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  • October 25, 2022

    Couple Fails to State Sufficient Constitutional Claims in Child Placement Lawsuit

    Constitutional claims made by parents against state and county officials who took custody of one of their daughters and facilitated the placement of another daughter in a foster home failed because the parents failed to state legally sufficient claims, the U.S. Court of Appeals for the Seventh Circuit has ruled.

    Jeff M. Brown

    A Pair of Man’s Hands Folded Over Paper Cutouts Of A Man And Woman Holding Hands With Two Children Between Them

    Oct. 25, 2022 – Constitutional claims made by parents against state and county officials who took custody of one of their daughters and facilitated the placement of another daughter in a foster home failed because the parents failed to state legally sufficient claims, the U.S. Court of Appeals for the Seventh Circuit has ruled.

    In Milchtein v. Milwaukee County, et. al., No. 21-2955 (Aug. 2, 2022), the Seventh Circuit also held that social workers working on child custody cases are entitled to absolute immunity.  

    Strict Religious Upbringing

    Rabbi Alexander Milchtein and his wife Ester Riva Milchtein raised their children in a strict Orthodox Jewish community in Milwaukee.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    The couple home-schooled the children and sent them to private Jewish schools because they believe that public schools are antithetical to their faith.

    Care of S.M.

    In December 2012, S.M., one of the Milchteins’ daughters, contacted a Milwaukee County Child Protective Services (CPS) social worker and said she was afraid to go home.

    CPS found a foster home for S.M. and began child protective proceedings on charges of parental neglect and abuse. The court scheduled a trial for August 2013.

    In August 2013, the court dismissed the parental neglect charge and the state then dismissed the abuse charge. When she learned of the dismissal of the charges, S.M. ran away from the foster home.

    A week later, S.M. called CPS and Michael Blumberg, who’d previously fostered S.M., agreed to foster her again.

    During her time at the Blumbergs, S.M. lived out of step with her parents’ beliefs and wishes. She went to a public school, took both guitar and driving lessons, and lived by her own religious beliefs.

    Care of D.M.

    D.M., another Milchtein daughter, ran away from home after arguing with her father in April 2017.

    Later that month, a Milwaukee County court adjudicated her a runaway. The court allowed D.M. to stay at a youth shelter for 20 days, without the consent of D.M.’s parents.

    The Milwaukee County Department of Health and Human Services (DHHS) took custody of D.M. pursuant to a court order. The court later ordered D.M. to be placed at Bella’s Group Home (Bella’s).

    During her time at Bella’s, D.M. lived in a way that conflicted with her parents’ beliefs and wishes. She used a cell phone that wasn’t provided by her parents, rode a bus on the Sabbath, and attended a Christian church service.

    The Milchteins complained to Bella’s about these activities. Bella’s told Sara Woitel, the social worker assigned to D.M.’s case, that the Milchteins should not contact the home directly; Woitel passed that message on to the Milchteins.

    Woitel sought an emergency hearing about D.M.’s impending removal from the group home. The Milchteins received no notice of that hearing, which took place on Oct. 3, 2017.

    Constitutional Complaint

    On Dec. 15, 2019, the Milchteins sued Milwaukee County under 42 U.S.C. section 1983.

    The Milchteins claimed that the county had violated their right to familial integrity under the Due Process Clause of the Fourteenth Amendment and their right to familial association under the First Amendment.

    The Milchteins also claimed that Woitel and Bella’s Group Home unlawfully conspired to violate the Milchteins’ constitutional rights, in violation of 42 U.S.C. section 1985(3).

    The district court granted the defendants’ motion to dismiss for failure to state a claim.

    Claims Regarding S.M. Were Untimely

    Writing for a three-judge panel, Chief Judge Diane Sykes explained that the Milchteins’ section 1983 claims related to the care of S.M. were untimely.

    The Milchteins’ complaint pointed to no injury allegedly caused by the county after August 13, 2013, when the social worker called Blumberg about fostering S.M.

    Because Wisconsin has six-year statute of limitations for actions for damages to the character or rights of another, any claim by the Milchteins that accrued before Dec. 19, 2013 was untimely, Sykes concluded.

    The Milchteins argued that at some unspecified time, they were denied the opportunity to schedule and attend medical appointments for S.M.

    “This allegation opts for the passive voice and fails to tell us which defendant (if any) is responsible for denying the couple access to S.M.’s appointments,” Judge Sykes wrote.

    “The Milchteins’ briefs are likewise silent on how the allegation might plausibly be understood to be directed at a particular defendant or defendants. Because we cannot pin the allegation on any defendant, it cannot state a claim for relief.”

    No Reasonable Inferences

    Regarding the care of D.M., the Milchteins claimed that two acts violated their constitutional rights: 1) authorization by a DHHS employee, Kelly Pethke, to release D.M.’s medical and education records; and 2) consent by a DHHS employee, Mark Mertens, to place D.M. in the youth shelter.

    Judge Sykes explained that neither of those allegations was sufficient to state a claim.

    “We cannot reasonably infer that Pethke violated the Milchteins’ right to familial integrity or free exercise of religion just by authorizing the release of D.M.’s records,” Sykes wrote.

    “Likewise, we cannot reasonably infer that Mertens’s approval of D.M.’s stay at a youth shelter—when D.M. was not in her parents’ custody and after a judge had ordered her continued placement outside the home—effected a constitutional deprivation.”

    Total Immunity for Social Worker

    Judge Sykes also concluded that Woitel was entitled to absolute immunity rather than qualified immunity, and that the Milchteins’ claims against her were thus barred.

    In a previous case, Sykes wrote, the Seventh Circuit held “that a social worker pursuing a child-custody case acts like a prosecutor and a witness, both of whom are entitled to absolute immunity for their actions taken in court, including in ex parte proceedings. Joining a growing consensus among the federal courts, we extended the same immunity to the [social worker].”

    Conspiracy Claim Fails Too

    Judge Sykes concluded that the Milchteins’ section 1983 claims against the municipal entities failed because the Milchteins failed to show that that a municipal policy or custom was the moving force behind the alleged constitutional violation.

    The Milchteins’ section 1985 conspiracy claim, Sykes explained, failed because their complaint alleged only that that Woitel told the Milchteins’ to not contact Bella’s Group Home – not that Woitel and Bella’s had made an unlawful agreement to deny the Milchteins their constitutional rights.




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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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