United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT (DOC. 69), DENYING AS MOOT
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. 89), AND
Clevert, Jr. U.S. District Judge.
case arises from proceedings in the Milwaukee County Circuit
Court Children's Division involving two of the
plaintiffs' children and proceedings of the Division of
Milwaukee Child Protective Services (MCPS) concerning the
care or custody of those children. Asserting violations of
the First, Fourth, and Fourteen Amendments, plaintiffs have
sued defendants in their official capacities seeking
declaratory and injunctive relief. Initially, plaintiffs sued
Milwaukee County District Attorney John T. Chisholm, former
MCPS Director Arlene Happach, former Milwaukee County
District Attorney Lori Kornblum, and Wisconsin Department of
Children and Families Secretary Eloise Anderson. After
Happach left her position on July 10, 2014, Acting Interim
Director Mary Pat Bohn was substituted as a defendant, only
to be replaced by MCPS Division Administrator Robin Joseph.
Kornblum ceased employment with the Milwaukee County DA's
office “with terminal leave ending on February 3, 2014,
” and the court granted defendants' unopposed
motion to dismiss her from this case. At this stage of the
litigation, defendants have moved for summary judgment on the
grounds that plaintiffs' claims are moot, and/or
otherwise barred by the doctrines of claim preclusion and
Rooker-Feldman. Having heard oral argument on
January 12, 2017, and upon consideration of the record,
defendants' motion will be granted.
following findings of fact are drawn from the first set of
joint stipulated facts or are otherwise not in dispute.
Although plaintiffs filed numerous objections to the proposed
findings, many of their objections failed to include
“specific references to the affidavits, declarations,
parts of the record, and other supporting materials relied
upon.” Civil L. R. 56(b)(2)(B)(i)(E.D. Wis.) Instead,
plaintiffs objected on the grounds that the findings did not
disclose “actual discussions” or offered a
“subjective characterization of the facts.”
Without more, unsupported objections do not create a genuine
issue of material fact.
Rabbi Alexander Milchtein and Ester Riva Milchtein, are
practicing Orthodox Jews residing in Milwaukee, Wisconsin.
They have 15 children that they have - or will - home school,
place in Jewish day schools, or send to Jewish boarding
schools. The Milchteins are part of Milwaukee's Orthodox
Jewish community. Rabbi Milchtein serves as Rabbi and
Executive Director at the Milwaukee Synagogue for Russian
Jews: Congregation Moshiach Now. His synagogue offers
services to the greater Milwaukee Russian Jewish community of
over 1400 families.
John T. Chisholm is the District Attorney of Milwaukee
County, and Lori Kornblum was a Milwaukee County Assistant
District Attorney from January of 1992 until February of
2014. Defendant Robin Joseph is the Division Administrator of
the Division of Milwaukee Child Protective Services (MCPS),
formerly known as the Bureau of Milwaukee Child Welfare. MCPS
is a subunit of the Wisconsin Department of Children and
Families. Jospeh is the current successor in office to Arlene
Happach, who was the Director of the Bureau at the time of
the events at issue in this case. Finally, defendant Eloise
Anderson is the Secretary of the Wisconsin Department of
Children and Families.
who was born on January 14, 1995, is a biological daughter of
Rabbi and Mrs. Milchtein and the Milchtein's oldest
child. At age 13, C.M. was sexually assaulted, with criminal
charges successfully brought against the perpetrator. When
C.M. was 15 years old, the Milchteins sent her to a Jewish
school in Brooklyn, New York, with two siblings, including
her sister, S.M., who is the second oldest child. However,
the Milchteins decided to send her to a Jewish boarding
school in Chicago closer to home when C.M. turned 16.
September 23, 2011, MCPS received a referral regarding C.M.
Between September 27 and October 19, 2011, MCPS Initial
Assessment Social Worker Holly Jones investigated the
referral. The investigation included interviews with the
person who had made the report to MCPS, discussions with
C.M., discussions with Rabbi and Mrs. Milchtein, a home visit
with the family, and interviews with the other children in
the Milchtein home. The other Milchtein children interviewed
by Jones stated that there was no abuse in the home, and
Jones observed no physical or emotional signs of abuse.
October 17, 2011, Jones informed MCPS Regional Manager Lori
Wagnitz that she did not believe there were any “safety
factors” preventing C.M. from remaining in the
Milchtein home. The next day, Jones met with C.M. and her
parents. Rules in the Milchtein home were discussed, and C.M.
refused to stay in the home. Jones placed C.M. in temporary
protective custody pursuant to authorization given by
Wagnitz. C.M. spent the night in the Lutheran Social Services
Assessment Center in Milwaukee (LSS).
October 19, 2011, Initial Assessment Supervisor Martha
Stacker spoke with Jones and C.M. According to Stacker, C.M.
expressed profound fear, cried profusely and continuously,
and refused to go home. Stacker felt she had no option other
than to detain her because she could not force C.M. to go
home. Accordingly, Stacker directed that C.M. return to LSS
in temporary protective custody.
October 21, 2011, an emergency hearing regarding the
temporary protective custody request was convened in
Milwaukee County Circuit Court Children's Division, Case
No. 2011JC999. Assistant District Attorney Kathy Kucharski
appeared for the State. Because it was a religious holiday,
the Milchteins did not appear. At the State's request,
the Circuit Court issued an order giving MCPS temporary
physical custody of C.M. until a rescheduled hearing could
take place on October 24, 2011.
October 24, 2011, a second hearing on temporary physical
custody was held in Case No. 2011JC999. Kucharski appeared
for the State. C.M. appeared personally with Attorney
Catherine Flaherty. Rabbi and Mrs. Milchtein appeared
personally, with their respective attorneys, Sheila Smith and
Kerri Cleghorn. (Id. at 2:5-15.) The Circuit Court
issued an order again giving MCPS temporary physical custody
of C.M., finding that "probable cause exists to believe
that the . . . [c]hild/juvenile will cause injury to self or
be subject to injury by others" and that her
"[p]aren't(s), guardian, legal custodian or other
responsible adult is neglecting, refusing, or unable . . . to
provide adequate supervision and care." (Temporary
Physical Custody Order, October 24, 2011, Ex. 1004 at 1.) The
Circuit Court approved physical placement of C.M. at LSS.
(Id. at 3)
October 26, 2011, MCPS filed a Child In Need of Protection
and/or Services (CHIPS) petition in Case No. 2011JC999.
(Petition for Protection or Services, October 26, 2011, Ex.
1005.). Two days later, the Circuit Court entered orders
appointing attorneys Smith, Cleghorn, and Flaherty as legal
counsel, respectively, for Rabbi Milchtein, Mrs. Milchtein,
October 28, 2011, a summons and a notice of hearing were
issued in Case No. 2011JC999, scheduling a plea hearing for
November 21, 2011. The notice indicated that all parties had
the right to have an attorney present. (Id.). A
court entry on the Juvenile Court Record indicates that
Flaherty moved to amend the non-secure order, and the court
ruled that C.M. could “observe Sabbath for the weekend
only at an alternate placement from sundown on Friday,
November 4th to sundown on Saturday, November 5th.”
(Court Docket for 2011JC999, Ex. 1011 at November 7, 2011.)
November 9, 2011, the Circuit Court conducted a hearing on a
motion to amend the temporary physical custody order.
Kornblum and ADA Maria Dorsey appeared for the State.
Attorney Sarah Henery appeared for MCPS. C.M. appeared in
person and her attorney, Flaherty, appeared by telephone.
Rabbi and Mrs. Milchtein appeared with their respective
attorneys, Smith and Cleghorn. The Court ordered that C.M.
could observe the Sabbath, in accordance with the times set
forth in the motion or times deemed appropriate by Rabbi
Milchtein, "with a family that is appropriate and that
will be identified." (Motion Hearing Transcript,
November 9, 2011, Ex. 1014 at 39:14-15.) The Court directed
that potential families were to be identified to MCPS by
Wednesday prior to the Sabbath and that, in identifying a
family, MCPS was to listen to any objections from the parents
or from C.M., but such objections were not to be
determinative. (Id. at 48:16-22.)
November 21, 2011, Rabbi Milchtein filed for substitution of
the judge assigned to Case No. 2011JC999. (Request for
Substitution of Judge, November 21, 2011, Ex. 1015.) A
conference was conducted in Case No. 2011JC999. Kornblum and
Dorsey appeared for the State; C.M. appeared personally with
Flaherty; Rabbi Milchtein appeared personally with Smith; and
Mrs. Milchtein appeared personally with attorney Robb Marcus.
The plea hearing previously scheduled for November 21, 2011,
was postponed to December 7, 2011, and the existing temporary
physical custody order was continued to the next court date.
(Conference Transcript, November 21, 2011, Ex. 1016.)
December 1, 2011, Kornblum and MCPS filed an emergency
petition for temporary guardianship of C.M. and requested
that MCPS be given authority to consent to a school placement
for C.M. The Circuit Court held a hearing on the petition
with Kornblum appearing for the State, and all other parties
represented by counsel. Following discussion, the case was
adjourned for a plea hearing and guardianship hearing on
December 7, 2011. (Temporary Guardianship Petition Hearing
Transcript, December 1, 2011, Ex. 1018.)
morning of December 7, 2011, Cleghorn filed a judicial
substitution request in Case No. 2011JC999, seeking to
replace Judge Stephanie Rothstein, Circuit Court Branch 25,
who had been assigned to the case after Rabbi Milchtein's
earlier substitution request. (Substitution of Judge,
December 7, 2011, Ex. 1019.) Later that morning, the parties
appeared before Judge Rothstein. Kornblum appeared for the
State; Henery appeared for MCPS; Jacqueline Voykin-Steffes
appeared for CSSW; C.M. appeared with Flaherty; Rabbi
Milchtein appeared with Smith; and Mrs. Milchtein appeared
with Attorney Pam Mehta, substituting for Cleghorn. Judge
Rothstein accepted the judicial substitution request and the
court clerk announced that the case was reassigned to Judge
Karen Christenson, Circuit Court Branch 37. The parties were
directed to appear before Judge Christenson later in the day
for a hearing on the temporary guardianship petition and for
a plea hearing in Case No. 2011JC999. (Transcript of
Proceedings Before Judge Rothstein, December 7, 2011, Ex.
Christenson conducted a hearing in Case No. 2011JC999 that
afternoon. (Initial Appearance Transcript, December 7, 2011,
Ex. 1021.) Kornblum and Mehta informed the Circuit Court that
Smith had provided Kornblum with a signed authorization form
regarding C.M.'s schooling. Moreover, Kornblum advised
the Court that, in light of the signed authorization form,
the temporary guardianship was no longer needed and the State
withdrew the petition for temporary guardianship.
(Id. at 4:2-16.)
Circuit Court then proceeded with the plea hearing in Case
No. 2011JC999, and found that the CHIPS petition stated
probable cause. (Court Docket for 2011JC999, Ex. 1011 at
December 7, 2011.) Additionally, the court ordered a
psychological examination of C.M., as well briefing on
whether copies of that examination should be provided to the
parents. (Id.) School and placement options for C.M.
were discussed. (Id.) At that point, it seemed all
parties were agreeable that Torah Academy of Milwaukee was an
appropriate schooling option. (Initial Appearance Transcript,
December 7, 2011, Ex. 1021, 11:9-11.) The Court instructed
the parties to work together for the best interests of the
child. (Court Docket for 2011JC999, Ex. 1011 at December 7,
2011.) A pretrial conference was scheduled for January 17,
2012, trial was scheduled for February 28, 201, and the
existing non-secure custody order was continued.
December 9, 2011, C.M. was removed from placement at LSS and
placed in the home of Scott and Tamar Heifetz. (Permanency
Plan, December 8, 2011, Ex. 1022, ¶ 12 b.) Four days
later, CSSW filed a permanency plan and an original
disposition report to the court in Case No. 2011JC999.
(Id.; Court Docket for 2011JC999, Ex. 1011 at
December 13, 2011.) The next day, Flaherty filed a memorandum
supporting the earlier request to prohibit release of
C.M.'s psychological evaluation to her parents. (Support
to Motion to Prohibit Release of Psychological Evaluation,
December 14, 2011, Ex. 1023.) Two days later, C.M.'s case
was transferred to an Ongoing Case Management Team supervised
by Sara Waldschmidt. (Excerpt from response to
Plaintiffs' First Request for Production to Defendant
Director of Bureau of Milwaukee Child Welfare, Ex. 1024 at
BMCW 03948.) Meanwhile, in Case No. 2011JC999, Smith filed a
petition for a psychological examination of C.M., a proposed
order, and a brief opposing the request to deny parental
access to C.M.'s psychological evaluation. (Petition for
Examination and Proposed Order, December 23, 2011, Ex. 1025;
Memorandum Opposing Request to Deny Parental Access, December
23, 2011, Ex. 1026.)
began school at Homestead High School in Mequon, Wisconsin,
on January 6, 2012. (Permanency Plan, p. 2, excerpted from
response to Plaintiffs' First Request for Production to
Defendant Milwaukee County District Attorney, Ex. 1027 at
¶ 03214.) That day, Waldschmidt sent to Rabbi Milchtein
and Mrs. Milchtein written notification that there would be a
court hearing on January 10, 2012, "regarding whether
temporary guardianship of [C.M.] should be transferred to the
Bureau of Milwaukee Child Welfare for the purpose of signing
consents for participation in mental health treatment -
specifically individual therapy." (Notification of Court
Hearing, January 6, 2012, Ex. 1028.) The notice informed the
parents that they had the right to attend and to be
represented by their attorneys.
January 10, 2012, Kornblum filed a petition in Case No.
2011JC999 asking that MCPS be given temporary guardianship of
C.M. Later that day, the Circuit Court conducted a hearing on
the petition. Kornblum appeared for the State; C.M. appeared
in person with Flaherty; Rabbi Milchtein appeared in person
with Smith; Mrs. Milchtein appeared in person with Cleghorn;
and attorney Steven Weichman appeared as guardian ad litem
for C.M. (Temporary Guardianship Hearing Transcript, January
10, 2012, Ex. 1030, 2:2-18.) In the course of that hearing,
the Court held an off-record conference with the attorneys
and the parties reached an agreement under which Rabbi
Milchtein signed an Informed Consent Policy and a Release of
Information Form authorizing C.M. to begin therapy with
Family Options, subject to the understanding that, in signing
those forms, Rabbi Milchtein was not authorizing the release
to Family Options of the CHIPS petition, any temporary
protective custody order or related paperwork. (Id.
at 34:24 to 36:1.) While Mrs. Milchtein did not sign the
forms, Cleghorn indicated that she was in agreement with
Rabbi Milchtein. (Id. at 36:21-22.) The Circuit
Court then administratively withdrew the temporary
guardianship petition. (Id. at 35:4-8.)
January 17, 2012, a pretrial/settlement conference was held
in Case No. 2011JC999. Kornblum appeared for the State;
Flaherty appeared on behalf of C.M.; Smith appeared for Rabbi
Milchtein; and Cleghorn appeared for Mrs. Milchtein.
(Settlement Conference Transcript, January 17, 2012, 2:4-12:
Ex. 1031.) A final pretrial conference was scheduled for
February 22, 2012, trial was scheduled for February 28, 2012,
and the existing non-secure custody order was continued.
(Court Docket for 2011JC999, Ex. 1011 at January 17, 2012.)
February 8, 2012, the Circuit Court issued notice of a
permanency plan review hearing on April 5, 2012. (Notice of
Hearing, February 8, 2012, Ex. 1032; Court Docket for
2011JC999, Ex. 1011 at February 8, 2012.) Subsequently, Mrs.
Milchtein filed a CHIPS petition regarding C.M. under
Wis.Stat. § 48.13(4), initiating Case No. 2012JC73. The
petition alleged that C.M. was in need of protection or
services because she refused to return to the home of her
parents. (Petition for Protection or Services, February 24,
2012, Ex. 1033.)
pretrial conference was held in Case No. 2011JC999 on
February 28, 2012. At that conference, Kornblum appeared for
the State; Flaherty appeared for C.M.; Smith appeared for
Rabbi Milchtein; and Cleghorn appeared for Mrs. Milchtein.
They advised the Court that they were unable to complete
discovery, and the State indicated that it was not willing to
dismiss the CHIPS petition in Case No. 2011JC999. Afterward,
the case was adjourned until the permanency plan review
hearing scheduled for April 2, 2012, the final pretrial
conference was rescheduled to May 7, 2012, and the trial ...