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The state took her son away. An appeals court ruled in her favor. She still can't see her son.

Apr 27, 2016

Michelle Gach’s son was taken from her home nearly two years ago, when he was three year old. Police took him after he was found alone in a park across the street from the family’s home.

A judge later terminated Gach’s parental rights. These terminations happen all the time in Michigan. They create a permanent, legal separation between parents and their children. And, once the decision to terminate is made, it’s rarely reversed in Michigan.

But that’s what happened last week in Michelle Gach’s case.

Lawyers and judges refer to termination of parental rights as the "civil death penalty." It’s one of the most serious punishments a court can impose on a citizen. But in Michigan, these cases are rarely tracked. I couldn’t even find anyone who can tell me exactly how often it happens.

But it happened to Gach. I met with her in January.

It happened after a night when she stayed up into the early hours of the morning, helping her oldest daughter at work. She went to bed, expecting her son to come in her room and wake her, as he did every morning. Instead, he was found later that morning across the street in a park, with the family’s two pitbull puppies.

The police woke Gach up that day. When she saw her son, she says she went straight to him.

"Basically, start talking to him," she told me, "'Why did you come outside?’ And he’s like ‘Trying to be a big boy, trying to be a big boy, trying to take the puppies out.'"

A situation like this might not always end in a child being removed and put in foster care. But it happened in Gach’s case.

What usually happens next is a parent will be offered some kind of services, parenting classes, something like that. That’s not what happened in Gach’s case.

"Tuesday went," she said, "that was my first court date. And they said it’s protocol to go straight for termination."

Under Michigan law, a prior termination can be used as grounds for another termination. So that's what happened in Gach's case, a one-time incident, with no other evidence of abuse and a judge took away her rights to her son permanently. Until last week, when the Michigan Court of Appeals overturned that decision.

This was the protocol in Gach’s case because she’d lost parental rights before. She lost rights to her three daughters years ago, after a tragic incident. Her baby son died. Prosecutors blamed her then-boyfriend. They accused her of not doing enough to save her son. Two of those daughters she sees now all the time.

"And it sucks, you know," she said." And here we go again.”

Under Michigan law, a prior termination can be used as grounds for another termination. So that’s what happened in Gach’s case. After a one-time incident, with no other evidence of abuse toward her son, a judge took away her rights to him permanently.

Until last week, when the Michigan Court of Appeals overturned that decision.

Gach’s case was picked up by the University of Michigan Child Advocacy Law Clinic, which argued that terminating a parent’s rights based solely on a previous termination was unconstitutional. It violates the right to due process.

In an opinion published last week, the Court of Appeals agreed with that argument, and sent Gach’s case back to the lower court.

"I just was extremely excited," she told me after hearing the decision. "And was ready to go out and start buying stuff for my kid."

I met up again with Michelle Gach yesterday. After the appeals court decision, her case was sent back to the original court, in Livingston County, basically to start all over again. So Gach says she didn’t go out to buy things for her son.

In court yesterday, the judge ordered her to submit to a drug test. The judge said she’d have to go through a parenting class. And the judge held off on giving Gach visits with her son. They haven’t seen each other in 20 months. The judge said she wanted to hear from a therapist first, before deciding on how to go ahead with visits.

Gach’s lawyer, Stacy Combs, asked that he be returned to his mother right away, at yesterday’s hearing. But that’s not going to happen.

"How unfair is that?" Combs asked. "We can rip a kid out of a parental home, put them in foster care. But when the court of appeals says, ‘No, you’re wrong, this is a reunification case,’ we can’t even get visitation."

Gach has another hearing next week, where she and her lawyer will ask again to restart visits, and try to figure out how, or even if, her son will be returned.