die after being impoverished essentially his family was impoverished and they took these is child and or his other brothers and siblings out of the hole that's undisputed we have put forth facts foster care home she  stablished policies through an expert witness stronger identified an extra when she was actually hired by the governor of the data in two thousand identify problems within this foster care system this acidic auster care system in our county after rash that were in foster care and he identified several policies and procedures that were not adequate and yet they had not changed a single policy or procedure since that time and yet they continue to have those policies adopted as all cs and then again we're now dealing with even with those policies in place the employees that were involved in this particular action there are facts that indicate that they did not follow their own policies in order to be able to be deliber well as the individuals involved in this case and the policy makers those policies are not changed since that period of time and that's why when you have these problems these cases are kids continue to die in the foster so does mr cotton specify outlined in his report the specific policy but i can talk about set of actions i think is the important part at this particular stage there were issues of disputes that were clearly raised by the plaintiffs i'll give you an example for instance bars the licensing of this particular home and remember my client my client's child was was placed in the zone just a month or so or two months after they got license it is a brand new license home and wire is represented that neither of them had any have license this home if she had known these facts yet miswire is tested by the bureau that she actually told mrs agent about this prior to licensing that is a genuine issue of material  medical condition and yet that is a question of material fact the judge just didn't completely in light of the counting and said the county said they didn't know about this therefore they didn't know about this but yet there's have ample get the prove causation how do you between that and  is clearly a question of fact of the jury all we have to show is that there's evidence to show that the question is foreseeability of harm and the whole point of why you don't license a home that has people who have physical condition medical conditions is because they can be overwhelmed and yet they put a child with special needs into this hall that's under two years old against their policy and then they put our child into this home a nd challenger two years of age into a mason's a home that should be licensed and yes they did put that kid into that home she would have been killed obviously you know so there's really causation issue is your arms and again the whole the whole crux of this appeal your honor is that we did not have an opportunity to present these these facts to a jury that would be able to make the determination of whether or not it was foreseeable whether or not they the county's actions rise to that level and clearly this family was overwhelmed and contrary to a pelleas argument  analysis where it's just is that a doctor okayed of them to serve as us or parents so you can't look at this in a vacuum you have to look at the whole process and this is what our expert says our expert puts forth the reason you can't just look at one particular issue to question using your home like this you have to look at the entirety the circumstances she went to a doctor she told the doctor i'm probably ok she didn't specifically say yeah everything's fine oh by the way she also does that all the medications we know that she was on you go to the home they see medications here if you take all the evidence and in favor of the plains it that she has medical problems they have concerns and are expressing are overwhelmed us with the fact that they have these two kids and it's county did absolutely sure so the deliberate indifference comes in very very succinctly then a photograph of pictures of medications don't ask about it don't ask who's they are don't ask what they're for they have a testimony from the person saying i told her we were in a crash on narcotic pain medications in this home and they do nothing about it there needs to be more than just any of your doctor's scenes is ok the point is that is the quintessential purpose of what the foster care a social workers  it sure that they're in a hole that is safe and it's going to be an environment that's that's going to be able to foster that relationship but they can and again we're not just talking about the medical care we're talking about the fact they're overwhelmed they asked for they asked for resources and she said you know what you testimony from the actual foster mom that she was working two jobs he was working two jobs they were doing a paper route together in the middle of the night and sometimes he would have to take the children and shuffle them at midnight in order to go back and forth between one job  another there wasn't always so on they had the opportunity be able to watch things isn't that was the problem so to answer your nd question is what to do with them there are other alternatives that you could have done to place this trial st of all you could have actually left them in the home of the parents and that's what our expert witness proffered by the way he said it should not have been removed and this all because of the lack of resources they had that's a bursting the nd thing is we actually identified it it was six or seven other auster homes that were available that could have taken this particular child and then lastly of course you have a child needed which is the the group the syllabi that they can equip this child and there is many other opportunities other do it other than admit a child into a home that already has a child under two years old and put their nd child under two years old into a home that had never had children before that had just recently been license and that was screaming to them saying hey look we're overwhelmed there is a better alternative for this child and this is not a good alternative and ideally so they were deliberately difference of her  not been ruled upon our position is that does a leaven one hundred plus pages are not part of the record they were not before judge horton and there are they are not to be considered on appeal in large part of what mr ganns has preferred to is in that supplemental so this court cannot consider it i'm going to do my best to go through each of the individual things that were raised by the justices you yourselves as well as mr ganns policies they didn't identify any holes there's nothing in the record there are no there's no argument regarding any policies and the court is correct there has to be terminal liability there has to be a policy customer practice there's no evidence of that whatsoever also  his expert well they only made one argument regarding the answer that was that was the patient on an application is a basis for denial of a license it doesn't mean you have to deny a license but it is eleven dollars argument it's not fair to say that judge gordon did not consider the expert report he did he consider the expert report as it was presented to him he's not required to read each and every page in each and every word if they're not signed to it and not arguing dispute any of the evidence that was presented that the child was removed because she was left with her six the lanes unsupervised h two trial on multiple occasions those are the fast with respect to the removal into the experts the discussion about reviews that have been done in card county again not arguing or presented before the court yes the report was attached that was years earlier there's no evidence that that was still the case  talking about am here she was placed in the home before the parents were trained she was not placed in the home before the parents are trying to go and that's something the expert got wro is that's the end of the discussion yes they indicated they had other issues yes they indicated they had other medications they never just as they were on mass as she had had a cold on her pain or inflammation as needed while he never just  absolutely did not and we fully briefed that she indicated that the struggle started happening the last week the week that m and di her last contact with any d f s employee was temper seventeen and september th and what is she contacting them about she wants to foster and adopt the other six kids she not only wants to two kids as she has in her home now she wants six other kids how does that indicate to the apartment that she is overwhelmed or that they can't handle it in fact they had already started weekend visits for some of the children they were already having more than two kids in the home and visiting with with them what's the how is that not a factual dispute that he's saying you know myra told employees and you're saying they didn't  wires mr and said that she told him that they were struggling absolutely did not do that in fact we asked her specifically did you tell the county that in reference to his physical condition or answer was i don't remember and that's clearly in judge horton's order and number of times what marijuana it was and daycare that was her decision she wanted some day care but she never a client for the day care there was a child care subsidy available she never could apply for it therefore she didn't even seek the daycare help that she wanted so this isn't a question of the county or its employees not providing the support this is a question of the juarez's making certain decisions they decided not to apply for day care they decided not to tell the counties these situations side not to call and ask for resident care they decided not to call and say we can't take care of em please take her back they decided mr juarez was going to get the medication as opposed to the mom the foster mom who was a parent professional and had training with children and giving medication and testified that she could have been the one to get the medication but they decided that mr morris was going to do that so if you can't  so i mean this is kind of the where you're presenting this it sounds like a factual dispute are you saying that the foster parents decisions  were subjectively aware of x from which a difference could be drawn i was substantial risk of serious harm and they either actually were drew that in france or a reasonable official would have done that and that a reasonable fishel would not have done that in this case binding nevada and ministry of code says no more than two and in this case there were no more than two in other words they filed the cut code which is the law that they have to file not only did they file that  she was appropriately supervised and i'll break that down with respect to the licensing the wires as we're trained they had no prior abuse history and there were no legal bars to there being license even accepting that that's what she said she i believe testify that she told that to let me agent who was responsible for licensing and not supervising but even so i lenny you can testify to the opposite and even if you accept that there's a disputed fact and you accept that that's the case the question is is the fact that someone is on pain medication is a substantial risk of serious harm to m m if we make that conclusion that's go apply to a lot of people parents and foster parents that there's no evidence that that's the case nor is there are there any case law that says if someone's on pain medication that that creates a substantial risk of serious harm even so the only record not license or says listen there are some things she didn't know about and there are some things that she knew about at this point i don't have it from me so i can't really specify but even if she knew that there was pain medication that doesn't create a substantial risk of serious harm to the child children were in the homes i think in one case there had been abuse from period of ten years  we have no prior abuse history we have no complaints by anyone while any of the children are in the home dating back to the st child boy three all the way up through the i m m's tragic death so you have no nothing that would create notice or knowledge on the part of the defendants of a substantial risk of serious harm to require them to do something and even if you look at the fact that the last visit wasn't timely which we can see that did not cause and instead of twenty five days later we have the parents seen her twice after that was no issues regarding the child no medical episodes no medical records no abuse complaints or anything like that so technical problems items gas please yes and i think the big question would be very simply answered is that this let this house would never have been licensed they violated their own policies a policy that was put in place to protect children you don't put a child in a home that is  unsafe and she said she would not have license this home she would not it in there that is deliberately indifferent to the subs substitute due process rights of my clients so the other thing is to with regard to the visits i did mention this but she mentioned that you know they just and the nd time and the rd time all within thirty days they would have been there the week before and there would be able to see whether or not mr juarez was having problems of missile he says he was only having a problem week four which we don't contend but again it's a question that we've raised