in the members of the panel we are here today on the appeal taken for the denial of our motion to dismiss the th amendment substantive due process claims  forth in the amended complaint filed by plaintiffs against five see why you have to be social workers as a court knows this is a normal review we have a significant amount of of some very key into the facts of this case and perhaps if i might say even a little more regions in terms of the fact pattern and what was known and what was not known were in fact  asking you about the clearly established law element qualified immunity and in in their opposition to to the motion your motion for judgment on the the case authority from the th circuit is very clear that the burden shifts to plaintiffs to address both prongs of qualified immunity the focus frankly d that is that true even if you direct the court to try to hide the ball or anything else i think the parties were really focused on the st prong as to whether or not there was a constitutional law that was being violated well i understand that but if i disagree with you on the st products then i've got the nd one so i need to know where you are on that well it's our position as and set forth in our briefing that you cannot unless there's a but that that that answers my question as find your own end and in fairness to the district court it was not well preserved or presented but it was present and when i say not well preserved it is preserved because of the test of qualified alleged in the complaint it was alleged but not to the degree that what what do you have to put in the complaint so you know i'm not sure where judgment how we're on a motion to dismiss no i understand that the ju and they never caught that they never even considered it well your honor there's no evidence that that miss minturn you in particular or any of the others saw anything wrong inside the crown of her house prior where we are yeah well you know one of the conditions in the house that you just described deplorable filthy etc similar conditions in the harvard case were discovered after the passage of allegations about lack of records of investigation and permit an inference that there was no investigation did an investigation or look at the house then they question a few things whether she's incompetent or or even perhaps of making up the records i don't know the way that some of the allegations are drafted but they never responsibility or that their actions even if they did not do the best job and that we had a bad result it also has to shock the conscience and that's part of that  you are correct that it's not enough simply to say qualified immunity and then never address that prong of what must be shown particularly when it was pointed out in the response to the motion clearly established the clearly established prague in your brief to this court is is that correct you're not pressing the waiver argument now i think both your statements are we did raise it in response to the court's request that we have dressed the quality that we address the jurisdiction issue we get it raised the jurisdiction issue but you also are correct we are not standing by that we would prefer  duty the judge kelly articulated in this questionnaire the clear duty under a special relationship to assure the safety of children within the custody of the state of new mexico  let me just on the licensing and also on the placement issue relative to ms domingo's and mr remeron how did the license seen them and placing the children  maybe not somewhat related question but when it comes to the conscience shockey element it's a court need to look at view each individual defendant separately but at the same time look at their conduct as a whole and i would want to highlight one point going back to an issue that judge kelly raised several state a plausible claim parole leaf and we believe that further discovery will place all of that conduct in context and allow this case to move forward so you're you're question w exactly right to roger and it also highlights the procedural posture of this case and here the allegations are more of than sufficient looking at each of the individual defendants at every single stage of the foster care system that these individual defendants not only fail to exercise professional judgment but did so in a manner that was conscious shock provide respite care and yet what did these social workers do they put three children two of whom should have been categorized as special needs children because they had been exposed to serious drugs that just because you're licensed only to give respite care that makes it inherently dangerous for you to provide full time care the only way for this court to reach that conclusion is that making the inference in favor of the defendant that even if some of these individual facts in and of themselves don't appear to be conscious conscience shocking taken together and placed in the context that could be against her own granddaughter she used to groom stick to his her granddaughter because she wouldn't get out of debt and yet she was licensed to be a foster parent and then even though ask the basic question did you ever get the betting you promised and we know the answer is she did not why because a rise it was found strapped to our car seat disgusting to describe with human feces with odor odor so strong that the police officers couldn't stay inside the house how could it be that these foster care at the house the beginning of december and she had no safety concerns similarly we know that i don't know remember thirty that there was an incident that's the way it's described