concerning facts to help illustrate that conduct and we could do the same thing here for the pre hearing conduct which involved all three defendants six percent six facts help illustrate that the their placement recommendation was caught just shocking one they needed the angel was happy driving and meeting her milestones with blackwell two they knew that y m bod were both abused as children with whites abuse continuing through her teenage years it even into adulthood three they knew that white was physically abusive toward her mother which is similar to did the t d case where father was abusive toward another family member for they knew that white had four psychosocial factors that  severely impede safe or effective family functioning five they knew that white had one hundred mental health issues including it admitted need for counseling and six they knew why and bond thought almost daily sometimes with screaming and yelling a reasonable jury could conclude that their recommendation in the face of these facts and the other set forth in the brief was cotchery shocking for the placement hearing and post hearing conduct of defend stewart six additional facts help illustrate the conscious shocking nature of her condo was and she did not tell the magistrate that white was under twenty one but did not have an age a waiver that similar to the courier case not telling the court about father's irresponsibility two she did not tell the magistrate concerning information about dog and why despite having the opportunity that similar to not volunteering information in the courier in t d decisions three she did not investigate angel coming home sunburned hungry dirty and being unhappy and withdrawn and having to pretty for blackwell that similar to the b i see case for she did not investigate why trip poor the angel was bruised running into a kitchen counter when angel could not even yet crawl that similar to the failures to investigate and courier and johnson and five she failed to significantly intervene when the august th meeting showed that angel had deteriorated reasonable jury could find that stewart's conduct in these instances and the other instances was conscious shocking and all three defendants conduct was at least as caught just shocking as that in courier johnson an context we look to see whether the social workers exercised professional judgment is that also the principle factor in determining  shocking event of the day created danger and if not why would why would there be any difference i believe that there's a slight difference with the danger creation you're also looking at sure of the danger you're putting the child into and it only goes toward up to the point that you put the child into danger whereas with the special relationship you're looking at the entirety of the relationship but i think that does factor probably into both at least when you're dealing with professionals like social workers and what they would be expected to know about the danger based on their professional judgment and here we have evidence that they they failed do you actually size even abdicated their professional judgment based on the expert reports from a planner sexperts it to make sure you seem to be agreeing that if they did exercise a professional judgment then they would not be liable under either theories your point here is they illustrator help color whether they should have recognized or did recognize the danger whether it would be obvious to that in their professional capacity by think the elements there are somewhat different and in that case did they recognize the danger i think that's a separate element from the failure to exercise professional judgment by the knowledge they would have as a professional would i the failings of the defendant through the placement there's a there's a question of whether the claims of this kind before the place that their participation in the other failing during that period of time and because the placement well after the play spent you have the it's mostly defending stewart after the placement you have her unnecessarily and unreasonably hastened which put additional pressure on white and the child didn't give enough time for the child to adapt and to assess the situation  those were not investigated and instead stewart said well look she's just trying to sabotage the transition sure you have that feeling you have the running into the counter example continuing during these meetings in july and august a continued deterioration of angel and is particularly evident at the aug th meeting the  you know look and you'll seem to be doing better when we st brought her here she's whining hysterically getting upset for no reason sitting in the corner and rocking and whining and there's no prompt intervention they don't move to take the child away they don't move to maybe go back into a transition they don't insist that white get immediate counseling and white their spirit is asking for help she say hey i need help there says the overwhelming that wasn't  properly provided and that was an abdication of her responsibilities and they d already know you have to consider everything she knew going into this outw as her relevant conduct before she testified at the placement hearing on june th i just want to make sure not missing something is there anything before she testified that we should be concerned about mostly it arises out of her testimony she was involved she did visit angel a couple of times with blackwell and said that blackwell was doing fine she had no concerns with how in jail was developing with blackwell  but her conduct of for our purposes for our concern really has to do starting with the hearing where she recommended to the judge that angel be transferred and so let me turn to the hearing  there's some suggestion that she might have misled the judge about the safe house study but my question is how that could be when the judge started the hearing by saying he had read the report well i think there's there's two particulars he did indicate that he had he had reviewed the report at some point sent may nd which was a couple  months earlier than the hearing so it's not clear how much he or how thoroughly he read it or how much he remembered or if he understood the import of everything that was in there and i think it's important that once you didn't point out the absence of an age waiver or the absence of an age wave your white was under twenty watch you didn't point that out or point out that there was no age waiver and stance you just said that white was approved to be a foster parent and two she didn't call d the information to the magistrate's attention and i think it's important in the courier case this court said look it goes to conscious shocking conduct that grand did not point out that father was financially responsible but that information was already in the record because a different social worker and courier had put it in the petition true of the child so you the social worker still has the obligation to call that information to the attention of the place in court and i understand your point eleven last question about mr or this has to do with the danger creation theory not the special relationship there but the danger creation why wasn't the district court correct that she can't be held liable under danger creation for her conduct hafter the court hearing because she didn't engage in that firm and the danger creating contact it did you disagree with the district court's analysis on the danger creation theory as to ms toward a little bit i  being requested to do so by blackwell in this court looked at the courier if inaction if it's tied to action or prior action or subsequent action can be part of danger creation so i think that goes up to the point of where the transition was completed i think once the transition is completed and angels full time with white bonded at that point i think the court is correct thank you then i don't have any questions thank we're asking this court to affirm the district court i'm going to go very quickly and then open up to questions because counsel has raised a lot of questions which i'd like to respond to but let me just say this is what we see the case is about this is a case where all the a pelleas did what they were supposed to a diligent search was done a home study was done can was properly considered and attachment assessment was done the decision went to a full placement hearing the transition plan ordered by the court was created and followed and the placement was properly supervised all of these  made difficult recommendations based on the facts and their experience they followed policies and practices there were no material emissions and they exercised their professional judgment now professional judgment can differ from professional to professional but it cannot be said that they abdicated their professional judgment or they did not behave in a way that was not conscience shocking there just is no conscience shocking behavior here when you look at all the cases that counsel cited all of those involved things like repeated abuse repeated referrals that go on investigated deliberately hiding facts from the court out of a fear for a job multiple instances of failure to file follow policy instances where the social workers didn't do supervis is they did everything they were supposed to do and in fact in many cases as pointed out in our briefs they didn't more it really comes down to did they do their best based on what they were observing st hand so so on the address this in two different manners st with respect to that incident and this was something that was self reported during a phone call with with the foster can mother miss white  she talked to stewart on various occasions on the phone in addition to the various in person visits that took place over the two months this involved a phone call where she called  child hit her head and bumped into a counter playing tag i don't know that it matters whether the child could crawl or not because we don't know the facts what we do know is miss to or talk to her and within several days i don't think it's more than a week she's out there for a personal visit anyway the other allegations that were mentioned where that the child came back from transition visits sunburn dirty hungry that sort of thing is there are there were in every instance d h h s workers who were there observing things when the child was turned back over from a transition visit what is important is when there w there's no there's no record that any of them noticed the sunburn or the dirty or the hungry and in any event iran or i don't know that those are the kinds of dangers i mean kids get sunburned they get hungry i think what's important is as i was saying before when there were instances that were significant of abuse they were investigated when there was the bruise incident and that's not in a balance brief but it was something that judge kane relied on when he looked at the totality of the circumstances which i think is what you have to do when dealing with professional judgment and conscience shocking behavior those instances ward were investigated and resolved and say in one case even the police got involved so all of those were were proven discredited if if that answers your question not yet formalized the process where the child was taken from the birth parents so i don't know exactly what you mean by legal custody but the child was in their custody that's not disputed they were doing the supervisory functions during that time period and the father of the birth father at that time was still going through the state court appeal process he wanted the child back that had not yet been resolved that was another reason why the can was considered in case the child needed to go back to the family member one other point just if i can jump back to judge hearts this question and that is if you look at the the gutteridge case that spend cited in our briefs that talks about an instance where the child i think falls back in a bath tub and gets a bruise and the court specifically said that was not enough to indicate any kind of lack of professional judgment or conscience shocking conduct apologize for jumping back and i want to put that out there if just one other thing counts on on the question of danger creation you're posing counsel has argued that we need to look at the conduct of each defendant as a whole do you agree with that no you cannot look at the conduct of each defendant as a whole well i take that back you can certainly look at the conduct of each defendant for example you can look at all of mr to conduct or all of mr johnson's contacts but you cannot aggregate that and that's the harvard case you can't aggregate that into it you know putting it all together and putting it on one defendant or the other they have to stand on their own but yes you can look at all the things they did does it play and here and in the agency personnel performing their job that they have the colorado law giving  is st of all in the colorado regulations which govern the counties the st thing that they have to do and that is mandatory is to something called a diligent search that has to start within three days and they are required to go out and try to find different can placement options that then continues every six months throughout the life of the case while they retain custody so the question then becomes it's clear that they definitely have to look for can so there's also what's called a can preference that then shows up in the regulations and this is both national state and local and the question i think you're asking is what does a quote can preference mean i can preference means that you have to consider the can there are many good reasons for that it minimizes trauma down the road it increases the sense of belonging it increases stability and permanency there are a few replacement trains changes children express more positive feelings that are all these different factors but in terms of is there a bright line test that says you have to place it with a can if there is one there's not instead it's ota of the circumstances another words everything goes into the mix is there a can do that can have kids what's the relationship is there an attachment vaughn to the st foster parent that's why they didn't attachments s assessment what are the red flags of the potential can placement what are the green flags is the foster child doing well i'll do the birth parents prefer can over nine can what are the chances that the child might be returned to the birth parents all these things go in to the mix so there is no bright line test that says you have to do it instead you're required to consider it and give her preference if it makes sense and if it is in the child's best interests and that was done here that is a professional judgement different professionals can disagree but it does not mean that it's constant shock it does sound like you anticipated the i did because it was a question i had when i got the  know judge arch you've written you've written many opinions on it but it but we st of all i want to point out because it does show up in a palace of priests in a significant fashion i want to point out that judge cain does not decide what we'll call the st part which is the placement recommendation based solely on record feldman he also decides it based on the lack of conscience shocking or abdication of professional judgment behavior so the st point i want to make is  this case and our position is not based on record feldman where roker feldman comes into play is that if you look at what the appellant seemed to be dealing with the placement is they're saying we disagree that the placement was in the best interest of the child and we disagreed that the child should have been moved from mr blackwell to the canon family so tell us and they raise the issue preclusion and that sort of thing to  this really this really i don't want to run at a time this really comes down to that is why we chose to go this way what rather than the preclusion i don't i don't disagree that preclusion should also apply but here if you go through the test i think is best laid out in the campbell case it is in the idea is what does it mean by inextricably intertwined it's a claim brought by the state court loser complaining of an injury caused by the state court judgment here in the injury i we believe was caused by the state court decision that's the decision that placed the child with mr white who will commit lee killed the child if you if we can't go that far then there's a definite proximate cause problem with any of the appellate he's being responsible because they're one further step removed i can go on but i know that my time is probably out if you have any questions i'm not i'm happy to answer them to th ok if i could if i could just then touch on what the what you all talked about earlier which was mr wertz conduct after the placement you have six different visits some happen in the home one happens  what we call the lobby of the h s which is actually a lobby that has different breakout rooms and spaces for privacy and i think what happens at a at a target or something like that many of these visits involve two different social workers someone named conny mercer and miss two or they both go out they're both talking about the case they're both making st hand observations i think counsel mentioned that there were concerns and august that was having trouble miss daughter who is an independent person also a d h s s but she's a counselor she's brought back and so you now have a rd person they're all talking about this they're all making observations the key here is and by the way mr bond who is living in the house as the husband of miss white heat he's testified he doesn't see anything miss white's mother who's there almost every day helping doesn't seem you know the key here is if i can just finish is that there is no clear indication to any of these people that the child is in harm's way or that there's any imminent danger there there's nothing out there where she says i'm going to kill the child or someone else  makes a referral that the child is being abused it's all just a judgment you have not one not two but three different experience social workers that are talking about this and they all make the judgment and one of them could have pulled her but they didn't a davis please percy three fully pow and agrees that you can't aggregate the conduct of the defendants together but in this case all three defendants knew the same information and all three made the same recommendation so that can be considered with regard to running on the counter yes why self reported that but she came up with an excuse at the exact same angelus deceased and with regard to the placement recommendation that's pretty decision conduct which this corps in campbell and also the closer sic case said is not covered by the rocha feltman doctrine you even if the court later proves that conduct or approves the recommendation and that's in accord with other cases of this court overall you have to look at all of the factors in our meo case i think is a poor because you have to look at the mental health factors especially about why he had and whether those present a risk to the child and that kids were setting the child home with those factors in his case it's sending the child to someone with those factors and if that shocks the conscience and