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She lost her parental rights. Now, she's won her appeal, and the case could change Michigan's laws

Apr 20, 2016

Today I got an update on a story we reported here in January. It's the story of Michelle Gach, a mother whose parental rights were terminated by a judge after her three-year-old-son was found wandering one morning with his dogs in a park across the street from his house. Gach told me she'd worked into the early morning that day, and her son snuck out of the house "to be a big boy" and walk the dogs while she slept. 

Not long after that incident, police removed Gach's son from her home. She was denied visits. She wasn't offered support services. 

“And they said it’s protocol for going straight for termination.” Gach told me. 

She hasn't seen her son since August 2014. Her rights were officially terminated last year. She appealed.

Yesterday, the State Court of Appeals issued its opinion in the case. The judges sided with Gach. They ruled her parental rights should never have been terminated.

And their ruling could have implications for other parents in Michigan as well. 

 
Gach's appeal in this case was filed by the University of Michigan's Child Advocacy Law Clinic. The director of that clinic, Vivek Sankaran, is the person who first told me about the case, and who emailed me this morning with news of the appeals court decision. 

Last fall, when I first reached out to Sankaran to talk about parental rights terminations in Michigan, he told me these terminations happen all the time. Sometimes, parents' rights are terminated after horrific kinds of abuse, he said. But those aren't the typical cases he sees. 

Here's an excerpt of what I reported in January
 

And there’s one kind of case in particular that Sankaran says is a problem for him. It happens when a parent has their rights terminated for one child. Then later, another child is removed by CPS.

In these cases, Sankaran says the state has the right to move for termination of parental rights on the spot. There’s no service plan, parents get no chance to fix what they did wrong.

So he begins to tell me about a case.

“And the department worker in our case even admitted that, had it not been for the prior termination, they would have worked with the mother and just given her services and not even have removed the child from the home,” he says. “Because all of the other facts indicated that this was an isolated accident that happens to all of us. But because of this prior termination, everything got escalated, and not only did they file a petition, they immediately cut off visits between the child and his mother. This child had been living in this home for three years, since birth, with this mom. And they moved to termination immediately, and then they terminated her parental rights.”

This was Michelle Gach's case. 
 

In the story we reported in January, we went into the details of why Gach's rights had been terminated for her previous children. It's a tragic story.

In a nine-page opinion, the court finds that the Michigan's statute "fails to comport with due process in light of the fundamental liberty interest at stake."

But what Sankaran and his attorney's at the Child Advocacy Law Clinic argued is that a prior termination should not be grounds for permanently separating a parent from another child. Each termination case should have to be proven with the same standard of evidence. The argument, essentially, was that Michigan's statute, as written, violates the due process rights of parents, rights that are guaranteed by the constitution. 

The State Court of Appeals agreed with that argument. In a nine-page opinion, the court finds that the Michigan's statute "fails to comport with due process in light of the fundamental liberty interest at stake."

One judge on the panel took it a step further, issuing a separate, one-paragraph concurring opinion "simply to urge the Legislature to amend MCL 712A.19b(3)(l) such that it will adequately protect a parent’s fundamental liberty interest in the raising of children."

And if it was wrong to terminate Gach's parental rights to her youngest child because of her previous terminations, the only question left is whether the facts in the most recent case were severe enough to warrant termination on their own. Her son was found alone in a park with two pit bulls and an overflowing diaper. 

But the appeals court cites a child protection worker who testified in Gach's original trial, who stated "but for the earlier terminations there probably would have been no court filing in the instant case, but instead only the provision of services."

And so the court finds Michelle Gach's parental rights should never have been terminated in the first place. 

I spoke with her briefly this morning. She hadn't yet read the opinion. When I told her what was in it, she reacted calmly. She said she felt like she was in shock. 

Her lawyers were surprised, too. Sankaran at the Child Advocacy Law Clinic told me this was the outcome everyone had been hoping for, but they hadn't exactly been expecting it. The ruling didn't just go in Gach's favor. It questioned the constitutionality of the state statute itself. It's a huge win for this team. 

But it is not done. The appeals court ruling can still be appealed to the state Supreme Court. And even if that doesn't happen, the decision still has to go back to the original trial court to figure out what happens next. Gach could face additional legal hurdles. And even if she prevails, it won't erase what's already happened. 

"This kid now has not seen his mom for two years, Sankaran told me over the phone today. "I can't imagine how difficult of a transition that's going to be ... it is just going to be really, really hard for this family to heal."

Healing may not come easy. But at least after today, it can start.