Milchtein v. Milwaukee Cnty.

42 F.4th 814

Alexander MILCHTEIN and Ester Riva Milchtein, Plaintiffs-Appellants,

v.MILWAUKEE COUNTY, et al., Defendants-Appellees.

No. 21-2955

United States Court of Appeals, Seventh Circuit.

Submitted^* May 17, 2022

Decided August 2, 2022

James Bopp, Jr., Esq., Jeffrey P. Gallant, Attorneys, Bopp Law Firm, PC, Terre Haute, IN, for Plaintiffs-Appellants.

Samuel C. Hall, Jr., Zachary J. Flood, Attorneys, Crivello Carlson, S.C., Milwaukee, WI, for Defendants-Appellees Milwaukee County, Wisconsin, Milwaukee County Department of Health and Human Services, Kelly Pethke, Mark Mertens, Sara Woitel.

Brian Patrick Keenan, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendant-Appellee Eloise Anderson.

Jason J. Franckowiak, Attorney, Otjen, Gendelman, Zitzer, Johnson & Weir, S.C., Waukesha, WI, for Defendant-Appellee Children's Hospital and Health System, Inc.

Maria DelPizzo Sanders, Attorney, von Briesen & Roper, s.c., Milwaukee, WI, for Defendant-Appellee Bella's Group Home, LLC.

Before Sykes, Chief Judge, and Kirsch and Jackson-Akiwumi, Circuit Judges.

Sykes, Chief Judge.

Alexander and Ester Riva Milchtein live in Milwaukee, Wisconsin, and have 15 children. The family has a long history of encounters with child-welfare authorities. At different points over the last decade, three daughters—C.M., S.M., and D.M.—were removed from the Milchteins' custody and placed in group homes and the foster-care system. The Milchteins allege that these interventions were unwarranted and hindered their ability to raise their children in accordance with their Orthodox Jewish faith.

We saw an earlier round of this dispute in Milchtein v. Chisholm , 880 F.3d 895 (7th Cir. 2018), where the Milchteins sought declaratory and injunctive relief with respect to the custody of C.M. and S.M. We affirmed the dismissal of the case as moot because the two daughters had reached the age of majority, eliminating the possibility of meaningful prospective relief. The Milchteins argued that the case remained justiciable due to contemporaneously developing events relating to a third child who was then still a minor; we rejected the argument based on the abstention doctrine set out in Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

Now the Milchteins have sued again, this time seeking money damages and adding claims regarding the custody of D.M. The couple's 100-page complaint names over 20 defendants—among them Milwaukee County, several state and county officials, a children's hospital and some of its employees, and a children's group home—and asserts a glut of constitutional claims. The bulk of the claims come under 42 U.S.C. § 1983 and include alleged violations of the rights to familial integrity, free exercise of religion, and due process of law. A final claim is asserted under 42 U.S.C. § 1985(3) for an alleged conspiracy to deprive the Milchteins of their constitutional rights.

The district judge dismissed the complaint for failure to state a claim. For some claims he determined that the statute of limitations barred recovery. For other claims he concluded that the complaint failed to allege conduct plausibly exposing any defendant to liability. And yet other claims he held foreclosed by absolute immunity. The judge reasoned correctly across the board, so we affirm.

I. Background

Alexander and Ester Riva Milchtein describe themselves as members of "a very strict Orthodox Jewish community in Milwaukee." Alexander is a rabbi and leads a local synagogue. The Milchteins follow "detailed and specific" religious practices, including Sabbath rituals and strict dietary restrictions, and they seek to raise their children in accordance with their beliefs. They do so partly by home-schooling or sending their children to private Jewish schools; public schooling, they explain, is prohibited in their religious tradition.

The Milchteins filed this lawsuit seeking money damages and equitable relief for actions taken by the defendants with respect to three of their daughters: C.M., S.M., and D.M. On appeal the scope of the case has narrowed considerably. The Milchteins no longer pursue claims for equitable relief, which were dismissed in the district court based on our reasoning in Milchtein , 880 F.3d 895. Nor do they advance claims with respect to C.M., which were dismissed as untimely. As the case comes to us, only the claims for money damages regarding the custody of S.M. and D.M. remain. We tailor our discussion accordingly. Even in its narrowed form, the case involves lengthy factual allegations regarding the involvement of child-welfare authorities in the custody of S.M. and D.M. We recount the background as alleged in the complaint, accepting the allegations as true and giving the Milchteins the benefit of reasonable inferences. White v. Keely , 814 F.3d 883, 887–88 (7th Cir. 2016). But of course we do not vouch for anything in this chronology.

A. Events Relating to the Custody of S.M.

In September 2012 Lori Kornblum, an Assistant District Attorney for Milwaukee County, received a report from one of S.M.'s former teachers that S.M. was afraid to go home. Kornblum relayed the report to officials at Milwaukee County Child Protective Services and sought an order from a state-court judge to remove the Milchteins' children from their care on grounds of suspected abuse and neglect.¹ The judge thought the proposed intervention unwarranted but issued an order permitting Child Protective Services officials to interview S.M. at the Milchteins' home.

Two Child Protective Services social workers went to the Milchteins' home hoping to interview S.M. There they learned that she was attending a boarding school in Illinois. The social workers traveled to Illinois and interviewed S.M., and she allegedly told them that she was not in fact afraid to return home. Child Protective Services then dropped the investigation, but the social workers told S.M. that the agency could help her if she returned to Milwaukee.

A few months later in December 2012, S.M. took a bus home to Milwaukee. Upon arriving she contacted one of the social workers who had previously interviewed her and explained that she was fearful to return home. Child Protective Services officials placed S.M. into foster care. Meanwhile, the state initiated protective-services proceedings on behalf of S.M. on charges of parental neglect and abuse; a trial was set for August 2013.

In April 2013 the court dismissed the parental neglect charge but allowed the abuse charge to go forward. In August, however, the state voluntarily dismissed the remaining charge, explaining that the chances of prevailing did not justify the impact on the potential witnesses.

After learning that her protective-services case was dismissed, S.M. ran away from C.M.'s apartment, where she had spent the night prior to a scheduled hearing in her case. A week later she placed a call from a bus station to Sara Waldschmidt, a case worker employed by Children's Hospital and Health System, Inc. (The complaint does not explain how S.M. knew Waldschmidt.) Waldschmidt referred the matter to Child Protective Services. No agency official was available to retrieve S.M., so David Blumberg (who had previously fostered C.M.) picked her up from the bus station. The Milchteins say that this occurred without a court order. At Child Protective Service's request, Blumberg and his family agreed to foster her.

While staying with the Blumbergs, S.M. lived a lifestyle incompatible with her parents' beliefs and wishes. She followed her own religious beliefs rather than theirs, she attended public school, and she received guitar and driving lessons. The Milchteins also claim that they were prohibited from attending or scheduling S.M.'s medical appointments despite expressing a desire to do so. S.M.'s protective order expired when she turned 18, and the Milchteins say that they have never reunited with their daughter.

B. Events Relating to the Custody of D.M.

In 2016 D.M. attempted suicide while she was attending a boarding school in Israel. After a stay in an Israeli hospital, she returned to Milwaukee and lived with her parents. In April 2017 she ran away from home after an argument with her father. On April 5 a Milwaukee County court adjudicated D.M. a runaway and permitted her to stay for up to 20 days at Pathfinder's Youth Shelter, a home for runaway children, without the Milchteins' consent.

While D.M. was staying at Pathfinder's, Child Protective Services and Milwaukee County's Department of Health and Human Services ("DHHS") sought a court order to take temporary physical custody of her because she was afraid to return home. The order was issued, and on April 24 D.M. was taken into custody by an official not named as a defendant in this case. In July 2017 after several more hearings regarding D.M.'s custody, the court ordered D.M. to be placed at Bella's Group Home because she was "habitually truant from home" and living at home would be contrary to her welfare.

At Bella's Group Home, D.M. lived a lifestyle inconsistent with her parents' beliefs and wishes. She used a cell phone not provided by her parents, took a bus on the Sabbath, and on one occasion attended a Christian church. The Milchteins voiced their concerns about these activities to the group home. In response Bella's told Sara Woitel, a DHHS social worker assigned to D.M.'s case, that it did not want to be contacted directly by the Milchteins. The group home asked Woitel to convey this request to the Milchteins, and she did so.

On July 26 Bella's provided 30 days' notice that it would be removing D.M. from the group home, citing D.M.'s behavioral problems and interference from her parents. Woitel communicated the removal decision to the Milchteins. Before the 30-day period elapsed, however, Bella's rescinded the removal decision. On September 12 the group home again provided 30 days' notice of removal, and Woitel again communicated the removal decision. This...