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Milchtein v. Chisholm

United States District Court, E.D. Wisconsin

January 31, 2017

RABBI ALEXANDER MILCHTEIN, ESTER RIVA MILCHTEIN, Plaintiffs,
v.
JOHN T. CHISHOLM, ROBIN JOSEPH, ELOISE ANDERSON, Defendants.

          DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 69), DENYING AS MOOT PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (DOC. 89), AND DISMISSING CASE

          C. N. Clevert, Jr. U.S. District Judge.

         This 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.

         The 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.

         FINDINGS OF FACT

         Plaintiffs, 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.

         Defendant 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.

         C.M., 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.

         On 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.

         On 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).

         On 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.

         On 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.

         On 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)

         On 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, and C.M.

         On 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.)

         On 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.)

         On 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.)

         On 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.)

         On the 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. 1020.)

         Judge 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.)

         The 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. (Id.)

         On 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.)

         C.M. 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.

         On 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.)

         On 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.)

         On 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.)

         A 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 ...


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