By Allison Hight
U-M Law
The University of Michigan Law School’s Child Welfare Appellate Clinic? this spring won three separate victories within the space of a week—victories for individual families that could have far-reaching effects.
“We’ve won cases every year,” said Professor Vivek Sankaran, director of the clinic. “But this year’s victories will have a far bigger impact on the child welfare system.”
The first case, In re D. Gach, overturned a provision of the juvenile code that allowed the state to terminate parental rights on the sole basis of a prior termination. In it, 3-year-old child DG was removed from his mother after he was found, dressed only in a diaper, playing in his front yard alone with two of the family’s pit bulls. No similar incident had ever been reported and the child seemed otherwise well taken care of; he was up to date on his doctor appointments and had never before left the house unsupervised. Yet because his mother, Michelle Gach, previously had her parental rights to two of her other children terminated, Michigan’s Department of Health and Human Services (DHHS) was able to take away DG and terminate her rights.
On appeal, Gach’s attorneys argued that the lower court had erred by terminating her rights on an assumption that was not supported by the record. They also argued that the provision that authorized the state to terminate her rights to DG on the basis of her previous terminations violated the Due Process Clause. The court agreed on both counts.
Shannon Seiferth, a third-year law student who conducted the oral argument for the case, explained that she originally thought that they had little chance of winning. “I did not expect for the Court of Appeals to declare the statute unconstitutional as they did; I think both my supervisor and I thought if we won at all, it would be at the Michigan Supreme Court.” After she found out that they had won the case, Seiferth “was simply elated. I felt very proud that we were able to accomplish this not only for my client, but hopefully make a difference for other parents who have had their rights terminated as well.”
The clinic’s second victory, In re Hicks/Brown, addressed the intersection between disability and child welfare. The client in this case was a cognitively impaired mother who had struggled to care for her daughter and turned her over to DHHS when she was two months old as a result. Before they had done a full psychiatric evaluation and without knowledge of the mother’s low cognitive ability, DHHS referred her to parenting classes, therapy, and GED preparation classes without realizing that such goals were beyond the mother’s ability, according to the mother’s attorneys.
After three years, despite never having provided the mother with proper disability support, the state petitioned for termination, which the lower court granted. On appeal, the court reversed, holding that if the child welfare agency knows of or should know of a parent’s disabilities, it has an affirmative responsibility to ensure that the parent is reasonably accommodated throughout the welfare process. Students Jess Shaffer Weightman and Mallory Andrews handled the case, with Weightman doing the oral argument.
The clinic’s final win reaffirmed that an incarcerated parent can provide proper care for a child by arranging for someone else (here, the grandmother) to care for a child during the parent’s sentence. Although the Michigan Court of Appeals has stated this proposition in two prior cases, this one was especially notable because the child had been removed from the grandmother’s home before the time of the hearing. Nonetheless, the court noted that the grandmother could have provided proper care and reversed the termination. Mallory Andrews handled the oral argument in the case, while Tony Byrk and Sarah Johnson drafted the brief.
Although Sankaran directs the clinic and guides the students on the cases, the students do the bulk of the work. “The students handle the cases,” he explained. “They read the transcripts, identify and research the issues, and draft the briefs. They also handle the oral argument. While I supervise their work, they take the lead.”
Seiferth elaborated on what “taking the lead” entails, explaining that before they even received the case transcripts, she and the other students reviewed the case file, began researching how to challenge the constitutionality of the statute, and explored other issues that they could incorporate into the appeal. “Once we had reviewed the transcripts, we began drafting the brief. After that was a pretty constant process of writing, revising, and editing drafts. We filed the brief in early December. In January, we received a response from the other side and filed a reply brief in response to some of those issues.”
Seiferth also described how she prepared for her oral argument in April: “We cycled a few different drafts of an outline and anticipated questions for the oral argument. We ran through three different moots before I argued the case in front of the Michigan Court of Appeals. After each moot I realized ways that my argument might be attacked and reorganized my outline based on the moots we had.”
Sankaran plans to replicate the success of this year’s clinic by having students “continue to write great briefs.” He applauded his students’ hard work on these cases, noting that they “did amazing work and presented the issues in their cases brilliantly.”
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