In a First, Parent Successfully Appeals Michigan Judge’s Removal of Child to Foster Care

A Michigan parent on Thursday became the state’s first to successfully appeal a judge’s decision to remove a child into foster care, a ruling that the family’s advocates hailed as “an important first step” toward ensuring that judges don’t put families through the trauma of separation without showing sufficient cause.

“Separating a child from her parents is incredibly traumatic,” said Vivek Sankaran, director of the Child Advocacy Law at the University of Michigan Clinic, whose students filed the appeal. “Yet, removal decisions often evade any scrutiny. In most places across the country, parents can’t even challenge these decisions.”

The Michigan Court of Appeals’ ruling was no easy legal feat for the mother. The three-judge panel sided with the family court judge on multiple findings and rejected several grounds for the mother’s appeal.

It did not dispute the trial court’s finding that there was indeed a risk of substantial harm to child LZW by continuing to live with her mother. But on the issue of whether the judge ensured and documented the presence of  all five elements that must be present to justify removal of a child under state law, the panel found the record lacking.

“The trial court did not appear to consider whether removal of LZW was the only available option to keep LZW safe, nor did it appear to consider whether any efforts had been made to keep LZW in respondent’s care,” the seven-page ruling stated.

“Furthermore,” they went on, “the trial court did not appear to consider whether LZW’s removal might be more emotionally traumatic to her than keeping her in respondent’s care. Although not removing a child from an unfit parent can also be hazardous to the child’s health, it is well recognized as public policy that separation of children from parents should be avoided if reasonably feasible.”

The panel ruled that LZW’s mother may retain custody of LZW while the trial court works through other issues in the case.

Federal law related to the funds that states receive for child welfare require that reasonable efforts be made to prevent the removal of children into foster care. It also requires that reasonable efforts be made to reunify children with their parents when foster care is deemed necessary.

But nearly all of the appellate action on child welfare cases focuses on the latter standard, according to retired California judge Leonard Edwards. Attorneys are not appointed early enough in cases to push reasonable efforts, and most judges do not enforce the standard, he wrote, in a 2018 op-ed in The Chronicle of Social Change.

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