(STANDING_UP_WITH_DADS_SUDS) Adoptive parents can proceed with rights suit

Submitted by Editor on Sun, 14/11/2004 - 22:17

(At the expense of the true Parents Constitutional Rights)
Judge calls process that stripped custody unconstitutional

Quote: Describing actions of an Oakland County judge in a bitter adoption battle over two small girls as shocking, a federal judge has ruled that a civil rights lawsuit filed by the girls' first adoptive parents can go forward.

Ed Ward
November 14, 2004


Judge calls process that stripped custody unconstitutional

November 13, 2004

BY Jack Kresnak
Free press staff writer

Describing actions of an Oakland County judge in a bitter adoption battle over two small girls as shocking, a federal judge has ruled that a civil rights lawsuit filed by the girls' first adoptive parents can go forward.

In a 67-page opinion released Friday, U.S. District Judge Paul Borman in Detroit said that licensed foster and adoptive parents Chadd and Tamera Smith of Clinton County were the legal parents of the two girls in 2003 when they lost custody through unconstitutional legal procedures in Oakland County Family Court.

Borman said the unconstitutional actions occurred when Oakland County Judge Elizabeth Pezzetti held a closed-door hearing in April 2003 on an appeal of a state decision to grant the Smiths the right to adopt the girls. The appeal was brought by lawyers for the girls' relatives, Jonathan and Donna Cromwell of Farmington Hills.

Donna Cromwell is a first cousin of the girls' maternal grandmother, but was considered too distant a relative by the Family Independence Agency for purposes of placement.

The Smiths were not notified of the so-called Section 45 hearing before Pezzetti and were not given standing to appear at the hearing or even see the court file.

In effect, Borman ruled, the Smiths lost their parental rights to the girls without being allowed to defend themselves in Oakland County. "That can only be described as shocking," Borman said in his opinion. Pezzetti could not be reached for comment.

The oldest girl was removed from her biological parents' care after sexual assault allegations were made against the parents in April 2002. Within a few days, the mother and father tried to commit suicide. The father died, but the mother survived, later giving birth to the second girl in jail.

The Cromwells tried to gain custody of the girls but were rebuffed by the FIA and a judge in Ingham County, where the biological parents had lived.

When the mother's rights were terminated later in 2002, the Smiths filed a petition in Clinton County to adopt the girls, an action approved by the FIA's director of the Michigan Children's Institute, which has legal custody of children whose parents' rights are revoked. The petition later was approved by a judge in Clinton County.

But that judge later deferred to Pezzetti and rescinded his order allowing the Smiths to adopt.

Borman found that move unconstitutional because the Smiths were the legal parents and were not given a chance to challenge the rulings in the lower courts and in the state Court of Appeals.

In his opinion, Borman mentioned three times that Pezzetti has refused to allow him to see a transcript or view a recording of the Section 45 hearing. Borman's order says that Pezzetti must provide the court's record of the hearing when asked.

Though federal law specifically bars federal judges from hearing appeals of state court rulings regarding family or domestic matters, Borman said he had jurisdiction of the case because it involves issues of constitutional due process.

The girls, now 3 and 2, have lived with the Cromwells since April 2003; the Smiths said they have not seen the girls since October 2003.

Though Borman stopped short of taking action that would immediately impact custody, he cited previous federal court rulings that any court order resulting from unconstitutional state procedures "should be regarded as a nullity."

Donna Cromwell said Friday that she was disappointed and disgusted by the ruling. "Children have a fundamental right to be with their families, and the girls' rights were violated," she said.

Tamera Smith said she was encouraged by the ruling.

"It's been a long process," Smith said. "It's been a long wait."

A hearing on how to implement Borman's opinion has not been scheduled.

Meanwhile, the state Senate is considering three bills that would fix some of the procedural defects in the Section 45 hearings. The bills would grant legal standing to foster or other types of parents who have cared for children.

Contact JACK KRESNAK at 313-223-4544 or kresnak@freepress.com.

My Best to You and Yours,


Ed Ward, MD,
Founder, LA-CRC
edward19(at)cox.net (at) = @ (for the @ crawlers) my email.


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