 1993) ... 51

H.C. v. Koppel, 203 F.3d 610, 612 (9th Cir. 2000) ... 57

Heck v. Humphrey, 512 U.S. 477 (1994) ... 68

Hemon v. Office of Public Guardian, 878 F.3d 13 (1st Cir. 1989

Hurlman v. Rice, 927 F.2d 74 (2d Cir. 1991) ... 63

In re Burrus, 136 U.S. 586 (1890) ... 58

In re Chicago, Rock Island & Pacific R.R., supra, 788 F.2d at 1282 ... 42

In re Gault 387 U.S. 1 (1967) ... 24

In re Gruntz, 202 F.3d 107, C.A.9 (Cal) (2000) ... 47

In re Winship, 397 U.S. 358 (1970) ... 24

Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) ... 46

Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994) ... 48

Lake v. Arnold 112 F.3d 682 (3d Cir. 1997) ... 53

Lehman v. Lycoming County Children's Services, 458 U.S. 502 (1982) ... 62

Liljeberg v. Health Services Acquisition Corp. 486 U.S. 847 (1987) ... 38

Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) ... 33

Lloyd v. Loeffier, 694 F.2d 489 (7th Cir. 1982) ... 43

Lopez v. Smith, 160 F.3d 567 (9th Cir. 1998) ... 33

M.L.B. v. S.L.J., 519 U.S. 102 (1996) ... 2, 27, 56, 73

Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986) ... 46

Miofsky v. Superior Court, 703 F.2d 332, 338 (9th Cir. 1983) ... 55

Mitchum v. Foster, 407 U.S. 225 (1972) ... 32, 43, 55

Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987) ... 33

Ohio v. Roberts, 448 U.S. 56, (1980) ... 24

Olmstead v. L.C. by Zimring, 527 U.S. 581 (1999) ... x

Osei-Afriyie v. Medical College, 937 F.2d 876, (3d Cir. 1991) ... 46

Parham v. JR, 442 U.S. 584 (1979) ... x, 39

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, (1987) ... 47

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ... x

Plyler v. Moore, 129 F.3d 728, 732 (4th Cir. 1997) ... 54

Potter v. McCall,433 F.2d 1087, 1088 (9th Cir. 1970) ... 33

Ritter v. Ross, 992 F.2d 750, 753 (7th Cir. 1993) ... 54

Rivera-Puig v. Garcia-Rossario, 983 F.2d 311, 319 (1st Cir. 1992) ... 54

Roberts v. Ohio Casualty Ins. Co., 256 F.2d 35, 39 (5th Cir. 1958) ... 43

Roberts v. Ohio Casualty Insurance Co., 256 F.2d 35, 39 (5th Cir. 1958) ... 42

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ... 36

Rubin v. Smith, 817 F. Suppl. 995 (1993) ... 63

S.D. Meyers, Inc. v. City and County of San Francisco, 253 F.3d 461, 474(9th Cir. 2001) ... 4

Santosky v. Kramer, 455 U.S. 745 (1982) ... x, 62

Sell v. U.S., 539 U.S. 166 (2003) ... 40

Stanely v. Illinois, 405 U.S. 645 (1972) ... 63

T.W. v. Brophy 124 F.3d 893 (3rd Dist.,1997) ... 42

Thomas v. New York City, 814 F.Supp 1139, E.D.N.Y., (1993) ... 63

Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir. 1980) ... 55

Troxel v. Granville, 530 U.S. 57 (2000) ... x, 19

United States v. 20.64 Acres of Land, 795 F.2d 796, 805 (9th Dist., 1986) ... 41

Valenti v. Mitchell, 962 F.2d 288, 296 (3d Cir. 1992) ... 49

Washington v. Harper, 494 U.S. 210 (1990) ... x, 40

Whitmore v. Arkansas, 495 U.S. 149 (1990) ... 32, 39

Winston v. Children and Youth Servs. of Delaware County, 948 F.2d 1380 (3d Cir. 1991) ... 64

Youngberg v. Romeo 457 US 307 (1982) ... x, 41

Younger v. Harris, 401 U.S. 37 (1971) ... 36, 57

Zamos v. Stroud, 12 Cal.Rptr.3d 54, Cal (2004) ... 72

Zubiate v. Sonoma County Social Services Dep't, 1997 WL 154395, N.D.Cal., (1997) ... 70

STATUTES

28 C.F.R. § 35.130(d) ... 22

28 C.F.R. Pt. 35, App. A, p. 450 (1998) ... 22

28 U.S.C. § 2241 ... 37

28 U.S.C. §§ 1331 ... 1

28 U.S.C. § 1291 ... 1

28 U.S.C. § 1341 ... 54

28 U.S.C. § 144 ... 38

28 U.S.C. § 1915 (e)(1) ... 45

28 U.S.C. § 1915(d) ... 34

28 U.S.C. § 2254 ... 35

42 U.S.C. § 1343 ... 1

42 U.S.C. § 1367 ... 1

42 U.S.C. § 1985 ... 1

42 U.S.C. § 1986 ... 1

42 U.S.C. § 1983 ... 1

Cal. Evid. C. § 1270 ... 23

Cal. PC 1203.4(a) ... 66, 67

Cal. PC 368(c) ... 65, 66

Cal. Prob. C. § 1825 ... 19

Cal. Welf. & I. § 5008(h)(3) ... 10

Cal. Welf. & I. § 5150 ... 10

Cal. Welf. & I. § 5250 ... 10

Cal. Welf. & I. § 5250(d)(1) ... 10

RULES

FRAP Rule 4(A)(a) ... 1

FRCP Rule 12(b)(6) ... 1, 31, 34

FRCP Rule 15(a) ... 33

FRE Rule 403 ... 67

FRE Rule 410 ... 68

TREATISES

"Civil Rights-Conspiracy to Deny-Mentally Retarded Persons 42 U.S.C.A. 1985(3), 1210(a)(7). Lake v. Arnold 112 F.3d 682 (3d Cir. 1997)," 12 No. 9 FEDLIT 250, Federal Litigator, September 1997 ... 53

The Domestic Relations Exception to Federal Jurisdiction: Rethinking an

Unsettled Federal Courts Doctrine Michael Ashley Stein, 36 BCLR 669 (Boston College Law Review) July 1995.): ... 63

"The Right To Refuse Antipsychotic Drug Treatment And The Supreme Court: Washington v. Harper" Jeannette Brian, 40 BFLR 251 Buffalo Law Review, Winter 1992 ... 41

5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 45 ... 72

Role of the Attorney for the Alleged Incapacitated Person Joan O'Sullivan, 31 Stetson L. Rev. 687, Stetson Law Review, Spring 2002 ... 40

The Right to 'Just Say No': A History and Analysis of the Right to Refuse Antipsychotic Drugs" Dennis E. Cichon, 53 LALR 283 (Louisiana Law Review) (1992) ... 40

OTHER AUTHORITIES

Views of Practicing Physicians and the Public on Medical Errors, Robert J. Blendon, et al, New Eng. J. of Med, v 347, p 1933 ... 10

NEWS REPORTS

Najeeb Hasan, "Saving Nancy", San Jose Metro News, April 28-May 4, 2004 17

STATEMENT REGARDING ORAL ARGUMENT

This case of first impression lies at the nexus of unsettled laws in so many areas, involving rules of evidence and adversarial misrepresentation of incompetent persons in mental health, conservatorships, constitutional family rights, constitutional rights of association, abuse of children and dependent adults in state care, constitutional rights of mentally retarded adults the ADA, profiteering and explotation from federal funding of state welfare programs, and federal v. state jurisdiction disputes, making it difficult to resolve which areas of law should prevail. Yet numerous fundamental constitutional rights and historic Supreme Court decisions are clearly established as should wellsprings from which to draw toresolve these conflicting lines of cases [FN1]. For these reasons, Plaintiff/Appellants respectfully submit that oral argument is necessary for the just resolution of this appeal and will significantly enhance the decision-making process.

FN1. See, O'Connor v. Donaldson, 422 U.S. 563 (1975), Parham v. JR, 442 U.S. 584 (1979), Santosky v. Kramer, 455 U.S. 745 (1982), Sell v. U.S., 539 U.S. 166 (2003), Stanley v. Illinois, 405 U.S. 645 (1972), Washington v. Harper, 494 U.S. 210 (1990), Youngberg v Romeo 457 US 307 (1982), Whitmore v. Arkansas, 495 U.S. 149 (1990),, Troxel v.

Granville, 530 U.S. 57 (2000), Mitchum v. Foster, 407 U.S. 225 (1972), Olmstead v L.C. by Zimring, 527 U.S. 581 (1999), Pierce v. Society of Sisters, 268 U.S. 510 (1925)

STATEMENT REGARDING ATTORNEYS' FEES

Plaintiff/Appellant intends to seek attorney's fees under authority of 42 U.S.C. § 1988 and 28 U.S.C. § 2412.

STATEMENT OF JURISDICTION

A.BASIS FOR DISTRICT COURT'S SUBJECT MATTER JURISDICTION

The District Court has original jurisdiction over 42 U.S.C. §§ 1983, 1985, 1986 Civil Rights lawsuits, as provided by 28 U.S.C. §§ 1331, 1343, 1367.

B. BASIS FOR COURT OF APPEALS JURISDICTION

This Court has jurisdiction over appeals from final decisions of a District Court as provided by 28 U.S.C. § 1291.

C. FILING DATES AND TIMELINESS OF APPEAL

The U.S. District Court, Northern District of California, Hon. William H. Alsup presiding, entered a final judgment against appellants and plaintiffs on April 6, 2004. Plaintiffs filed a notice of appeal from this order on May 5, 2004 (Exh. Y). FRAP Rule 4(A)(a) provides that "the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered". Therefore, the appeal was timely filed.

ISSUES PRESENTED FOR REVIEW

1. Whether a court may dismiss a case on a FRCP Rule 12(b)(6) motion when each key issue of fact still remains to be determined, contrary to dicta that "when reviewing a complaint under Rule J2(b)(6), courts should accept all allegations as true and construe those facts in the light most favorable to the plaintiff"?
2. Whether the class of cases now limited per Ankenbrandt v. Richards, 504 U.S. 689 (1992) to include "divorce, alimony and child support" constituting the "domestic relations exception" to federal jurisdiction may also encompass probate involuntary state conservatorships of non-dangerous disabled adult family members.
3. Whether a State may statutorily abrogate normal parental preferences in special probate involuntary conservatorship proceedings in favor of the State, or receive equal or preferential footing with caring parents or family for conservatorship of adult relatives, without deference to parents' estimate of their child's best interests, without violation of First Amendment rights of familial association, or.
4. Whether State conservator may, under the First Amendment, impose involuntary familial associational restrictions between willing non-criminal, non-dangerous adult conservatees and their caring, capable families using enumerated state probate conservatorship powers under the First Amendment.
5. Whether the US Supreme Court's holding in M.L.B. v S.L.J., 519 U.S. 102 (1996) extends due process rights including independent representation or free appellate transcripts to indigent parents of adult mentally handicapped children in their care facing loss of their personal liberty or dissolution of their familial liberty interests?
6. Whether an indigent incompetent person facing a permanent loss of personal liberty in a civil proceeding has the same due process appellate rights to free trial transcripts of involuntary conservatorship proceedings on appeal as does an indigent criminal defendant, consistent with the In re Winship, 397 U.S. 358 (1970) and In re Gault 387 U.S. 1 (1967) line of cases, and does a next friend, parent or caring relative have the right to advocate for this right on behalf of the incompetent person?
7. Whether parents whose adult child has been involuntarily conserved by the state, whose conservatorship is pending on appeal in state court nevertheless have standing to sue on her behalf for unconstitutional harms and injuries as guardians ad I item or next friends, in circumstances where the underlying purpose of that conservatorship appears to be to thwart a lawsuit against the state conservator for their own liabilities, when her conservators have a conflict of interest and will not act?
8. Whether Crawford v. Washington, 124 S.Ct. 1354 (2004), as a new Supreme Court rule revitalizing Sixth Amendment (U.S. Constitutional Amendment VI) due process rights of criminal defendants to confront witnesses against them barring testamentary hearsay evidence, may be extended to nominally civil cases in which a person faces a loss of liberty, such as a civil commitment hearing, consistent with the In re Winship, 397 U.S. 358 (1970) and In re Gault 387 U.S. 1 (1967) line of Supreme Court cases?.
9. Whether a federal court may dismiss for denial of standing to represent an incompetent adult in a 28 U.S.C § 1983 lawsuit based on findings of a state trial court, when such findings are clearly erroneous, based on deliberate falsehoods and reckless disregard for the truth, as demonstrably provable from a mountain of overwhelming evidence and are still being contested in ongoing appeal in state court and these findings are stayed pending appeal?
10. Whether a disputed state trial court "finding" that parents are supposedly unable to care for their daughter as conservators - based on an unreasonable determination of the facts in light of the evidence, unreviewable by a lower federal court under the doctrines of Rooker and Feldman - sufficient to conclusively prove they would also be unable to protect her legal interests against the state as next friends, advocates or guardians ad litem, without any closer inquiry into their exact qualifications to perform that different role?

REVIEWABILITY AND STANDARD OF REVIEW

A dismissal for failure to state a claim pursuant to Rule 12(b)(6) is reviewed de novo. See e.g., Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003). A dismissal without leave to amend is reviewed de novo. See e.g., Oki Semi conductor Co. v. Wells Fargo Bank, 298 F.3d 768, 772 (9th Cir. 2002). Standing is a jurisdictional question of law reviewed de novo. See e.g., S.D. Meyers, Inc. v. City and County of San Francisco, 253 F.3d 461, 474 (9th Cir. 2001). The existence of subject matter jurisdiction is a question of law reviewed de novo. See e.g., Chang v. United States, 327 F.3d 911, 922 (9th Cir. 2003).

STATEMENT OF THE CASE

A. CHARACTERISTICS OF THE FAMILY

Nancy Katherine Golin ("Nancy") is a 34-year-old autistic adult, severely retarded since birth. An only child, she has lived with and been raised and cared for at home essentially her entire life since birth by dedicated parent-petitioners Jeffrey and Elsie Golin ("the parents") until 3 years ago. They know their daughter well and care for her deeply. She had epilepsy since age 22 maintained by antiseizure medications (Al) [FN2]. She has a propensity to wander that the parents closely monitor. She is non-aggressive, has never been diagnosed with mental illness or had psychiatric medications prescribed for her, nor has ever committed or been charged with a crime. She is unable to read or write, and speaks only a few words, but understands and communicates very effectively with gestures, expressions and actions. She is alert, happy, charming, beautiful and gentle, optimistic and brave, patient and persistent, emotionally and motivationally normal. She has a positive, sunny disposition, the pure innocent product of a lifetime of love and devotion. Her autism is atypical in that she is very sociable, relates well to people, and has no tics, self-injurious or ritualistic behaviors. She is ambulatory and able bodied, can toilet, dress and feed herself, and can tie her own shoelaces. She and her parents are profoundly attached to one another, and her parents remain with her constantly at all times. Her parents always put her needs before their own, priding themselves on having protected her from State institutionalization, integrated into normal community activities. The parents never saw it necessary to conserve her.

FN2. Page reference to separately bound exhibits: (Tab#-page#-(optional date))

There is a long history of animus and abuse by S ARC officials against the petitioners, going back nearly 25 years. Mrs. Golin is a long time vocal critic of San Andreas Regional Center (SARC), the private non-profit corporation exclusively responsible for State programs for the retarded in Santa Clara, Santa Cruz, San Benito and Monterey Counties, for their negligence or indifference towards the "weakest among men", and the number of their clients they regularly kill through neglect. Mrs. Golin sought in vain for years during Nancy's formative years using every available means to obtain appropriate services such as speech therapy from local schools and SARC. (S12-S15) She eventually gave up and obtained the best services she could find on her own in spite of State harassment. Together with her husband of 42 years, a former professional engineer, high-tech marketer and postgraduate of MIT, they have spent a lifetime seeking the best available resources for their daughter's special needs. Their experience with State programs is theyalways did more harm than good; they failed Nancy's individual needs, caused her severe injuries [FN3], and exposed her to bad behaviors she mistakenly copied. (SI 2S15)

FN3. Nancy's epilepsy is believed resultant from a severe, near-fatal 1978 head injury caused Nancy, then eight, by a SARC program; two bigger boys, known to attack in this manner, but yet there, unsupervised, threw Nancy backwards on her head onto cement. Nancy stopped breathing, turned blue. Remarkably, the program kept Nancy there for five more hours, not informing doctor or family, merely because Nancy finally resumed breathing.

The parents are active semi-retirees, who now operate a neon lighting and contracting business they founded in 1990 to give them the time and flexibility to care for and provide activities for Nancy. Nancy loves to watch her parents work, and the family was always out and about with Nancy, and took frequent hikes together. Nancy's mother is a designer, fashion stylist, nutritionist and musician, and Nancy very much enjoyed being involved in these areas, and accessing the extraordinary collection of resources her mother provided for creative outlets and skill development. Nancy required constant supervision, but loved having access to "real" artistic pursuits, such as putting together her own clothes, helping to make patterns, making and playing fun musical instruments, and owning hundreds of recordings. Nancy also enjoyed many sensory motor exercises and fitness activities in the "real" world. She strongly disliked the "programs" for the retarded, being acutely aware of her "second class citizen status" in them.

D. DAUGHTER ABDUCTED FROM HER FAMILY BY STATE

The evening of November 14, 2001, Nancy wandered from her parents whilethey were moving their workshops to neighboring Palo Alto. The parents immediately called the Palo Alto police ("police") for help, searching the area all night. She could not be found. Next morning Nancy found her way back herself, tired but delighted, well and unharmed, to her parents' intense joy and relief.
The police duped the unsuspecting parents, advising them they onJy intended to take Nancy to Stanford Hospital to make sure no one had harmed her while she was missing. Police took Nancy without warrant or notice saying the parents could meet them there. The parents cooperated without objection. Police delayed three hours, then took her in different clothes to a locked psychiatric ward at Stanford and obtained a TRO against her parents.
When they arrived at Stanford ER, the surprised parents were denied admission to see her or talk to doctors. Security guards told them Nancy had been placed on a § 5150 psychiatric hold, and turned them away on threat of arrest. The parents were justifiably terrified. Nancy had never been alone in a hospital without a parent there for history and informed consent, and had never been in a psychiatric ward. The staff let Nancy wander into rooms of dangerous mental patients climbing into their beds seeking her usual maternal comfort, eating from their dishes.
Police led by defendant Det. Kratzer created a cover story to psych ward doctors that Nancy was supposedly a homeless urchin, the victim of abuse and neglect by the parents, saying that she was "found in a shed behind a pile of garbage" [FN4]pretending at first she had had no doctors or medical records. They insisted that Nancy had head lice, so when the doctors could find no head lice they dutifully treated her with Nizoral shampoo for "presumptive head lice". She had a-foot injury that Stanford doctors admitted knowing their own ER doctors had caused with a misplaced IV five months before. Her mother immediately had it grafted and followed by a chief surgeon at Alta Bates (Dr. Jerome Kaplan) when Stanford doctors refused to treat it. Yet police quoted a Stanford psychiatric resident saying that the fully healed graft was a neglected open, infected wound of unknown origin.

FN4. Det. Kratzer declined to reassert any of these outrageous claims when questioned on the witness stand under oath at trial in October 2003, and admitted she could have been mistaken about the situation when confronted with the police photos of the scene and the certainty of impeaching testimony (S5-S10).

SARC and Santa Clara County Adult Protective Services (APS), immediately claimed custody of Nancy at the hospital without protective custody proceedings. The police generated a report, in which most witness statements were either misreported or falsified, including ones from SARC. SARC complained from their institutionally biased view that Nancy needed to be placed in State residential care instead of living at home, and that the parents since a 1993 SARC injury to Nancy, "refused services" (S12-S15).
Police misled Stanford psych ward doctors claiming Nancy's mother was over medicating her on her Phenobarbital seizure medication. This was based on an old, discredited complaint by an intern who caused Nancy seizures two years be fore by erroneously cutting Nancy's neurologist's prescribed dose in hospital (S46). These levels are highly individual due to varying rates of metabolism ofthe medications, as any qualified neurologist knows. In reality, there was no emergency. Nancy Golin was perfectly fine, happy and well cared for, until the police took her to the hospital! [FN5] She was not homeless nor had she exhibited any signs of abuse or neglect (S10). Nancy's blood levels were correct, had no seizures or adverse reactions on the day of admission and had not had any seizures for several months. She did not require any medical assistance whatsoever, and Stanford discharged her after two weeks for that reason.

FN5. Stanford psych ward doctors warned APS that it was unsafe for Nancy with the men there, known to be dangerous, but APS officials ignored these warnings insisting that she remain there in harms way. (Exh. B, p6, 11/19// 01) When seen by her parents next Nancy displayed unmistakable signs of molestation (S31).

On admission, however, the clinical intake psych team led by radiologist Dr. Hayward slashed her anti-seizure medication to what they believed were "normal" levels throwing her into a week of protracted grand mal seizures due to under medication. Neurology consult Dr. Schwartz was called in on 11/17/01. He remembered Nancy from a previous admission, and wrote on the 11/17/01 hospital record admitted into evidence, "her level was good at time of admission" (T14), and by 11/23/01 Dr. Deisseroth approvingly noted her levels restored close to these same good admission levels (49.2) (T13). The hospital-caused seizures then abated. These were the original levels that her mother, under the supervision of her regular board certified neurologist Dr. Howard Belfer of San Mateo Hospital (Bl, T20) and Stanford's own clinical neurologists themselves, had been administering, that the police and APS called "overdosing" (S37-S42) [FN6] .

FN6. Medical errors were surveyed to be the third leading cause of death in the United States, see e. g., Views of Practicing Physicians and the Public on Medical Errors, Robert J. Blendon, et al, New Eng. J. of Med, v 347, p 1933.

Police applied at the hospital on intake for Nancy to be placed on a 72-hour hold, Cal. Wolff. & I. § 5150, for psychiatric evaluation alleging, "grave disability" as their reason to admit her. Then police applied for an extension to a 14-day hold Cal. Wolff. & I. § 5250 for intensive treatment alleging "grave disability". Both laws are inapplicable to merely mentally retarded persons or persons who can live safely with family or friends by State law [FN7]. Therefore, the application for the § 5250 hold was judicially denied (C4), November 26, 2001 at an in-hospital hearing of which the parents were not notified and were prevented from appearing. Nancy, being mute and incompetent, had no effective representation. The State lost all further legal authority for holding her. The TRO against her parents also expired. Nevertheless, when her parents went to pick her up, Nancy had been spirited away by state authorities, refusing to disclose to anyone where she was being hidden and drugged [FN8].

FN7. Cal. Welf. & I. § 5008(h)(3), Cal. Welf. & I. § 5250(d)(l). A mental health advocate warned police Nancy's detention was inappropriate (B33-B34, 11/26/01).

FN8. Even though released and her § 5250 application denied, Stanford gave the RCF a discharge prescription for Trazidone, a psychiatric medication, for her caregivers to dope her with PRN (at their own discretion). (B8-B9, 12/3/01)

E. ILLEGAL SECRET DETENTION; MALICIOUS PROSECUTION

In fact, Nancy was illegally taken from Stanford Hospital by SARC workers and secreted at a SARC Residential Care Facility (RCF) known only to a few county workers [FN9]. Her signature was forged by SARC workers to a SARC Individualized Placement Plan (IPP) (Exh. F, pp 6,7,8,9)), legally requiring the informed consent and signature of a parent or legal conservator, to attempt to qualify it as a voluntary commitment. It also cites cryptically that "there was infringement on her rights due to 'consumer dilemma during this period" " (F2) Nancy cannot read, write or sign her name, nor does she have the capacity to give such informed consent as SARC's capacity declaration states. APS records disclosed in their December 2001 records that their agents and SARC's were all fully aware she was being held illegally so if the parents found SARC's hideout so "if somehow the clients (sic) found where nancy I was] placed by sarc, and showed up the RCF manager would have a hard time keeping them away, and keeping them from taking nancy if nancy wanted to go with them" (B5, 11/16/01 (Kinderlehrer)), and admitted [we] "want to avoid court if at all possible" (B16, 3/1/02). Nancy was totally unable to obtain help from her family or friends.

FN9. State psychologists warned SARC in a December 2001 evaluation (D3) thatNancy would suffer severe psychological abuse from separation anxiety, waiting by the door for her parents to come for her, telling the RCF operator Nancy may have been sexually molested in State care (D2).

The Palo Alto Daily News, contacted by the parents, printed four sympathetic stories in late November 2001, panicking the police. (BIO, Bl 1) Police complained they were "snooping around" asking questions about Nancy's whereabouts (B10-B11), telling them they could not withhold information unless it was a criminal matter. The paper was unable to find SARC's hideout (Bl 1, 11/29/01). The police faxed deliberately false information provided by defendants Buckmaster, Kratzer and SARC to the papers, alleging the parents to be something close tocareer criminals, claiming "long criminal histories" or other preposterous claims such as "arrest for assault on a police officer", etc. DA Hey's comments were published by the paper, stating that the parents were certainly guilty of intentional infliction of pain and abuse and undoubtedly would be convicted and spend several years in prison. Shortly thereafter the parents were hastily arrested on felony warrants right after defendant Buckmaster planted a phony report from a fictional witness in her files, and then were able to bail out. (BIO). The court set $100,000 bail, to keep the parents away from the press and almost preventing them from further legal opposition to Nancy's State custody. But the parents fortunately bailed out after one night in county jail and went back to fighting for their daughter's freedom. DA Randy Hey abandoned his absolute immunity by making prejudicial statements to the press.
After the parents' attorneys discredited the police version of events to the Santa Clara County DA's office and her doctor wrote the court a letter (El) rebutting their supposed allegations, the DA knew or should have known there was no merit to these charges, (infra, p 65)
Four months after police seized Nancy, March 2002, after APS was threatened with contempt, visits began one hour per week, oppressively supervised by APS, at an outside visitation center to strictly guard the location of her hiding place from friends and doctors. The Golins observed Nancy displaying persistent unreported signs of sexual molestation and drugging. She repeatedly begged her parents to take her home with them by trying to pull them out the door with her or selecting her father's car key out of his pocket and giving it to him, as she had always doneto ask to be taken out.

F. SECRET STATE CONSERVATORSHIP PETITION

SARC and DDS proceeded in secret in April 2002 to petition in probate to conserve Nancy and keep her in secret detention, seeking permission to put her into a State hospital, without giving the parents required notice of the proceedings against their daughter. Note in the APS records show this was part of their scheme from the beginning. DDS petitioned under Cal Hlth. & S. Code § 416.5 applicable only to abandoned persons, seeking to avoid parental preferences. DDS and the Public Defender's Office (PDO) attorneys protested on record in four monthly probate hearings before probate judge Hon. Katherine Gallagher that it was impossible to notify the parents, knowingly misrepresenting, their "whereabouts were unknown," or that they had been "convicted of abusing Nancy" and were in prison, despite the weekly visits with Nancy and the attorney contacts.

G.INTERIM CONSERVATORSHIP, CHARGES DISMISSED

In August 2002, Gallagher ordered SARC to notify the unsuspecting parents of the DDS conservatorship petition. They objected to it, rebutting the State's un-founded allegations, and filed their own competing petition. The probate investigator refused to qualify them, continuing to rely on a past investigation of DDS based solely on misinformation she was given by SARC. Hon. Gregory Ward finally heard this on October 15, 2002. The DA attended as a spectator (See infra, p72) The Golins were unrepresented but were allowed by Ward to speak articulately in great detail, repudiating APS's and SARC's allegations.
Ward felt unable to appoint the parents while their criminal charges were stillpending, but appointed an independent conservator for the Golins until charges were expected to be dropped. The parents were able to discover in November 2002 that Nancy had suffered serious injuries at the residential care facility including an unreported and untreated broken collarbone, dislocated shoulder (L1-L2), psychotropic drugging (Gl) and physical restraints. RCF records ironically showed she wandered from them 138 times in 12 months (H4- H6), not reported to the police. Nancy had on one occasion taken a closet pole to break her bedroom window to try to escape. She had been taken by her SARC caregivers to SARCapproved psychiatrist Dr. Hector Cerezo, misrepresenting her behaviors and history to get him to prescribe Risperdal, an even more potent and dangerous psychotropic medication to drug her "as needed" into a constant stupor (Gl). He did not warn careworkers to monitor side effects that she suffered: tremors, Parkinson's disorder, tardive dyskinesia [involuntary movements warning signs of severe brain damage] never previously seen. Risperdal is FDA-listed only for schizophrenia, not autism. It is barred for use with persons with seizure conditions [FN10]. She had no neurologist for over a year because few neurologists take MediCal. SARC is unwilling to pay for anything themselves, so signs of tardive dyskinesia went unrecognized by her low-skilled caregivers. In November 2002, the psychotropic drugswere discontinued by the stand-in at parental insistence and her symptoms markedly improved.

FN10. Dr. John Friedberg, a leading neurologist consulted by the parents, called these dopamine inhibiting medications "chemical lobotomy", and "brain poison" and told them to get her off these drugs immediately. Cerezo confirmed this view in trial (Ex S, pp 16-17). Martin instead deferred (Q9- Q10) to a hearsay report by ER doctor Bason-Mitchell who admitted he knew nothing about psychotropics and referred to SARC's own non-specialist

general practitioner Masada for authority that the Golins were "uninformed" (S18-S32).

The false criminal charge that had been dropped to a misdemeanor against Mrs. Golin was dismissed completely in the Santa Clara County Criminal Division on January 28, 2003 on a motion by the DA (11). The same false misdemeanor charge against Mr. Golin was dismissed after pleading not guilty on August 4, 2003. Refer here to Section IX, (infra, p 65) for factual details.

H.STATE TEMPORARYCONSERVATORSHIP IMPOSED

The Golins expected their petition would be approved in probate and Nancy could return home. Yet in probate a few days later Hon. Thomas Edwards moved temporary conservatorship to the State pending a contested conservatorship trial between parents and DDS. Edwards appointed opposing attorney, Santa Clara County public defender Malorie Street ("Street") to represent Nancy. Street never conferred with the parents. From the start, she did damage control for the State by attacking the Golins. She appeared at opposing counsel table with State DDS attorney Dean Stiles and SARC attorney Nancy Johnson, filing joinder motions. Stiles-Johnson-Street had worked as a team on many such probate cases since 1995, in a consistent pattern and practice of defending State agencies particularly SARC.
Street advocated for the State to conserve Nancy, not the parents or other petitioners. She blocked Nancy's right to a jury. She objected to Nancy being produced in court. She insisted that Nancy remain in the same RCF where she was drugged and injured. Street argued the State had to conserve Nancy to obtain her medical records; using this power, she shut down the parents' discovery rights showing proof of State abuse on the excuse of Nancy's privacy, at SARC's request (App., Exh. N, J, K). She argued for the State to conserve Nancy to put her back on [brain injuring] Risperdal, asserting it benefited her (see Chapnik declaration N1-N6). She got supervised visits dissolved by the criminal court, reinstated by probate, orders restricting Nancy to Santa Clara County and S ARC jurisdiction, that her parents could not take her to a doctor, blocking her right to sue the State for injuries, and appointing her to represent Nancy. Edwards granted these instant motions without showing good cause or legal authority [FN11]. The certified hearing transcripts were severely altered helping the State cover this up. Thus despite the dismissal of charges the State took temporary conservatorship maintaining custody of Nancy.

FN11. The parents' attempt in May 2003 to substitute an effective non-conflicted private attorney for Nancy was denied by Gallagher.

Two weeks after Nancy was temporarily conserved by DOS pending trial and Street's and SARC's demanded illegal drugging on Zyprexa resumed, Nancy was rushed unconscious to San Jose Medical Center, in serious condition with uncontrolled seizures vomiting up blood and her entire esophageal lining in quarter inch chunks. This was a life threatening disorder traced to the drugging in later testimony [FN12] Street's liability in advocating this as an excuse to give Nancy to the statethus created further conflicts of interest with her presumed client. The uncontrolled seizures caused severe permanent brain damage, the loss of her entire esophageal lining, a permanent precancerous condition, and huge esophageal ulcers (T15-T19). A San Jose reporter found a caregiver was ordered by SARC never to take Nancy to ER's when she had uncontrolled seizures, to prevent disclosures [FN13]. MediCal records (J1-J5) finally disclosed just before trial in October that Nancy had been charged for an ER visit on March 2, 2003 for an unreported skull fracture and broken femur by a certain Dr. Tony Yuan, after which the parents were blocked from seeing her for four months, but SARC obstructed discovery to any evidence confirming the nature of this visit.

FN12. SARC concealed Nancy's Feb-March 2003 hospitalization when they took control. SARC doctors lied about her condition; caregivers covered up to police. The parents could not visit her to comfort her at the hospital. Nancy could have died never seeing her parents again. Street covered up real state abuse for months saying the parents were alarmists or liars

attacking their credibility. The parents moved on an exparte emergency motion. Gallagher gave the parents a week to prove Nancy was gravely ill, but denied a motion to compel discovery. SARC and Street clamped a lid on their doctors (J5). Street sought out and counseled obstruction to those served with subpoenas, alleging exclusive control of Nancy's records and concern over her client's privacy at SARC's request (See Conner declaration N7-N8). Parents instead substituted an affidavit of orthopedic expert Dr. Due Nguyen (L1-L2). Gallagher denied the exparte motion. In May, subpoenaed records surfaced confirming that Nancy had been given a life-threatening, precancerous, nearly ruptured esophageal condition that had worsened seriously from Zyprexa lowering her seizure threshold (T15-T19, SI9).

FN13. Najeeb Hasan, "Saving Nancy", San Jose Metro News, April 28-May 4, 2004. Plaintiffs disagree with some of the disparaging factual content in this article, but in this regard it is accurate.

I. CONSERVATORSHIP TRIAL: PARENTS V. STATE

In October 2003, almost two years after Nancy was illegally seized from her family, while she remained in State custody and control with the parents unable to visit, a three-week court trial was held in Santa Clara County Superior Court, HonWilliam Martin presiding. He was to decide if Nancy should be conserved and if so by whom, the parents or the State, (DOS, not SARC).
The parents lacked counsel and no longer had the several tens of thousands of dollars required to retain one in such cases after being forced to dissipate their retirement funds in two years of litigation. Mrs. Golin so objected to no avail, and with difficulty the parents represented themselves. Both parents were personally knowledgeable on the available evidence and put on an excellent case for nonlawyers. Mrs. Golin, while intelligent and an excellent witness herself should nevertheless have been represented by an attorney. Her courtroom demeanor, while admittedly very difficult, that of a passionate caring mother instinctively fighting for her child's welfare, and not that of an experienced trial attorney, was granted no latitude in Martin's biased opinion (Q22).
The parents objected to Nancy being conserved arguing that it was unnecessary living in her own home with her parents but if she were conserved they should have first preference under Cal. Prob. Code § 1812. The court quickly disposed one of the parents' friendly alternate candidates for conservator on suspicious procedural grounds, displaying intolerance to any petitioner other than the State. The other alternate folded under threat of personal attack by SARC.
Martin denied the parents' in limine challenge of SARC's standing; the petitioner was the State DOS, not SARC. SARC was represented by Johnson, a full partner in Berliner-Cohen ("BC"), a huge, powerful personal injury and white- collar criminal defense firm in San Jose. EC's improper motivation was clear from the start: to protect their tortfeasing client SARC from injury claims and a fearedliability lawsuit by appointing themselves Nancy's conservator, skewing the risk of erroneous factfinding. Martin denied parents' challenge of attorney Street for conflicts of interest. Street again blocked the parents' motion for a jury trial for their daughter claiming she alone had standing to request this, and she did not request it (Q4). BC played lead attorney for the State orchestrating SARC's attack, tilting the playing field for conservatorship clearly favoring the State.
The parents won previously denied right to require Nancy's presence in court as required Cal. Prob. C. § 1825, over the objections of the State, SARC and Ms. Street. When Nancy Golin was presented to court, on her 33rd birthday, she embarrassed the opposition by displaying such obvious affection for her parents and they to her [FN14] that Martin and even Street backed off that there had never been any question about the love and devotion that the parents had for their daughter. He instead posed, who would make the better conservator in Nancy's presumed best interests, the parents or the State? He thus explicitly denied parental preference from the outset in competing with the State explicitly contravening the US Supreme Court's rulings in family rights cases such as Parham v. JR, 442 U. S. 584 (1979), cited by Mr. Golin, (Q3), or Troxel v. Granville, 530 U. S. 57 (2000) establishing deference to a parents estimation of his or her child's best interests, state statutory due process guarantees embodied in Cal. Health & S. Code § 416. 5 and § 416. 23 and State Supreme Court holdings in cases such as Bellino v. Superior Court of Riverside County, 137 Cal.Rptr.523 (1977), argued in Mr. Golin's motion for nonsuit. In fact, the Martin court clearly appears to have applied the opposite presumption, that the State was more capable and fit due to their putative professionalism despite all their proven abuses.

FN14. On succeeding days, Street kept Nancy out of the court as much as possible to avoid further embarrassment to the State's case, by having her deprived of water many hours before court and given behavior modification to leave the courtroom quickly to get water

Thirteen witnesses gave testimony for the parents. Only four witnesses appeared for the State, and in each case, their testimony broke down under crossexamination (S8-S10, S24-S30). The parents presented numerous medical experts and family friends who observed and admired the family for years (Ml). Mr. Golin unreservedly praised his wife's competence and devotion as a primary caregiver and loving mother, testifying from personal knowledge she had never neglected or abused Nancy, calling such charges ludicrous.
The medical experts called by the parents built up a compelling foundation of evidence proving state abuse showing that because SARC kept new doctors in the dark concerning her past medical history to support their cover story that she had been abandoned, they had subjected her to a life threatening injury and illness from drugging, and substandard care. This included failure to continue a necessary regimen of treatment of a past chronic hiatal hernia and esophageal condition that had been was remission in her mother's care. They showed a pattern of chronic orthopedic injury (LI) and abuse in state care, dental neglect, injury due to improper drugging (Gl), and caregiver subservience to SARC (Kl). The parents presented an MP3 video of Nancy displaying involuntary tremors, lip pursing, symptoms of tardive dyskinesia, and another video displaying Nancy's unmistakable despondency at having to return to the RCF after a visit with her parents.
All evidence of abuse by SARC and Ms. Street was whitewashed by Martin. Critical witnesses such as gastroenterologist Fair were allowed to evade subpoenas when Martin prematurely rested the parents' case [FN15], imposed arbitrary time limits on key testimony [FN16], denied requests permitting many key witnesses from appearing, and kept out damning evidence against the State. The transcript showing these events is out of reach by the high cost and the court's refusal to provide it or any alternative settled statement procedure.

FN15. Street was seen in the hallway during breaks openly threatening

petitioner's witnesses during trial (Exh. S, p34), such as Drs. Morgan and Cerezo, after which Morgan lamely tried to disparage the Golins in his testimony, but backed down on cross examination (Exh. S, pp33-34). Martin refused to order Street's intimidation stopped, and cites only Morgan's initial disparaging remarks (Exh. Q, p9) as evidence of the parents supposed inability to get along with "most professionals". The parents relationship with both Morgan and Cerezo was actually quite cordial. The parents got alone fine over a long period of time with most knowledgeable professionals as attested by the second declaration of expert witnesses including attending physician Dr. Kaplan (M1-M2), and with orthopedist Dr. Nguyen (LlL2) who both testified consistently with this declaration, and neurologist Dr. Belfer(Bl,J4).

FN16. Martin cut parents key expert orthopedic witness Dr. Nguyen to only 20 minutes, refusing to extend the session past 4:30pm "quitting time" and not one minute more leaving many unanswered questions, when Nguyen had left an office full of patients and sped to court to testify. Then Martin misconstrued his evidence on a shaky premise (S32) "finding" that the shoulder was not really dislocated (Q7) even though everyone could easily see it was out of its socket from the x-rays.

The parents endured an inquisition by the Court into their finances and assets, normally not required for close relatives. They disclosed their fine recently built home in a respectable neighborhood in Merced County, 70 mi. from Nancy'sRCF [FN17]. Prior to November 2001, they had sufficient cash to purchase a house for Nancy. These resources were squandered fighting the State.

FN17. The parents moved 90 miles to Merced County in July 2002 to leave SARC territory and avoid continued police harassment.

SARC's staff psychologist Ms. Mulhoe testified that Nancy would benefit from a limited conservatorship in RCF because it "facilitated socialization with her peers" [FN18]. She idealized the notion of being segregated with other retarded people, saying that it was good for people to socialize with their peers (defined as DD), objecting to the idea that Nancy could "socialize with lawyers and judges". The parents' unique understanding of Nancy's emotions, wishes and idiosyncrasies from their lifelong observations of her posture, expressions, gesture and behavior told them she hated to be segregated from the community in the company of retarded persons in state programs. It made her feel inferior, categorized and discriminated. Martin faintly criticized Mulhoe's contention, stating that "within reason, Nancy should occasionally be exposed to persons and circumstances in addition to day programs, residential care facilities, and her "peers". (Q18) [Carefully! not too much!] which totally contravenes Title II of the ADA's integration mandate (42 U.S.C. § 12132) [FN19]

FN18. Ironically, young Ms. Mulhoe opined from SARC records that it was Mrs. Golin, not SARC, who had refused desperately-sought services that could have benefited Nancy when she was younger (S12-S15).

FN19. Title II of the ADA, 42 U.S.C. § 12132, services "should be provided in the setting that is least restrictive of the person's personal liberty." The Attorney General adopted the integration mandate, which requires public entities to administer services "in the most integrated setting appropriate to the needs of qualified indi-victuals with disabilities." 28 C.F.R. § 35.130(d). The preamble to the United States Attorney General's ADA Title II regulations defines that language to mean "'a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible."' 28 C.F.R. Pt. 35, App. A, p. 450 (1998)

Martin's Statement of Opinion (Q) which at first seems overwhelmingly condemning to the parents, was clearly improperly relied on in the denial of the parents request to act as guardians ad litem in the present case in District Court) by Judge Alsup (X2). It must be read very carefully, because on fair reading it can be seen to be highly deceptive and entirely lacking substance, and he preposterously brushes aside any of the evidence of state abuse ("never rises to the level of abuse or neglect in state care" (Q8) even when speaking of an unexplained black eye shown in photographs how many parents could get away with that?) He never actually says that\\zfinds a history of abuse and neglect by the parents, just reiterating SARC and the PDO claim that there is one (Q8). He merely recites the state's inflammatory repetitious groundless accusations that they criticize them for some unsupported "history of abuse and neglect". (Q9) "...DOS, SARC, and the Public Defender criticize the Golins", (Q9), or "DDS, SARC, and the Public Defender also contend.."(Q13) without referring to a single reasonable inference or the State's complete failure to meet its burden of proof of any such instance of abuse or neglect at trial. SARC had to dig back 20 years and more into their records trying to find any hearsay or gossip trying to establish that claim, ignoring reams of reports praising Mrs. Golin's care. Moreover, there was never any parental discord at all when it came to Nancy's care; the parents were always united on this subject. Nor "substandard care"; on the contrary (Q9).
Martin's "clear and convincing" standard cannot be justified. His principal findings relied entirely on now-excludable testamentary hearsay evidence formerly allowed by the Cal. Evid. C. § 1270) business records (hospital records) hearsay exception (see e.g. mention of Bason-Mitchell and Hay ward at Q7, QIO, Ql 1) to trump live testimony. Records relied upon by Martin in his conclusions exclusively cited highly erroneous hearsay by witnesses who never appeared or testified, rather than those that did, and therefore could not be confronted or cross examined. This evidence rule formerly condoned under the old Ohio v. Roberts, 448 U.S. 56 (1980) rule was since then effectively overturned by the May, 2004 Supreme Court's new rule held in Crawford v, Washington, 124 S.Ct. 1354 (2004), reinvigorating the Sixth Amendment's (U.S. Constitutional Amendment VI) Confrontation Clause, and for good reason as amply shown by this instant case. Martin could never have reached any of his findings without committing even more obvious mendacities under the new rule of Crawford, extended by analogy with In re Gault 387 U.S. 1 (1967) and In re Winship, 397 U.S. 358 (1970) to any nominally civil proceeding where a person faces a loss of personal liberty. Martin kept out evidence and testimony of medical error and abuse after hearing a valid offer of proof, and then claimed in his opinion that there was no such admissible evidence (Q9).
Martin's only serious contention of abuse centered on his most outrageous "finding" that the doctors that had misguidedly slashed Nancy's Phenobarbital seizure medication at Stanford Hospital the week she was taken, without the benefit of any medical history, throwing her into a week of seizures until a neurology con sult was called to restore her long prescribed dosages (T13) they were in fact the ones that were correct in their estimation of Nancy's medication levels as found in non-confrontable hearsay testamentary evidence [FN20] (Q10, Ql 1), not Nancy's permanent board certified neurologists (T20), or Stanford's own neurology consult (T14). This is an unreasonable inference given the resulting seizures, the only attempt to justify any finding of abuse, claiming that Nancy's mother had been overdosing her daughter. Had any of these medical reporters Martin relied upon such as Hay ward, Masada or Bason-Mitchell actually been made to appear, as did plaintiff/appellants' expert witnesses, they would have not even passed qualification as expert witnesses in these fields. Martin then proceeded from this faulty finding that Mrs. Golin's special knowledge of her daughter was "misinformed" [by medical experts] to conjure a scattershot of other increasingly preposterous findings such as "educate themselves on various medical topics from the internet" ("informed consent"?) (Q11), "dangerous non-compliance with physicians' directions as to medication" (none) (Ql 1) "the Golins' mistaken over confidence in their limited medical knowledge" (confirmed by expert witnesses) (Ql1-Q12), "willingness to shop around for a physician who will accommodate their demands rather than confront them"(she had only two neurologists in ten years) (Q12) "Mr. Golin's agreement with or acquiescence to Mrs. Golin's misinformed medical decisions" (Mrs. Golin made no medical "decisions" misinformed or otherwise) (Q12), or "Inability to get along with most professionals" (never with actual professionals), and absurdly faulting the mother for instances where she was overcautious and overprotective (merely suspecting "tainted salmon"(Q14) or "rubbing alcohol" (Q15) ("lofty standards [FN21] ") (Ql 1) all based on written hearsay records contradicted by live evidence. He also said that Nancy didn't seem aggressive, so the drugs must be working (App, infra 13a). Nancy was never aggressive in the first place, as her parents had testified. Martin even said Nancy's did not have a dislocated shoulder or perhaps the broken collarbone was merely an accident in spite of x-rays showing them plainly apparent even to the untrained eye and expert testimony (Q7, LI).

FN20. Martin cites, "The Stanford records, Exhibit AL, express concern about the critically high levels of Phenobarbital found in Nancy Golin upon admission on 11/15/01." This claim is nonsensical because it is totally controverted by the evidence admitted at trial, presented in this Appendix (T14), "level was Rood at time of admission".

FN21. Martin here expressing disapproval of lofty standards in favor of no standards at all for treating handicapped persons, as long as someone has some professional degree, which only means they are working for money.

Her parents testified that Nancy had suffered a burn injury in 1995, a tragic event they could not have foreseen, caused by a dress made of a now-banned highly flammable fabric. The unsuspecting parents were closely monitoring her contrary to Martin's presumption (Q14) [FN22]. Dr. Jerold Kaplan testified against any allegations of abuse or neglect (El, Ml).

FN22. The DA's office twice dropped prior investigations, finding this was an accident (B4, 5/7/01). No one prior to the end of the trial not even Street or the DA, had ever contended this was more than a terrifying accident or blamed the distraught parents.

Martin denied the parents' petition in favor of the State's for six out of seven requested powers of limited conservatorship over that of the parents, "without conditions or limitation" (Q17) and for an indefinite period (R5), starkly contradicting SARC's putative goals of "maximizing self-reliance and independence" (T10-T11). These powers prevent any future opposition to SARC abuse. A perfunctory one-year review required by Cal. Prob. C. § 1850 in 2004 relied on by Judge Alsup in his opinion (Exh. X) was never held.

J. SUCCEEDING PETITIONS FOR APPEAL

The parents filed for a new trial with affidavits listing extensive abuses of discretion, citing admitted evidence, errors at law, and irregularities at trial, a change of the trial opinion based on findings not supported by the evidence, judgment not supported by the findings (Exh. S). Martin denied it in January 2004 [FN23]. The Parents included this in their Request for Judicial Notice in the court below, in the record here.

FN23. The State at that hearing said that Nancy now has an undisclosed life threatening condition justifying their continuing custody; Martin thus ordered that State conservatorship orders be imposed during the pendency of the appeal contravening parents' cited Gold v. Superior Court of Mann County, 90 Cal.Rptr.161 (1970).

In December 2003, the parents filed a notice of appeal from the conservatorship orders in the State Court of Appeals for the Sixth District. That appeal was just dismissed for failure to procure the record necessary to appeal the state court decision, and consequent failure to file an opening brief, December 2, 2004, just as the parents were starting to procure the trial transcripts on their own.
The parents filed and were granted leave to proceed in forma pauper is (IFP) by the Court of Appeals. They then moved the court below to provide transcripts citing this Court's equal protection analysis of M.L.B, v S.L.J., 519 U.S. 102 (1996). That request was twice denied by the State sixth District Court of Appeals without comment, contravening the US Supreme Court's holding [FN24]. An alternate settled statement proceeding originally allowed by the state appellate court, which the parents were entitled to, was denied by Martin, leaving no alternative means of appeal with the use of a trial record. We contend this trial record would completely refute the erroneous findings of Judge Martin's Statement of Decision. We have now begun to struggle to procure them.

FN24. The parents analogized Conservatorship of Roulet, 23 Cal.Sd 219 (1979) contending Nancy had the same rights to a free transcript on appeal as an indigent criminal defendant, as both face a deprivation of their liberty.

K. CURRENT STATUS OF NANCY GOLIN

SARC is rapidly destroying Nancy. Her parents fear for her health and life. She is suffering from tardive dyskinesia from drugging (tremors, involuntary lip and tongue movements, head contracted towards shoulder, and muscle rigidity). Her hand often shakes from tremors due to the long term off-label use of psychotropics. The parents cannot have other doctors see her or obtain records from her caregivers. She still has seizures, but to maintain the pretense the parents negligently failed to control them [FN25], seizures are well concealed. SARC general practitioner Masada, who improperly resumed Zyprexa resulting in her being hospitalized in serious condition in February-March 2003 and lied about her condition, is still supervising her care. Her drugging is causing her edema, circulatory and heart failure. She urgently needs to be seen by a cardiologist, yet to avoid the damaging appearance of any urgency, doctor appointments are always scheduled as non-emergency routine office visits, and follow-ups are haphazard.

FN25. All epileptics have occasional breakthrough seizures despite proper medication (S41).

She is now bent over like an old woman and has imminent tooth loss from 20% bone loss due to osteoporosis due to the resumption of Dilantin for anti-seizure medication in November 2001 that the Golins warned against [FN26]. Where she used to appear completely normal in public and be able to run and hike all day and feed herself (J2) she is suffering from muscle rigidity and contractures from the psychotropic drugging to the extent that she can only walk and move very slowly. She still has had no urgently needed dental care for three years. The parents see signs she is still being physically and chemically restrained behind their backs. The parents are unable to protect their daughter in any way and are either lied to or told to mind their own business.

FN26. When S ARC dentist Santos echoed parents' earlier warnings of imminent tooth loss from Dilantin August 2003, SARC'S neurologist Gaskins advised switch to Phenobarbital alone, just as Mrs. Golin's neurologist did; SARC's nurse Wendt intercepted her to avoid vindicating Mrs. Golin.

It is mental cruelty to Nancy to be separated from her parents (E2). Nancy is always delighted to see her parents come and depressed to see them leave. Her security and innocent trust are battered when her parents appear, seeming indifferent to her plight by not responding to her desperate efforts to be taken home. This creates the appearance in her immature mind of rejection and collaboration of her parents in dumping her in State custody. SARC thus forces the parents to become accomplices in SARC's emotional abuse of Nancy. Except for caregivers, she mostly sees only retarded people.
SARC has done its utmost to sever family ties, barring parents at birthdays, Christmas, Thanksgiving, Easter, Halloween and family outings. SARC pressures careworkers and doctors to attest that the parents were disruptive or demanding, or to call the police or security if they show up, or just to claim they were called when they weren't, or pick fights with the parents, or twist accounts of events, for no reason at all even when relations were quite cordial, in order to continue concocting a false record. Visits have been terminated for many months at SARC's whim. Martin approved SARC-requested authority to impose supervised visitation [FN27] (P1-P3). SARC will not approve any neutral supervisor and will not agree to unsupervised visits, contrary to what is in Johnson's letter. SARC routinely incites arguments as justification whenever it appears the time has come to meet any of their promised goals, purely an exercise in dominance. SARC limits parents to one 4hrs/wk scheduled visit at Nancy's RCF only. The parents can walk outside with her for 2hrs/wk. only with a chaperone, but may not take her home. SARC agitates to further limit or terminate visits. The parents have not seen their daugh ter without supervision for three years and no end is in sight, despite SARC's original "plan". The parents' innocence does not matter. Neither the court nor SARC seriously attempt to justify these restrictions which seem only centered with SARC's obsession with preventing the parents from taking her to independent doctors or discovering her true condition (Exh. P), saying only "supervised visitation should continue for some period of time while the Golins adjust to the reality of a DDS permanent conservator ship (PI)". This is simply retaliation and triumphal muscle flexing against the parents using their daughter as a sword, for opposing SARC, and one way to stubbornly defend discredited past contentions without which their entire justification dissolves. Clearly these are Eighth Amendment (U. S. Constitutional Amendment VIII) violations that cannot remain unnoticed by the Federal Courts.

FN27. A thorough search of cases and statutes found no available authority for a court to impose contact restrictions between consenting adult family members under the applicable codes or cases, and we contend there is none. The only authority is SARC's power to control social contacts (R4#4): SARC's exercise barring familial association here is unconstitutional under the First Amendment (U. S. Constitutional Amendment I).

FACTS RELEVANT TO ISSUES PRESENTED

The most important fact to be presented is that at no time did either parent ever abuse, neglect, abandon, mistreat, or fail to care adequately for their beloved daughter Nancy, with love and devotion far above the call of duty and more than ample medical care, clothing, food and most importantly love, affection, and tireless devotion. No competent court could ever find otherwise, without serious abuses of discretion.

SUMMARY OF ARGUMENT

The court below erroneously granted defendants' motions to dismiss for failure to state a case under FRCP Rule 12(b)(6) after a single hearing, without granting appellant/petitioner's motions for leave to amend even once, without hearing any evidence, claiming that amendment would be futile.
We will show that proposed amendments would not have been futile, and that therefore dismissal without leave to amend or furnishing a notice of deficiencies, especially for a pro se litigant, was an abuse of discretion to be reviewed de novo.
The court below showed bias in favor of state defendants and against pro se litigants. Judge Alsup refused to follow the required due process to defeat his 28 U. S. C. § 144 challenge. It also erred finding that the parents lacked standing to represent their retarded adult daughter's claims as next friends despite clear qualification under Whitmore v. Arkansas, 495 U. S. 149 (1990) even though the state is named as a defendant and has abused her and refuses to act to adequately protect her legal rights. We will show the Court below refused to accept jurisdiction on erroneous grounds that this case was barred by Rooker-Feldman and Younger abstention doctrines, and ignoring that this Court could exercise collateral jurisdiction due to 28 U. S. C. § 1341 and. Mitchum v. Foster, 407 U. S. 225 (1972), granting original jurisdiction over federal civil rights and civil rights conspiracy claims. Finally we will argue that the court erred by hastily dismissing the parents own claims for malicious prosecution and tort damages based on an incomplete understanding of the facts and the law.

ARGUMENT

I. THE COURT BELOW ERRED BY DENYING PRO SE APPELLANTS FAIR OPPORTUNITY TO BE NOTIFIED OF DEFICIENCIES AND OPPORTUNITY TO AMEND ORIGINAL COMPLAINT.
It is well established 9th Circuit law to be clear error and an abuse of discretion for a District Court to deny a pro se litigant a fair opportunity to be notified of any defects in a complaint and be afforded a fair opportunity to amend under FRCP Rule 15(a), Armstrong v. Rushing, 352 F. 2d 836, (9th Cir. 1965), see also Noll v. Carlson, 809 F. 2d 1446 (9th Cir. 1987), Potter v. McCall, 433 F. 2d 1087, 1088 (9th Cir. 1970), Lopez v Smith, 160 F. 3d 567 (9th Cir. 1998), over'd on other grounds and reviewed at 203 F. 3d 1122. A pro se litigant must be granted leave to amend his or her complaint unless it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment" Broughton v. Cutter Laboratories, 622 F. 2d 458, 460 (9th Cir. 1980) (Per Curiam). Considering policy of liberality behind Rule 15, a court which fails to even consider motion to amend, much less grant it, has abused its discretion. Marks v Shell Oil Co. (1987, CA6 Midi) 830 F2d 68, 9 FR Serv 3d 593. No matter how unlikely it may seem that plaintiff will prove its entitlement to relief, Federal policy favors dispositions on proofs rather than on pleadings; plaintiff should be granted every opportunity to cure defects in its pleadings by amendment no matter how unpromising the initial attempt. Sixth Camden Corp. v Evesham (1976, DC NJ) 420 F Supp 709. Mandate that leave to amend be "freely given" is to be heeded. Roloffv Arabian American Oil Co. (1970, CA2 NY) 421 F2d 240.
Note that a party is entitled to amend pleadings once "as a matter of course" at any time before a responsive pleading is served. See FRCP Rule 15(a); see also Lipton v. Pathogenesis Corp., 284 F. 3d 1027, 1039 (9th Cir. 2002); Allwaste, Inc. v. Hecht, 65 F. 3d 1523, 1530 (9th Cir. 1995) (noting motion to dismiss is not a responsive pleading); Doe v. United States\ 58 F. 3d 494, 496-97 (9th Cir. 1995).
Here, however, the District Court held only one brief hearing on motions to dismiss for failure to state a case after briefing by both sides, on March 25, 2004, granting dismissal on FRCP Rule 12(b)(6) motions by several appellees, issued essentially no notice of any deficiencies in appellants' complaint and granting no leave to amend whatever [FN28], and provided little opportunity to argue the issues.

FN28. While the dismissal was styled by the District Court as a dismissal of a "First Amended Complaint", this "First Amended Complaint" was never actually amended but merely corrected for a filing mistake and there are actually no material differences between this original and the version which was used. This version was accepted and construed by all parties as actually the only operative original complaint that was considered in all the defendants' pleadings, (Exh. U, Docket #21, entered 2/4///04) a sort of "second original complaint", as noted by Judge Alsup himself (X3, fn2).

While Franklin v. Murphy, 745 F. 2d 1221 (9th Cir. 1984) carved out specific exceptions to the holdings of Armstrong, supra, allowing dismissals characterizing the complaint to be "frivolous" [FN29] under 28 U. S. C. § 1915(d) when the plaintiff is proceeding in forma pauperis (IFP), these exceptions are inapposite to the present case for two reasons: 1) Appellants are not proceeding IFP, and 2) the dismissal occurred long after service of process.

FN29. As Judge Alsup did state in oral argument, (VI9, 120).

II. THE COURT BELOW SPECIFICALLY ERRED BY FAILING TO GRANT PETITIONER'S REQUESTED LEAVE TO AMEND ORIGINAL COMPLAINT TO A VOID ROOKER FELDMAN BARS TO JURISDICTION
Judge Alsup in his Statement of Opinion mischaracterizes this case as "the second in a series of federal collateral attacks on a state conservatorship proceeding" (Exh. X, pi, line 19). He continues, "Mr. and Mrs. Golin filed the instant suitseeking, in essence, to reverse the order of the probate court appointing the state as Nancy's conservator and to restore Nancy to their custody" (Exh. X, p3, lines 2-3).
Plaintiff-Appellant and father Jeffrey Golin proceeding pro se without counsel filed this original complaint on October 23, 2003, erroneously mixing valid federal constitutional questions under 42 U. S. C. § 1983(5) and valid tort claims for damages, with relief which would require the overturn of state court conservatorship decisions. His understanding improved on further study that the equitable, injunctive and declaratory relief sought in his Section XXVI of his complaint is subject to bars by the Rooker-Feldman abstention doctrines and sought to separate out this relief to a different matter. Petitioner refiled a companion 28 U. S. C. § 2254 Habeas petition after exhausting state remedies as required in the State Supreme Court on December 29, 2003.
When various defendants filed motions for dismissal arguing Rooker Feldman and Younger doctrines, petitioner further understood this error and sought to narrow the scope of this complaint to the substantial federal constitutional questions in this civil rights action and tort damages which were not barred by appellate review of the state conservatorship petition, seeking instead to appropriately review the erroneous findings of fact and judgments unsupported by the evidence with the federal Habeas petition. Plaintiffs during February and March of 2004 moved the District Court for leave to amend the complaint to remove any issues that would appear to relitigate the decision of the state, even though valid exceptions to Rooker-Feldman exist here that we also argue may make this unnecessary. He repeatedly stated in his Motions our intention to separate out these matters by amendment. These defects were therefore curable by amendment, and amendment had already been sought in nearly all of Plaintiffs' Briefs in Opposition to Motions to Dismiss. Petitioners motions to cure these defects by amendment were ignored by Judge Alsup who ruled that amendment would be futile and dismissed this action without leave to amend. This was a material error by the District Court.
Judge Alsup is ducking very substantive federal questions by invoking the Rooker [FN30]-Fe]dman [FN31] and Younger [FN32] abstention doctrine, which are inapposite here, as we shall argue (See, infra, p36).

FN30. Rooker v. Fidelity Trust Co., 263 U. S. 413 (1923)

FN31. District of Columbia Court of Appeals v. FeWman, 460 U. S. 462 (1983)

FN32. Younger v. Harris, 401 U. S. 37 (1971)

The rational test for whether or not this lawsuit is truly separate from the state conservatorship matter or inextricably intertwined may be settled by answering the pivotal question: If the conservatorship had been awarded to the parents instead of the state, would there then still be any causable action pursued by the parents against the state for federal civil rights violations'?
We contend, absolutely yesl This litigation effort started months before the commencement of the conservatorship trial when the outcome was still unknown [FN33] . Even if appellants had won the conservatorship, we would have sued the state for the nightmarish constitutional wrongs committed since the period when Nancy Golin was originally illegally kidnapped and held hostage under color of law by the state without any legal authority as a flamboyant abuse of state process aimed at stopping this very sort of lawsuit against themselves, continuing right up to the present day. Many if not most of the offenses complained of here occurred long before the state conservatorship was imposed. (See, infra, p53) Judge Alsup and the state have thus conflated this civil rights lawsuit with the concurrent petition formerly before this Court for Writ of Habeas Corpus (No. 04-15922) also on appeal to the US Supreme Court in this regard, which he cites in his order (X3, fn3). This is a separate action in which we did seek here with substantial authority to review the erroneous decisions of the state court, as is "expressly authorized" by

FN33. Judge Alsup mistakenly infers from the coincidental timing of this lawsuit, that Mr. Golin filed this suit to appeal the adverse outcome of the state court conservatorship and the subsequent filing of this lawsuit (X3, fn2). In fact, deeply infuri-

Congress under 28 U. S. C. § 2241 (See infra, p54).
III. THE COURT BELOW EXPOSED ITS BIAS TOWARDS THE STATE AND AGAINST PRO SE LITIGANTS, AND PROCEEDED DESPITE A VALID DISQUALIFICATION CHALLENGE UNDER 28 U. S. C. § 144.
During the proceedings of March 25, 2004, Judge Alsup in abruptly dismissing petitioner's complaint for failure to state a case, unexpectedly blurted out shockingly biased statements, against pro se litigants and favoring the state. In a nut-
ated by these injustices to his daughter and motivated by his profound respect for the Constitution, Mr. Golin started interviewing civil rights attorneys for this case in February 2003, long before any state court decision. He hired attorneys in February and July, 2003 to pursue it. When they dropped the ball, he then studied for months on his own to learn how to file such a civil rights lawsuit pro se. Given the fact that he had no previous legal experience it should be apparent even to Judge Alsup that Mr. Golin could not possibly have slapped this complaint together out of thin air in only a few days shell, he stated with deliberate naivete that "if [the petitioners] had any kind of case they would have no trouble whatever getting a pro bono attorney, and that since they did not have an attorney there must be something wrong with their case". This means Judge Alsup presumes pro se litigants have frivolous cases. He extensively praised the Attorney General and expressed unquestioning confidence in the state. He then expressed blind faith in the deliberations of the state trial and appellate courts, implying thus that no further inquiry was necessary to presume the petitioner's case to be "frivolous".
Petitioners reacted requesting that Judge Alsup recuse himself for prejudice and bias during the proceedings. Judge Alsup declined and refused to refer the matter to another judge for a disqualification ruling, denying that he had shown any kind of bias. Plaintiffs then, filed a formal motion April 1, 2004 (Exh. W) to disqualify Judge Alsup on this and other substantive grounds, seeking to have the disqualification matter heard by another judge as provided for by 28 U. S. C. § 144, citing Liljeberg v. Health Services Acquisition Corp. 486 U. S. 847 (1987) [a judge may not rule on his own disqualification], Aetna Life Ins. Co. v. Lavoie 475 U. S. 813 (1986). The court below ignored this challenge, terminating the motion when the file was closed. Judge Alsup subsequently filed his Judgment on April 6, 2004, terming the motion as "frivolous".
Petitioners found that the objectionable statements heard in court supporting their contentions of Judge Alsup's partiality were missing or altered in the reporter's transcripts. We filed our FRAP 10(e)(2)(C) Motion for Correction of Transcripts, on October 4, 2004 before this Court. For brevity, more complete details of the facts, contentions and arguments are presented including a memorandum of points and authorities are presented there.
We therefore contend that the hasty judgment of the court below was either strongly influenced by its own bias, or improperly influenced by the biased and erroneous opinions of the state court judge then stayed by appeal, or both.
IV. THE COURT BELOW ERRED HOLDING PARENTS HAVE NO STANDING TO REPRESENT THEIR DEVELOPMENTALLY DISABLED DAUGHTER AS NEXT FRIENDS OR AS GUARDIANS AD LITEM
Judge AIsup ruled that the parent-plaintiffs have no standing to represent their adult retarded daughter in this action, stating that they failed the test for next friends or guardian ad-litem standing. This was a fatal error that goes to the root of this entire matter, as it denies Nancy any protection of her legal interests, and results in her being turned into what the U. S. Supreme Court in Parham v. JR, 442 U. S. 584 (1979) termed, "a mere creature of the state" (Id. at 603).
The US Supreme Court in Whitmore v. Arkansas, 495 U. S. 149 (1990), established a three-pronged standard that the parents clearly meet as next friends. First, as Nancy is a prisoner of the State and an incompetent adult lacks the capacity to represent her own interests she has an "adequate explanation as to why [she] cannot appear on her own behalf" (Id. at 163). Second, the parents are uniquely qualified as devoted lifelong caregivers as being "truly dedicated to the best interests of the person on whose behalf he seeks to litigate" (Id. at 163). This was a finding which even Judge Martin volunteered on the oral record, that there was no question that the parents were truly devoted to their daughter. Thirdly, the parents unquestionably have a very "significant re lationship with the real party in interest"(Id. at 164) having served as her competent devoted caregivers for essentially her entire life.
Moreover, the roles of a conservator are different from the role of a next friend or a guardian ad litem, and require different qualifications (see "Role of the Attorney/or the Alleged Incapacitated Person", Joan O'Sullivan, 31 Stetson L. Rev. 687, Stetson Law Review, Spring 2002) The role of a conservator is to protect the welfare of the conservatee, whereas the role of the guardian ad litem or next friend is to protect the legal rights of the conservatee, and only for an individual case.
Judge Martin never reached a finding of the parents' qualifications to serve as next friends or guardians ad litem, or that they would fail to meet any of the three Whitmore standards. On the contrary he stated in the record that they seemed to be truly devoted. Therefore no state court ruling need necessarily be overturned to find the parents qualified to act as guardians ad litem or next friends. Furthermore the District Court failed to proceed to the question of who should serve as guardians ad litem to protect Nancy Golin's federal claims if the parents were disqualified.
Thus her most basic First Amendment (U.S. Constitutional Amendment I) rights of familial association and liberty may be violated at will by the State if no other interested non-conflicted party may represent. The US Supreme Court's guarantees of her constitutional right to refuse anti-psychotic medication in Washington v. Harper, 494 U.S. 210 (1990), and recently revisited in Sell v. U.S., 539 U.S. 166 (2003) [FN34], rights that are available even to those who unlike Nancy have been diagnosed with mental illness, and her right to safe protection in State custody in Youngberg v Romeo 457 US 307 (1982), are mere empty promises in her case without her right to continued protection by her family being also constitutionally protected under the due process clause.

FN34. See also "The Right to 'Just Say No': A History and Analysis of the Right to Refuse Antipsychotic Drugs" Dennis E. Cichon, 53 LALR 283 (Louisiana Law Review) (1992), and "The Right To Refuse Antipsychotic Drug Treatment And The Supreme Court: Washington v. Harper", Jeannette Brian, 40 BFLR 251 Buffalo Law Review, Winter 1992

Two cases cited by the County in Docket #23, 2/6/04 actually cut directly on point against the defendants' favor. In United States v 20.64 Acres of Land, 795 F.2d 796 (9th Dist., 1986), this Court held:
"if an incompetent person is represented, it is only where the representative refuses to act or whose interests conflict with the person represented that the incompetent may sue by next friend." (Id. at 805) (emph. added)
But that is exactly the situation we find here. The State has a conflict of interest, because they themselves are named as defendants here, so to act would mean they must sue themselves for the past and present torts alleged. They have refused to act and are unlikely to act since the true purpose of this conservatorship is a flamboyant abuse of process to pre-emptively defend against a liability suit against themselves such as this by appointing themselves as Nancy Golin's exclusive legal representatives and supposed protectors, after having essentially kidnapped her, abused her civil rights, and injured and traumatized her Furthermore
" [ajlthough the court has broad discretion and need not appoint a guardian ad litem if it detennines the person is or can be otherwise adequately protected, it is under a legal obligation to consider whether the person is adequately protected". See Roberts v. Ohio Casualty Insurance Co., 256 F.2d 35, 39 (5th Cir.1958)."(id at 805)."
Secondly, the State's reliance on T. W. v Brophy 124 F.3d 893 (3rd Dist., 1997) during oral argument (App., Exhibit V, p 7-8) is misplaced. The County misreads T. W. to hold that the parents cannot "sidestep" the State's appointment of them as general representatives in Federal Court for the purposes of this lawsuit, even when it is absolutely clear that they have a direct conflict of interest. The discussion in T. W. (Id., at 895, 896) is highly recommended for review of the general topic.
The first problem for the T. W. plaintiffs was that they failed both the second and third prong of the Whitmore test, being found neither to be "truly dedicated" nor having any "significant relationship". The 3rd Circuit considered them "ideologically motivated" rather than having a "compelling interest", and thus sought a compromise. Furthermore,
"The terms [next friend and guardian ad litem] are essentially interchangeable, but "nextfriend" is normally used when the child [or mental incompetent] is the plaintiff, and "guardian ad litem" when the child is the defendant....[next friend] can be challenged as not being a suitable representative, just as a guardian ad litem can be. Garrick v. Weaver, 888 F.2d 687, 693 (1C?1 Cir.] 989)... If the general representative has a conflict of interest (for example because he is named as the defendant in the child's suit), or fails without reason to sue or defend (as the case may be) the child may with the court's permission sue by another next friend, or the court may appoint a guardian at litem for the child. In re Chicago, Rock Island & Pacific R.R., supra, 788 F.2dat 1282; Ad Hoc Committeeof Concerned Teachers v. Greenburg #11 Union Free School District, 873 F.2d25, 30-3J (2nd dr. 1989), Chrissy F. by Medley v. Mississippi Department of Public Welfare, 883 F.2d 25 (5th Cir. 1959); Adelman ex rel. Adelman v. Graves, 747 F2d 986 (5lh Cir, 1984); Roberts v. Ohio Casualty Ins. Co., 256 F.2d 35, 39 (5th Cir. 1958)."
The second problem for the T. W. plaintiffs was that their suit was not a § 1983 suit as the present instance so Article 5 expressly authorized grants of jurisdiction under § 1983 and as held in Mitchum v. Foster, 407 U.S. 225 (1972), as argued herein in §§ VI(B)(7) (infra, p53),VII(B)(m/ra, p55) which apply here were lacking in T. W. A third distinction was that T. W. actually was in fact a child custody matter properly encompassed by the domestic relations exception, so that jurisdiction was properly referred to the forum state, as the County appellee argues should apply here also. But that argument depends on whether the domestic relations exception applies to an adult probate conservatorship case such as this, and we contend that it may not. As we argue here in § VII(B) (infra, p55), the domestic relations exception has only been applied once in Hemon v. Office of Public Guardian, 878 F.3d 13 (1st Cir. 1989) to a probate conservatorship case such as this and would appear to have been overruled by narrow limits imposed by the U.S. Supreme Court in the more recent Ankenbrandt v. Richards, 504 U.S. 689 (1992).
Another circuit in Friedlander v. Friedlander, 149 F.3d 739 (7lh Cir. 1998) disagreed with T. W., finding that the domestic relations exception did not deter federal courts from exercising their jurisdiction, musing (at 740-741):
" held in Lloyd [FN35] that the domestic relations exception to diversity jurisdiction did not extend to proceedings that merely arise out of a domestic relations dispute; and any doubt about the validity of that holding was dispelled by Ankenbrandt [FN36]. Had Mr. Friedlander murdered his former father-in-law, the ensuing suit for wrongful death would not have been conducted by a domestic relations court as an ancillary proceeding to the original divorce case; and it makes no difference that, happily, he did not behave quite so egregiously.

FN35. Lloyd v. Loeffler, 694 F.2d 489 (7th Cir.1982)

FN36. Ankenbrandt v. Richards, 504 U.S. 689 (1992)

A conservatorship is an adversarial proceeding against the proposed conservatee to "suspend the civil and legal rights" and remove her personal. Here, Nancy's state court appointed attorney, defendant/appellee Malorie Street, advocated for and declines to appeal Nancy's conservatorship, or request a transcript of the oral proceedings that would disclose the truth of the matters contended before the trial court for one good reason, because she took a position adversarial to her own client to protect her own liability and possible criminality and railroaded her into this conservatorship. She refuses to act because she herself abused and injured her; see e.g., Chapnik declaration (N1-N6).
On each and every instance where they have had an opportunity to do so, or have been asked to do so, Defendants have repulsed all efforts to initiate a liability lawsuit, even when Santa Clara County Superior Court Judge Gallagher in November 2002, concluded that there was a cause of action and recommended that an attorney be sought by the Plaintiffs. Ms. Street has gone on record as turning away and threatening attorneys who would seek to represent Nancy's liability rights. She has suppressed investigations into Nancy Golin's reported injuries and obstructed discovery. They not only sought to oppose the Golin's petition and attack their credibility but opposed two other contesting petitioners and threatened to attack them as well if they continued to seek the conservatorship, and the trial court demonstrated an intolerance to any petitioner other than the state
Other courts have held similarly under such exceptional circumstances. Citing Gonzales ex rel Gonzales v. Reno, 86 F.Supp.2d 1167, S.D.Fla. (2000): (rehearing denied by 215 F.3d 1243 (11th Cir. 2000), cert denied by 530 U.S. 1270 (2000)):
"In Developmental Disabilities Advocacy Ctr., Inc. v. Melton, 659 F.2d 281, 285 (1st Cir. 1982), the First Circuit recognized that even when a plaintiff has a duly appointed guardian and Rule 17 (c) 'would appear to preclude suit by a next friend,' Rule 17 (c) actually mandates that the Court utilize its discretion to override the duly appointed guardian's position if necessary 'for the protection of the infant or incompetent person.' See id. Fed.R.Civ.P. J7 (c).
"Lazaro Gonzalez has illustrated his dedication to Plaintiff's interests in several ways: He has embraced the responsibility of prosecuting the instant case; he has cared for Plaintiff in his own home for more than two months, and he demonstrated sufficient interest in the child such that the INS itself placed Plaintiff in his hands on November 25, 1999.
Thus state actors may be sued in district court for constitutional claims under § 1983 by a special guardian ad-litem or next friend without imposing the burden of first reversing the conservatorship in state court.
V. COURT BELOW ERRED BY DENYING PARENTS OPPORTUNITY TO OBTAIN COUNSEL TO PURSUE GUARDIAN AD LITEM STANDING
Here, Judge Alsup dismissed Appellants case with prejudice because they had not yet retained an attorney to represent them, without granting them leave to retain one within a reasonable period of time. This was error and Judge Alsup should at least have dismissed it for this reason without prejudice. (Alternatively, the parents petition under 28 U.S.C. § 1915 (e)(l) for appointed counsel (Docket #27, 2/9/04, at p7) could have been granted at its discretion under these extraordinary and compelling circumstances.) Judge Alsup therefore clearly abused his discretion by denying the parents an opportunity to retain counsel as they finally have done. Here Judge Alsup cited Johns v. County of San Diego, 114 F. 3d 874, 876 (9th Cir. 1997) also see Osei-Afriyie v. Medical College, 937 F.2d 876, (3d Cir.1991); Cheung v. Youth Orchestra Found, of Buffalo, Inc., 906 F.2d 59 (2d Cir. 1990); Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986)
Judge Alsup granted Defendant County's motion for immediate dismissal of Plaintiff's complaint with prejudice without leave to amend. In Johns, however, as was pointed out in Plaintiff/Appellants' Brief in Opposition to County, Docket #27, 2/9/04, pi2, finding "the district court should have dismissed the complaint without prejudice, thereby giving Johns further opportunity to secure an attorney at some later time within the limitations period"(Id. at 876). The court in Cheung reached a similar conclusion (Id., at 60). The basic principle behind these rulings in all these districts on this issue emphasizes protection of the child or incompetent person's rights. Childers v. Mineta, 205 F.R.D. 29 (2001), "Pro se litigant should receive more latitude than parties represented by counsel to correct defects in service of process and pleadings". (Id. at 31)
Now the parents have obtained representation and could if granted standing pursue Nancy's claims on remand without denying her due process rights.

VI. ROOKER FELDMAN ABSTENTION DOES NOT APPLY HERE

Judge Alsup cites the Rooker-Feldman doctrine as barring appellate review of a state court decision by a lower federal court, (X9). We will argue that this was in error.

A. PETITIONERS MADE VALID APPLICATIONS FOR LEAVE TO AMEND TO REMOVE CLAIMS

BARRED BY ROOKER-FELDMAN AND YOUNGER WHICH SHOULD HAVE BEEN GRANTED

We repeatedly and clearly expressed our intention to amend and limit the present suit to our very substantial civil rights claims, removing the few claims that would require overturning any state court decisions, and clearly state that we were not seeking relitigation in this case of the state conservatorship matter, as much as we would have liked to have done so, to cure the defect which exposed us to Rooker Feldman and Younger abstention doctrines [FN37] . However, as stated in Section II infra, p58), the district court erred by dismissing the present case on appeal without leave to amend in this way, ruling incorrectly that amendment would be futile.

FN37. As we stated in our Brief in Opposition to Ms. Street's Motion to Dismiss (Docket #47, 3/10/04, p2): "At the risk of repeating this one critical point to remind the Court to please not be confused by the defendants misleading repetition here; that is emphatically NOT a conservatorship appeal."

B. EVEN HAD APPELLANTS NOT AMENDED AS PROPOSED, EXCEPTIONS TO ROOKER-

FELDMAN CLEARLY APPLY HERE.

1. THE STATE COURT TRIAL WAS A CONTESTED CONSERVATORSHIP PROCEEDING RAISING

DIFFERENT ISSUES SEEKING A DIFFERENT RESULT THAN RAISED HERE.

Citing, In re Gruntz, 202 F.3d 107, C.A.9 (Cal) (2000)
"In Pennzoil Co. v. Texaco, Inc. 481 U.S. 1, (1987), in which the Court required Younger abstention by federal courts pending resolution of the issue by state courts, five Justices expressly refused to apply Rooker Feldman to a federal cause arising from state proceedings. See id. at 18, 107 S.Ct. 1519 (Scalia, J., joined by O'Connor, J., concurring); id. at 21, 107 S.Ct. 1519 (Brennan, J., concurring); id. at 28, 107 S.Ct. 1519 (Blackmun, J., concurring); id. at 31 n. 3, J07 S.Ct. 1519 (Stevens, J., concurring).
All the constitutional issues raised here could not be raised in state court because it was a different proceeding seeking a different result raising different questions with different parties concerning different causes of action. The state trial court had only two questions presented: 1) whether Nancy Golin should be permanently conserved, and 2) if so who should conserve her, the parents or DDS (infra, pi8). This federal case presents different questions.
Otherwise, Nancy Golin's right to seek due process relief anywhere, ever again, from any tort damages in any forum in the future would be permanently barred merely as a result Nancy being reduced to involuntary servitude by the state in some other state proceeding, barring the door to a federal court. The state actors would thereby gain the permanent immunity they seek through such an action from their torts and criminal behavior. By the time the state court findings were hopefully rectified on those issues, Nancy would lose her timelines to sue due to non-tolled Statute of Limitations bars. The state could merely run out the clock on any damages they had caused and literally get away with slow murder of a perfectly innocent person, apparently without suffering any liability whatever.

2. THE PARTIES TO STATE COURT PROCEEDING ARE DIFFERENT FROM THE DEFENDANTS

HERE, GIVING FURTHER PROOF THA T THIS IS A DIFFERENT MA TTER.

Again citing Gruntz, supra,
More recently, the Court held Rooker-Feldman inapplicable to federal cases involving parties other than those before the state court, terming itan "abstention doctrine, under which a party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court." Johnson v. De Grandy, 572 £7.5. 997, 1005-06 (1994)".
In the contested state conservatorship case, In the Conservatorship of Nancy Go!in, Santa Clara County Superior Court No. 1-01-PR-151096 (Probate Division), the State DDS is one petitioner. The parents are also petitioners. Nancy Golin is the real party in interest. Beyond that, none of the 13 other defendants to this matter are parties in this state court action. Therefore per Gruntz, Rooker Feldman is inapplicable here. This supports the conclusion that "litigation" here simply is not the same litigation, and the issues being litigated here were not the subjects of the state court matter. The state conservatorship lacked the jurisdiction to litigate the present tort claims lawsuit, just as the federal court lacks the jurisdiction barring exceptional circumstances to litigate conservatorship claims. There was no question of liability damages raised in the state court, and Nancy's attorney Ms. Street was one of the many parties that injured her.

3. STA TE COURT DID NOT AFFORD "FULL AND FAIR" OPPORTUNITY TO LITIGATE FEDERAL

CLAIMS AND PROVIDE DUE PROCESS, REQUIRED FOR ROOKER-FELDMAN PRECLUSION TO APPLY

Moreover, for Rooker-Feldman to apply the state court must have afforded the litigant a full and fair opportunity to litigate his federal claims in state court and be provided with Fourteenth Amendment (U.S. Constitutional Amendment XIV) due process in such a proceeding. Citing Valenti v. Mitchell, 962 F.2d 288, 296 (3d Cir.1992) 'the Rooker-Feldman doctrine and claim preclusion will only apply when litigants have had a "full and fair opportunity to litigate their... claim instate court.' Nancy Golin was essentially kidnapped and held by the state without legal authority or due process (infra, p10). This act violates Nancy Golin's Fourth Amendment (U.S. Constitutional Amendment IV) right to be free from unreasonable personal seizure. The State clearly capitalized on its earlier constitutional abuses to deny due process when they finally got around to pursuing a legal avenue.
That at least one relevant abuse of due process is present here is clear as ruled by the US Supreme Court in Fouche v. Louisiana, 504 U.S. 71, (1992) The Supreme Court, Justice White, held that:
Louisiana statute allowing continued confinement of insanity acquittee on basis of his antisocial personality, after hospital review committee had reported no evidence of mental illness and recommended conditional discharge, violated due process. He may be held as long as he is both mentally ill and dangerous, but no longer. Here, since the State does not contend that Foucha was mentally ill at the time of the *72 trial court's hearing, the basis for holding him in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis.
Here we alleged that due process was never afforded to us or to Nancy in the state trial, or in the appellate proceedings. Witnesses and testimony were improperly excluded (infra, p21), discovery was obstructed (infra, fn 12, p16), constitutional issues, particularly regarding parental preference, were dismissed (infra, p19), the parents were forced to proceed without legal representation (infra, p18), and Nancy Golin had an adversary, defendant-appellee here Ms. Street, as a representative, who in a long pattern and practice denied her Sixth Amendment (U.S. Constitutional Amendment VI) rights, including her right to a jury trial on the issue of her loss of liberty (infra, p 15). Judge Martin acted as a timekeeper rather than a factfinder cutting off witness examinations long before completion12, and the pro se parents were for the most part held to a stringent rather than a liberal standard of evidence unfamiliar to them that excluded much important evidence, and permitted much non-confrontable hearsay testamentary evidence now barred by Crawford (infra, p24). Witnesses were seen being intimidated and threatened during recesses by Nancy's supposed attorney Street working against Nancy's interests during recesses15 (infra, p21), and the Martin court refused to stop it. Appellants were denied standing or constitutionally protected family preference from the outset to represent Nancy's interests, and therefore she was denied due process.
Furthermore the appellants are being totally denied due process on appeal, on account of the state court of appeals denying them either an affordable record of the oral proceedings on appeal (infra, p28), or a settled statement procedure (infra, p28), and due to the refusal of Nancy's supposed attorney to appeal her case or advocate on her behalf. Nancy's due process rights on appeal have also been blocked as Martin has exceeded his jurisdiction in unreasonably appointing the state as her permanent conservators without staying the judgment pending appeal barred by state statute except under very extraordinary circumstances not met here23 (infra, p27) (T1-T9)
These claims, to lack of due process, cannot be determined by the district court for purposes of settling whether Rooker Feldman can apply here, without proceeding to an evidentiary review on these issues, and that cannot be done without allowing the case to proceed.

4. PETITIONERS RAISED FEDERAL ISSUES IN STATE COURT, WHICH WERE NEVER ADDRESSED

ON THE MERITS AS THE STATE COURT EXPRESSED DISDAIN FOR FEDERAL CLAIMS.

Guarino v. Larsen, 11 F.3d 1151, 1161-62 (3rd Cir. 1993): "A litigant suffers no real harm by attempting to raise his or her constitutional claim in state court: if the state court refuses to address the constitutional claim, the litigant can then raise the claim in federal court without any jurisdictional, abstention, or collateral estoppel problems" Here, Judge Martin essentially told the parent-petitioners when they raised the question of parental preference, expressly disdaining and misconstruing the US Supreme Court's family rights holdings in Parham v. JR, 442 U.S. 584 (1979) (Exh. Q, p3) that he was not interested in constitutional issues, that if they wanted to raise constitutional issues they should "go down the street to the federal court", "we don't do that here". There was therefore essentially no discussion concerning the constitutional issue that the parents attempted to raise.

5. THE INJURY COMPLAINED OF HERE DID NOT ARISE FROM THE STATE COURT JUDGMENT

ITSELF.

Also, citing the discussion in Gerry v. Giles, 82 F.3d 1362 (7th Cir. 1996):
"In order to determine the applicability of the RookerFeldman doctrine, the fundamental and appropriate question to ask is whether the injury alleged by the federal plaintiff resulted from the state court judgment itself or is distinct from that judgment. If the injury alleged resulted from the state court judgment itself, Rooker-Feldman directs that the lower federal courts lack jurisdiction. If the injury alleged is distinct from that judgment, i.e., the party maintains an injury apart from the loss in state court and not "inextricably intertwined" with the state judgment, see infra, res judicata may apply, but RookerFeldman does not. While we have not always emphasized this aspect of the RookerFeldman doctrine (since thecontrast to res judicata was not usually at issue), it emerges from the fountainhead cases themselves and has been consistently respected in our application of the doctrine."
Here, this is the most relevant inquiry possible, because Nancy Golin suffered sexual and physical abuse and denial of her constitutional rights beginning in November 2001. The conservatorship trial took place in October 2003, almost two years later. The crimes and civil rights violations mostly took place before Nancy was ever conserved by the State by the October 2003 proceeding that the defendants' claim settled the issue in state court. Therefore the greatest harm being complained of cannot be the result of the state court proceeding, and at the very least this case certainly cannot be entirely dismissed due to facts alleged which took place prior to the conservatorship trial in October, 2003 as they could not be causally related to a subsequent event.

6. FEDERAL COURTS HAVE EXPRESSLY AUTHORIZED JURISDICTION ARISING FROM 28

U.S.C. § 1343(a) OVER CASES INVOLVING CIVIL RIGHTS AND CIVIL RIGHTS

CONSPIRACIES UNDER 42 U.S.C. § 1985

Here Appellants alleged sufficient facts to state a case in their original complaint that the various defendants here engaged in a deliberate, premeditated, coordinated and well documented conspiracy to deny the civil rights of Nancy Golin, a member of a protected class of handicapped persons established in cases such as Lake v. Arnold 112 F.3d 682 (3d Cir. 1997) following enactment of Title II of the ADA [FN38]. At this point the Court is obliged to "accept all allegations as true andconstrue those facts in the light most favorable to the plaintiff." Clegg v. Cult Awareness Network, 18 F.3d 754 (9th Cir. 1994), and allow this matter to proceed.

FN38. See, "Civil Rights Conspiracy to Deny Mentally Retarded Persons 42 U.S.C.A. 1985(3), 12101(a)(7), Lake v. Arnold 112 F.3d 682 (3d Cir. 1997)," 12 No. 9 FEDLIT 250, Federal Litigator, September 1997

The doctrine of Rooker and Feldman merely expresses the fact that Congress never "expressly authorized" the lower federal courts with jurisdiction to act as courts of appellate jurisdiction over final decisions of a state court as established by Article III, Section 1 of the US Constitution (U.S. Constitutional Article III, Section 1). Clearly, however, Rooker-Feldman does not apply to all State Court decisions. Federal Courts have been expressly authorized by Congressional to assert jurisdiction to review state court decisions in bankruptcy, tax and habeas corpus writs (28 U.S.C. § 2251), where it is well settled that Rooker Feldman does not touch the writ of Habeas Corpus See Plyler v. Moore, 129 F.3d 728, 732 (4th Cir.1997); Ritter v. Ross, 992 F.2d 750, 753 (7th Cir. 1993); Blake v. Papadakos, 953 F.2d 68, 71 n. 2 (3d Cir. 1992). They have also expressly authorized district courts to assert original jurisdiction over cases involving civil rights and civil rights conspiracies (28 U.S.C. § 1341). Therefore these allegations constitute a properly stated case not barred by Rooker-Feldman abstention, (infra, p36)

VII. YOUNGER ABSTENTION DOES NOT APPLY HERE

A. THE ISSUES AND CLAIMS IN THE PRESENT CASE ARE DIFFERENT FROM THOSE IN THE

STATE COURT MATTER

In Rubin v. Smith, 817 F Suppl. 995 (1993) (cf infra, p63), the court ruled,
"...The matter of whether plaintiffs were deprived of their constitutional rights by events occurring in New Hampshire is not before the Connecticut court, which will hear the divorce and custody matters. Abstention is not warranted in the present case, under the Younger abstention doctrine, because this court's decision will 'not enjoin or interfere with any state proceeding [which is] pending' Rivera-Puig v Garcia-Rossario, 983 F. 2d311, 319 (1st Cir. 1992). 'The present situation is not the type contemplated by the Younger abstention doctrine.' Id at 320."

B. SECTION 1983 EMPOWERS FEDERAL COURTS TO EXERCISE JURISDICTION IN

COLLATERAL PROCEEDINGS NOTWITHSTANDING YOUNGER

Citing Miofsky v. Superior Court, 703 F.2d 332, 338 (9th Cir, 1983):
"However, civil rights actions under Sec. 1983 are among the exceptions to the Anti-Injunction Act that have been "expressly authorized by Act of Congress," id. Mitchum v. Foster, 407 U.S. 225 (1972) Thus, as Mitchum makes clear, Congress has not rendered federal courts impotent in the face of an infringement of constitutional rights by the judicial arm of state government. As the Court said in Mitchum, "[t]he very purpose of Sec. 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights - to protect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or judicial."' 407 U.S. at 242, 92 S.Ct. at 2162 (quoting Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879) (emphasis added)).
In light of Mitchum, we conclude that district courts have subject matter jurisdiction over suits brought under Sec. 1983 even when the state action allegedly violating plaintiff's federally protected rights takes the form of state court proceedings. Accordingly, we hold that the district court erred in dismissing Miofsky's claim for lack of subject matter jurisdiction.
"In determining whether to expand the Younger doctrine to make it applicable to civil litigation generally, we must bear in mind the fundamental principle that federal courts have an "unflagging obligation" to exercise their jurisdiction. Tovar v. Billmeyer, 609 F.2d 1291, 1293 (9th Cir.1980) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976).
"This obligation is particularly weighty when those seeking a hearing in federal court are asserting... their right to relief under 42 U.S.C. Sec. 1983." 609 F.2d at 1293. Although Younger and its progeny teach us that principles of federalism and comity sometimes offset this obligation to entertain civil rights actions, the doctrine of abstention remains 'an extraordinary and narrow exception to the duty of a district court to adjudicate acontroversy properly before it.' County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 (1959) (quoted Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976)). To extend the Younger doctrine to encompass conventional civil litigation would effectively permit the exception to consume the rule. In addition, we note that such a transformation would drain Mitchum v. Foster of all its vitality by emasculating the exception to the Anti-Injunction Act that Congress created in enacting Sec. 1983."

C. YOUNGER FIRST PRONG IS NOW NO LONGER SATISFIED, STATE COURT APPELLATE

PROCEEDING IS NO LONGER ONGOING

As of last Thursday, December 2, 2004, appellants received word the Sixth District Court of Appeals dismissed plaintiff/appellants' case by denying him an extension of time to complete the procurement of the trial transcripts on his own, and then denying him a motion for an extension of time to file an opening brief based on those transcripts, needed by petitioners' attorney William Gilg for an effective appeal of the false findings so necessary here in this case.
Due to the burdens of litigation the parents could no longer pay for transcripts on their own until recently, and repeatedly told the State Court of Appeals so in motion after motion. They began to procure them last month, but too late according to the Sixth District. As previously stated herein, the transcripts should have been provided to satisfy due process and equal protection requirements either to Nancy Golin or to her parents free as IFP litigants, see infra, p27, this raises significant federal constitutional questions. The State Court of Appeals has now barred access to their courts with a direct contravention of the US Supreme Court's M.L.B. v S.L.J., 519 U.S. 102 (1996), of due process and equal protection. Therefore, unless the parents appeal to the State Supreme Court for review or are able to get the dismissal vacated, the first prong of Younger is no longer currentlymet the state case is no longer ongoing and no federal court interference with an ongoing state matter is implicated. The State Appellate Court thereby dismissed the case without ever reaching the merits, when it appeared most likely that a factual basis finally could be presented on appeal.
Furthermore, the jurisdiction of the lower superior court is not, as Judge Alsup optimistically presumed, continuing. This is not like a family court or juvenile court matter. A required and perfunctory - one year review that Judge Alsup cites (Xl1, line 14) did not take place in November, 2004 (not that it would have been that effective since Judge Martin has rubber-stamped literally everything the state has done so far, and he apparently is challenge-proof in Santa Clara County Courts), and Judge Martin appears to mean what he says when he states that the conservatorship is "for an indefinite period of time" (R5). Therefore the state appeal is not ongoing and jurisdiction not continuing.

D.DOMESTIC RELATIONS EXCEPTION DOES NOT APPLY HERE AS EXEMPLIFIED BY RUBIN,

ANKENBRANDT, AND THOMAS SO FAILS THE SECOND PRONG OF YOUNGER

Here Judge Alsup dismissed Plaintiff's case defendants' Rule 12(b)(6) motion on grounds that the federal courts should abstain due to the "domestic relations exception" vaguely asserting without explicitly citing this rule (X11) satisfying the "strong state interest" second prong of abstention rule under Younger v. Harris, 401 U.S. 37 (1971). Judge Alsup cites three cases in his judgment (Id at 11) to support this contention, H.C v Koppel, 203 F.3d 610, 612 (9th Cir. 2000), Coates v. Woods, 819 F2d 236, 237 (9th Cir. 1987), and Csibi v. Fustos, 670 F.2d 134, 137 (9th Cir. 1982). He circumvents explicit invocation of the "domestic relationsexception" by merely claiming, "[f]amily relations are a traditional area of state concern". (X11) This vagueness is necessary because a closer analysis shows that this argument is unsupportable due to several factors that render this case inapposite to domestic relations.
The so-called domestic relations exception which established family relations as a traditional area of state concern is rooted in dicta contained in Barber v. Barber, 62 US 582 (1859) which Congress has left undisturbed for 150 years. It was revisited in In re Burrus, 136 U.S. 586 (1890) which Judge Alsup cites in the dismissal of the Habeas matter for the proposition that: "[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States," (Id., at 593-594)
More recently however, the US Supreme Court reviewed this question in Ankenbrandt v. Richards, 504 U.S. 689 (1992). Ankenbrandt held that the "traditional area of state concern" aka domestic relations exception was narrowly constrained to areas concerning "divorce, alimony and child custody disputes". It specifically held that in cases involving tort claims that the Younger doctrine did not implicate an area of strong state interest dictating federal abstention, even when there was an ongoing interfamily dispute in state court.
A closer reading of the three cases cited by Judge Alsup shows that these involve traditional areas of family law, divorce, alimony or child custody, i.e., family law or juvenile law matters. This is true of both Barber and Burris as well. In fact the domestic relations exception to federal jurisdiction is an exception to the diversity jurisdiction rule. The citation above from Burris, when closely read incontext of the case itself, appears to be an overreaching interpretation when applied to all matters merely involving families.
Here, there is no diversity jurisdictional argument. There is no interfamily dispute to settle. The parents cohabit and therefore do not live in separate states so there is no diversity issue. There is no ongoing divorce, alimony or child custody dispute between them. Both parents have always been united in their view of what is in their daughter's best interests. Neither parent has abandoned his child to the state, or has given up custody, or has failed to provide for her, or ever declined to show interest in her life. They are totally involved in her life and care for her deeply, and have long demonstrated their ability to care for her. The only dispute here is between the family and the state, not between family members.
Furthermore there is no dispute between the child and the parents. Nancy Golin has said in every way she knows how that she wants to continue to live with her parents at home. The state recognized that when they removed her, saying in APS records that "if somehow the clients(sic) found where nancy placed by sarc, and showed up the RCF manager would have a hard time keeping them away, and keeping them from taking nancy if nancy wanted to go with them" (B5, 11/16/01 (Kinderlehrer)) (infra, p 11), and Nancy's affectionate demeanor with her parents was unmistakable even to the State (infra, p.27)
The kind of "child custody" matters embraced by the domestic relations exception cannot be construed on close reading of all cases available for review to be anything but family court and juvenile court matters. The kind of "child custody matters" envisioned in the domestic relations exception have never been the kindinvolved in this present case. It is not even a "relations" question, because here the court is not obliged to look into the relations between family members, who are united in purpose and viewpoint. Nancy is an adult, not a child, and therefore subject to the laws of probate, not family or juvenile court. The only state laws that apply to her are those of the state Probate or Welfare and Institutions Code, and these are not subject to traditional abstention by federal courts. Her associational and liberty interests are fully vested absent a conservatorship order, which she is entitled to resist as a constitutional matter.
A search of cases found only one case which held, from an extension of Burris, that a conservatorship fell into the realm of domestic relations: Hemon v. Office of Public Guardian, 878 F.3d 13 (1st Cir. 1989), presumed the subject matter bar to federal Habeas jurisdiction held in a conservatorship matter, principally from a reading of Burris (infra, p.58). The 9lh Circuit has never reached any case finding that conservatorship matters are precluded by the domestic relations subject matter jurisdiction exception. Indeed Ankenbrandt could be viewed as overturning the rule of Hemon. The Matter of Heldris, 1 996 WL 382916 (N.D. Cal 1996) involving state abuse of an elderly conservatee cited by the County at the March 25, 2004, hearing (V5) which the court below dismissed under the domestic relations exception clearly would rightly have fallen under Ankenbrandt if it had ever risen to an appeal in this Court.
"The mere existence of a family involved somewhere in the dispute does not in and of itself automatically render it a domestic relations case",
quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814(1976)
In Ankenbrandt itself, although the Supreme Court acknowledged the existence of a domestic relations exception to federal jurisdiction, it held that this exception did not preclude the federal courts from hearing damage suits stemming from domestic relations issues. Rather, the Court ruled that the domestic relations exception only "divests the federal courts of power to issue divorce, alimony, and child custody decrees," matters which the state courts "are more eminently suited" to decide, and over which the state courts possesses "greater expertise," than the federal courts. Id, at 2215. Ankenbrandt also stated (Id at 705):
"It is axiomatic, however, that "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976). Abstention rarely should be invoked, because the federal courts have a "virtually unflagging obligation... to exercise the jurisdiction given them." Id., at 817, 96 S.Ct., at l246".
Here the usual arguments weighing in favor of state court jurisdiction over family or child custody matters are not compelling, nor do they implicate strong state interests. First it could hardly be said that the state courts have established special expertise in such an unsettled area of the law as this case of first impression. A case such as this, where a parent continues to serve as a caregiver of a developmentally disabled child at home far into adulthood is not unheard of but hardly commonplace enough for any judge to develop "special expertise", or to clog federal dockets. It would be an extreme stretch to call any all-purpose superior court judge, such as Judge Martin, who never previously heard a case such as this in probate and professed indifference to constitutional arguments on record, an expert in these unsettled areas of conservatorship law. It was Judge Martin who attempted to impose unconstitutional and statutorily unauthorized supervised visitation limitations and numerous other unauthorized and irrelevant requirements such as "pay all debts" or "obey all laws" or "establish a history of gainful employment for at least two years (as if we weren't already)" or "reestablish all vehicle and contractors licenses" on the parents (Exh. Q, pp15-17) treating this case as if this were a family law or criminal, or traffic court matter, when no statutory or common law authority vested him with the power to do so under the Probate or Welfare and Institutions Codes.
Further, considerations of finality and permanence in settling child custody disputes normally for the best interests of a minor child in establishing secure and nurturing emotional bonds with a parent during childhood do not apply here (see e.g., Lehman v Lycoming County Children's Services, 458 U.S. 502 (1982), Santosky v. Kramer, 455 U.S. 745 (1982). Nancy Golin was already permanently bonded with her natural parents through a lifetime of trust and protection, and the states unwarranted intrusion has only disturbed what was there before to her emotional distress and abuse. She sees us coming and going, and knows we are still alive and well and therefore appears to feel betrayed by us, with all her security and emotional supports of a lifetime ripped from her.
A legal treatise (see "The Domestic Relations Exception to Federal Jurisdiction: Rethinking an Unsettled Federal Courts Doctrine" Michael Ashley Stein, 36 BCLR 669 (Boston College Law Review, July 1995) argues that federal judges merely invoke the domestic relations argument here as a solution to their congested federal court dockets, and perhaps to their perception that family mattersare unpleasant and messy.
Three cases (including Ankenbrandt) illustrate how federal courts have asserted proper jurisdiction over cases such as the instant case when it clearly appears that the litigation involves exclusively a federal or constitutional matter involving tort claims rather than viewing them as domestic relations cases.
In Rubin v. Smith, 817 F Suppl. 995 (1993) there actually was a child custody case pending, and yet the District Court correctly perceived that the case before it was a civil rights complaint separate from the child custody decisions in state court. (See infra, p54)
In Thomas v. New York City, 814 F. Supp 1139, E.D.N.Y., (1993) we see:
"Mother and her children brought civil rights action against city, city foster care officials and foster care contractors, alleging that children were physically and emotionally abused while in care of city foster care system .... Here it was ruled that 'domestic relations exception to federal subject matter jurisdiction did not apply to action based on alleged sexual abuse of children while in city's foster care programs and alleged interference with mother's and children's familial relations when children were separated from mother'.
The defendants view plaintiffs' case as a disguised attempt by Yvonne Thomas to regain her parental rights previously terminated by the New York family court and to recover custody of her children. If this were so, the domestic relations exception might well apply; but defendants' reading of the complaint in this regard is wrong
... Plaintiff does not request that this Court issue a decree ordering the state to return to her custody of her children or to restore her parental rights for one thing, because she has had them restored.
"...Under the federal Constitution, there is a constitutionally protected liberty interest in familial relations. Stanley v. Illinois, 405 U.S. 645 (1972); Hurlman v. Rice, 927 F.2d 74 (2d Cir.1991); Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977). Moreover, questions of visitation between a parent and her child placed in foster care may implicate this liberty interest. See, e.g., Winston v. Children and Youth Servs. of Delaware County, 948 F.2d 1380 (3d Cir. 1991), cert, denied, [504 U.S. 956], 112 S.Ct. 2303, 119 L.Ed.2d 225 (1992); Blair v. Supreme Court of Wyoming, 671 F.2d 389, 390 (10th Cir.1982). Thus, the adjudication of whether the state's procedure used to separate a parent from a child complies with the constitutional due process requirements is squarely within this Court's federal question jurisdiction and does not entail any investigation by the federal court into the fitness of the parent to care for the child or the issuance of any decree that the parent must necessarily be reunited with the child."

E. THE COURT BELOW ERRED HOLDING THAT THE THIRD PRONG OF YOUNGER IS SATISFIED

HERE, HOLDING THAT DUE PROCESS WAS NOT DENIED IN STATE COURT PROCEEDINGS.

Judge Alsup's holding here fails in every respect to consider the factual background of the serious and ongoing due process and equal protection denials by the state court in this case, as we have already amply argued in Section VI (B)(5) herein8, 12, 15 (infra, pp27, 49, 52 64).

VIII. THE COURT BELOW ERRED FAILING TO CONSIDER PLAINTIFF DISMISSAL SATISFYING

HECK FA VORABLE OUTCOME PREREQUISITE FOR PARENTS' CLAIMS OF MALICIOUS

PROSECUTION.

The court below erroneously dismissed the parents' own claims for violation of their civil rights based on claims of malicious prosecution.

A. THE COURT BELOW ERRED PERMITTING DEFENDANTS TO INTRODUCE NEW ARGUMENTS AND

FALSE FACTS AT THE HEAR ING WITHOUT SUFFICIENT OPPORTUNITY FOR PLAINTIFF RE

BUTTAL OR BRIEFING ON THE FACTUAL BASIS

Judge Alsup permitted the defendants an opportunity to introduce new surprise arguments and false facts not previously briefed with sufficient notice in any of their Motions to Dismiss regarding the parents own claims, at the March 25, 2004 12(b)(6) dismissal hearing. Mr. Golin was thus not notified that the opposition intended to bring these issues up, and therefore had not responded to them in his reply briefs. Then, when Mr. Golin attempted to respond, Judge Alsup cut him off and would not listen, nor would he permit him time to brief him accurately on these new issues. Judge Alsup hastily dismissed Mr. Golin's claims. This is impermissible.
Judge Alsup thereby sustained County's false contention that Mr. Golin had made a final plea of guilty to a state charge of Cal. PC 368(c). and therefore the DA must have had sufficient probable cause to have charged him with dependent adult abuse, which he then presumed to be the "underlying criminal matter" for the permanent removal of his daughter from her family. Neither the facts nor the conclusion are supported here.
Here is the history Judge Alsup did not wait to hear. First, that both parents' charges first of all were simply groundless and no abuse or neglect ever happened, as the DA finally conceded after a 14 month in-depth investigation. There never was any "long history of abuse and neglect", or evidence of parental unfitness shown, despite the State's efforts at reaching back 30 years into their archives of hearsay reports. The criminal prosecution was maliciously pursued without probable cause as an attempt to aid SARC in their conservatorship bid in their conspiracy against Nancy. In November 2002, the DA first reduced all charges to a misdemeanor with only a slap on the wrists. The parents would still not plead to any charges.
Then on the day of trial, January 28, 2003, the DA trying again to salvage something struck a final bargain. If either of the parents, it didn't matter which would initially plea nolo contendere to only one count of supposedly allowing Nancy Golin to wander away one time, on November 14, 2001, he would drop the charges against the other parent immediately, and agree to drop the charges against the other parent in 6 months. The remaining parent would be allowed to withdraw his nolo plea and enter a plea of not guilty under the usual provisions of Cal. PC 1203.4(a) (O13) and his case would be dismissed with full expungement of the record and exoneration. The DA had already reduced them to a misdemeanor under Cal. PC 368(c) (O10), and the DA amended the complaint to remove all clauses of that statement that claimed abuse or willful neglect (O10, O33). It was stipulated in writing in the order that this outcome would have no effect upon the conservatorship petition. (O9-O32) The no-contact orders were immediately dissolved (09, O23, 024, O32).
Mr. Golin, deeply concerned with the immediate safety and welfare of his daughter, and wishing to save his wife and Nancy's mother from unnecessary emotional trauma of a trial, volunteered to agree to these terms and plead nolo contendere with the only supporting probable cause being that Mrs. Golin (?) had supposedly "let" Nancy wander away one time, on November 24, 2001 (O21, lines 6-15). Had it not been for the stipulation that this outcome would not affect the conservatorship, or that there would be a dismissal of his own charges in 6 months, he would not have agreed to this. Mr. Golin followed the advice of his attorneys that there would be no long term consequences to accepting this agreement in either the conservatorship or any succeeding lawsuit for recovery of damages, and that he was giving up nothing of substance other than a $100 fee as long as the terms of the agreement were followed.
Mr. Golin simply completed the 6-month period, and then was allowed to change his plea to not guilty so his charges could be dismissed on August 9, 2003 (O6). Therefore, all charges against both parents were ultimately dropped after both parties plead not guilty, in Mr. Golin's case as is normally provided by Cal. PC 1203.4(a) (O13). The order of August 9, 2003 states that Mr. Golin's record is expunged and Mr. Golin is exonerated (06). It is hard to see how a more favorable outcome could be required of them.
Judge Alsup said, "You plead guilty apparently" (V11). Not only was that not true, but that was not even the end of the story. Mr. Golin tried to explain that he initially plead nolo contendere, a distinction relevant in criminal court, but not admissible in a collateral civil case. Here, a nolo plea as he understood from his attorneys is not the same as a guilty plea for purposes of a civil suit because it involves no admission of supporting fact Mr. Golin admitted nothing, because there was essentially nothing to admit. Judge Alsup also ridiculed Mr. Golin for failing to include the DA Randy Hey as a defendant (V9), implying that Mr. Golin had sued everybody involved - hardly the case. Mr. Golin could have added this defendant if it were necessary and if leave to amend had been granted.
In fact it is likely that evidence of Mr. Golin's initial nolo contendere plea would be inadmissible under FRE Rule 403, which permits relevant evidence to be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....", or under FRE Rule410, which provides in relevant part as follows: "[E]vidence of the following is not, in any civil... proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:...(2) a plea of nolo contendere;"
In Heck v. Humphrey, 512 U.S. 477 (1994), the US Supreme Court held that:
y(3)27in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid... a §§ 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a fed eral court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. (512 U.S. at 486-87) (footnote omitted).
Thus the parents had satisfied all the Heck prerequisites of having their own charges exonerated and expunged.

B. THE TORT OF MALICIOUS PROSECUTION WAS COMMITTED AND IS CLEARLY SHOWN IN THE

A VAILABLE RECORD

Malicious prosecution in civil as well as criminal law is grounded in the common law of torts, a prosecution for an improper purpose, a purpose other than that which is purported, as was done here. Here, the prosecution's probable cause was frivolous and insufficient to warrant the degree of prosecution, and was done for an improper purpose.
In fact, we now know from a reading of the record that petitioner's claim that close coordination existed between SARC, DDS, APS and the DA's office for an improper purpose amounting to a conspiracy goes far beyond mere speculation. When Nancy's § 5250 hold was denied, and SARC lost all legal right to continueto detain her, DDS and SARC placed phone calls to the Santa Clara County District Attorney to enlist his help by pursuing criminal prosecution of the parents when DDS attorneys initially declined to pursue a temporary conservatorship in December, 2001, ("DDS emphasized the DA and the TRO") (B14-B15) merely as an alternative means of holding Nancy in illegal custody while DDS completed their conservatorship bid.
Records of Liske/SARC plotting to conserve Nancy against her parents' wishes as an reflexive pre-emptive tactical response to a feared legal action go back to 1993 when her mother removed her from an abusive SARC program, again on 7/19/99 when SARC was caught by Mrs. Golin claiming Nancy as a client to receive State money when she had not been a client for over six years and threatened to blow the whistle on SARC (B17), and finally on 4/13/01 (B2).
The improper true purpose pursued by prosecutors was to conspire with state officials in gaining conservatorship of the daughter and thereby hopefully immunizing these state actors from prosecution and litigation, by disqualifying or delaying her parents from contesting the state's petition through trumped up criminal charges and depletion of their resources needed to fight. The conspirators' motive is in part to profiteer from the exploitation of handicapped children through special state funding programs, receipts of Social Security payments, and a spectrum of other available federal subsidies, and in part to protect their state monopoly power by regularly making examples of any parent that dares oppose them. The group home industry has become a extremely lucrative big business seeded with corruption, exploitation, kickbacks and waste, with the state DDS alone receivinga budget of 6 Billion dollars per year. The motivation to remove a child from a family is exactly the same as that of a corporation seeking new customers. Thus, instead of state officials providing welfare for disabled children, disabled children are being forced to provide welfare for state officials.
In addition, child protection workers such as defendant have duties analogous to a prosecutor and may thus be held liable for malicious prosecution. Citing Zubiate v. Sonoma County Social Services Dep't, 1997 WL 154395, N.D.Cal., (1997) "When social workers are not acting under the supervision of a court, however, they may only claim qualified immunity, Caldwell v. LeFaver, 928 F.2d 331, 333 (9th Cir.1991) (social worker transported children out of state without filing petition with court or seeking hearing before judicial officer)."

C. MOTHER'S OWN CLAIMS OF MALICIOUS PROSECUTION WERE ERRONEOUSLY REJECTED BY

COURT BELOW

Mrs. Golin, however, was not obliged to undertake any such a burden as Mr. Golin. Her charges were summarily dismissed entirely on January 28, 2003, after her plea of not guilty was granted. (11) Judge Alsup therefore had no excuse whatever to hastily dismiss her claims for failure to state a case, nor did he provide a reasonable explanation for doing so.

D. THE PARENTS CLAIMS FOR MALICIOUS PROSECUTION WERE DISMISSED ON ERRONEOUS

GROUNDS THAT PROSECUTORS HAD SUFFICIENT PROBABLE CAUSE TO CONTINUE PROSECUTION

When the parents received copies of the police report, they realized that the police, S ARC and APS falsified most of the evidence they cited. Attorneys for the parents provided prosecutors with letters, affidavits and information that the caselacked probable cause (discussed in depth, infra, pi 2). After that, prosecutors knew of should have known that the case lacked probable cause for the original warrants.
After providing the information the prosecutors still refused to discuss the case with the parents' attorneys. The only specification made in the warrants against the parents was a literal restatement of the statute penal code 368(c). Parents' attorneys persisted in asking prosecutors to furnish a bill of particulars on what precise acts they were charging the parents with, but they received nothing, and ultimately never did. Instead, after being notified their original case lacked merit, prosecutors kept plodding along with the case for 14 months, seeking to dig up other probable causes to give time to DDS. Thousands of pages, a small file cabinet of medical records, SARC and APS records were subpoenaed and pored over by prosecutors, the parents and their attorneys, showing clearly evidence of the parents innocence and state guilt in abusing Nancy Golin and her constitutional rights in state care.
More discovery needed to oppose the conservatorship was barred by prolongment of the state's criminal case, the restraining orders and the inaccessibility of their daughter or her records. State actors here appear to have believed that the ongoing groundless criminal charges against the parents would disqualify them from pursuing any claims of their own for conservatorship and prevent them from opposing the state's petition until it was too late. Ultimately after all this the only probable cause which could be claimed was one charge of Mr. Golin supposedly letting his autistic child wander one time (infra, p66). Cast in perspective with thestate's performance in controlling Nancy's AWOL in state care of 138 times in one year (H4-H6), (infra, pp66) this charge faded into insignificance and triviality.
When before Hon. Judge Gregory Ward in a probate hearing on Nancy's conservatorship on October 15, 2002 (infra, pi3), with prosecute Hey in the gallery as a spectator, they were asked by Judge Ward "did you tell the DA about all of thisT" Mrs. Golin responded, "I did better than that, your Honor. I had Nancy's doctor write a letter which was sent to the District Attorney [repudiating these claims]". This clearly put the DA on notice. Judge Ward's and Mrs. Golin's comments were washed out of the transcripts with large chunks of comments incriminating to many of these state actors.
In Zamos v. Stroud, 12 Cal.Rptr.3d 54, Cal (2004), the tort of malicious prosecution is discussed:
An attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause, that is, one that any reasonable attorney would agree is totally and completely without merit. See 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 452.

CONCLUSION AND RELIEF SOUGHT

For all the reasons stated above, we appellants and petitioners hereby request that
1. The district court's granting of these defendants' motions to dismiss under FRCP Rule 12(b)(6) for failure to state a case for which relief can be granted be reversed and remanded to another judge to grant leave to amend and allow the matter to proceed.
2. That the petitioner's previous Motion for Emergency Preliminary Injunctionfiled March 18, 2004 (Docket Entry #61) for declaratory and injunctive relief of State Officers under Ex Parte Young 209 U.S. 123 (1908) be permitted to be heard.
3. That we be granted standing to represent our daughter's claims either as next friends or guardians ad litem.
4. That this Court direct the completion the oral record of the state trial court in accordance with the Supreme Court's M.L.B. v S.L.J., 519 U.S. 102 (1996) to augment the record here to resolve the truth of the matters contended necessary to accurately qualify or disqualify Plaintiffs as guardians ad litem or next friends.

STATEMENT OF RELATED CASES

There are currently no related cases before this Court.
Jeffrey R. GOLIN, Elsie Y. Golin, Nancy K.Golin, Plaintiffs-Appellants, v.
2004 WL 3155788

Briefs and Other Related Documents (Back to top)

• 2005 WL 516589 (Appellate Brief) County Respondents' Brief (Jan. 20, 2005)Original Image of this Document (PDF) 
• 2005 WL 516590 (Appellate Brief) Appellee Nancy J. Johnson's Answering Brief (Jan. 19, 2005)Original Image of this Document (PDF) 
• 2005 WL 627252 (Appellate Brief) Joinder of Appellee Edna Mantilla, Individually and Dba Embee Manor (Jan. 17, 2005)Original Image of this Document (PDF) 
• 04-15900 (Docket) (May. 10, 2004)
END OF DOCUMENT

(C) 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.