U-M Law Child Welfare Appellate Clinic spearheads new legislation

By Kristy Demas
U-M Law

“There is no way we’re going to win this,” was not what Clinical Professor Vivek Sankaran, ’01, wanted to hear from his students. But he had to admit, the case looked grim.
Sankaran, who is the director of Michigan Law’s Child Welfare Appellate Clinic, was working with a group of student-attorneys to help a mother regain custody of her young son after a neighbor found him wandering outside early one Saturday. By Monday morning, Child Protective Services (CPS), in accordance with Michigan law, had removed the three-year-old from his home. The law stipulated that because his mother, Michelle Gach, had a prior termination of parental rights on her record, CPS could permanently terminate her rights for any subsequent violation. Gach had no recourse—or so she thought.

“While at first it seemed hopeless, I told my students not to be discouraged,” said Sankaran. “Instead, we needed to strategize on how to approach the case and challenge the decision.”

After carefully reviewing their client’s case, Sankaran and his students determined that the previous termination of Gach’s parental rights had been due to her former husband’s actions—not hers. His behavior years earlier was resulting in her current custody loss, which was patently unfair.

Shannon Seiferth was one of the students assigned to the case. “We weren’t sure where to start, but essentially our client’s case became part of a broader argument. We had to assert that Michigan’s existing law on parental rights was unconstitutional, as our client did not receive due process.”

Under Sankaran’s direction, Seiferth and her clinic partner, Rory Pulvino, sat around a table writing the brief that they would submit to and argue before the Michigan Court of Appeals. They began by researching what other states did in similar circumstances, finding that Michigan was an anomaly with regard to parental rights.

“When I presented our case in court, our panel was comprised of judges known to be fair but conservative. We were pleasantly surprised when they ruled in our favor, enabling us to reunite a child with his mother. Not only that, one judge specifically wrote a concurrence recommending that the law be changed,” said Seiferth.

“As it was written, the law made it far too easy for CPS to remove a child from a parent based solely on a previous termination of parental rights. In Gach’s case, this was based on incomplete or faulty information,” said Sankaran.

CPS falls under the umbrella of the state’s Department of Health and Human Services (DHHS)—which is historically overloaded and understaffed due to budget constraints, Sankaran explained. “The onus is on CPS to systematically remove children from those parents who have had rights terminated before. These cases burden an already overwhelmed system, leaving no time to assess the ins and outs of each situation—it’s more a matter of checking off boxes on a form.”

Another pleasant surprise for Sankaran and his students came when officials at DHHS agreed the current law was flawed, and offered to work with them to craft language amending it. “DHHS employees wanted the law changed to both reflect the constitutional rights of parents and to give caseworkers more time to investigate true cases of child endangerment,” said Sankaran.

Sankaran led a Michigan Law team to begin sketching out a draft to amend the law. After going back and forth with DHHS on the language, they landed on a draft of a bill that could begin making its way through the legislative process in Lansing. Ultimately, Senator Rick Jones introduced SB 421 to amend 1982 PA 250, which Gov. Rick Snyder, ’82, signed into law in March. It will take effect on June 12.

What began as “scribbles” on the part of Sankaran and his students now will have an impact on families across Michigan, which Sankaran said is encouraging to everyone involved with the case. “While our political climate makes it easy to become disillusioned and cynical, perhaps our response should be to think of the small things we can do to make the world a better place. Sometimes those scribbles may turn into law.”