the the facts are in short order here the t f was a fourteen year old boy who had been abused by his stepfather it's desirable bush who ends up eventually murdering  in this case it is alleged in our complaint that there were complaints made to child protective services of mahoning county and that they were aware of the complaints regarding the abuse to the minor t f a further the complaint alleges that there was communication or complaints made by the struthers police department to child protective services and that those  complaints were warnings were unheeded and in fact the child protective services did not cooperate with the investigation by the struthers police department i restate those fracture on her because it's important that to know that this case was decided at a judgment on the pleadings level and the cases cited by the apple lees and its brief are cases that dealt with a summary judgment this in this matter is i believe the district court applied sort of the bright line standard of the sheeny when it said is it action or in action rather than taking a look at the more flexible approach that this court has adopted in kolta where this court along with the the court of appeals for the seventh circuit talk about is the person less safe than they were prior to the the the alleged decision in this case not to intervene not to take any further investigate tory action that ch services we argue was compelled to in action call it a right you would create that there in action is the issue here no no no i don't your honor i mean in action at the district court level that's what the judge had ruled upon was action versus an action but as is judge posner said in the seventh district in the slade case the term affirmative act appears in some of the cases but as unhelpful all acts are affirmative including standing still when one could not could save a person by warning have of some impending danger and it was similar where this court in kolta made the decision that not to engage in this metaphysical  action or are thought process of trying to determine when a failure to act might turn into action or vice a versa is it even judge posner i think took the stance that we courts have to in order to get in action to be equated with and action you know in an in action in action we decide that using another question whether or not this child what what was done by the child services what was not done did it happened did it increase the risk to this child or the danger that he was in direct and in court the court answered that in and in a couple ways says no i didn't well i don't believe the court below answer that question they just looked at action vs inaction and did not look at the actual factual complaint itself in because it was a judgment on the pleadings mean we said that complaints were made to children protective services struthers police department made complaints to child protective services they then did not cooperate with that and we make the argument that in the complaint itself that that failure to act that conscious decision that deliberate indifference put it it's the equivalent your honor of of an arsonist a serial arsonist who continues to put out to start fires because that jurisdiction is not enforcing arson in did your complaint allege that it increased the risk to the child by not acting the complain alleges that because of the failure to act he was put in a more dangerous situations that more dangerous it was because i mean i guess the bigger question is did you actually have that allegation that judge smarts q i say as it's quoted in judge leroy's decision by looking at your complaint itself which is very short so you could perhaps tell me where the complaint says it's paragraph or back to paragraph four the paragraph for which i'm looking at says t f was identified to arnold as an abuse child are was obliged to report and investigate are now concluded that this was an accident and so concluding arnold acted in derogation of his responsibilities under ohio law and you say further arnold's inaction with regard to notification that t f was an abused child increased t f susceptibility it increase do you do you give any specific thank you for ways that it increased his susceptibility to future harm thank you for your systems and yeah ok that is the language the first it's the judgment on the pleadings and so we're alleging that it's the increases up the ability going back to what i mentioned to to justice cook the the issue is that you're condoning this action if you're if you continue to abuse t f in the front yard or in the teacher see it complaints are made to child protective services unlike all to unlike smithers where this is the actual job of this entity is to protect children is your argument in conflict with disini from the u s supreme court but it's not in conflict with the cheney i think because it not in conflict with to cheney but i think over time including this this court in colton has refined as and i think that's exactly which at this court uses in call to that we refine the test instead of just having that bright line test of action in action this court says we're going to look at that in context with the  safety no worse put in a more jeopardy at that point that's what happened in court cultism quoted in the smithers case that is specifically in particularly on the judgment indifference that were alleging that was created by children protective services so what about the impact of it taught from the supreme court about the specificity that you need to have been your complaint in other words i  understand your point that this is that summary judgment and that's that's a perfectly valid and good point but don't you have to have under which we are bound by don't you have to have some indication of how that wasn't enough and a shame in dish amy was five four with a very strong dissent from justice blackmun about poor joshua and how joshua was let back in the control of the bad person who killed him or made him incapable of enjoying life in any way so i really have trouble seeing why your complaint meets even and i keep looking i'm looking and we looking at you're talking on the to decision and it says well in action versus affirmative act let's not quibble about that but it still says there has to be an increase in the risk and you're right the paragraph or says it increased it but then we've got the problem of you're on i'm not sure you know without you know almost speculating as you or putting in quoting a social service worker quoting an expert in my complaint at that stage to to sort of bolster the notion that by not responding to the arsonist not responding to the abuser this man's are all bush was able to freely abuse t f and no one came to his aid even when the police called even when the teachers made the complaints the neighbors made the complaint they didn't take any action and that that increased the susceptibility of t f to future harm at that point in time that is it without putting in some i recall to to suggest that this court moved away from that action in action standard to further refine that test that you no longer have to have just action in action you have to say is there in because and  say what you have to say is he less safe now than he was before this this thing happened but let's say how your do you say that in paragraph four i say he susceptible to for future violence is what i say in paragraph saying it increased his susceptibility but i don't understand given to shane how allowing a child to be retained in the custody of an evildoer is increasing the child susceptibility because i'm bound by dick cheney i you know i didn't decide to cheney but i'm bound by it but this this court has moved away from t does allowing a child to remain in the parents control increase the risk as opposed to just maintaining the risk it increases the risk because the person is no once no one's company or he dealt with that and said that is an unwarranted inference did she not she did say that your honor but this is still judgment on the pleadings i suggest the need of inference to prevail i i think she's making that and you're making the point right now it in bold and him correct wasn't there's a case it may be written in your opinion it made him more susceptible to it made him more same thing violence housekeeping that says that and that was a case where arguably it's worse in that the police returned the young woman to her abuser so they had the young woman in their custody and they returned her to the abuser and she and further abuse so doesn't how do you deal with that case i think in the book koski it wanted summary judgment on because not judgment on the pleadings that's the please the court my name is frank scaled down and i represent david arnold's industry cheney the court held that the fact that the state returned a child to his parents did not increase the child's risk of harm because the state quote placed him in no worse position than in which he would have been had he not acted at all and i think that that that addresses many of the arguments that are being made here the question that the sixth circuit asks is whether is did david arnold create or increase the risk to which t f was exposed and there's no allegation that that is that forth in cult right that is and that's to to look at refining we do it yes to refine the to refine the test in cases that i think you know the words difficult to apply and some cases which i would suggest this is more group falls on more of the easier case in this regard where that's the in action side of it but that is the test increase did the did whatever the state official did or didn't do increase the risk of h correct so looking at paragraph or of the complaint the last that arnold's in action increased t f susceptibility to violence and abuse why is that not enough and the motion for judgment of the pleadings i think as you pointed out or other judges that it is a legal conclusion that has no explanation on how that would be so i mean i saw some of the cases that have been cited by opposing counsel that came from other districts the kind of pushed the boundaries of what constitutes an affirmative act and there was one i think that came out of new york state where the police knew the abuser and in front of the the  abused victim and the abuser mainly abuser kind of assured them nothing's going to happen here you know you know we're not going to prosecute you know we're not going to arrest you and that even though the police did nothing it was that factual allegation that would upset the district court's ruling so so really it's a ball and the problem that you're saying that that last sentence of case in terms of that but in reality i think that that is that may be what it boils down to there's other i think pleading problems that maybe not be quite as significant as that one but the one that a that i noticed was that you know obviously the plaintiff must affirmatively show that the plaintiff has and title to would leave not merely consistent with a claim for relief and when i was looking through the complain paragraph four it talks prior to january twenty sixth two thousand and thirteen t f was a den of fide arnold as an abused child then in paragraph five it says on january twenty fourth t f the claim because you have another day in there that he could have been notified after the the the act the abuse occurred but i think you know the main the main problem is there simply is no allegation of fact that supports that kind was stepfather who went to prison for his criminal conduct and there's no allegation that that he increased the risk or factual allegation because  that that risk already existed process claim the procedure due process claim is that there is a set of laws statutes and ohio that call for an investigation of framework if there is an allegation of abuse  after is just that type of person who was entitle to that that process that was created by the state of ohio when there is an allegation otherwise we end up almost always with a situation with child services where their response can be we didn't know we took no action and that's the safer means for the child protective service agencies to say we didn't know anything that was going on we stopped no steps to do an investigation why isn't that a state law claim as opposed to a federal procedural due process because clearly if the state people were not following  state law it's in the state's interest to have the state law claim that validated their right i believe since i brought this under eighty three your honor i added it to this to this point i do believe it could be a state law claim as well though similarly and i think dick cheney actually gets to that point in the disini argument saying we're not saying to cheney doesn't have other claims available to him procedural due process and other potential state tort claims because you want to see procedural due process claim here is a waived is it not by virtue of your failing to answer you failed file of response the that claim i think the cord in his decision addresses that issue procedural due process i said some cases in my my brief as to why it's not waived  of this matter be remanded at this level back to the trial court so that the estate of ted can go forward and further develop the case and that it was the wrong time to to dismiss this case on