In Re: Adoption of AMH, a minor Jerry L. Baker and wife, Louise K. Baker v. Shao-Qiang (Jack) He and wife, Qin (Casey) Luo

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 16, 2005 Session
IN RE: ADOPTION OF AMH, A Minor
JERRY L. BAKER and wife, LOUISE K. BAKER v.
SHAO-QIANG (JACK) HE and wife, QIN (CASEY) LUO
Direct Appeal from the Chancery Court for Shelby County
No. CH-01-1302-III Robert L. Childers, Chancellor By Designation
No. W2004-01225-COA-R3-PT - Filed November 23, 2005
In this appeal, we are called upon to evaluate the trial court’s decision to terminate the parental rights
of the biological parents to a minor child. The biological parents are Chinese immigrants who are
presently in this country illegally and are subject to deportation proceedings. Shortly after coming
to the United States, the biological parents had a daughter. Facing financial difficulties at the time
of their daughter’s birth, the parents decided to place their daughter in the care of an adoption agency
until their financial situation improved. The agency placed the child with foster parents who agreed
to care for the child over an initial three month period. At the conclusion of the three month foster
care period, the biological parents agreed to the entry of a consent order by the juvenile court
transferring custody of the child to the foster parents. The biological parents continued to visit with
their daughter at the home of the custodial non-parents approximately once each week for one hour
each visit. However, they paid no child support to the custodial non-parents. The biological parents
subsequently filed a petition to modify the juvenile court’s custody order seeking to regain custody
of their daughter, which the court denied. Thereafter, the biological parents continued to visit their
daughter with the same frequency as before. On one day in particular, the biological parents asked
to take their daughter for a family portrait, and the custodial non-parents refused their request. When
the biological parents refused to leave the custodial non-parents’ home, the police were called. After
speaking with the police, the biological parents left the home and never returned to visit their
daughter citing their fear of arrest. A short time after this incident, the biological parents filed a
second petition to modify the juvenile court’s custody order. In response, the custodial non-parents
filed a petition to adopt the child and to terminate the biological parents’ parental rights in the
chancery court, primarily relying on the ground of abandonment. As a result, the biological parents’
petition to modify the custody order was transferred to the chancery court. Following a lengthy and
tortured procedural history, the chancery court held a bench trial in the matter and subsequently
entered an order terminating the biological parents’ parental rights. The biological parents filed a
timely appeal to this Court. We affirm in part and reverse in part the decisions of the chancery court
in this case. However, in light of our decisions on certain issues presented in this case, we need not
remand this case to the chancery court for further proceedings.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part;
Reversed in Part
ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., joined, and
HOLLY M. KIRBY , J., dissented.
David A. Siegel, Memphis, TN, for Appellant, Shao-Qiang (Jack) He
Richard A. Gordon, Memphis, TN, for Appellant, Qin (Casey) Luo
Larry E. Parrish, Memphis, TN, for Appellees
Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Senior Counsel, Nashville,
TN, In Defense of Challenged Tennessee Statutes
Christina A. Zawisza, Memphis, TN, for Amicus Curiae: Childlaw Center, Vanderbilt Legal Clinic,
Child Advocacy Clinic, Tennessee Alliance for Legal Services
Scott A. Kramer, Memphis, TN, for Amicus Curiae: Greater Seattle Chapter of the Organization of
Chinese Americans, Inc.
Linda L. Holmes, Memphis, TN, for Guardian Ad Litem, Kimbrough Mullins
OPINION
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A.
The Hes Enter the United States
Shao-Qiang (Jack) He (“Father”) was born on July 18, 1964 in the Peoples Republic of China
(“China”). From 1979 to 1985, Father pursued his bachelor’s degree at a university in China. Upon
completing his bachelor’s degree, Father taught at a high school in Hunan, China. From 1986 to
1998, Father worked toward obtaining his master’s degree from Hunan University in teaching
English as a second language. After he received his master’s degree, the Chinese government
assigned Father to teach English courses at the University of Nanjing, where he continued to teach
as a tenured professor from 1990 until 1995. In March of 1995, Father came to the United States to
pursue a master’s degree in teaching English as a second language at Arizona State University.
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Father entered the United States on a student visa, and he received a full scholarship to attend
Arizona State University. Father attended Arizona State University from 1995 until 1997, and he
returned to the university in 2000 to defend his master’s thesis. In August of 1997, Father enrolled
at the University of Memphis to pursue a doctorate degree in economics. Father received a full
scholarship to attend the University of Memphis, which included a stipend in the amount of
$1,050.00 each month for working as a teaching/research assistant for approximately twenty (20)
hours each week. Father subsequently abandoned his doctoral degree and changed his course of
study to pursue a master’s degree in management information systems.
After coming to the United States, Father returned to China in May of 1998 to visit for
approximately one month. Qin (Casey) Luo (“Mother” or, collectively with Father, “the Hes” or
“Appellants”) was born in China on March 21, 1968. Mother and Father never met in person prior
to Father’s return trip to China, but they did communicate through telephone calls and email for six
to seven months prior to their first meeting. During his return trip to China in May of 1998, Mr. He
met Mother in person. According to Mother, Father mailed her some material in 1998 instructing
her to go to the United States Embassy in China to secure a visa, and he returned to China to assist
her with securing the visa. In order to assist Mother in coming to this country, Father submitted a
form to the University of Memphis indicating that he and Mother were married.1 Mother and Father
indicated on their immigration documents that they were legally married in China. Mother was able
to secure a visa as the wife of a student, and she entered the United States in June of 1998. In fact,
the Hes were not legally married in China before Mother came to the United States, therefore,
Mother has been an illegal alien since she entered the United States. In a subsequent deposition,
Father testified that his intent was to get Mother into the country without ever having married her
in China.
B.
The Birth of A.M.H. and the Hes’ Financial Difficulties
When she entered the United States, Mother could speak very little English. She began
working as a waitress in a Chinese restaurant shortly after arriving in this country earning
approximately $200 to $300 per month. In July of 1998, Father learned that Mother was pregnant.
Between the time Mother entered the United States and October of 1998, the Hes’ finances remained
stable. On October 11, 1998, Father worked as a computer lab assistant at the University of
Memphis. According to Father, another Chinese student approached him and asked for assistance
with her studies. Father recounted that the student asked to borrow money, and he refused her
request. On October 19, 1998, the student filed a complaint against Father with the campus police
department alleging that Father sexually assaulted her. As a result of the compliant being filed,
Kathryn Story (“Ms. Story”), the Associate Dean of Judicial and Ethical Programs for the University
of Memphis at the time, launched an investigation. During the pendency of the investigation, Ms.
1
Father married his first wife in 1990, and they divorced at the end of 1995 or in 1996.
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Story reported that Mother came to her office toward the end of 1998 and began yelling, calling her
a “racist devil.” Ms. Story called the campus police, and an ambulance was summoned for Mother.
Subsequent to the sexual assault complaint being filed, the University of Memphis decided to
terminate Father’s graduate assistantship position, resulting in the loss of his $1,050.00 monthly
stipend.
After Father lost his stipend, the Hes began to experience financial difficulty. Around
Thanksgiving of 1998, the Hes were shopping at a Chinese grocery store in Memphis when they
encountered Father’s accuser accompanied by two other men. An altercation erupted, and, as a
result, Mother lost her balance and fell into a shopping cart. Mother, approximately seven months
pregnant at the time, experienced vaginal bleeding and was taken to the hospital. The Hes sought
legal counsel to file a lawsuit for the incident in the grocery store, but they never pursued the
litigation to a conclusion. As the birth of their child grew nearer, the Hes considered placing the
child for adoption. In November or December of 1998, the Hes approached Mid-South Christian
Services (“Mid-South”), a licensed child placement agency providing adoption and foster care
services, seeking assistance. The Hes met with Dianne Chunn (“Ms. Chunn”), a birth-parent
counselor with Mid-South.
As a birth-parent counselor, Ms. Chunn counseled the Hes on their decision to parent their
child or place the child for adoption. Ms. Chunn opened a birth-parent file on the Hes on December
1, 1998, which included her notes from conversations with the Hes. In her discussions with the Hes,
they represented themselves as a married couple, but Ms. Chunn did not request to see their marriage
license. In fact, the Hes completed a “Pregnancy Counseling Status Sheet” representing that they
were married even though they were not legally married at the time. Ms. Chunn stated that, in one
of their conversations, Father expressed concerns about whether he was the biological father of the
unborn child. Father subsequently denied making any statements to Ms. Chunn questioning his
paternity of the child.
According to Ms. Chunn, the Hes initially expressed their desire to place their unborn child
for adoption. When subsequently recounting her discussions with the Hes, Ms. Chunn stated that
they expressed their desire to find a family that was financially stable. To that end, Ms. Chunn
scheduled a meeting between the Hes and a prospective adoptive family on December 1, 1998. Ms.
Chunn’s notes from January 1, 1999, reflected that Mother felt “cheated” because the prospective
family “was not wealthy, as was their request.” Her notes also indicated that Father stated that they
felt that the adoptive family should be “taking care of them; visiting, bringing nutritious food, etc.”
According to Father, he and Mother never wanted to place their unborn child for adoption. He
asserted that they simply listened to Ms. Chunn’s advice and considered it, but Ms. Chunn pushed
for adoption to fill a quota and make money for her agency.
On January 28, 1999, Mother gave birth to a daughter, A.M.H. A.M.H. remained in the
hospital for several days while Mother returned home. The hospital “OB Admission Assessment
Record” dated January 28, 1999 indicated that A.M.H. was not to be placed for adoption. Shortly
after Mother gave birth to A.M.H., she conveyed to Ms. Chunn that she did not want to place A.M.H.
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for adoption. Ms. Chunn met with Mother and Father at their home to discuss different options.
According to Ms. Chunn, Father still believed that adoption was the best course of action, while
Mother disagreed. On February 22, 1999, Father called Ms. Chunn to report that they were still
considering adoption. The following day, Ms. Chunn met with the Hes at their apartment. During
their conversation, Father stated that adoption was the best plan for A.M.H., but their alternative
course of action was long-term foster care. Father estimated that they would need between six
months to one year of long-term foster care for A.M.H. to allow them to reestablish themselves
financially. Father told Ms. Chunn that they would go to the juvenile court to inquire about long-
term care.
On February 24, 1999, the Hes went to juvenile court and spoke to Sarah Cloud (“Ms.
Cloud”), a probation counselor at the time, to explain their inability to care financially for A.M.H.
Ms. Cloud called Ms. Chunn that same day to inquire about the situation. Ms. Chunn informed Ms.
Cloud that the Hes initially wanted to place A.M.H. for adoption, but they subsequently changed
their minds and wanted to place her in foster care. As a result of this call, Ms. Chunn agreed to
provide the Hes with three months of foster care for A.M.H. through Mid-South. While Mid-South
normally did not provide foster care beyond one month, Ms. Chunn agreed to provide three months
of foster care for A.M.H. to allow the Hes to improve their financial situation. On February 24,
1999, the Hes entered into an “Interim Care Agreement and Consent Form” with Mid-South which
provided, in relevant part, as follows:
FINANCIAL ARRANGEMENTS
I understand that 90 days of interim care will be provided my child at
no charge to me. If, after 90 days, I have not reached a decision of
adoption for my child, I agree to pay MID-SOUTH $________ per
day for this care, beginning (review needs at that time), plus any
medical expenses incurred on my child’s behalf. Interim care can
continue at the discretion of MID-SOUTH when there is a case plan
which justifies it.
....
CUSTODY
I understand that this Agreement does not terminate my parental
rights, privileges and obligations to my child. By signing this
Agreement, I designate MID-SOUTH, its agents and officers, such
rights, privileges and obligations which are necessary for my child’s
well-being from the date of admission until I sign a release requesting
termination of care by MID-SOUTH and receive my child from MID-
SOUTH, or until such time as I sign a legal surrender of my parental
rights, privileges and obligations before a Chancery Court Judge,
thereby placing said child with MID-SOUTH for permanent adoptive
planning.
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My parental rights to this child can only be terminated by due process
of law appropriately prescribed by the State of Tennessee.
When Mid-South agreed to perform foster-care, they turned to the next foster family on their list
which happened to be Jerry Baker (“Mr. Baker”) and Louise Baker (“Mrs. Baker” or, collectively
with Mr. Baker, “the Bakers” or “Appellees”).
C.
The Hes’ Relationship with the Bakers
In 1989, Mrs. Baker underwent a tubal ligation while pregnant with the Bakers’ third child.
In approximately 1998, the Bakers decided that they wanted another child, and Mrs. Baker
underwent a tubal reversal. The Bakers considered adopting a child, but they wanted to try to have
a child of their own first. The Bakers previously submitted a “Foster Home Application” to Mid-
South in 1997. In response to the question “Why are you interested in providing a foster home?” on
the application, the Bakers responded by stating, in relevant part, that they “were first interested in
adoption of a newborn, but thought we would try foster care of newborns for a couple of years.”
According to Mrs. Baker, they were considering adoption, and serving as foster parents allowed them
to decide if adoption was something they wanted to pursue. After submitting their application, the
Bakers began serving as foster parents for Mid-South. The Bakers served as foster parents for
approximately ten different children, and they never considered adopting any of the children placed
with them by Mid-South. The extent of their foster care was usually limited to ten days, with the
longest period being six weeks, in order to allow Mid-South to finalize the adoption paperwork.
At Mid-South’s request, the Bakers began providing foster care for A.M.H. (who was
approximately three weeks old at the time) on February 24, 1999, for the agreed upon three month
period while the Hes decided whether they wanted to pursue adoption. According to Mrs. Baker,
she was still attempting to get pregnant, and they did not expect to keep A.M.H. beyond the agreed
upon three month foster care period. The Bakers stated that they fully intended to end their
involvement at the end of the three month period; either A.M.H. would be returned to the Hes or the
Hes would place her with an adoptive family of their choosing.
According to Ms. Chunn, Mid-South customarily allowed the birth parents to visit their child
once a week while the child was in foster care, however, she did not participate in any visitation
agreement between the Hes and the Bakers. The Bakers and the Hes apparently reached an oral
agreement whereby the Hes could visit A.M.H. once a week during the three month foster care
period. Pursuant to this agreement, the Hes came to the Bakers’ home approximately once a week
to visit A.M.H., and they stayed for about an hour each time they visited. Ms. Chunn documented
the March 1998 visits by the Hes in her notes. On March 8, 1999, Ms. Chunn went with the Hes to
visit A.M.H. at the Bakers’ home, and she noted that Mother was excited to see A.M.H. Father told
Ms. Chunn that Mother was “moving more toward adoption,” and Mother would “readily agree” to
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an adoption if the adoptive family would allow them weekly visits until Mother became pregnant
again. Father informed Ms. Chunn of a Chinese superstition which characterized A.M.H. as less
than an ideal child due to her difficult birth. During a visit on March 15, 1999, Ms. Chunn noted that
the Hes were excited to see A.M.H., but Mother continued to be hesitant about adoption. On March
30, 1999, Ms. Chunn documented a phone conversation with Father wherein he stated that, while
Mother seemed comfortable with adoption, she “wants to maintain guardianship of the child so she
can continue in the U.S.”
According to Mother, the initial three month foster care period went well, and Mrs. Baker
took good care of A.M.H. and taught Mother how to care for her as well. At some point during the
three month foster care period, the Hes attempted to pay the Bakers $300, presumably for caring for
A.M.H. According to Mrs. Baker, they refused to accept the money because they were paid $6 per
day through Mid-South, and their agreement with Mid-South prevented them from accepting money
from the foster parents. Mid-South did not have a specific set of rules preventing foster parents from
accepting money from the biological parents, and Mid-South did not instruct the biological parents
to pay the foster parents. However, it was Mid-South’s practice to reimburse the foster parents for
caring for a child.
In mid-April of 1999, the Hes decided that they wanted to apply for a passport for A.M.H.
so they could send her to China at the end of the three month foster care period. Father informed the
Bakers of their intentions, and he requested their assistance in having A.M.H.’s passport photo taken.
Mrs. Baker complied and took A.M.H. to have a passport photo taken, and A.M.H. subsequently
received her passport. The Hes attempted to locate someone they could trust to take A.M.H. back
to China at the end of three month foster care period, but they were unable to find a suitable person.
Father stated that they could not leave to go to China because, without a green card, they would be
unable to return. According to the Hes, the Bakers attempted to persuade them to keep A.M.H. in
the United States by stating that they could visit her more frequently if she remained in this country.
Toward the end of April of 1999, Father was arrested and charged with sexual assault for the incident
at the University of Memphis in October of 1998.2 At the time of his arrest, Father worked part-
2
Father was never convicted of the criminal charges leveled against him. The record is not entirely clear as
to whether the charges were dismissed or whether Father was acquitted following a jury trial. Stephanie Johnson (“Ms.
Johnson”), the assistant district attorney general involved in the criminal case, subsequently stated that the Father’s case
was set for trial on or around December of 2001. At a hearing during that period, Ms. Johnson learned that Mother had
threatened the victim in the case, and she brought this to the attention of the trial judge. The trial judge admonished
Mother about communicating with the victim in the case.
In February of 2003, M s. Johnson attended a motions hearing in preparation for Father’s trial. During that
hearing, Ms. Johnson learned that Mother had improperly communicated with the jury outside the courtroom. Once
again, the trial judge admonished her about this conduct as well. Ms. Johnson subsequently learned that a tape of
Father’s preliminary hearing was unintelligible. As a result, the indictments against Father were dismissed, and the case
was returned to the lower court for a new preliminary hearing. In the lower court, Father produced a copy of the tape
from the original preliminary hearing, but it was decided to continue with a new preliminary hearing. As the case
progressed to trial for the second time, Mr. He did not show up for an afternoon hearing after the trial judge instructed
him to do so. The trial judge subsequently issued a warrant for Mr. He’s arrest. In any event, Mr. He was never
(continued...)
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time at the University of Memphis in a dormitory earning approximately $200 per month, and
Mother continued to work part-time as a waitress. After his arrest, the university fired Father from
his job at the dormitory.
On May 8, 1999, the Hes sent Mrs. Baker a Mother’s Day card inside which they wrote the
following:
Dear Louise:
Happy Mothers Day!
You have offered endless love to many children. You are the real
Mom of [A.M.H.]. Our thanks to you is beyond expression.
/s/ Jack & Casey
5/8/99
While she acknowledged that they sent the card, Mother asserted that she did not intend for the card
to mean that she wanted to give up her daughter.
Their inability to secure a suitable person to take A.M.H. back to China at the end of the three
month foster care period prompted the Hes to decide to allow A.M.H. to remain with the Bakers.
In addition, the Hes were still not able to financially care for A.M.H. at the end of the three month
foster care period. According to Mrs. Baker, Father came to them toward the end of the three month
foster care period and asked them to adopt A.M.H., but Mother opposed an adoption. On May 19,
1999, Ms. Chunn met with Father to discuss the Hes’ future plans for A.M.H. Father stated that they
would like to maintain their parental rights, but they wanted to continue the custody arrangement
with the Bakers. Ms. Chunn felt that such an arrangement was unrealistic, and she discussed the
possible adverse effects long-term foster care could have on A.M.H. after she bonded with the
Bakers. Thereafter, Father returned to the Bakers’ home to discuss a custody arrangement. The
Bakers informed Father that they would not be willing to retain custody of A.M.H. on the basis
suggested by Father. According to the Bakers, they entered into an oral agreement with Father
whereby the parties agreed that the Bakers would raise A.M.H. until she turned eighteen, and the Hes
would retain their parental rights so they could remain in the United States.
On May 24, 1999, Father and Mrs. Baker called Ms. Chunn to inform her that the Bakers
were willing to accept temporary custody of A.M.H. Ms. Chunn understood that the parties were
in agreement that the Bakers would care for A.M.H. until she reached eighteen years of age. After
speaking with Father and Mrs. Baker, Ms. Chunn contacted attorney Kevin Weaver (“Mr. Weaver”).
Mr. Weaver previously advised Mid-South on adoption and parental termination matters, and he
commonly met with families at the request of Mid-South. Ms. Chunn asked Mr. Weaver to meet
2
(...continued)
convicted of the criminal charges brought against him stemming from the October 1998 incident.
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with the Bakers and the Hes to discuss the legal implications of the custody arrangement and some
of the risks involved.
On June 2, 1999, Father, the Bakers, and Ms. Chunn met Mr. Weaver at his office to discuss
the custody arrangement. Father informed Mother of the meeting, but Mother did not attend the
meeting because she had to work. According to Mr. Weaver, Ms. Chunn, and the Bakers, Father
called Mother from the meeting to inquire if they should proceed in her absence. Father
subsequently denied that he called Mother from the meeting to make this inquiry. Mr. Weaver, Ms.
Chunn, and the Bakers all stated that, after Father concluded his telephone conversation with Mother,
he stated that he and Mother were ready to proceed with the agreement, and they should continue
with the meeting.
Mr. Weaver did not consider himself to be representing either party at the meeting, and he
explained to the parties at the outset of the meeting that he was not there to represent either party.
Mr. Weaver explained how the parties could obtain a consent order for temporary custody, and he
told Father that he and Mother would need to obtain a court order to regain custody in the future if
everyone was not in agreement to a change of custody. Father subsequently confirmed that Mr.
Weaver did indeed tell him that, once they signed a consent order giving the Bakers custody of
A.M.H., they would have to go before a court to obtain a change in custody. Mr. Weaver recalled
Father asking questions during the meeting, but he did not recall any specific questions. Mr. Weaver
did not advise Father that he and Mother could lose their parental rights if they failed to visit A.M.H.
or failed to pay child support for A.M.H. for four consecutive months, and no one advised Father to
have an attorney present at this meeting. At the conclusion of the meeting, Mr. Weaver felt that
everyone understood the process and was satisfied with their decision. According to Mrs. Baker,
Father stated that he would inform Mother of what transpired at the meeting and would let them
know of their decision. Father subsequently stated that he did not understand the concepts of
adoption and custody, and he understood that they were entering the temporary agreement so A.M.H.
could be covered under the Bakers’ health insurance. Father stated that he spoke to Mother after the
agreement and informed her that they would need to sign something to allow A.M.H. to be placed
on the Bakers’ health insurance.
Mr. Weaver subsequently sent a bill to Mid-South in the amount of $100.00 for his services
at the meeting. Ms. Chunn’s records indicate that Mid-South forwarded the bill to the Bakers for
payment. Ms. Chunn asked the Bakers to reimburse Mid-South for the cost of the meeting because
she felt the Hes were not financially able to do so. The Bakers apparently paid the bill for Mr.
Weaver’s services at the June 2, 1999 meeting.
On June 3, 1999, Ms. Chunn asked Pastor Kenny Yau (“Pastor Yau”) to accompany her to
the Hes’ apartment to speak with Mother. Father was not present at this meeting. On the way to the
Hes’ apartment, Ms. Chunn indicated that she felt Mother did not completely understand the agreed
upon custody arrangement the parties were about to enter into. Ms. Chunn told Pastor Yau that she
wanted to ensure that Mother understood the process and was not being forced into anything. She
asked Pastor Yau to attend the meeting and translate so Mother could better understand the
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agreement. Pastor Yau stated that, at the conclusion of the meeting, Mother indicated that she
understood the process. Later that day, Father called the Bakers to inform them that they wanted to
go ahead with the consent order transferring custody of A.M.H. to the Bakers.
D.
The Juvenile Court Order Transferring Custody of A.M.H. to the Bakers
On June 4, 1999, the Hes, the Bakers, and Ms. Chunn met at Mid-South’s office. From there,
they proceeded to the Shelby County Juvenile Court in the Bakers’ van. Mr. Weaver did not
accompany the parties to juvenile court, and neither party had an attorney present at the meeting in
juvenile court. According to Father, Ms. Chunn told the Hes to go to juvenile court, but he did not
know why. Since Mother was not present at the meeting with Mr. Weaver, the Bakers requested that
Pastor Yau attend the meeting to interpret so that they could ensure that Mother fully understood
what was transpiring.
Ms. Cloud met with the parties at juvenile court, and she noted that Mother was “very
concerned” that the arrangement would be temporary and not permanent. Ms. Cloud drafted a
“Petition for Custody” which provided that the Hes were unable financially to care for A.M.H. at the
time, and the Hes were requesting that custody of A.M.H. be transferred to the Bakers. Ms. Cloud
also drafted a “Consent Order Awarding Custody” which provided, in relevant part, as follows:
This cause was before the Court on a sworn petition, and it being
evident to the Court by the signatures of the parties that they do place
themselves before this Honorable Court and acknowledge its
jurisdiction and admit the following:
1. That [the Hes] have been fully advised of their legal rights
and that a hearing before the Court is hereby expressly
waived.
2. That all parties agree that it is in the best interest of the
child(ren) for custody and guardianship of the person of said
child3 to be awarded to Jerry and Louise Baker, non relatives.
3. That [the Hes] are aware that on this agreement is based the
Order of this Court, and that failure to comply herewith,
without just cause, places them in contempt of Court and
subjects them to such action as the Court deems proper within
its jurisdiction.
3
Ms. Cloud typed the language “and guardianship of the person of said child” into the document which appears
to be a standardized form used by the juvenile court. According to Ms. Cloud, the Bakers did not request the inclusion
of the guardianship language, but she inserted the language based upon what she had been told by the parties.
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Having considered the admissions and agreement of the parties, it is
the judgment of the Court that a change of custody is in the best
interest of the said child(ren).
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED
that custody and guardianship of the person4 of said child(ren) be and
is hereby awarded to Jerry and Louise Baker, non-relatives with
authority to make appropriate plans for the care and supervision of
said child(ren).
Before the Hes signed the order, Ms. Cloud, Ms. Chunn, and Pastor Yau took Mother into a separate
room to talk privately about the consent order.
According to Ms. Cloud, Mother asked if the arrangement she was agreeing to was a
temporary arrangement. Pastor Yau stated that he was shown the consent order, but he did not read
it to Mother word for word. Instead, he read the document himself then translated its contents to
Mother. He conveyed to Mother that, since they were financially unable to care for A.M.H., another
family would care for her. Furthermore, since they needed health insurance for A.M.H., Mother
needed to sign the document to give the Bakers legal authority. According to Mother, Pastor Yau
told her that the custody arrangement was only temporary, and she could have A.M.H. returned to
her at any time. Pastor Yau felt that he adequately conveyed the order’s import to Mother, and
Mother never indicated that she did not understand the document and never asked him to repeat
anything. Ms. Cloud and Ms. Chunn both described Mother as emotional during their meeting,
stating that she was tearful when she signed the order. However, Ms. Chunn and Ms. Cloud both
felt that Mother understood the order, which they described as a document providing that the Hes
would retain their parental rights, but they would be transferring legal custody of A.M.H. to the
Bakers. Ms. Cloud explained that she did not schedule a hearing before the juvenile court judge that
day because everyone was in agreement. She stated that it was her standard practice to ensure that
the biological parents understood that they would have to go before the juvenile court judge if they
did not agree to the order. According to Ms. Cloud, had she thought that the Hes were not sincerely
consenting to the order, she would have set the case for a hearing before the juvenile court. On the
day that the Hes signed the consent order giving the Bakers custody of A.M.H., the Hes also signed
a form provided by Mid-South which effectively removed A.M.H. from Mid-South’s care and ended
Mid-South’s involvement up to that point.
Ms. Cloud stated that no one asked about visitation during the meeting, and the order did not
contain any provisions for visitation. The order also did not make provisions for any child support
to be paid by the Hes. Pastor Yau stated that he did not recall any discussion during the meeting
regarding the law of abandonment, specifically child support or visitation. Ms. Cloud stated,
however, that the Bakers told the Hes that they could visit A.M.H. According to Father, the Bakers
assured them that they could continue to visit A.M.H. once every week. Regarding child support,
4
Ms. Cloud typed the language “and guardianship of the person” into the document at this point as well.
-11-
the Bakers never told the Hes not to pay child support, but they did not expect the Hes to pay child
support since the parties agreed that the Bakers were to raise A.M.H. until she turned eighteen. In
fact, the parties agreed that A.M.H. should begin to refer to the Bakers as “mommy” and “daddy”
and refer to the Hes as “Jack” and “Casey.” During subsequent visits, Father would refer to himself
as “Uncle Jack.”
After June 4, 1999, the Hes continued to visit A.M.H. at the Baker’s home approximately
once a week for one hour each visit. On June 5, 1999, the day after the parties signed the consent
order, Mrs. Baker began keeping a journal of the Hes’ visits to their home. According to Mrs. Baker,
the purpose of the journal was to document “everything” that occurred when the Hes visited their
home. The Hes were not aware that Mrs. Baker was keeping a journal of their visits, however,
Father subsequently acknowledged that he did not dispute the journal’s accuracy. The Bakers
encouraged the Hes to interact with A.M.H. during their visits, and Mrs. Baker would show Mother
how to feed, change diapers, and generally care for A.M.H. About two weeks after the parties signed
the consent order, the Bakers learned that Mrs. Baker was pregnant with the Bakers’ fourth child.
Between June 4, 1999, and October of 1999, the He’s visits with A.M.H. continued to go
well as evidenced by Mrs. Baker’s journal. During their June visits, the Hes brought A.M.H. jars
of baby food, formula, juice, diapers and two books. In August of 1999, the Bakers told the Hes that
they were expecting another child. During a visit on August 28, 1999, Mother kept giving A.M.H.
a gold chain and glass chime to play with. Mrs. Baker warned Mother that A.M.H. could cut herself
or get choked, and Mrs. Baker wrote in her journal that the Hes “have no concept on what babies can
do or not do.” During a visit on September 11, 1999, the Hes expressed excitement over the fact that
A.M.H. would have a sibling to grow up with. Mrs. Baker noted in her journal that Mother gave
A.M.H. one of her rings to play with, and Mrs. Baker reiterated her concern about A.M.H. putting
things in her mouth. On September 30, 1999, Mother brought A.M.H. porridge, and the Bakers
allowed A.M.H. to have a few bites.
On September 15, 1999, the University of Memphis Social Discipline Committee conducted
a hearing on the sexual assault complaint filed against Father. At the conclusion of the hearing, the
committee unanimously found Father guilty of violating certain provisions of the Code of Student
Conduct. On September 20, 1999, the committee notified Father by letter that he was suspended
from the university for the remainder of the 1999 to 2000 term until the Summer of 2000 term, that
he would be placed on trespass status, that he must complete sexual abuse counseling, and that he
could not receive his degree during the term of his suspension.5 As a result of his suspension, Father
became an illegal alien subject to deportation proceedings.
On October 3, 1999, Mrs. Baker made an entry in her journal expressing concern over the
Hes’ request to take A.M.H. out of the Bakers’ home during a visit, stating:
5
According to M s. Story, Father completed his degree requirements at the university, but he was unable to
obtain his degree due to the suspension. Apparently, the university subsequently awarded Father his degree.
-12-
Jack and Casey came at 3:00. [A.M.H.] played for a minute
with them and then wanted us. The visit was very discouraging to us.
They wanted to see if they could come and get [A.M.H.] and keep her
for the day next Sunday. I told them No. She is too little to be away
from us. Casey was very distraught, crying very loud. They left soon
after. Jack kept telling us that they had friends that kept asking about
her and a doctor at church wanted to see her. We told them she didn’t
need to see a doctor and if anyone wanted to see her they could come
to our home. We stood strong with this. I think Jack was just trying
to please Casey. No words were exchanged. We feel like Jack will
try something now. We would like to get visits to every other week.
We feel like they would wean away, but the last 2 visits we could see
Casey is wanting to come more.
If Jack confronts us with the visit we are going to tell him this
is the way its going to be and set rules for him. He is very pushy and
overbearing. They are suppose [sic] to com [sic] Thurs, 8:45 AM
because Jerry is going to be out of town. Jack will not come to our
home without Jerry being here.
Mrs. Baker subsequently stated that they were not going to allow the Hes to take A.M.H. out of their
home, and, after the October 3, 1999, visit, they decided to move visitation to every other week.
According to Mother, she wanted to see A.M.H. more often, but the Bakers began to change
visitation times or make their visits more difficult. However, Mrs. Baker’s journal indicated that the
Hes occasionally missed visits, rescheduled visits, or the Bakers would miss church to accommodate
the Hes’ visits on Sundays. Father subsequently stated that their visits with A.M.H. continued to go
well, and they experienced no problems with visitation during this period.
On November 14, 1999, Father called the Bakers to tell them he was bringing a friend from
church, Elizabeth Marshall (“Ms. Marshall”), to visit A.M.H. Ms. Marshall previously adopted two
Chinese children, and she hired Mother when she was pregnant with A.M.H. to babysit for her. Ms.
Marshall was aware that the Bakers were caring for A.M.H., but the Hes did not tell her the specifics
of their arrangement with the Bakers. Father asked the Bakers to pretend that they were A.M.H.’s
foster parents, not her custodial parents. In fact, Father told Ms. Marshall that the Bakers were
A.M.H.’s temporary foster parents. During the visit, Ms. Marshall inquired as to how the Bakers
could give up A.M.H. after caring for her for so long, and she referred to A.M.H. as A.M. Marshall.
Mrs. Baker got the impression that the Hes had spoken to Ms. Marshall about adopting A.M.H. Ms.
Marshall subsequently stated that she had no intention of adopting A.M.H.
At some point in November of 1999, Mother asked Father to approach the Bakers and request
that they return custody of A.M.H. to them. Pursuant to Mother’s request, Father approached Mr.
Baker about their regaining custody of A.M.H. According to Father, Mr. Baker stated that they did
not want to return A.M.H. to the Hes, and Mr. Baker asked him not to mention it again because Mrs.
Baker was pregnant, and he did not want to cause a miscarriage. After this conversation, the Hes
-13-
stated that they no longer felt comfortable with the Bakers, and their relationship began to
deteriorate. The Bakers invited the Hes to come to their home on December 22, 1999 to see what
A.M.H. received for Christmas. The Hes brought gifts for everyone but A.M.H. On January 28,
2000, the Bakers invited the Hes to their home to celebrate A.M.H.’s birthday. The Hes brought
food for everyone and they had birthday cake. The Hes brought A.M.H. a Sesame Street suitcase
as a gift. On February 15, 2000, the Hes visited A.M.H. and brought some fish which had bones in
it. Mrs. Baker decided not to feed it to A.M.H. On February 21, 2000, Mrs. Baker gave birth to a
daughter, Aimee. During a visit on February 28, 2000, the Hes stated that they were pleased that
A.M.H. had a new sister. Around this time, Mother became pregnant with the Hes’ second child.
On April 26, 2000, the Hes visited the Bakers’ home, and Father asked if he could bring a
friend from Ohio to visit A.M.H. According to Mrs. Baker’s journal entry for that date, Mr. Baker
asked Father if he told his friend the truth about A.M.H., and Father said he did not because he was
worried about being criticized for telling the truth. Father wondered aloud if he should tell his friend
that A.M.H. was “temporary,” or if he should tell his friend the whole truth about A.M.H. being
“permanent.” They encouraged Father to tell his friend the truth about the situation, and the Bakers
invited the Hes’ friend to dinner.
E.
The Hes’ Decision to Petition the Juvenile Court for a Change in Custody
According to Ms. Cloud, the Hes came to juvenile court or called her on the telephone
several times after the original agreed upon custody order was entered to complain about their
visitation with A.M.H. and to express their desire to regain custody of A.M.H. However, Ms. Cloud
could not remember the exact dates of these conversations. On May 3, 2000, the Hes signed a
petition seeking to modify the June 4, 1999 consent order awarding custody of A.M.H. to the Bakers
alleging that a change in circumstances warranted a change in custody. Father subsequently
acknowledged that he had been contacted by immigration officials prior to filing the May 2000
petition. According to the Hes, as of the date they filed the petition they were financially able to care
for A.M.H. Mrs. Baker’s journal entry for May 3, 2000, indicates that the Hes did not apprise the
Bakers of their intentions during the visit, and, in fact, the Hes and the Bakers discussed the kinds
of lessons they wanted A.M.H. to learn growing up. Ms. Cloud subsequently called Ms. Chunn to
inform her that the Hes had filed a petition in the juvenile court to regain custody of A.M.H. In turn,
Ms. Chunn called Mrs. Baker on May 4, 2000, to alert her of the fact that a petition had been filed.
Mrs. Baker called Mr. Baker to inform him of the news. According to her journal entry for
May 4, 2000, the Bakers were “floored” by this news. Mr. Baker called Father that afternoon to
arrange a meeting to discuss the Hes’ decision to file the petition, and Mr. Baker met Father at the
clubhouse of the Hes’ apartment complex. During their meeting, Mr. Baker asked Father why they
filed the petition. Father responded by stating that Mother insisted on filing the petition to regain
custody of A.M.H., but he wanted A.M.H. to remain with the Bakers. Father told Mr. Baker that the
-14-
Hes planned to “ship” A.M.H. back to China. Father acknowledged the parties’ prior oral agreement
(that the Bakers would raise A.M.H. until she turned eighteen), but he stated that they needed to
discuss changes to the agreement. As Father began talking about the proposed changes, Mr. Baker
started writing down what Father proposed. When Mr. Baker indicated that the Bakers would not
agree to changing their prior agreement, Father grabbed the paper from Mr. Baker and began writing.
The discussion between the two men resulted in the following three options being presented by
Father:
The below options were discussed by Jerry Baker and Jack He.
/s/ Jerry Baker
/s/ Jack He 5/4/00
OPTION # 1
That the Bakers and the He’s [sic] agree to give [A.M.H.]
back to the Hes without disputing custody in court. The Hes agree
that in the event the Hes must leave the United States for China they
will let the Bakers adopt [A.M.H.] forever.
* The Bakers must agree not to cause the Hes to leave the
United States by reporting to the U.S. Government.
OPTION # 2
The Hes agree to stay in Memphis as long as they stay in
United States. The Hes will allow the Bakers to have [A.M.H.] for
a visit no less than two days per week. * Option 1 and 2 go together.
OPTION # 3
The Bakers and the Hes agree to continue their current
agreement with one supplement: the Hes may take [A.M.H.] back
home one day every other week. Such agreement will continue for 18
years. The Hes agree to leave [A.M.H.’s] passport to the care of the
Bakers.
Mr. Baker wrote the first two options as Father spoke, and Father wrote the third option. Father and
Mr. Baker were unable to reach any agreement that day, and the matter remained unresolved.
After the Hes filed their petition to modify the original custody order, the Hes continued to
visit A.M.H. at the Bakers’ home with the same regularity. On May 7, 2000, the Hes came to the
Bakers’ home with their friends from Ohio. When Mrs. Baker was alone in the kitchen, Father
approached her and stated that “it was going to be alright, that he was going to persuade Casey not
to do this.” At some point in May of 2000, the Bakers contacted Mr. Weaver.
-15-
The Hes’ May 2000 petition to modify custody was filed in the juvenile court on June 19,
2000. On June 28, 2000, the juvenile court referee held a hearing on the Hes’ petition.6 Mr. Weaver
attended the hearing on behalf of the Bakers. The Hes did not hire a lawyer to represent them at the
hearing, and no translator was present. Prior to the hearing, the juvenile court appointed a Court
Appointed Special Advocate (“CASA”) to investigate the Hes’ petition to modify custody and
determine if they were presently able to provide for A.M.H. The CASA provided the referee with
a copy of his report on the date of the hearing, which provided, in relevant part as follows:
CONCERNS AND EVALUATIONS
Mrs. Luo does not speak English. Therefore, Mr. He translated for
her during this CASA’s visit. Presently, both parents stated they want
[A.M.H.] back home with them, as they are now able to financially
care and provide for her. This CASA believes that [A.M.H.’s]
parents love her very much. However, Mr. He and Mrs. Luo do not
seem to understand the serious nature of this matter. For instance,
neither parent appears to understand why they have to go to court to
regain custody of [A.M.H.]. They do not understand why they have
to prove anything. This CASA believes the fact that the mother and
the father are not able to speak English is relative to their lack of
issues surrounding custody of their child.
....
Qin (Casey) Luo is four months pregnant with her second child. This
CASA is concerned about the added responsibility that a new baby
would bring to Mr. He and Mrs. Luo. Presently, the couple lives in
a two-bedroom apartment with an adult female roommate named
Ping. Ping was not present during this CASA’s home visit. The
couple plans for both [A.M.H.] and the new baby to share their
existing bedroom with them.
This CASA is concerned that Mr. He and Mrs. Luo want custody of
[A.M.H.] reinstated for the purpose of citizenship. The Bakers stated
that they were very shocked when [A.M.H.’s] parents filed for
custody without first discussing it with them. They stated that they
believe Mr. He and Mrs. Luo want custody of [A.M.H.] reinstated in
order to become citizens and stay in the United States. Mr. Baker
stated that Mr. He would do anything to remain in this country.
6
The record on appeal does not include a transcript of the June 28, 2000 hearing in the juvenile court.
-16-
This CASA is concerned about the possibility that Mr. He and Mrs.
Luo might send [A.M.H.] back to China if custody is reinstated. Mr.
He informed Mr. Baker that they might send [A.M.H.] back to China
to live with relatives if Mr. He and Mrs. Luo regain custody. The
Bakers believe that this would be traumatic to the child since
[A.M.H.] thinks of the Bakers as her parents.
The CASA recommended that the Bakers retain custody of A.M.H. and that the juvenile court grant
the Hes supervised visitation with A.M.H. twice a week for four hours each day.
According to the parties, the juvenile court referee primarily spoke to Father during the
hearing about the Hes’ plans for A.M.H. The referee asked Father about the Hes’ finances, his
pending criminal matter, and their plans for A.M.H. if they regained custody. Father told the referee
that they were presently financially able to care for A.M.H., and, if they were awarded custody, they
planned to send A.M.H. to China and send $25 to $35 a month to support her. At the conclusion of
the hearing, the referee entered “Findings and Recommendations of Referee” denying the Hes’
petition to modify the previous June 4, 1999 custody order, and the juvenile court confirmed those
findings that same day. The Hes did not appeal this ruling, and they continued to visit A.M.H. at the
Bakers’ home once a week occasionally bringing food and other items for A.M.H.
Shortly after the hearing, Father went to Macon, Georgia to work for approximately two
months, and Mother remained in Memphis. During this period of time, Mother continued to visit
A.M.H. at the Bakers’ home. Of particular significance is a visit Mother made to the Bakers’ home
on August 1, 2000 to visit A.M.H. The Bakers had previously spoken to Mother and asked her to
come at 10:00 a.m. because Mrs. Baker had to leave at 11:00 to meet Mr. Baker for lunch. Mother
arrived at 10:45 a.m, and at 12:15 p.m. Mrs. Baker informed Mother she needed to leave to meet Mr.
Baker. Mother picked A.M.H. up and refused to leave, stating that Mrs. Baker should call the police.
Mother began yelling and screaming at Mrs. Baker, referring to the Bakers as “bad people, demons.”
Mrs. Baker called Mr. Baker and informed him of the situation, and she asked him to return home.
Mr. Baker called Father in Macon, Georgia and informed him of the situation, and Father advised
Mr. Baker to call the police. According to the Bakers, Father apologized for Mother’s behavior.
After the police arrived, Mother agreed to leave. The Bakers informed Father that Mother would not
be allowed back in their home unless he accompanied her. As a result of the incident, Father quit
his job in Macon, Georgia and returned to Memphis.
The Hes continued to visit A.M.H. approximately once each week in September and October
of 2000. On October 23, 2000, the Hes visited A.M.H. and brought her pears, chips, watermelon
seeds, and some Chinese books. According to Mrs. Baker’s journal, the Hes spoke Chinese the
whole time, and they were “determined to get [A.M.H.] to call them Mama & Papa.” On October
28, 2000, Mother gave birth to a son, Andy. One of Andy’s ears was only partially developed at
birth. After Mother gave birth to Andy, Father called Mrs. Baker to ask if she would pick up Mother
and Andy from the hospital, which Mrs. Baker agreed to do. At Father’s request, Mrs. Baker also
delivered a document for the Hes to a social services office. Mrs. Baker visited the Hes’ home
-17-
throughout the month of November 2000 to bring them food, items for Andy, and helped teach
Mother how to care for the newborn. She also took Mother shopping for Andy, and she drove
Mother to see Andy’s pediatrician. The Hes also called Mrs. Baker occasionally to inquire about
how to care for the baby. Toward the end of November, the Bakers helped the Hes when their
automobile needed repairs, and they drove Mother on her errands. According to the Hes, their
financial situation began to improve after Andy was born, and they were able to hire a full-time
Chinese babysitter to care for Andy.
On December 4, 2000, Mrs. Baker drove Father to work, and she took Mother and Andy to
see Andy’s ear specialist. On December 15, 2000, Mrs. Baker took Mother and Andy to another
doctor’s appointment, and she took Andy to have his passport photo made. Mrs. Baker subsequently
took Andy to a doctor’s appointment without Mother at the request of the Hes. On December 22,
2000, the Bakers invited the Hes to their home for Christmas, and the Hes visited A.M.H. the
following day. The Hes did not bring A.M.H. any gifts, stating they did not have time to shop. The
Bakers gave the Hes a vacuum cleaner and gave Andy clothes.
In January of 2001, the Hes visited A.M.H. at the Bakers’ home four times. On January 1,
2001, friends of the Hes drove them and Andy to visit A.M.H. Shortly after arriving, Father said he
had to leave, and he asked the Bakers to drive Mother and Andy back home, which they agreed to
do. On January 13, 2001, the Hes visited A.M.H. and brought her three pears and some Chinese jell-
O. On January 20, 2001, Father called the Bakers and wanted to come visit, but the Bakers informed
him that it was an inconvenient time because Mrs. Baker was having a baby shower. They
rescheduled the visit for January 22, 2001. On their way to the Bakers’ home on January 22, 2001,
Father called to ask if Mother could visit A.M.H. on her birthday, January 28, 2001, and the Bakers
agreed. When the Hes arrived at the Bakers’ home, they introduced a female accompanying them
as Mother’s sister. When Mrs. Baker inquired further because of her understanding that Mother only
had a brother, Father stated that the female was actually Mother’s cousin. Mrs. Baker noted in her
journal that Mother appeared to be upset. She also noted in her journal that A.M.H. was sick, and
she made an appointment for her to see the doctor.
On January 28, 2001, the Hes arrived at the Bakers’ home to visit A.M.H. for what turned
out to be their final visit. According to the Hes, they called the Bakers about a week prior to the visit
to inform the Bakers that they wanted to take A.M.H. to have a family portrait made, and the Bakers
agreed to their request. According to Mrs. Baker’s journal, they had no prior knowledge of this
request. When the Hes stated their intentions, the Bakers told them that A.M.H. was sick and could
not leave the house. Records subsequently introduced in this matter indicate that the Bakers were
in contact with A.M.H.’s doctor during this period regarding A.M.H.’s high fever, cough, and
congestion. The Hes became more insistent and demanded to take their daughter to have a family
portrait made. When the Bakers refused, Father instructed them to call the police, which the Bakers
did. Two sheriff’s deputies arrived at the Bakers’ residence and spoke to the Hes and the Bakers.
Deputy John Astor (“Deputy Astor”) subsequently stated that he found the Hes to be “irate,” and they
were outside the Bakers’ home yelling and screaming. Deputy Astor spoke to Father and advised
him to speak to an attorney. According to Deputy Astor, he instructed the Hes to refrain from
-18-
returning to the Bakers’ home that day. Mother subsequently stated that, based on Father’s
translation, she understood Deputy Astor’s statement to mean that they could never return to the
Bakers’ home or they would be arrested. Mr. Baker stated that he memorialized the events of
January 28, 2001 in Mrs. Baker’s journal shortly after the incident because Mrs. Baker was too upset
to write.
After the January 28, 2001 incident, the Hes never returned to the Bakers’ home to visit
A.M.H. According to Father, they did not return or call because they were afraid of being arrested,
and they were also concerned about possible deportation and his pending criminal charges. Mrs.
Baker stated that, after the incident, she called the Exchange Club to arrange for any future visits to
be conducted there. However, the Bakers did not call and inform the Hes that future visits would
be conducted through the Exchange Club. In fact, Mrs. Baker subsequently admitted that the Bakers
did nothing after the January 28, 2001 incident to promote a relationship between A.M.H. and the
Hes. The Bakers did not hear from the Hes again until April 2, 2001. On that day, Mother called
and left a message on the Bakers’ answering machine instructing the Bakers to come to their home
and “get [their] baby bed, we are moving, thank you, bye bye.”7 Mother subsequently stated that
they also sent postcards to A.M.H. in April or May of 2001, but they were returned.
In February of 2001, the Hes contacted the juvenile court asking for assistance in regaining
custody of A.M.H. from the Bakers. On February 15, 2001, Father faxed a letter dated February 1,
2001, to the juvenile court setting forth a brief history of the case, the incident on January 28, 2001,
and the Hes’ desire to “take our child back and go back to China.” Father also sent a copy of the
letter to the media. On April 9, 2001, the Hes went to juvenile court where they met with Candice
Brown (“Ms. Brown”), a probation counselor. Ms. Brown described Mother’s behavior that day as
“hysterical,” and she appeared to be genuinely upset about regaining custody of her daughter. Ms.
Brown recounted that the Hes told her that they did not understand the American system, and they
did not understand what they were doing when they signed the original consent order giving the
Bakers custody of A.M.H. Ms. Brown explained to the Hes that, since the Bakers were not there to
agree to a change of custody, they would need to file a petition and go before a judge to ask for a
modification of the custody arrangement. Ms. Brown prepared a petition on April 9, 2001, wherein
the Hes stated that they were presently able to care for A.M.H. Only Mother signed the petition. Ms.
Brown subsequently stated that Father was present that day, but she was new to the position and only
had Mother sign the petition. The Hes’ petition to modify the custody arrangement was filed in the
juvenile court on May 29, 2001, and the petition was set for a hearing in June of 2001. Father
subsequently admitted that, as with the previous petition they filed in May of 2000, the Hes were
contacted by immigration officials around the time they filed the May 2001 petition, but he could
not remember the exact dates of those calls. Father stated that they received the calls from
immigration officials between March and May of 2001.
7
During a subsequent deposition, Father testified that he too called and left a message with the Bakers asking
about visitation. He also stated that he mailed A.M.H. a card after January 28, 2001, but he did not receive a response.
Father offered no such testimony at trial, and the trial court made no mention of this fact in its order apparently due to
the trial court’s findings regarding Father’s credibility.
-19-
At some point in May of 2001, the Hes sent their son Andy, who was seven months old at
the time, to China to live with Mother’s relatives. They paid their babysitter, a Chinese immigrant,
to take Andy to China. According to the Hes, they sent Andy to China because they feared he could
be taken from them if Father was ultimately convicted of the criminal charges pending against him.
They also hoped that Mother’s father, a “traditional medicine doctor,” could treat Andy’s ear. While
Andy was in China, the Hes sent approximately $1,000.00 each month to her family.
F.
The Bakers’ Petition to Terminate the Hes’ Parental Rights
After the Hes filed their petition to modify the original custody order in juvenile court in May
of 2001, the Bakers once again met with Mr. Weaver. Mr. Weaver recommended that the Bakers
file a petition to terminate the Hes’ parental rights to A.M.H. to stop the juvenile court proceedings.
When the Hes appeared in juvenile court on June 6, 2001 for the hearing on their petition, the
juvenile court rescheduled the hearing until June 22, 2001 because Mr. Weaver was unable to attend.
Two days before the scheduled June 22, 2001 hearing, the Bakers filed a “Petition for Adoption and
Termination of Parental Rights” in the Chancery Court of Shelby County. The Bakers’ petition,
which Mr. Weaver filed on their behalf, stated that the Hes abandoned A.M.H. by willfully failing
to visit her and willfully failing to support her. The Hes were subsequently informed of the petition
and the necessity to transfer the case to the chancery court. Soon thereafter, the Hes secured the
services of attorney Dennis J. Sossaman (“Mr. Sossaman”) to represent them in the matter. The case
was initially assigned to Chancellor D.J. Alissandratos.
On June 27, 2001, the chancery court appointed Mid-South as next friend to conduct an
investigation into the merits of the Bakers’ adoption petition. Ms. Chunn conducted the
investigation on behalf of Mid-South and opened an “adoptive family file.” Ms. Chunn subsequently
filed her report outlining the history between the Hes and the Bakers, and she concluded that A.M.H.
“is continuing to thrive in the Baker home.” On July 24, 2001, the chancery court, pursuant to the
agreement of the parties, entered an order appointing attorney Kimbrough B. Mullins (“Ms.
Mullins”) to serve as the guardian ad litem for A.M.H. The order also provided that the parties
agreed to waive any hearsay objections to any statements contained in Ms. Mullins’ reports, and they
stipulated that Ms. Mullins would be deemed an expert regarding any subsequent opinions she may
form in the case. On September 24, 2001, the Bakers filed a notice with the chancery court that they
were substituting attorney Larry E. Parrish (“Mr. Parrish”) as counsel to replace Mr. Weaver.
On October 10, 2001, Ms. Mullins filed her first interim report with the chancery court. In
preparing her report, Ms. Mullins conducted interviews with the Hes, assisted by Pastor Yau
translating; the Bakers; Ms. Chunn; and Ms. Cloud. Ms. Mullins indicated in her report that Ms.
Chunn informed her that, prior to the birth of A.M.H., Father questioned his paternity of A.M.H.,
and Ms. Mullins’ report noted that Father confirmed this assertion. Based on her interviews with
Father, Ms. Mullins noted that Father was in favor of her suggestion that he undergo a DNA test to
-20-
establish paternity. Accordingly, she included in her report a recommendation that Father undergo
a DNA test to establish whether he was the biological father of A.M.H. Father subsequently denied
telling Ms. Chunn he questioned paternity of A.M.H., and he denied telling Ms. Mullins he wanted
a DNA test. Ms. Mullins also recommended that the parties undergo psychological testing. She
recommended that the court appoint a child psychologist to evaluate A.M.H. for the psychological
impact removing her from the Bakers would have and the effect of losing her cultural heritage if the
Hes’ parental rights were ultimately terminated. Ms. Mullins recommended Dr. David Goldstein
(“Dr. Goldstein”), a licensed clinical psychologist, to perform this role. According to Ms. Mullins,
the chancery court entered a consent order in October of 2001 appointing Dr. Goldstein to evaluate
A.M.H.8 Dr. Goldstein focused his evaluation on three issues: (1) the psychological status of
A.M.H., (2) the effect removing A.M.H. from the Bakers would have on the child, and (3) the effect
severing A.M.H.’s relationship with the Hes would have on the child.9
In October of 2001, Father filled out a credit application to purchase a new Mazda vehicle.
In the section of the application requesting the name and address of a closest living relative, Father
inserted the names “Jack Johnson” and “Jeff He”indicating they were his cousins. Father
subsequently admitted that these were fictitious names he occasionally used to refer to himself.
According to Father, the salesperson pressured him into buying the vehicle and encouraged him to
use the fictitious names. The application reflects that the Hes made a $1,500.00 down payment on
the vehicle which cost approximately $18,000.00, and they financed the rest by making payments
of approximately $300.00 per month beginning in November of 2001.
On January 7, 2002, the Hes were legally married in Memphis, Shelby County, Tennessee.
Around that time, Father took a DNA test which established that he was indeed the biological father
of A.M.H. Shortly thereafter, he filed a “Voluntary Acknowledgment of Paternity.” Mother became
pregnant with the Hes third child around this time as well.
On January 23, 2002, the Bakers filed a motion requesting that the chancery court order the
Hes to pay Ms. Mullins’ fees, deposit a sum with the court sufficient to pay for future costs
associated with psychological evaluations, expert testimony, and DNA testing. In support of their
motion, the Bakers relied on the following testimony from Father’s deposition, wherein he stated:
8
In a subsequent report filed in September of 2003, Ms. Mullins indicated that the chancery court did in fact
appoint Dr. Goldstein to perform a psychological evaluation of A.M.H. The record does not contain an order to that
effect, and we find no transcript of any hearing discussing such an order in the record on appeal. In any event, the parties
do not dispute that the trial court appointed to Dr. Goldstein to conduct the evaluation.
9
Dr. Goldstein never evaluated the Hes or the Bakers in this case. W hen he was initially contacted by Ms.
Mullins, Dr. Goldstein would not agree to conduct an evaluation of the adults because he felt that, due to the cultural
issues involved and the costs associated with performing such a complex evaluation, he wanted to gather a neutral team
of professionals to conduct the evaluation. According to M s. M ullins, counsel for both parties objected to her request
to evaluate the Bakers and the Hes citing the costs associated with such an evaluation, therefore, the chancellor decided
to defer a decision on an evaluation of the parties.
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Q. Is you [sic] your understanding that you have the
responsibility to pay at least initially half of the cost for Ms.
Mullins service as guardian ad litem?
A. I do not understand it.
Q. Okay. Are you prepare [sic] to pay half of her fees when they
are due?
A. Let me put it this way, money is nothing compared with the
human being.
Q. Okay.
A. Compared with having our daughter back. Money is nothing
if in the money is justified, if the expense.
Q. Well, if the Court ordered you to pay stay [sic] $3,000 toward
the guardian ad litem’s fee, are you able and willing to make
that payment?
A. I’m able, but I’m not necessarily willing.
Q. So it may be that you would have the money, but just because
the Court told you to pay it, you wouldn’t necessarily pay it,
right?
A. I will wait and see. I cannot make decisions right now. I will
wait and see.
Q. But you do reserve to yourself the right to make a judgment
about whether you will or will not follow the order?
A. I will consult a few other people before I make my decision.
....
Q. Okay. Now, when you say that you are able, do you mean
you have the money in the bank?
A. I have part of the money in the bank, but, you know, as a
Chinese, Chinese tradition is different from American
tradition. I can borrow money very easily from my friends,
my relatives.
Q. All right?
A. Yes.
Q. How much money do you have in the bank?
A. Right now I have $2,500 and 60-something most recent
information.
....
Q. Now, you say you can borrow money from friends and
relatives; is that correct?
A. Yes.
-22-
Q. Okay. Give me the names of the friends for whom you would
borrow money if you needed to borrow money?
A. Most of them in China. I can give it to you.
Q. Please.
A. My relatives such as my wife’s brother . . . .
Q. Okay.
A. Her brother is a very successful young man. Younger brother.
....
Q. And how much capacity would he have to lend you money, if
you needed money from him?
A. I think he can easily loan us one million.
Q. One million?
A. Yes. One million.
Q. Okay. All right. You are talking about dollars?
A. Yes.
Q. Okay. And who else?
A. And then that’s for my wife’s brother, younger brother. And
then for from my relatives, my sister just now mentioned, she
is an attorney. She can loan me about $10,000. U.S. Dollars.
Q. Okay. And who else?
A. And some of my previous co-workers the Chong Qing
University . . . .
Q. Okay. And he’s at —
A. He is an architect.
Q. Architect?
A. Yes.
Q. And how much do you think you could borrow from him if
you needed?
A. $10,000.
Q. Okay. Anybody else?
A. I think that’s sufficient to see through this case.
Q. And you think you would need to do anything to borrow the
money from the other than just ask them and tell them how
much you need?
A. I would tell them and if — I know — I know they will. They
will be very happy to do so. I know that. Because we are
fighting for our daughter back.
Father also mentioned that he could secure the funds within a month and that he could receive these
loans interest free. Mother subsequently testified that Mr. Sossaman, their attorney at the time of
Father’s deposition, instructed Father to testify at his deposition that they had more money than they
-23-
actually did. However, Father subsequently testified that Mr. Sossaman did not ask him to
misrepresent their income. Although he admitted to lying about their income during his deposition,
Father asserted that Mr. Parrish trapped him into saying how much money they could acquire.
On February 7, 2002, the chancellor conducted a hearing on the Bakers’ motion. At the
hearing, Ms. Mullins requested that the chancery court take custody of A.M.H.’s passport. The Hes
informed the chancellor that the passport was at their apartment, and the chancellor ordered the Hes
to surrender the passport to the court by 4:00 p.m. that day. The chancellor also appointed an
attorney ad litem to represent Ms. Mullins.10 Regarding the Bakers’ motion, the chancellor ordered
the Hes to deposit $10,000 with the chancery court to cover future guardian ad litem fees, to pay for
the DNA test, and to deposit $5,000 to cover the projected costs associated with psychologically
evaluating the parties and A.M.H.
The Hes did not comply with the chancellor’s ruling by tendering A.M.H.’s passport to the
court on February 7, 2002. When subsequently questioned about his communication with a reporter
after the hearing, Father provided the following testimony:
Q. And do you recall [the reporter] asking you whether you were
going to produce the passport or not produce the passport?
A. About the passport, I think I told her that we did not want to
give the passport. That’s what I said.
Q. Okay, are you denying that you said to her, “Which would
make a better story for you”?
A. I could not remember exactly what I said, but the point is that
I did not want to give the passport. That’s my point.
Q. Did you say to her words that, “I may do either one. Which
one will make the best story for you?”
....
Q. Are you denying that you said that?
A. I do not deny it. I could not remember that. That’s what I
said.
Father went on to testify that there was a sixty percent chance he made the statement versus a forty
percent chance that he did not make the statement. According to Father, he “was trying to get the
media’s attention in order to help me to get my daughter back.” On February 8, 2002, the chancellor
entered an “Order to Show Cause” reflecting that the court received a call from the guardian ad
10
On February 12, 2002, the chancellor entered an order nunc pro tunc to February 7, 2002 addressing the oral
orders entered at the February 7, 2002, hearing. The court entered an order on April 2, 2004, nunc pro tunc to February
2, 2002, appointing attorney Linda L. Holmes as the attorney ad litem for M s. Mullins.
-24-
litem, counsel for the Hes, and counsel for the Bakers on February 7, 2002, at approximately 4:00
p.m. informing the court that the Hes did not intend to comply with the chancellor’s order.
The chancellor entered another order on February 8, 2002, appointing the Bakers guardians
of A.M.H., and the chancellor ordered that the Hes have no contact with A.M.H. until the court
entered an order directing otherwise. The order indicated that the chancellor based his decision on
the entire record, including the recommendation of the guardian ad litem. The Certificate of Service
on the order indicated that it was presented to Mr. Sossaman, counsel for the Hes, and Ms. Mullins,
the guardian ad litem for review. However, Mr. Parrish, counsel for the Bakers, was the only
attorney who signed the order indicating his approval. The Bakers never requested such an order,
and the record on appeal contains no transcript of any hearing addressing the need for such an order.
In fact, Mr. Parrish subsequently testified at trial that, as everyone was preparing to leave the hearing
on February 7, 2002, the chancellor instructed him to draft the order. According to Mr. Parrish, the
chancellor instructed him to forgo having the other attorneys sign the order. Mr. Parrish stated that
Mr. Sossaman was no longer the Hes’ attorney at the time, and he admitted that he did not show the
order to Mr. Sossaman prior to presenting it to the chancellor for his approval. Mr. Parrish was the
only lawyer present in the courtroom when the chancellor read the order and signed it.
It was not until February 14, 2002 that Mr. Sossaman filed his “Motion to Withdraw” with
the chancery court citing a conflict of interest. That same day, the chancellor conducted a hearing
on the previous “Show Cause Order” and Mr. Sossaman’s “Motion to Withdraw” as counsel for the
Hes. Mr. Sossaman informed the court that a conflict had developed between the Hes regarding the
manner in which the case should proceed after the February 7, 2002 hearing. The chancellor
required Mr. Sossaman to remain as counsel for Father during the hearing, and Mother chose to
represent herself. During the hearing, Mother informed the chancellor that she would not comply
with the court’s previous order to surrender the passport. Father testified that, after the previous
hearing, he tried to get the passport from Mother, who had control of the document, but she refused
to tell him where she put it. At the conclusion of the hearing, the chancellor determined that Father
was not a credible witness, that both Mother and Father had control of the passport, and that Father
was “a willful, knowing, perjurer on these points.” The chancellor ordered the Hes to surrender the
passport by 9:00 a.m. the following morning or face incarceration.11 That same day, the chancery
court entered an order permitting Mr. Sossaman to withdraw from representing the Hes in this
matter. On February 15, 2002, attorney David A. Siegel (“Mr. Siegel”) filed a notice with the
chancery court indicating that he would be taking over representation of the Hes in the matter.
11
The chancellor had previously instructed the Hes to produce proof of their marriage in China and proof of
their Tennessee marriage. At the hearing on February 14, 2002, the chancellor found that the Hes never married in
China. On February 15, 2002, the chancellor ordered the Hes to produce a copy of their Tennessee marriage license.
This order was the subject of a separate contempt proceeding.
The court also entered a subsequent show cause order requiring the Hes to appear and explain why they failed
to pay the $15,000.00 the court previously ordered them to pay. The Hes subsequently complied with the court’s order
and entered a notice of their payment of $15,000.00 to the court.
-25-
On February 20, 2002, the Hes filed a motion requesting that the chancellor order immediate
visitation with A.M.H. and vacate its previous order directing them to refrain from contacting their
daughter. On February 22, 2002, the chancellor entered an order nunc pro tunc to February 14, 2002,
finding the Hes in civil contempt for refusing to surrender A.M.H.’s passport, and the court ordered
them incarcerated until such time as they purged themselves of the contempt by producing the
passport. The Hes subsequently complied by delivering the passport to the court.
On March 7, 2002, the chancellor conducted a hearing on the Hes’ petition requesting
visitation. Regarding the chancellor’s prior order directing no contact between the Hes and A.M.H.,
the following exchange occurred:
THE COURT: Why did I issue a no contact order?
MR. PARRISH: The guardian ad litem asked you to.
The Hes were here with counsel at the time
and didn’t object.
THE COURT: Let me say this, I need to have an
evidentiary hearing so I can see whether or not
I need to reverse myself, stick with what I
have done, whatever it is, because I don’t
remember why I did it. It sounds more
logical, which is — because it’s not like me to
sit and go, I’m looking at an overcast day, I
think I will deny, think I will deny you
visitation. I usually do things for a reason.
People might disagree, but I am a person who
reasons through things.
MR. SIEGEL: I realize that.
THE COURT: Obviously what happened was the
guardian ad litem made a recommendation the
other side remained silent on and didn’t offer
proof, and I went on ahead, and I went on,
said my job is to be decisive, not just ride the
fence being indecisive.
So, I made a decision, one side said, I
would like for you to decide this way, which
is to deny visitation, and the other side was
heard for whatever short time it was or long
time it was or whatever, then I made a
decision. Now, having done that, I’m more
than happy to revisit it, but if I’m going to
revisit it now, I’m going to need to hear from
the guardian ad litem, and witnesses, anybody
-26-
they want to call, because the law is not
absolute on this.
As previously mentioned, the record on appeal does not contain any motion by the Bakers or Ms.
Mullins asking for a ruling on visitation or a no contact order, and the record does not contain a
transcript of any evidentiary hearing addressing the entry of the order. According to Mr. Parrish’s
subsequent testimony at trial, no prior hearing was ever conducted on this issue. In fact, Ms.
Mullins’ interim report filed on October 10, 2001 only contained a recommendation that any
visitation between the Hes and A.M.H. be supervised. Ms. Mullins subsequently stated that there
was no pending motion on this issue, but she believed the chancery court had enough evidence
before it to justify the order. In any event, the trial court declined to consider the Hes’ motion on
the day of the hearing.
On March 8, 2002, the Bakers filed a motion to amend their petition to allege that Father was
not the legal parent of A.M.H. but only her biological father with no basis to allege he had parental
rights to A.M.H. The chancery court subsequently granted the Bakers’ motion to amend their
petition. Thereafter, the parties filed numerous motions with the trial court. On April 22, 2002, the
Bakers filed a motion for default judgment. On April 25, 2002, the Hes filed a motion for summary
judgment arguing that the record, as a matter of law, failed to establish that the Hes abandoned
A.M.H. On May 1, 2002, the Bakers filed a motion for partial summary judgment alleging Father
had no parental rights to A.M.H., but they subsequently withdrew the motion.
In July of 2002, Dr. Goldstein filed his report with the chancery court. Dr. Goldstein
concluded that A.M.H. was thriving with the Bakers, and she viewed the Bakers as her
“psychological parents.” After acknowledging that he could not predict how a specific individual
would respond to an interruption in attachment, he concluded that, based on his research, a child who
experiences loss in early childhood is at a greater risk of developing serious psychological disorders
in the future. He opined that, if A.M.H. were removed from the Bakers, she would experience
separation anxiety and possibly develop a depressive disorder. While he found the research
involving transcultural adoptions to be sparse, he concluded that such adoptions do not appear to
have any significant differences from normal adoptions. Dr. Goldstein subsequently admitted that,
as of the date he filed his report, he had not investigated the attachment between A.M.H. and the
Hes. However, he opined that A.M.H. would have very little attachment to the Hes based on his
observation of her interactions with the Bakers and the fact that the Hes had only visited her
approximately eighty times for one hour each time. On August 30, 2002, the chancellor entered a
consent order releasing Dr. Goldstein’s preliminary report to the attorneys, and the court limited their
disclosure of the report to the attorneys, the parties, any other experts to be utilized by the parties.
On September 9, 2002, Mother gave birth to the Hes third child, Avita. On November 8,
2002, the Hes filed a notice with the Tennessee Attorney General of their intent to challenge the
constitutionality of certain Tennessee statutes, specifically certain provisions contained in section
36-1-102 and section 36-1-113 of the Tennessee Code. Thereafter, Assistant Attorney General
Douglas E. Dimond (“Mr. Dimond”) entered an appearance in the chancery court to defend the
-27-
constitutionality of the statutes. On June 23, 2003, the Hes filed a motion requesting a jury trial, and
a motion to bifurcate the proceedings into a separate determination of the grounds justifying
termination and a decision on the best interest analysis.
On September 4, 2003, the chancery court conducted a hearing on the Hes’ motion contesting
the constitutionality of certain Tennessee statutes. On September 10, 2003, attorney Richard A.
Gordon (“Mr. Gordon”) entered a notice of appearance as co-counsel for the Hes. That same day,
the Hes filed a motion asking the chancellor to set aside its prior order appointing Mid-South and
Ms. Chunn as next friend to investigate the Bakers’ adoption petition. On September 12, 2003, the
Bakers filed a motion in limine requesting a ruling that any parental rights Father may have as to
A.M.H. are subject to termination pursuant to section 36-1-113(g)(9) of the Tennessee Code. The
Bakers also filed a motion asking the chancery court to consolidate the Bakers’ petition to terminate
the Hes’ parental rights with Mother’s petition filed in the juvenile court on May 29, 2001, asking
the juvenile court to modify the June 4, 1999 custody order. That same day, the Hes filed a motion,
pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure, asking the chancery court to set
aside the consent order issued in juvenile court on June 4, 1999. On September 15, 2003, the Hes
filed a motion for default judgment against the Bakers on Mother’s May 19, 2001 petition filed in
juvenile court requesting a modification of the custody order.
On September 23, 2003, Dr. Goldstein conducted a videotaped “attachment session” with
A.M.H., the Hes, and the Bakers. The video recording of the incident is included in the record on
appeal. Dr. Goldstein met with the parties prior to the meeting to explain the purpose of the meeting
and the parameters of permissible conduct at the meeting, which included keeping the contents of
the meeting confidential. According to Dr. Goldstein, the video demonstrated the high level of
attachment A.M.H. has to the Bakers. The Hes brought food items and gifts to the meeting which,
according to Dr. Goldstein, they used to encourage A.M.H. to interact with them. Dr. Goldstein did
not attribute A.M.H.’s willingness to approach the Hes to retrieve an item to mean she still had a
level of attachment to the Hes. Dr. Goldstein stated that, the day after the session, he observed a
news interview with the Hes wherein the Hes stated that A.M.H. thought they abandoned her.
On September 24, 2003, Ms. Mullins filed another report wherein she opined that the Hes
abandoned A.M.H. by failing to visit and failing to support her. Ms. Mullins cited A.M.H.’s level
of attachment to the Bakers and concluded that she should remain in the Bakers’ custody. On
September 25, 2003, the Hes filed an amended motion to set aside the consent order awarding
custody of A.M.H. to the Bakers entered in June of 1999. That same day, the Hes filed a motion
asking the chancery court to set aside its previous order appointing the Bakers the guardians of
A.M.H. On September 26, 2003, the chancery court entered an order denying the Hes’ motion
challenging the constitutionality of certain provisions in section 36-1-102 and section 36-1-113 of
the Tennessee Code. On September 29, 2003, the Hes filed a motion requesting immediate visitation
with A.M.H.
On October 2, 2003, the Hes filed a motion pursuant to section 36-1-119(d) of the Tennessee
Code requesting that the trial court dismiss the Bakers’ petition for adoption because the adoption
-28-
proceeding had been pending beyond the statutorily allowed period. On October 23, 2003, Ms.
Mullins filed an addendum to her previous report filed on September 24, 2003.
On November 5, 2003, the Bakers filed a motion in limine requesting that the chancery court
issue a ruling on the meaning of the word “willfully” as used in section 36-1-102(1)(A)(i) of the
Tennessee Code. On November 6, 2003, Chancellor Alissandratos received a letter from attorney
Chad A. Massey notifying him that the Hes filed a complaint with the Tennessee Court of the
Judiciary alleging judicial misconduct. On November 7, 2003, the Hes filed a renewed motion for
emergency visitation with the trial court. On November 14, 2003, Mr. Gordon filed a notice with
the chancery court of his intention to withdraw from representing Father and solely represent Mother.
That same day, Mr. Siegel notified the chancery court of his intention to withdraw from representing
Mother and solely represent Father. Also on November 14, 2003, Chancellor Alissandratos
convened a hearing wherein he informed the parties that, due to an ethical complaint filed by the Hes
and “to avoid even the appearance of impropriety,” he would recuse himself from the case. Shortly
thereafter, the Chief Justice of the Tennessee Supreme Court entered an order assigning Robert L.
Childers of the Shelby County Circuit Court to hear the case by interchange.
On December 1, 2003, the Hes’ second child, Andy, returned to the United States. After
picking up Andy at the airport, the Hes proceeded to Wal-Mart where they encountered Hope Baker,
the Bakers’ older daughter, A.M.H., Aimee, and another child Mrs. Baker was babysitting. Mrs.
Baker was in another part of the store shopping, and Hope was watching over the other children.
Upon seeing A.M.H., Mother approached A.M.H., touched the child, and said loudly, “That’s my
daughter. Give me my daughter.” Hope grabbed A.M.H. and began screaming for help. A Wal-
Mart manager heard the scream for help and approached the group. Father subsequently approached
the group and told another manager who arrived at the scene that the Hes wanted to take A.M.H. and
leave. One of the Wal-Mart managers called the police to deal with the situation.
On January 22, 2004, Judge Childers convened a hearing to ascertain the status of the case
and any pending motions, and he inquired about moving the case to trial as soon as possible. At a
hearing on January 27, 2004, the Hes made an oral motion requesting a visit with A.M.H. the
following day, her birthday. At the conclusion of the hearing, the trial court orally ordered that the
Hes were to have no contact with A.M.H. until after a trial in the matter. On January 28, 2004, the
trial court entered separate orders, all nunc pro tunc to September 4, 2003, denying the Hes’ motion
for summary judgment, denying their motion to bifurcate the proceedings, and denying their motion
for a jury trial.
On February 6, 2004, the trial court entered an order addressing the Hes’ previous request
for visitation on A.M.H.’s birthday and denied any future contact between the Hes and A.M.H. until
the completion of the trial in this matter, effectively denying the Hes’ previous motions requesting
visitation. On February 23, 2004, the trial court entered a “Joint Pretrial Order” setting forth the
disputed and undisputed facts in the case. On February 27, 2004, the trial court, recognizing that
no order had been entered allowing Mr. Weaver to withdraw as counsel for the Bakers, entered an
order nunc pro tunc to September 30, 2001 permitting Mr. Weaver to withdraw from the case.
-29-
G.
The Trial
The trial on the Bakers’ petition for adoption and termination of the Hes’ parental rights to
A.M.H. and the Hes’ petition to modify the June 4, 1999 custody order got underway on February
23, 2004 and continued until March 2, 2004. During that time, the trial court frequently held court
well into the night and heard testimony from twenty-eight (28) witnesses and admitted seventy-nine
(79) trial exhibits into evidence.
In addition to the aforementioned facts, the Hes testified that they never intended to place
A.M.H. for adoption or permanently relinquish custody of A.M.H. to the Bakers. The Hes took the
position that the Bakers intended to adopt A.M.H. from the very beginning of the parties’
relationship. Father testified that Chancellor Alissandratos, Ms. Mullins, Dr. Goldstein, and Mr.
Parrish engaged in a conspiracy against the Hes.
The Hes presented their own experts at trial to refute the testimony of Dr. Goldstein. Dr.
John F. Cooper (“Dr. Cooper”), a professor of international studies at Rhodes College, testified
regarding the manner in which Chinese citizens view children and the family. He testified that the
extended family plays a pivotal role in Chinese culture, and it is not uncommon for students to ask
family members to care for their children while they pursue a higher education. According to Dr.
Cooper, the child is returned to the biological parents at their request. He testified that China does
not have a legal concept comparable to the Tennessee statutes governing termination of parental
rights. Dr. Cooper acknowledged his familiarity with the “one-child” rule in China, and noted that
the Chinese government will typically require the mother to get an abortion upon becoming pregnant
a second time. He also stated that the Chinese government may impose fines on the biological
parents who have extra children, but these fines are only imposed on children born in China. Under
cross-examination, Dr. Cooper admitted that it is possible that fines could be imposed on a parent
who had children in another country and returned to China with more than one child, but he stated
that doing so is not the general policy. Counsel for the Bakers also questioned Dr. Cooper on cross-
examination concerning an opinion issued by a federal bankruptcy court finding him to be an
untruthful witness and imposing sanctions against him and the attorney representing him in the
matter.
Dr. John Hutson (“Dr. Hutson”), a psychologist, reviewed Dr. Goldstein’s report and records,
and he testified that Dr. Goldstein did not perform his duties appropriately in this matter. Upon
reviewing the video of the “attachment session” conducted by Dr. Goldstein on September 23, 2003,
Dr. Hutson concluded that the video revealed that Mrs. Baker was “controlling” A.M.H. and
“holding onto her.” According to Dr. Hutson, there was “a great deal of comfort” between A.M.H.
and the Hes. However, Dr. Hutson subsequently admitted that, after reviewing the video in court
once more, he did not see Mrs. Baker “clasping” the child during the meeting. He also admitted that
-30-
he could not form an opinion as to A.M.H.’s attachment to either the Hes or the Bakers based on the
video.
Dr. John V. Ciocca (“Dr. Ciocca”), another psychologist, reviewed the video of the
“attachment session” and concluded that A.M.H. responded “very favorably” to the Hes, and the
“connection between the biological parents and this child had survived.” He opined that A.M.H.
had a positive reaction to the Hes which signified that a prior connection survived despite their
prolonged absence from her life. Dr. Yih-Jia Chang (“Dr. Chang”), a clinical psychologist practicing
in California, performed psychological evaluations on the Hes in September of 2003. According to
her test results, the Hes did not present any abnormal psychological traits. Regarding the testing
procedures used to evaluate the Hes, Dr. Chang stated that the Hes were rotated during the test to
conduct personal interviews. While admitting that this is not the best way to administer the tests,
Dr. Chang stated that it was the best method given the circumstances.
Dr. Goldstein testified that Father filed a complaint with the ethics committee during the
pendency of these proceedings to complain of the manner in which he fulfilled his duties to the court.
Prior to giving his testimony in the case, Dr. Goldstein stated that Father approached him in the
hallway of the courthouse and informed him that he did not intend to pursue the complaint. In
response to the Hes’ experts, Dr. Goldstein testified that what Dr. Hutson characterized as
“controlling behavior” he viewed as “healthy attachment behavior” between a mother and her child.
His view of the “attachment session” was that the Hes used food and gifts to encourage A.M.H. to
interact with them, but he did not view A.M.H.’s willingness to approach them as evidence of an
attachment to the Hes. He noted that, during the session, the Bakers encouraged A.M.H. to interact
with the Hes, but he opined that A.M.H. did not have the attachment to the Hes that she did to the
Bakers. According to Ms. Mullins, A.M.H. viewed the Hes as “special friends.”
In March of 2004, after the evidence had been presented to the trial court, the parties began
to file various motions asking the court to exclude or strike the testimony of various experts and
witnesses. On March 22, 2004, Ms. Mullins filed a motion asking the trial court to allow her to
reopen the proof and present evidence regarding the issuance of the guardianship and no-contact
order. In her affidavit attached to the motion, Ms. Mullins stated that, after reviewing Mr. Parrish’s
testimony at trial regarding the issuance of the no-contact order and his notes from the event, she
determined that Mr. Parrish’s recollection of the events as testified to at trial was incorrect.
According to Ms. Mullins, when she learned from the Hes’ attorney at the time that they were not
going to deliver A.M.H.’s passport to the court as ordered, she asked Chancellor Alissandratos to
issue the order to protect the child from being removed to China during the pendency of the
proceedings. Mr. Parrish subsequently filed a response to Ms. Mullins’ motion stating that his
recollection of the events surrounding the issuance of the order now conformed to that of Ms.
Mullins.
On March 29, 2004, the trial court entered an order granting the Bakers’ motion to
consolidate their petition to terminate the parental rights of the Hes with Mother’s petition to modify
the June 4, 1999 custody order entered by the juvenile court. That same day, the trial court entered
-31-
a consent order admitting Ms. Mullins’ affidavit and Mr. Parrish’s notes from the conference call
with Chancellor Alissandratos into evidence.
On April 5, 2004, Mr. Dimond filed, on behalf of the Attorney General, a motion to intervene
in the proceedings to defend the constitutionality of any statutes which may be placed at issue. On
April 6, 2004, the trial court entered several orders addressing the parties’ pending motions: the court
denied the parties’ motions to exclude certain testimony from the record; the trial court entered an
order denying the Hes’ motion filed on September 10, 2003, to set aside the order appointing Mid-
South next friend to conduct an investigation into the adoption petition; the trial court entered an
order denying the Hes’ motion for default judgment on their petition to modify the June 4, 1999
order entered by the juvenile court; the trial court denied the Hes’ motion to set aside the June 4,
1999 consent order; the trial court denied the Hes’ motion to set aside the order appointing the
Bakers guardians of A.M.H.; and the trial court denied the Hes’ motion to dismiss the Bakers’
adoption petition filed on October 2, 2003. These orders effectively dealt with all of the pending
motions filed by the parties in this case.
H.
The Trial Court’s Judgment
On May 12, 2004, the trial court entered its seventy-two (72) page memorandum opinion
granting the Bakers’ petition to terminate the Hes’ parental rights to A.M.H. and denying Mother’s
petition to modify the custody order entered on June 4, 1999 by the juvenile court, stating:
Specifically, this Court finds that (1) the Hes willfully abandoned
AMH for a period exceeding four (4) months, (2) the Hes provided
no support for a period exceeding four (4) months, (3) the Hes only
sought custody of AMH to prevent the Hes’ deportation, and (4) it
would be in AMH’s best interest to terminate the Hes’ parental rights
and to remain with the Bakers. The Court will hold the Bakers’
Petition For Adoption in abeyance until the Court’s decision on the
Petition to Terminate Parental Rights and the Petition to Modify
Custody is final.
Throughout the order, the trial court set forth its extensive findings of fact, conclusions of law, and
credibility determinations.
Regarding the credibility of the Bakers and the Hes, the trial court’s order provides, in
relevant part, as follows:
I. GENERALLY SIGNIFICANT FACTS
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....
20. Mr. He questioned whether he was the biological father of
AMH and requested that the guardian ad litem arrange blood
testing for Mr. He, Mrs. He, and AMH to determine paternity
of AMH.
21. Mr. He filed an acknowledgment of paternity on March 15,
2002.
....
29. All parties, including Mr. and Mrs. He, knowingly and
voluntarily signed the June 4, 1999, Consent Order Awarding
Custody, without being induced by any fraud or undue
influence.
....
II. LITIGANT CREDIBILITY
The Court has carefully scrutinized the testimony of the Hes
and the Bakers. Because they have an interest in the outcome of the
case, the reliability of their testimony has been viewed in relation to
other evidence and the entire record in this cause, for corroboration
and/or inconsistency and the Court has weighed their testimony
accordingly.
The Court observed Mr. Baker testify for approximately three
(3) hours of live testimony at trial. Mrs. Baker testified for
approximately five (5) hours of live testimony at trial. Mrs. He
testified for approximately ten (10) hours of live testimony at trial.
Mr. He testified for approximately seven (7) hours of live testimony
at trial. The Court also observed Mr. He testify for approximately six
(6) hours, by a video-tape deposition that was admitted as Trial
Exhibit 20.
The Court was physically present with the Bakers and the Hes
in the courtroom for over ninety-one (91) hours of trial testimony,
over fifteen (15) hours of arguments on motions after the conclusion
of proof, and six (6) hours of closing arguments. The Court observed
each of them throughout the trial proceedings and interacted, through
counsel, with them as the trial proceeded to conclusion. The Court
makes the following findings of fact regarding credibility of the
witnesses:
32. Mr. Baker impressed the Court as a man who has a great deal
of love, care, and concern for children in general, but who has
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an enormous amount of love, care, and concern for his own
natural born children and for AMH. He testified in an honest,
straightforward, sincere manner. Mr. Baker impressed the
Court with his sincerity and the concern he expressed for
AMH’s welfare and safety. Mr. Baker has demonstrated
concern for and a willingness to help others who are in need,
including the Hes. As one example, Mr. Baker helped Mr. He
when Mr. He’s vehicle was in the shop for repairs.
33. Mrs. Baker impressed the Court as a sincere, honest, credible
witness. She too has demonstrated that she has a great deal of
love, care, and concern for children in general, but she also
has an enormous amount of love, care, and concern for her
own natural born children and for AMH. Mrs. Baker also
impressed the Court with her care and concern for AMH’s
welfare and safety. Mrs. Baker has demonstrated concern for
and a willingness to help others who are in need, including
the Hes. For example, she took Mrs. He to obtain social
services and to apply for TennCare insurance coverage for the
Hes’ second child, Andy, who was born in October 2000. She
took Mrs. He and Andy home from the hospital after Andy’s
birth. She loaned the Hes a baby bed for Andy. She went to
the Hes’ apartment to show Mrs. He how to feed, burp, bathe,
and change Andy’s diapers. She took Andy to the doctor’s
office because Mr. He was too busy, and she took Andy to
other appointments because Mr. He was too busy.
34. Both of the Bakers demonstrated their concern and care, and
lack of any animosity toward the Hes, by foregoing their
church and other regular activities to accommodate the Hes’
visits with AMH. The Bakers also served the Hes dinner on
several of their visits, and allowed the Hes to bring friends
with them to the Bakers’ home for visits, serving the friends
dinner as well . . . .
35. Mr. He is highly educated, both in the Peoples Republic of
China and in the United States, and exhibits a high level of
intelligence. He has demonstrated that he also has a high
level of knowledge of the culture in the United States, that he
is familiar with the justice system in Shelby County,
Tennessee, and that he is proficient in his knowledge and use
of the English language. . . . He has an aggressive personality
and shows no propensity to be deterred or intimidated. He is
a thoughtful and deliberate person who exhibits a proclivity
to calculate, plan, and carefully predetermine his action and
behaviors. At all times relevant to this case, Mr. He has
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demonstrated the ability to access knowledgeable advisors in
any area in which he needs assistance, to scrutinize the advice
given, and, if dissatisfied with the advice, reject the advice
and seek out other advisors.
36. Since 1998, Mr. He has repeatedly engaged in a pattern of
conduct marked by deceitfulness and dishonesty, without
remorse, repentance, or conscience, and has shown a
propensity to justify all means, including perjury, for what
Mr. He deems to be justifiable ends.
37. Mr. He admitted that he lied about his income, under oath, in
his December 21, 2001, deposition and that he said things he
knew were not the truth . . . . The Court has previously found
that Mr. He committed perjury while under oath in Court
hearings and pleadings filed in this cause.
38. The Court reaffirms and incorporates herein by reference the
findings made by the Court relative to the perjury of Mr. He
in testimony given before the Court on February 14, 2002, as
memorialized in the February 22, 2002, order entitled
“Judgment On Order To Show Cause Pertaining To Passport”
and the order entitled “Judgment On Order To Show Cause
Pertaining To Documentation Of Marriage In The Republic
Of China.”
....
40. Mr. He made material false statements on a loan application,
dated October 18, 2001, relative to his employment, his
income, his status as a student, and his personal references for
the purpose of securing a loan for the purchase of a new
vehicle.
....
42. Mrs. He is an impetuous person not subject to being
intimidated or deterred in achieving whatever she sets as her
goal. The evidence shows that she is calculating, almost
theatrical, in her actions. The evidence further shows that she
is dishonest and manipulative, and has a history of acting in
an unstable manner when it serves her own self-interest. For
example, during cross-examination, Mrs. He would begin
sobbing when asked difficult questions. However, Mrs. He
would immediately regain her composure when asked
subsequent questions. It appears to the Court that Mrs. He’s
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courtroom hysterics were calculated by Mrs. He in an effort
to avoid answering the difficult cross-examination questions.
43. Though Mrs. He speaks sufficient English to carry on her
daily affairs in the United States, she is not as proficient as
Mr. He in knowledge or use of the English language and,
unlike Mr. He, sometimes needs assistance with translation in
technical and extraordinary use of the English language. She
has confidence in Mr. He, prefers Mr. He as her translator,
has no desire to part company with Mr. He for any reason and
intends to cooperate fully with Mr. He to remain together with
him as a family and believes Mr. He has never failed to keep
her fully and honestly informed about the legal matters
involving AMH.
44. Although Mrs. He does not speak the English language
fluently, she appears to speak and understand English better
than she professes. For example, Mrs. He spoke English
during some of the Hes’ visits with AMH at the Bakers’ home
and when Mrs. He took the Hes’ other children for medical
treatment . . . . During the trial, in response to a question from
attorney Linda Holmes, Mrs. He responded to the question by
speaking English, before the interpreter had begun
interpreting Ms. Holmes’ question to Mrs. He. Mrs. He said,
“Mr. Parrish filed legal motion,” then she stopped speaking
English and began responding to the question in Chinese.
....
48. Mrs. He only seems to be interested in regaining custody of
AMH when deportation seems imminent. This fact is
evidenced by Mrs. He filing the two (2) petitions to modify
custody in close proximity to receiving calls from the United
States Immigration & Naturalization Service (“INS”),
regarding Mr. and Mrs. Hes’ immigration status.
49. From the totality of the credible proof at trial, both Mr. and
Mrs. He have shown themselves to be persons who do not
consider themselves to be bound by the rule of law. Mr. and
Mrs. He have demonstrated that they will do and say anything
in order to achieve their desired goals.
The trial court also made credibility determinations regarding the other witnesses at trial. As
for the expert witnesses, the trial court determined that Dr. Cooper’s testimony was “totally lacking
in credibility,” citing the court’s agreement with the bankruptcy court’s findings regarding his
credibility in that matter. Moreover, the trial court concluded that “Dr. Cooper is not an expert in
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Chinese adoption law, nor is he an expert on termination of parental rights.” The trial court
determined that the underlying facts or data relied upon by Dr. Chang in forming her opinions were
untrustworthy as to Mother, and the court gave no weight to her findings as to Father because of her
reliance on his answers to her questions. As for Dr. Hutson, the trial court found his testimony to
be of little assistance because he did not personally evaluate A.M.H., and he only viewed the
videotape of the “assessment session” in reaching his opinions. The court found Dr. Ciocca’s
testimony to be of little value given his testimony that he could not offer an opinion as to A.M.H.’s
level of attachment to the Bakers or the Hes after viewing the videotape. Finally, the trial court
determined that Dr. Goldstein was “a very knowledgeable, honest and forthright witness.”
Regarding the other witnesses at trial, the trial court determined each to be a credible witness.
Specifically, the trial court found Mr. Weaver, Ms. Mullins, Ms. Chunn, Ms. Cloud, and Pastor Yau
to be credible witnesses.
In light of these credibility determinations, the trial court addressed the merits of the parties’
petitions. Beginning with the due process claims, the trial court made the following relevant
findings:
63. Both before and after June 4, 1999, the Hes engaged the
services of at least two attorneys in Memphis . . . to advise
and represent the Hes in civil litigation arising from physical
injuries Mrs. He allegedly sustained in November of 1998.
The Hes also spoke to another attorney that Ms. Chunn
referred them to . . . about civil litigation. Neither of the Hes
ever mentioned to any of these three attorneys the need for
representation or advice regarding placing or retaining
custody of AMH.
64. Both before and after June 4, 1999, Mr. He engaged the
services of at least three attorneys to advise him and represent
him in defense of the criminal charges brought by the State .
. . Neither of the Hes ever mentioned to any of these attorneys
the need for representation or advice relative to AMH’s
custody. In fact, the Hes never told these three attorneys
about the existence of AMH.
....
67. On June 2, 1999, attorney Kevin Weaver met with Mr. He
and the Bakers and fully advised Mr. He and the Bakers of the
legal ramifications of filing a petition for custody and of
signing a consent order awarding custody of AMH. Mrs. He,
after being fully advised of the meeting and of the purpose of
the meeting by Mr. He, waived her right to be present at the
meeting and told Mr. He to tell the others at the meeting that
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she was ready to proceed. Mr. Weaver answered all of Mr.
He’s and the Bakers’ questions during the meeting. Mr. He
later advised Mrs. He of the information that Mr. Weaver
imparted at the meeting.
68. On June 3, 1999, Ms. Chunn and Mr. Kenny Yao, an
experienced interpreter in English and Mandarin Chinese, met
with Mrs. He, alone, in the Hes’ apartment . . . . Mrs. He
indicated that she understood everything that Ms. Chunn had
told her through Mr. Yao.
69. On June 4, 1999, Ms. Sarah Cloud, with the assistance of a
qualified interpreter, privately met with Mrs. He, without Mr.
He, and fully explained the legal ramifications of both the
Petition for Custody and the Consent Order Awarding
Custody, both of which Mrs. He later voluntarily signed.
70. . . . . Although the Hes had consulted with attorneys in the
past regarding other legal matters, the Hes never inquired at
Juvenile Court about getting an attorney to provide the Hes
legal advice concerning the original transfer of custody of
AMH.
71. A few months after the Hes signed the June 4, 1999, Consent
Order Awarding Custody, the Hes went to Juvenile Court and
spoke with Ms. Cloud about getting assistance to file a
petition to regain custody of AMH . . . . Ms. Cloud advised
the Hes that they should hire an attorney for legal advice and
representation, and Ms. Cloud recommended the services of
the Memphis Area Legal Services, if the Hes could not afford
to hire an attorney.
Accordingly, the trial court concluded that there was no conspiracy to deprive the Hes of their right
to due process regarding the custody of A.M.H., and the Hes did not suffer a deprivation of their
constitutional rights during the course of transferring custody of A.M.H. to the Bakers.
Next, the trial court made findings regarding the Bakers’ petition to terminate the Hes’
parental rights. The Bakers filed their petition on June 20, 2001, four (4) months and twenty (20)
days after the incident at the Bakers’ home on January 28, 2001 which, consequentially, was the last
time the Hes visited with AMH prior to the petition being filed. Regarding the Bakers’ allegation
that the Hes abandoned AMH by failing to support her, the trial court concluded that, between
January 28, 2001 and June 20, 2001, the Hes had the ability to pay child support for AMH. The trial
court found their ability to provide child support to be evidenced by their May 2001 petition to
modify custody wherein they stated as much; the fact that they sent $1,000 to China to provide
support for their son Andy; the Hes purchased a new computer shortly after sending their son to
China; the Hes took vacations to various American cities between June 4, 1999 and June 20, 2001;
and their ability to pay $625 monthly rent during the relevant time period. Although there was no
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court order requiring the Hes to pay child support, the trial court concluded that the Hes knew they
had an obligation to support AMH. The court found that the Bakers’ refusal to accept monetary
compensation from the Hes did not relieve the Hes of their obligation to support AMH because the
Bakers could not accept money pursuant to their agreement with Mid-South, and they did not expect
the Hes to provide support because they agreed to raise AMH until she turned eighteen. As for the
items the Hes brought to AMH during their visits, the trial court determined the items to be “of
insubstantial economic value and amounted to token support.” The trial court deemed such token
support to be “consistent with the Hes’ intent to absolve themselves of all parental responsibilities
to AMH.”
Next, the trial court examined the Bakers’ allegation that the Hes abandoned AMH by failing
to visit her during the four months preceding the petition to terminate the Hes’ parental rights. The
court noted the following relevant facts: the Hes did not visit AMH between January 28, 2001 and
June 20, 2001; the trial court found the Hes’ reasons for not returning to the Bakers’ home after
January 28, 2001 to visit AMH to be lacking in credibility; while the Bakers were willing to allow
the Hes to visit, the Hes never called and requested any visitation with AMH after January 28, 2001;
although Mother called the Bakers’ home on April 2, 2001, her telephone call did not ask for
visitation; and immigration officials contacted Father in March, April, or May of 2001, around the
time the Hes filed the April 2001 petition to modify the custody order.
Based on the aforementioned facts, the trial court concluded that the Hes abandoned AMH
by willfully failing to visit and willfully failing to support her during the four months prior to the
Bakers’ filing their petition to terminate the Hes’ parental rights. The trial court then engaged in a
lengthy analysis of the best interest factors and concluded that terminating the Hes’ parental rights
was in the best interest of A.M.H. Thereafter, the Hes filed a timely notice of appeal to this Court
seeking appellate review of the trial court’s rulings in this case.
II.
ISSUES PRESENTED
The Appellants have presented sixteen issues to this Court setting forth numerous alleged
errors by the trial court. The Appellees have joined the Appellants by raising numerous issues of
their own which, upon review, merely constitute counter-arguments to the issues put forth by the
Appellants. We have chosen to restate the issues raised by the Appellants on appeal as follows:
1. Whether the trial court erred in denying several pre-trial motions filed by the Appellants,
specifically:
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(A) Did the trial court err in denying the Appellants’ motion, pursuant to Rule 60.02
of the Tennessee Rules of Civil Procedure, to set aside the June 4, 1999 consent
custody order entered by the juvenile court;
(B) Did the trial court err in denying the Appellants’ motion to dismiss the Appellees’
petition for adoption;
(C) Did the trial court err in denying the Appellants’ motion to bifurcate the
proceedings below;
2. Whether sections 36-1-102 and 36-1-113 of the Tennessee Code violate the Fifth and
Fourteenth Amendments to the United States Constitution because they fail to require that
natural parents receive prior actual notice of certain information related to the termination
of parental rights in the context of a private custody agreement;
3. Should the aforementioned statutes be deemed constitutional, whether the trial court erred
in failing to apply the notice provisions found in section 37-2-403 of the Tennessee Code
when the child at issue was placed in the foster care of an agency;
4. Whether the trial court erred in failing to apply the “superior parental rights doctrine” to
Mother’s petition to modify the custody June 4, 1999 custody order entered by the
juvenile court, thereby rendering a decision on the termination of Mother’s parental rights
moot;
5. Whether the trial court erred in applying the statutory grounds for terminating a biological
parent’s parental rights and in finding the existence of clear and convincing evidence to
support such grounds, specifically:
(A) Did the trial court err in its application and interpretation of Tennessee law
governing the “settled purpose doctrine”;
(B) Did the trial court err by finding that the Appellants’ willfully abandoned their
daughter by willfully failing to visit and willfully failing to support her for the
requisite statutory period; and
(C) Did the trial court err in finding that Father was not the “legal parent” of the child
when the Appellees’ filed their petition to terminate his parental rights;
6. Whether the trial court erred in finding that termination of the Appellants’ parental rights
is in the best interest of the child in this case.
The Appellees have raised, as we perceive them, two independent issues for our review:
7. Whether the trial court erred in consolidating Mother’s petition to modify the June 4,
1999 consent custody order with the Appellees’ petition to adopt the child and to
terminate the Appellants’ parental rights; and
8. Whether the trial court erred in finding that the “persistent conditions” ground for
termination did not apply in the instant case because the ground requires the removal of
the child by a state agency.
In addition to the arguments raised by the parties on appeal, we are presented with the
additional arguments of amici curiae arguing various issues in favor of the Hes on appeal.
Specifically, the Childlaw Center of the Loyola University Chicago School of Law, Vanderbilt
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School of Law Legal Clinic, The University of Memphis School of Law Child Advocacy Clinic, and
the Tennessee Alliance for Legal Services (hereinafter collectively referred to as “Amici”) have
submitted a combined brief and were permitted to present oral argument to this Court. Their brief
primarily addresses the bifurcation issue, the persistent conditions issue, and the standard to be
applied to a determination of abandonment. We have also been presented with a brief filed by the
Greater Seattle Chapter of the Organization of Chinese Americans, Inc., (hereinafter referred to as
“Greater Seattle”) addressing social science information specific to the cultural issues present in this
appeal. The Embassy of the People’s Republic of China (hereinafter referred to as the “Chinese
Embassy”) has also submitted a letter to this Court expressing its position regarding the “one-child
policy” in effect in China.
In reaching a decision on the various issues presented in this case, we have reviewed all of
the briefs and materials filed in this Court, the voluminous record created by the trial in this matter,
and the arguments of counsel presented at oral argument. Upon doing so, we affirm in part and
reverse in part the trial court’s decisions in this case.
III.
STANDARD OF REVIEW
“A biological parent’s interest in the care, custody, and control of his or her child is among
the oldest of the judicially recognized fundamental liberty interests.” Ray v. Ray, 83 S.W.3d 726,
731 (Tenn. Ct. App. 2001) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)). This fundamental
right is protected not only by the Due Process Clause of the Fourteenth Amendment, Santosky v.
Kramer, 455 U.S. 745, 753 (1982); Stanley v. Illinois, 405 U.S. 645, 651 (1972), but also by Article
I, section 8 of the Tennessee Constitution as well, Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn.
2002); Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993). However, the right to the care, custody,
and control of one’s children is not absolute, and “[i]t continues without interruption only as long
as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or
termination.” In re S.M., 149 S.W.3d 632, 638–39 (Tenn. Ct. App. 2004) (citations omitted); see
also In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000).
“The grounds for terminating parental rights in Tennessee are defined by statute.” Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); see also Tenn. Code Ann. § 36-1-113(g) (2003).
“Termination of a person’s rights as a parent is a grave and final decision, irrevocably altering the
lives of the parent and child involved and ‘severing forever all legal rights and obligations’ of the
parent.” Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (citing Tenn. Code Ann. § 36-1-
113(l)(1) (2003)). Because of the gravity of the consequences associated with terminating a
biological parent’s parental rights to a child, the individuals or entities seeking to terminate the
parental rights of the biological parents must prove the existence of the statutory grounds for
termination by clear and convincing evidence. In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.
1988) (citing Santosky, 455 U.S. at 769–70); see also Tenn. Code Ann. § 36-1-113(c)(1) (2003); In
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re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (noting that clear and convincing evidence as to any
one of the statutorily enumerated grounds will justify the termination of a biological parent’s parental
rights to a minor child); In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). The statute also
requires that parties seeking to terminate a biological parent’s parental rights demonstrate that doing
so is in the best interest of the child. See Tenn. Code Ann. § 36-1-113(c)(2) (2003); In re S.M., 149
S.W.3d at 639.
The heightened clear and convincing standard of proof applicable to these cases serves to
prevent the unwarranted termination of the biological parents’ parental rights in their minor children.
In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). “The ‘clear and convincing evidence’
standard defies precise definition.” Means, 130 S.W.3d at 54. This Court has formulated the
following explanation of the standard when reviewing cases of this nature:
This court recently attempted to describe the clear and
convincing evidence standard, explaining that[:]
[A]lthough it does not require as much certainty as the
“beyond a reasonable doubt” standard, the “clear and
convincing evidence” standard is more exacting than
the “preponderance of the evidence” standard.
O'Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn.
App. 1995); Brandon v. Wright, 838 S.W.2d 532, 536
(Tenn. App. 1992). In order to be clear and
convincing, evidence must eliminate any serious or
substantial doubt about the correctness of the
conclusions to be drawn from the evidence. Hodges
v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992); O'Daniel v. Messier, 905 S.W.2d at 188. Such
evidence should produce in the fact- finder’s mind a
firm belief or conviction as to the truth of the
allegations sought to be established. O'Daniel v.
Messier, 905 S.W.2d at 188; Wiltcher v. Bradley, 708
S.W.2d 407, 411 (Tenn. App. 1985). In contrast to
the preponderance of the evidence standard, clear and
convincing evidence should demonstrate that the truth
of the facts asserted is “highly probable” as opposed
to merely “more probable” than not. Lettner v.
Plummer, 559 S.W.2d 785, 787 (Tenn. 1977);
Goldsmith v. Roberts, 622 S.W.2d 438, 441 (Tenn.
App. 1981); Brandon v. Wright, 838 S.W.2d at 536.
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In re C.W.W., 37 S.W.3d 467, 473–74 (Tenn. Ct. App. 2000) (quoting In re M.C.G., No.
01A01-9809-JV-00461, 1999 Tenn. App. LEXIS 327, at *6 (Tenn. Ct. App. May 26, 1999) (no
perm. app. filed)); see also Means, 130 S.W.3d at 54–55.
“Because of the gravity of their consequences, proceedings to terminate parental rights
require individualized decision making.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)
(citing In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999)). To that end, the trial court is required to
“enter an order which makes specific findings of fact and conclusions of law within thirty (30) days
of the conclusion of the hearing.” Tenn. Code Ann. § 36-1-113(k) (2003). These findings facilitate
appellate review12 of parental termination cases, and in the absence of such findings, we must vacate
the judgment and remand the case to the trial court for the entry of findings of fact and conclusions
of law in compliance with the statute. See White v. Moody, No. M2004-01295-COA-R3-PT, 2004
Tenn. App. LEXIS 890, at *11–14 (Tenn. Ct. App. Dec. 30, 2004) (perm. app. denied, 2005 Tenn.
LEXIS 265 (Mar. 21, 2005)); In re M.J.B., 140 S.W.3d at 654; In re Adoption of Muir, No.
M2002-02963-COA-R3-CV, 2003 Tenn. App. LEXIS 831, at *8–10 (Tenn. Ct. App. Nov. 25, 2003)
(no perm. app. filed).
Based on the aforementioned principles of law, this Court has formulated the following
standard of review to govern appellate review of parental termination cases:
Because of the heightened burden of proof required by Tenn. Code
Ann. § 36-1-113(c)(1), we must adapt Tenn. R. App. P. 13(d)’s
customary standard of review for cases of this sort. First, we must
review the trial court’s specific findings of fact de novo in accordance
with Tenn. R. App. P. 13(d). Thus, each of the trial court’s specific
factual findings will be presumed to be correct unless the evidence
preponderates otherwise. Second, we must determine whether the
12
W e are cognizant of the following statutory duty placed upon this Court by the legislature regarding appellate
review of parental termination cases:
In all cases which are appealed from the decision of a trial court, the appellate court
shall, consistent with its rules, expedite the contested termination of parental rights
or adoption case by entering such scheduling orders as are necessary to ensure that
the case is not delayed, and such case shall be given priority over all other civil
litigation in reaching a determination on the status of the adoption, other than child
protective services cases arising under title 37, chapter 1, parts 1, 4 and 6.
Tenn. Code Ann. § 36-1-124(b) (2003). On M ay 12, 2005, Mr. Parrish, counsel for the Bakers, filed the “Appellees’
Motion to Dismiss Appeal” with this Court arguing that the Hes’ appeal should be dismissed pursuant to the statute of
repose codified at section 36-1-113(q) of the Tennessee Code. Mr. Parrish asserted that, since one year had elapsed since
the trial court issued its order in this case, this Court no longer possessed subject matter jurisdiction to entertain the
appeal. On May 17, 2005, this Court issued an Order denying the Bakers’ motion. W e concluded that the legislature
did not intend for section 36-1-113(q) to divest the appellate courts of this state of subject matter jurisdiction to evaluate
a parental termination order that was timely filed in the appellate court.
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facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the
elements required to terminate a biological parent’s parental rights.
Jones v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at
548-49; In re Adoption of Muir, 2003 Tenn. App. LEXIS 831, 2003
WL 22794524, at *2; In re Z.J.S., 2003 Tenn. App. LEXIS 415, No.
M2002-02235-COA-R3-JV, 2003 WL 21266854, at *10 (Tenn. Ct.
App. June 3, 2003) (No Tenn. R. App. P. 11 application filed); Ray
v. Ray, 83 S.W.3d at 733; In re L.S.W., 2001 Tenn. App. LEXIS 659,
No. M2000-01935-COA-R3-JV, 2001 WL 1013079, at *5 (Tenn. Ct.
App. Sept. 6, 2001), perm. app. denied (Tenn. Dec. 27, 2001).
In re M.J.B., 140 S.W.3d at 654. Moreover, we are mindful that cases of this nature often hinge on
the testimony of the witnesses at trial and, in turn, the trial court’s findings regarding the credibility
of those witnesses. Accordingly, we are bound by the following additional principle of law:
Unlike appellate courts, trial courts are able to observe witnesses as
they testify and to assess their demeanor, which best situates trial
judges to evaluate witness credibility. See State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 836 S.W.2d
563, 566 (Tenn. Ct. App. 1991). Thus, trial courts are in the most
favorable position to resolve factual disputes hinging on credibility
determinations. See Tenn-Tex Properties v. Brownell-Electro, Inc.,
778 S.W.2d 423, 425-26 (Tenn. 1989); Mitchell v. Archibald, 971
S.W.2d 25, 29 (Tenn. Ct. App. 1998). Accordingly, appellate courts
will not re-evaluate a trial judge’s assessment of witness credibility
absent clear and convincing evidence to the contrary. See Humphrey
v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn. 1987);
Bingham v. Dyersburg Fabrics. Co., Inc., 567 S.W.2d 169, 170
(Tenn. 1978).
Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999); see also Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002); In re C.T.S., 156 S.W.3d 18, 22 (Tenn. Ct. App. 2004).
IV.
DISCUSSION
The crux of this appeal is whether the trial court erred in finding that the Bakers proved, by
clear and convincing evidence, that the Hes abandoned A.M.H. by willfully failing to visit and
willfully failing to support her for the four months immediately preceding the filing of the Bakers’
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petition to terminate the Hes’ parental rights. However, before we are able to reach the issues related
to the trial court’s findings in that regard, we must address other issues presented by the parties.
A.
Order Consolidating the Bakers’ Petition with Mothers’ Petition to Modify Custody
On May 29, 2001, Mother filed her petition in the juvenile court requesting a modification
of the June 4, 1999 consent custody order. On June 20, 2001, the Bakers filed their “Petition for
Adoption and Termination of Parental Rights” in the chancery court. This effectively vested the
chancery court with “exclusive jurisdiction of all matters pertaining to the child . . . except for
allegations of delinquency, unruliness or truancy of the child pursuant to title 37.” Tenn. Code Ann.
§ 36-1-116(f) (2003); see also State v. R.S., No. M2002-00919-COA-R3-CV, 2003 Tenn. App.
LEXIS 657, at *65 (Tenn. Ct. App. Sept. 11, 2003) (no perm. app. filed). (“The exclusive
jurisdiction of juvenile court is superseded when a petition for termination of parental rights is filed
in another court with concurrent jurisdiction to make that determination.”). On September 13, 2003,
the Bakers filed a motion asking the chancery court to consolidate, for joint trial, their petition to
terminate the Hes’ parental rights with Mother’s petition to modify the June 4, 1999 consent order
entered by the juvenile court. On March 29, 2004, after the parties finished presenting evidence in
this case, the chancery court entered an order granting the Bakers’ motion to consolidate.
Strangely enough, the Bakers now ask this Court to determine whether the trial court erred
in granting their motion at trial. Rule 6(a)(1) and (a)(3) of the Rules of the Court of Appeals of
Tennessee provides that written argument by a party shall contain a statement indicating the
erroneous action by the trial court and how the party was prejudiced by such error. The section of
the Appellees’ brief addressing this issue fails to assert any basis for finding error on the part of the
trial court in granting their motion. Instead, the Appellees devote their entire argument in this
section of the brief to issues unrelated to the question they ask this Court to decide. Accordingly,
we find this issue to be wholly without merit.
B.
Propriety of the Chancery Court’s Rulings on Certain Pre-Trial Motions Filed by the Hes
On appeal, the Hes take issue with the chancery court’s rulings on various matters prior to
the trial in this matter. In turn, we will address the merits of these issues collectively in this
section of the Opinion.
1.
Motions to Set Aside the June 4, 1999 Consent Custody Order Pursuant to Rule 60.02
-45-
On appeal, the Hes argue that the chancery court erred in denying their motions to set aside
the juvenile court’s June 4, 1999 consent order awarding custody of A.M.H. to the Bakers. On
September 12, 2003, the Hes filed a motion with the trial court asking the chancery court to set aside,
pursuant to Tenn. R. Civ. P. 60.02,13 the June 4, 1999 consent order. In this motion, the Hes
conceded that the June 4, 1999 order provides that the Hes “have been fully advised of their legal
rights and that a hearing before the Court is hereby expressly waived.” However, they argued that,
in reality, they were not fully advised of their legal rights prior to signing the order. They point to
the following facts to support this assertion: Mother did not receive legal advice prior to signing the
order; Mr. Weaver met with Father on June 2, 1999, but he did not meet with Mother prior to the
date they signed the order; on the day they went to juvenile court to sign the order, Ms. Chunn, Ms.
Cloud, and Pastor Yau, all unlicensed attorneys, attempted to advise Mother of the document’s
meaning, but they did not read it to her; and the juvenile court did not conduct a hearing to ensure
that the Hes understood what they had been told up to that point or to explain the purpose and effect
of the order. According to the Hes, these facts establish that they were not fully advised of their
rights and did not expressly waive their right to a hearing as the order states, therefore, the consent
order should be deemed void ab initio. On September 25, 2003, the Hes filed an amended motion
wherein they argued that, in addition to the arguments contained in the aforementioned motion, the
consent order should be vacated because the juvenile court failed to comply with sections 34-2-101,
34-2-103, 34-2-104, and 32-2-105 of the Tennessee Code. These arguments were aimed at
addressing the “guardianship of the person” language which Ms. Cloud testified she inserted into the
order based on her understanding of the facts.
On April 7, 2004, the chancery court entered an order denying the Hes’ first motion
concluding, in relevant part, as follows:
The Consent Order Awarding Custody, signed by both
Respondents, entered in Juvenile Court on June 4, 1999, states that
the parties were fully advised of their legal rights. The Court finds
that Mr. He was fully advised of his legal rights by Attorney Weaver.
The Court also finds that Mrs. He voluntarily waived her right to
receive legal advice by not attending the meeting, by telling Mr. He
that she was ready to proceed, and by relying on Mr. He to
communicate Attorney Weaver’s explanation of the parties’ rights to
her. Thus, the Consent Order Awarding Custody entered on June 4,
13
The Hes relied on the following provisions of the rule in support of their motion:
On motion and upon such terms as are just, the court may relieve a party or the
party’s legal representative from a final judgment, order or proceeding for the
following reasons: . . . (3) the judgment is void; . . . or (5) any other reason
justifying relief from the operation of the judgment. The motion shall be made
within a reasonable time . . . .
Tenn. R. Civ. P. 60.02 (2004).
-46-
1999, is not facially defective, nor is it void ab initio or voidable
pursuant to Rule 60.02(3) and (5) of the Tennessee Rules of Civil
Procedure.
....
The Consent Order Awarding Custody was entered by the
Juvenile Court on June 4, 1999. There was no motion filed to set
aside the Consent Order. The Respondents filed their first Petition to
Modify the custody order in Juvenile Court on May 3, 2000, and
Respondents made no request in that Petition to set aside the Consent
Custody Order. The Juvenile Court denied the May 3, 2000, Petition
to Modify on June 28, 2000. No appeal was taken by Respondents to
the Order Denying the Petition to Modify. The Respondents filed a
second Petition to Modify the Consent Custody Order in Juvenile
Court on April 9, 2001. Again, the Respondents made no request to
set aside the Consent Custody Order. The Petitioners herein, the
Bakers, then filed their Petition for Adoption and Termination of
Parental Rights on June 20, 2001, and the matter was transferred to
this court. Respondents filed an answer and an amended answer to
the Petition for Adoption and Termination of Parental Rights and
neither the answer nor the amended answer contained a request to set
aside the June 4, 1999, Consent Custody Order pursuant to Rule
60.02. Then the Respondents filed the instant motion on September
12, 2003, approximately four years and three months after the entry
of the June 4, 1999 Consent Order Awarding Custody. T.R.C.P.
60.02 requires that this type of motion be made within a reasonable
time. The Court finds that this motion was not filed within a
reasonable time. Furthermore, the Court finds that Respondents’
Motion Pursuant to Rule 60.02 to Set Aside Consent Order Awarding
Custody Entered June 4, 1999, is barred by res judicata, collateral
estoppel and the doctrine of laches.
On May 12, 2004, the chancery court entered another order addressing the Hes’ amended petition,
wherein the chancery court denied the Hes’ amended motion and concluded that the juvenile court
complied with the applicable statutes when entering the order.
Rule 60.02 is “designed to strike a proper balance between the competing principles of
finality and justice.” Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976). “The relief provided
under Rule 60.02 is an exceptional remedy,” Nails v. Aetna Ins. Co., 834 S.W.2d 289, 294 (Tenn.
1992) (citing Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991)), “the purpose of which ‘is
to alleviate the effect of an oppressive or onerous final judgment,’” Black v. Black, 166 S.W.3d 699,
703 (Tenn. 2005) (quoting Killion v. Dep’t of Human Services, 845 S.W.2d 212, 213 (Tenn. 1992)).
-47-
“Rule 60.02 acts as an escape valve from possible inequity that might otherwise arise from the
unrelenting imposition of the principle of finality embedded in our procedural rules.” Thompson
v. Firemen’s Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990). However, due to the importance
of finality in cases, “the ‘escape valve’ should not be easily opened.” Banks v. Dement Constr. Co.,
Inc., 817 S.W.2d 16, 18 (Tenn. 1991)( quoting Toney v. Mueller, 810 S.W.2d 145, 146 (Tenn.
1991)).
“To set aside a judgment under rule 60.02 the burden is upon the movant to prove that he is
entitled to relief, and there must be proof of the basis on which relief is sought.” Id; see also Henry
v. Goins, 104 S.W.3d 475, 482 (Tenn. 2003). When reviewing a trial court’s decision to grant or
deny relief pursuant to Rule 60.02, we employ the following standard of review:
[W]e give great deference to the trial court. See Underwood v. Zurich
Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993). Consequently, we will not
set aside the trial court’s ruling unless the trial court has abused its
discretion. See id. An abuse of discretion is found only when a trial
court has “‘applied an incorrect legal standard, or reached a decision
which is against logic or reasoning that caused an injustice to the
party complaining.’” State v. Stevens, 78 S.W.3d 817, 832 (Tenn.
2002) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).
The abuse of discretion standard does not permit an appellate court
to merely substitute its judgment for that of the trial court. See
Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
Henry, 104 S.W.3d at 479; see also Banks, 817 S.W.2d at 18.
The Hes go to great efforts to explain their lack of notice and lack of adequate counsel prior
to signing the order at issue. However, we are cognizant of the fact that these issues were a matter
of contention at trial. Both parties presented testimony addressing the issue of whether the Hes
understood the purpose and effect of the June 4, 1999 consent order awarding custody of A.M.H. to
the Bakers. Based on the testimony offered at trial, the chancery court held that the Hes were
adequately informed of the order’s purpose and effect, and the Hes either had adequate counsel or
had an opportunity to seek counsel regarding this issue. We give these credibility determinations
great weight on appeal, and we find no clear and convincing evidence in the record to justify
reaching a different conclusion regarding such testimony. See Wells v. Tenn. Bd. of Regents, 9
S.W.3d 779, 783 (Tenn. 1999).
Of the most significance to our analysis of this issue is the realization that Rule 60.02
requires that the motion “shall be made within a reasonable time.” Tenn. R. Civ. P. 60.02 (2004).
What constitutes a reasonable time is a question of fact, and not a question of law. See Thompson,
798 S.W.2d at 238; Rogers v. Estate of Russell, 50 S.W.3d 441, 445 (Tenn. Ct. App. 2001). On
appeal, the Hes fail to offer any justification for why they waited in excess of four years to file their
Rule 60.02 motion. Any argument that they did not understand the need to file the motion or did not
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have adequate representation to advise them to file such a motion must fail. As the trial court noted
in its order, the Hes had access to legal representation (as evidenced by the various attorneys
representing them in their civil and criminal matters) both before and after the June 4, 1999 custody
order was entered. Even after the June 4, 1999 order had been entered, Ms. Cloud instructed the Hes
during a subsequent visit to juvenile court to hire a lawyer or seek counsel through legal services,
which they chose not to do. Moreover, after the Bakers filed their petition to terminate the Hes’
parental rights on June 20, 2001, the Hes’ attorney, Mr. Sossaman, filed an answer on their behalf
shortly thereafter. Despite having a lawyer dedicated solely to addressing the Bakers’ petition at this
stage in the litigation, the Hes waited until September 12, 2003, over one year after the Bakers filed
their petition, to file their Rule 60.02 motion in this case. Accordingly, we find that the Hes did not
file their Rule 60.02 motion within a reasonable time as required by the rule, and we affirm the trial
court’s ruling on this issue.
2.
Order Denying Hes’ Motion to Dismiss Bakers’ Petition for Adoption
The Hes filed a motion with the trial court on October 2, 2003, asking the court to enter an
order dismissing the Bakers’ adoption petition. In support of their petition, the Hes relied on section
36-1-119(d) of the Tennessee Code, which provides as follows:
If no appeal has been taken from any order of the court, the court
must complete or dismiss the adoption proceeding by entering a final
order within two (2) years of the filing of the petition, unless the
petitioner shows good cause why such final order should not be
entered.
Tenn. Code Ann. § 36-1-119(d) (2003) (emphasis added). The Bakers filed their petition to adopt
A.M.H. and terminate the Hes’ parental rights to A.M.H. on June 20, 2001. As of June 20, 2003,
their petition had been pending for two years. The Hes argue that the Bakers failed to request an
extension of time under Rule 6.02 of the Tennessee Rules of Civil Procedure, which provides:
When by statute . . . an act is required or allowed to be done at or
within a specified time, the court for cause shown may, at any time in
its discretion, (1) with or without motion or notice order the period
enlarged if request thereof is made before the expiration of the period
originally prescribed or as extended by a previous order, or (2) upon
motion made after the expiration of the specified period permit the act
to be done, where the failure to act was the result of excusable
neglect . . . .
-49-
Tenn. R. Civ. P. 6.02 (2004) (emphasis added). The Hes argued at trial, and again on appeal, that,
since the Bakers did not file a request for an extension of time under Rule 6.02, they cannot show
“good cause” for extending the two year period and that they cannot establish that their failure to file
such request constitutes “excusable neglect.” Accordingly, the Hes urged the trial court, and now
this Court, to find that the Bakers’ adoption petition must be dismissed pursuant to the statute. On
April 6, 2004, the trial court entered an order denying the Hes’ motion noting that the court had
before it a petition for adoption coupled with a petition to terminate the Hes’ parental rights.
Prospective adoptive parents have standing to petition a court to terminate the parental rights
of the biological parents, and they may include in their petition for adoption a request that the
parental rights of the biological parents be terminated. See Tenn. Code Ann. § 36-1-113(b) (2003).
Thus, the chancery court properly had before it an adoption petition containing a request to terminate
the Hes’ parental rights. Section 36-1-113 of the Tennessee Code, governing termination of parental
rights, recognizes that a petition for adoption and petition for termination of parental rights are two
distinct legal processes. See Tenn. Code Ann. § 36-1-113(b), -113(d)(4), -113(l)(1), -113(l)(2), -
113(m), -113(p) (2003). “The conclusion is that the state and federal constitutions require that the
natural [parent’s] parental rights be determined before the court may proceed with the issue of
adoption.” Nale v. Robertson, 871 S.W.2d 674, 680 (Tenn. 1994) (finding invalid a statute which
allowed a court to enter a decree of adoption based on the best interest of the child without first
determining if the biological parent’s parental rights should be terminated); see also Jones v.
Garrett, 92 S.W.3d 835, 840 (Tenn. 2002) (reaffirming the Court’s prior statement in Nale). Section
36-1-119 of the Tennessee Code requires the trial court to “complete or dismiss the adoption
proceeding . . . within two (2) years of the filing of the petition.” Tenn. Code Ann. § 36-1-119(d)
(2003) (emphasis added).
The Hes have cited to a decision by our supreme court in Clements v. Morgan, 296 S.W.2d
874 (Tenn. 1956), in support of their position on appeal. In Clements, the supreme court, when
dealing with the precursor to the present statute, held that the statute required an adoption petition
to be completed or dismissed within two years, and the statute “must be strictly complied with.”
Clements, 296 S.W.2d at 96–97. However, the decision in Clements is easily distinguished from
the facts in the present case. In Clements, the only petition filed in the trial court was one for
adoption. Id. at 95. There was no need to adjudicate the issue of terminating the biological parent’s
parental rights because the biological parents filed a written consent agreeing to allow the petitioners
to adopt the child. Id. It was only when the Tennessee Department of Children’s Services sought
to intervene in the case that the adoption petition was delayed beyond the two year statutory period.
Id. at 96. In the present case, the trial court was faced with a petition to terminate the parental rights
of the Hes along with a petition to adopt A.M.H. As our supreme court instructed in Nale, the trial
court must necessarily determine if a termination of parental rights is warranted before it may
proceed to the adoption petition. Accordingly, we affirm the trial court’s decision to deny the Hes’
motion.
3.
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Motion to Bifurcate the Proceedings
On June 23, 2003, the Hes filed a motion asking the trial court to bifurcate the proceedings
in this matter. Specifically, the Hes asserted that, pursuant to the statutory and case law governing
termination of parental rights, the trial court was required first to determine whether the Bakers
proved that the Hes’ willfully abandoned A.M.H. by clear and convincing evidence. After
concluding a proceeding on the grounds for termination, only then could the court conduct a separate
proceeding to address the best interest analysis. After conducting a hearing on the Hes’ motion, the
chancery court entered an order on January 28, 2004, nunc pro tunc to September 4, 2003, denying
the Hes’ motion.
Section 36-1-113(c) of the Tennessee Code provides as follows:
(c) Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence
that the grounds for termination or parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in
the best interests of the child.
Tenn. Code Ann. § 36-1-113(c) (2003). On appeal, the Hes argue that section 36-1-113(c) of the
Tennessee Code implies that a court must conduct a separate evidentiary hearing to address the
grounds for termination and the best interest of the child before it may terminate parental rights.
They also cite to a decision by this Court, wherein we stated that “[b]efore the court may inquire as
to whether termination of parental rights is in the best interest of the child, the court first must
determine that the grounds for termination have been established by clear and convincing evidence.”
K.S.O.H. v. J.W.B., Jr., No. E2001-00055-COA-R3-CV, 2001 Tenn. App. LEXIS 740, at *11
(Tenn. Ct. App. Oct. 4, 2001) (no perm. app. filed). The Hes contend that a bifurcated proceeding
would ensure that the trial court could decide the existence of grounds for termination without being
influenced by evidence tending to prove that termination is in the best interest of the child.
The Hes’ argument is echoed by the Amici in their brief. In addition, the Amici argue that
federal precedent requires bifurcation, directing our attention to the United States Supreme Court’s
decision in Santosky v. Kramer, 455 U.S. 745 (1982). In Santosky, the Court made the following
observation:
The State bifurcates its permanent neglect proceeding into
“factfinding” and “dispositional” hearings. Fam. Ct. Act §§ 622, 623.
At the factfinding stage, the State must prove that the child has been
“permanently neglected,” as defined by Fam. Ct. Act §§ 614.1.(a)-(d)
and Soc. Serv. Law § 384-b.7.(a). See Fam. Ct. Act § 622. The
-51-
Family Court judge then determines at a subsequent dispositional
hearing what placement would serve the child’s best interests. §§
623, 631.
Santosky, 455 U.S. at 748. It is clear, however, that the Court in Santosky was summarizing a state
statute requiring bifurcation. Section 36-1-113(c) of the Tennessee Code does not contain a similar
requirement.
The Amici also assert that “national precedent” favors bifurcation, and they contend that
“[o]ne of the most in-depth rationales for bifurcation” can be found in Champagne v. Welfare
Division of the Nevada State Department of Human Resources, 691 P.2d 849 (Nev. 1984). In
Champagne, the Nevada Supreme Court made the following statement:
We borrow from Ketcham and Babcock to state the general
proposition in these terms: “The jurisdictional question is whether the
biological parent, by behavior, has forfeited all rights in the child.
The dispositional question is whether terminating parental rights
would be in the best interest of the child. The first question focuses
on the action, or inaction, of the natural parent. The second focuses
on the placement which will be most beneficial to the child. If it is
first decided that the parent has forfeited his rights in the children,
then the court moves on to the second question. On the other hand,
if it is decided that the biological parent’s behavior does not violate
minimum standards of parental conduct so as to render the parent
unfit, then the analysis ends and termination is denied. In these latter
instances, the court never reaches the question of whether the child’s
future well-being would be better served by placement with the
substitute or psychological parent.”
Champagne, 691 P.2d at 647. However, our independent research has revealed that the Nevada
Supreme Court overruled its decision in Champagne in 2000, holding as follows:
[T]his court in Champagne interpreted the statute and announced a
two-step analysis to be applied when deciding whether to terminate
parental rights. According to Champagne, the first step in the
analysis requires that there be what the court characterized as
“jurisdictional” grounds for termination. Id. at 640, 691 P.2d at 849
. . . . If jurisdictional grounds for termination are not established, the
inquiry ends. Id. at 647, 691 P.2d at 854. If jurisdictional grounds
are established, the analysis turns to whether dispositional grounds
exist for termination.
....
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In 1987, the legislature responded to our decision in
Champagne, and again amended the termination statute . . . . The
legislative history indicates that the legislature was concerned that the
Champagne decision bifurcated the issues regarding children’s rights
and parent’s rights in termination proceedings. See Hearing on A.B.
308 Before the Nevada Assembly Committee on Judiciary, 64th Leg.
(Nev., March 20, 1987).
....
Our adherence to the Champagne standard has resulted in the
improper application of the termination statute. The amendments to
NRS 128.105 demonstrate the legislature’s frustration with
Champagne and its progeny, which place too much emphasis on the
conduct of the parents instead of on the best interests of the child.
Clearly, the legislative amendments of NRS 128.105 illustrate the
legislature’s concern with protecting the best interests of the child.
....
Accordingly, we now abandon Champagne’s strict adherence
to a finding of parental fault to terminate parental rights before the
district court considers the best interests of the child. Application of
the Champagne standard may have resulted in an artificial
determination by the district court concerning parental fault, because
such a determination cannot be made without considerations of how
the parents’ conduct has impacted the child. The impact of parental
conduct on the child is, in turn, one consideration in determining the
best interests of the child. We will no longer require district courts,
in the name of determining parental fault, to consider rigidly and
formulaically the conduct of the parents in a vacuum, without
considering the best interests of the child. Instead, in conformance
with NRS 128.105, we adopt a best interests/parental fault standard
for termination cases. Accordingly, the district court in determining
whether to terminate parental rights must consider both the best
interests of the child and parental fault.
In re Termination of Parental Rights as to N.J., 8 P.3d 126, 130–32 (Nev. 2000).
We are unaware of any case law, and neither the Appellants or the Amici cite to this Court
any authority, holding that the federal or state constitutions require that parental termination
proceedings in this state must be bifurcated. At present, the legislature of this state has deemed it
the policy of this state that parental termination proceedings not be bifurcated. See Tenn. Code Ann.
-53-
§ 36-1-113(c) (2003) (noting the absence of any directive to the courts of this state to bifurcate
termination proceedings). “The Legislature is more or less the body who forms our public policy.”
McKesson & Robinson, Inc. v. Gov’t Employees Dep’t Store, Inc., 365 S.W.2d 890, 894 (Tenn.
1963). As such, we find the following statement by our supreme court to control our resolution of
this issue:
There is nothing in our Constitution from which it can be
inferred that a policy different from that stated should never be
adopted by the legislature. That being so, the legislative department
of the State government has exclusive and ample power to determine
the State’s policy. When the legislature, acting within its
constitutional powers, has spoken upon a particular subject, its
utterance is the public policy of the State upon that subject, and the
courts are without power to read into the Constitution a restraint of
the legislature with respect thereto. The prohibition must be
expressed or necessarily implied from that which is expressed. We
fail to find any such restraint in our Constitution.
. . . [“]All questions of policy are for the determination of the
legislature, and not for the courts, and there is no public policy which
prohibits the legislature from doing anything which the Constitution
does not prohibit. Hence the courts are not at liberty to declare a law
void as in violation of public policy. . . . Where courts intrude into
their decrees their opinion on questions of public policy, they in effect
constitute the judicial tribunals as lawmaking bodies in usurpation of
the powers of the legislature.” 6 Rawle C. L., section 108, pp. 108, 109.
Cavender v. Hewitt, 239 S.W. 767, 768 (Tenn. 1921); see also Crawford v. Buckner, 839 S.W.2d
754, 759 (Tenn. 1992); Smith v. Gore, 728 S.W.2d 738, 746 (Tenn. 1987). As the legislature of
Nevada chose to act in light of the Nevada Supreme Court’s decision in Champagne, so too may the
Tennessee legislature act, if it chooses, to require the courts of this state to conduct a bifurcated
proceeding in parental termination cases. In the absence of such direction, however, we affirm the
trial court’s decision to deny the Hes’ motion to bifurcate the proceedings at trial.
C.
Constitutionality of section 36-1-102 and section 36-1-113 of the Tennessee Code
The Hes argue that the trial court erred by failing to find that section 36-1-102 and section
36-1-113 of the Tennessee Code violate the protections afforded them by the United States
Constitution by failing to require that biological parents receive actual notice of the following: the
statutory definition of abandonment; the criteria and procedures used for terminating parental rights;
information concerning the law of abandonment; information regarding the necessity for the
-54-
assistance of counsel; and a warning that failure to visit or failure to support the child for the
statutory period may constitute grounds for terminating their parental rights. Specifically, the Hes
assert that the lack of notice in this case violated their constitutional rights protected by the Fifth and
Fourteenth Amendments to the United States Constitution.
The Hes make reference to the notice provisions found in Title 37, Chapter 2, Part 4 of the
Tennessee Code which govern the placement of juveniles. Specifically, the Hes direct our attention
to section 37-2-403(a)(2) of the Tennessee Code, which provides, in relevant part, as follows:
(2) (A) The permanency plan for any child in foster care shall include
a statement of responsibilities between the parents, the agency and the
caseworker of such agency. Such statements shall include the
responsibilities of each party in specific terms and shall be reasonably
related to the achievement of the goal specified in subdivision (a)(1).
The statement shall include the definitions of “abandonment” and
“abandonment of an infant” contained in § 36-1-102 and the criteria
and procedures for termination of parental rights. Each party shall
sign the statement and be given a copy of it. The court must review
the proposed plan, make any necessary modifications and ratify or
approve the plan within sixty (60) days of the foster care placement
....
(B) (i) The parents or legal guardians of the child shall receive notice
to appear at the court review of the permanency plan or the plan of
care and the court shall explain on the record the law relating to
abandonment contained in § 36-1-102, and shall explain that the
consequences of failure to visit or support the child will be
termination of the parents’ or guardians’ rights to the child, and the
court will further explain that the parents or guardians may seek an
attorney to represent the parents or guardians in any termination
proceeding. If the parents or legal guardians are not at the hearing to
review the permanency plan or plan of care, the court shall explain to
the parents or guardians at any subsequent hearing regarding the child
held thereafter, that the consequences of failure to visit or support the
child will be termination of the parents’ or guardians’ rights to the
child and that they may seek an attorney to represent the parents or
guardians in a termination proceeding.
Tenn. Code Ann. § 37-2-403(a)(2) (2003) (emphasis added). An examination of section 36-1-102
and 36-1-113 of the Tennessee Code, which govern adoptions, reveals the absence of similar notice
provisions in those statutes.
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In assessing the Hes’ arguments related to the constitutionality of the two adoption statutes
at issue, we are mindful of the following:
When faced with such a constitutional assault on a statute, this court
must indulge every presumption and resolve every doubt in favor of
the constitutionality of the legislative enactment. See Riggs v. Burson,
941 S.W.2d 44, 51 (Tenn.), cert. denied, 522 U.S. 982, 139 L. Ed. 2d
380, 118 S. Ct. 444 (1997); Vogel v. Wells Fargo Guard Servs., 937
S.W.2d 856, 858 (Tenn. 1996). The party challenging the
constitutionality of a statute “bears a heavy burden of overcoming that
presumption.” Helms v. Tennessee Dep't of Safety, 987 S.W.2d 545,
550 (Tenn. 1999).
In re Adoption of M.J.S., 44 S.W.3d 41, 61 (Tenn. Ct. App. 2000); see also Gallaher v. Elam, 104
S.W.3d 455, 459 (Tenn. 2003); In re Adoption of Female Child, 42 S.W.3d 26, 31–32 (Tenn.
2001).
The Hes assert that, since they have a fundamental right to the care, custody, and control of
their daughter, see Troxel v. Granville, 530 U.S. 57, 65 (2000); Santosky v. Kramer, 455 U.S. 745,
753 (1982); Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993), the Fifth and Fourteenth
Amendments to the United States Constitution require that the notice provisions applicable to cases
involving the Tennessee Department of Children’s Services apply with equal force to non-agency
custody arrangements between private individuals as well. The parties do not dispute that the Hes
never received any of the forms of notice required by section 37-2-403(a)(2) of the Tennessee Code
at any time before or after the juvenile court entered the consent order on June 4, 1999 transferring
custody of A.M.H. to the Bakers. The Hes contend that, had they received this information, they
would have taken additional steps to prevent the termination of their parental rights.
In support of their position on appeal, the Hes cite to the following statement by the United
States Supreme Court in Santosky v. Kramer:
The fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate simply
because they have not been model parents or have lost temporary
custody of their child to the State. Even when blood relationships are
strained, parents retain a vital interest in preventing the irretrievable
destruction of their family life. If anything, persons faced with forced
dissolution of their parental rights have a more critical need for
procedural protections than do those resisting state intervention into
ongoing family affairs. When the State moves to destroy weakened
familial bonds, it must provide the parents with fundamentally fair
procedures.
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Santosky, 455 U.S. at 753–54 (emphasis added). The Hes also seek to persuade this Court to apply
a notice requirement similar to that found in section 37-2-403(a)(2) of the Tennessee Code to private
custody agreements by citing to the decisions of this Court applying that statute and holding that a
parent’s failure to receive the required statutory notice warranted a reversal of the trial court’s
finding of abandonment. See In re S.M., 149 S.W.3d 632, 637–38 (Tenn. Ct. App. 2004); State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 Tenn. App. LEXIS 569, at *29–32 (Tenn. Ct. App.
Aug. 13, 2003) (no perm. app. filed); In re J.J.C., 148 S.W.3d 919, 926–27 (Tenn. Ct. App. 2004);
In re C.L.H., No. M2000-02799-COA-R3-JV, 2001 Tenn. App. LEXIS 424, at *13–15 (Tenn. Ct.
App. June 5, 2001) (no perm. app. filed); Pierce v. Bechtold, 448 S.W.2d 425, 429–30 (Tenn. Ct.
App. 1969).
The Fourteenth Amendment to the United States Constitution provides as follows: “nor shall
any State deprive any person of life, liberty, or property without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”14 U.S. Const. amend. XIV, §1. In
addressing claims premised upon the Fourteenth Amendment, the Tennessee Supreme Court has
noted:
It is well established that the due process protections of the
Fourteenth Amendment do not come into play unless there is some
action on the part of the State. See Shelley v. Kraemer, 334 U.S. 1,
13, 92 L. Ed. 1161, 68 S. Ct. 836 (1948); State ex rel. Hawkins v.
Luttrell, 221 Tenn. 32, 424 S.W.2d 189, 190 (Tenn. 1968); State ex
rel. Johnson v. Heer, 219 Tenn. 604, 412 S.W.2d 218, 219 (Tenn.
1966). Therefore, in order to state a cause of action for a due process
violation under the Fourteenth Amendment, state action must be
alleged.
City of Cookeville v. Humphrey, 126 S.W.3d 897, 906 (Tenn. 2004) (emphasis added); see also
State ex rel. Johnson v. Heer, 412 S.W.2d 218, 219 (Tenn. 1966) (“[I]n order for the defendant’s
rights under the Fourteenth Amendment to come into play, there must be some action on the part of
the State that deprives him of due process of law and/or equal protection of the law.”).
The Hes focus their arguments on appeal to a lack of notice regarding the abandonment
ground for terminating parental rights, however, they do not specifically state which individuals or
entities were constitutionally required to provide them notice. Section 36-1-102(1) of the Tennessee
Code, which defines “abandonment,” requires the courts of this state to focus on the biological
parents’ conduct within the four (4) months immediately preceding the filing of the petition to
terminate their parental rights. See Tenn. Code Ann. § 36-1-102(1)(A) – (E) (2001). Thus,
14
W e also note that the Hes have asserted a violation of the Fifth Amendment to the United States Constitution
as well. The Fifth Amendment has been repeatedly held to apply to actions by the federal government, not the state
government. See Cam den Fire Ins. Ass’n v. Haston, 284 S.W . 905, 908 (Tenn. 1925); State v. Norvell, 191 S.W . 536,
539 (Tenn. 1916). The Hes fail to demonstrate any action on the part of the federal government regarding their lack of
notice in this case. Accordingly, this component of their argument is without merit.
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assuming for purposes of our discussion here that a party did have a duty to provide notice to the Hes
during this period of time, we must necessarily focus our attention on those individuals or entities
which had the ability to influence the behavior of the parents during this statutory period. When
Mid-South ceased its involvement in this case on June 4, 1999 (the date of the juvenile court’s
consent custody order), the Bakers took over responsibility for A.M.H. Thus, it is apparent that the
Hes are asserting that the Bakers, private individuals, violated their due process rights by failing to
provide them with notice comparable to that required by section 37-2-403 of the Tennessee Code.
Regarding the Bakers, the Hes are unable to establish the requisite state action necessary to
pursue their due process claims in this case. Moreover, their reliance on the aforementioned cases
actually undermines their position on appeal. In In re J.J.C., Demarr, and In re C.L.H., the
Tennessee Department of Children’s Services, a state agency, had custody of the children and filed
the petition to terminate the parents’ parental rights, and this Court addressed the state’s failure to
provide the required statutory notice to the parents in each of those cases. In re J.J.C., 148 S.W.3d
at 921; Demarr, 2003 Tenn. App. LEXIS 569, at *3–4; In re C.L.H., 2001 Tenn. App. LEXIS 424,
at *4–5. Thus, in those cases we were dealing specifically with action on the part of the state which
affected the parental rights of a parent to their minor child. In Santosky, the United States Supreme
Court expressly stated that, “[w]hen the State moves to destroy weakened familial bonds, it must
provide the parents with fundamentally fair procedures.” Santosky, 455 U.S. at 753–54 (emphasis
added). In In re S.M., a licensed child-placement agency filed the petition to terminate the parental
rights of the biological parents, but this Court did not address any failure on the part of the agency
to provide notice when ruling that the parent did not willfully abandon the child. In re S.M., 149
S.W.3d at 643–44 (finding that the agency failed to present clear and convincing evidence that the
biological parent willfully abandoned the child). Our decision in Pierce is not persuasive because
our decision in that case constitutes a common law ruling which, as the Hes acknowledge in their
brief, was handed down prior to the codification of the notice provisions in section 37-2-403 of the
Tennessee Code. See Pierce, 448 S.W.2d at 429–30.
In addressing the Fourteenth Amendment to the United States Constitution, the United States
Supreme Court has stated as follows:
It is State action of a particular character that is prohibited.
Individual invasion of individual rights is not the subject-matter of
the amendment. It has a deeper and broader scope. It nullifies and
makes void all State legislation, and State action of every kind, which
impairs the privileges and immunities of citizens of the United States,
or which injures them in life, liberty or property without due process
of law, or which denies to any of them the equal protection of the
laws.
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The Civil Rights Cases, 109 U.S. 3, 11 (1883) (emphasis added). Accordingly, the Hes have no
basis to assert that the Bakers, private individuals, violated their Fourteenth Amendment rights
regarding A.M.H. by failing to give them the notice which they claim they were entitled to. 15
Without explicitly stating as much, the Hes impliedly argue in their brief that the juvenile
court also violated their constitutional rights under the Fourteenth Amendment by failing to ensure
that they received some form of notice comparable to that found in section 37-2-403 of the
Tennessee Code when it entered the June 4, 1999 consent order transferring custody of A.M.H. to
the Bakers. The United States Supreme Court has recognized that state action may take the form of
judicial enforcement of private agreements, stating:
That the action of state courts and judicial officers in their official
capacities is to be regarded as action of the State within the meaning
of the Fourteenth Amendment, is a proposition which has long been
established by decisions of this Court . . . . “A state acts by its
legislative, its executive, or its judicial authorities. It can act in no
other way.” In the Civil Rights Cases, 109 U.S. 3, 11, 17 (1883), this
Court pointed out that the Amendment makes void “State action of
every kind” which is inconsistent with the guaranties therein
contained, and extends to manifestations of “State authority in the
shape of laws, customs, or judicial or executive proceedings.”
Shelley v. Kraemer, 334 U.S. 1, 14 (1948) (emphasis added).
15
W e address the Hes’ lack of notice more fully when addressing the grounds for termination infra. However,
we pause here to note that our independent research has revealed one decision rendered by this Court after the appeal
in the instant case was filed wherein we addressed a private custody agreement and a parent’s lack of notice regarding
abandonment, stating:
W hen the Department of Children’s Services or other child-placing agency obtains
custody of children removed from the parents’ home, it is required to notify the
parents of the statutory definitions of abandonment and the criteria and procedures
for termination of parental rights. Tenn. Code Ann. § 37-2-403(a)(2)(A). In such
situations, a court cannot terminate a parent’s rights on the ground of abandonment
unless such notice, including the consequence of abandonment, has been given by
the agency petitioning for termination or the court itself. Tenn. Code Ann. §
37-2-403(a)(2)(B). In the case before us, neither DCS nor another agency was
involved, so the statute does not apply. Nonetheless, Mother’s knowledge of a duty
or expectation that she provide support and visit is a factor in determining
willfulness. W e find nothing in the record to indicate she was ever told she was
expected to provide support or face termination of her parental rights.
In re W .B., IV, No. M2004-00999-COA-R3-PT, 2005 Tenn. App. LEXIS 262, at *38 (Tenn. Ct. App. Apr. 29, 2005)
(no perm. app. filed) (emphasis added). W hile a parent’s knowledge of a duty to visit or support may have a bearing
when determining willfulness, we cannot say that the Fourteenth Amendment to the United States Constitution mandates
that a private individual provide the notifications urged upon the Court by the Appellants in this case.
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In any event, we cannot entertain any arguments, even if expressly stated, which attempt to
satisfy the state action requirement by pointing to the juvenile court’s enforcement of the parties’
private custody agreement by entering an order solidifying that agreement. Although the order was
the result of a consent agreement regarding custody of A.M.H., the Hes retained their right to appeal
the June 4, 1999 order to this Court, as well as the subsequent order denying their first petition to
modify that order, and present any alleged constitutional infirmities for resolution. See Tenn. Code
Ann. § 37-1-159(g) (2003) (“Appeals in all other civil matters heard by the juvenile court shall be
governed by the Tennessee Rules of Appellate Procedure.”). The Hes failure to file an appeal divests
this Court of the ability to review the constitutional validity of the June 4, 1999 order. Once a
custody order is final, it becomes res judicata and can only be modified in a subsequent proceeding
upon a showing that there had been a material change in circumstances making a change of custody
in the child’s best interest. See In re E.J.M., No. W2003-02603-COA-R3-JV, 2005 Tenn. App.
LEXIS 146, at *46 (Tenn. Ct. App. Mar. 10, 2005) (no perm. app. filed); Rushing v. Rushing, No.
W2003-01413-COA-R3-CV, 2004 Tenn. App. LEXIS 708, at *14 (Tenn. Ct. App. Oct. 27, 2004)
(no perm. app. filed).16 Accordingly, we find the Hes argument in this regard to be without merit.
D.
Application of the Notice Provisions in Section 37-2-403 of the Tennessee Code
The Hes make the alternative argument that, even if the aforementioned statutes are deemed
constitutional, the trial court erred by failing to find that the notice provisions found in section 37-2-
403 of the Tennessee Code should apply in this case because A.M.H. was in the “foster care”17 of
16
Our supreme court has stated that a custody order may not constitute a final judgment with the accompanying
res judicata effect when the juvenile court intends the order to be of temporary effect. See In re Askew, 993 S.W .2d
1, 4 (Tenn. 1999). W e discuss the other related issues raised by the Hes in an attempt to invalidate the June 4, 1999 order
infra.
17
“Foster care”, for purposes of section 37-2-403 of the Tennessee Code, is defined as follows:
“Foster care” means the temporary placement of a child in the custody of the
department of children’s services or any agency, institution or home, whether
public or private, for care outside the home of a parent or relative (by blood or
marriage) of the child, whether such placement is by court order, voluntary
placement agreement, surrender of parental rights or otherwise. Foster care shall
cease at such time as the child is placed with an individual or individuals for the
purpose of the child’s adoption by the individual or individuals or at such time as
a petition to adopt is filed, whichever occurs first, or at such time as the child is
returned to or placed in the care of a parent or relative . . . .
Tenn. Code Ann. § 37-2-402(5) (2003) (emphasis added).
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an “agency”18 prior to the date the Bakers filed their petition to terminate the Hes’ parental rights.
The Hes assert that, while “AMH was not ‘technically’ in the foster care of an agency following the
end of the 90-day foster care period through Mid-South Christian Services,” she was in the type of
foster care contemplated by section 37-2-403(a)(2) of the Tennessee Code between June 4, 1999 and
the date the Bakers filed their petition in this case because the transfer of responsibility for A.M.H.
between Mid-South and the Bakers was “seamless.” Furthermore, in an effort to demonstrate that
Mid-South remained involved after the conclusion of the three month foster care period, the Hes cite
to the fact that Mr. Weaver, Mid-South’s lawyer, subsequently represented the Bakers in their
attempts to contest the Hes’ petitions to modify the custody order and filed the petition to terminate
the Hes’ parental rights. Therefore, they contend that Mid-South remained “interested” in the
outcome of the proceedings even though the Hes signed a form acknowledging that Mid-South
would no longer be involved in the case.
Just prior to the end of the initial three month foster care period, Ms. Chunn met with Father
to discuss the Hes’ future plans for A.M.H. When Father indicated that they wanted A.M.H. to
remain with the Bakers, Ms. Chunn advised Father of the adverse effects such an arrangement could
have on A.M.H. and counseled against it. At this point, Father met with the Bakers and discussed
a private arrangement without any involvement of Mid-South. Thereafter, Father and the Bakers
called Ms. Chunn to inform her of the parties’ decision. Admittedly, Ms. Chunn did facilitate the
meeting with Mr. Weaver to discuss the process of transferring custody. However, on June 4, 1999,
the day the parties signed the consent order transferring custody, the Hes signed a form which
provided as follows:
Upon signing this form and receiving said child(ren), I (we) assume
full responsibility for the child(ren), and discharge Mid-South
Christian Services from any further care of the child(ren) beyond this
date.
After this date, Mid-South’s responsibility for A.M.H. ceased. While the record demonstrates that
Ms. Chunn did communicate with the Bakers after that date, we cannot find that this conduct
amounts to a continuing effort to provide “foster care.” Likewise, we cannot say that the Bakers’
independent decision to have Mr. Weaver represent them at a later date equates to a “continuing
18
It is undisputed that M id-South is a licensed child placement agency. The legislature defines “agency” for
purposes of Title 37, Chapter 2, Part 4 as “a child care agency, as defined in title 71, chapter 3, part 5, or in title 37,
chapter 5, part 5, regardless of whether such agency is licensed or approved, and includes the department of children’s
services.” Tenn. Code Ann. § 37-2-402(1) (2003). Section 37-5-501 of the Tennessee Code states:
As used in this part, unless the context otherwise requires: “child care agency”
includes: “child abuse agency,” “child caring institution,” “child placing agency,”
“detention center,” “family boarding home or foster home,” “group care home,”
“maternity home,” or “temporary holding resource” as defined in subsection (b).
Tenn. Code Ann. § 37-5-501(a) (2003).
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interest” in the case on the part of Mid-South. There is simply no evidence in the record suggesting
that Mid-South directed Mr. Weaver to represent the Bakers or encouraged the Bakers to select Mr.
Weaver to represent them. Thus, A.M.H. did not remain in “foster care” with an “agency” beyond
June 4, 1999.19 Accordingly, we find the Hes arguments in this regard to be without merit as well.
E.
Superior Parental Rights Doctrine
At the conclusion of the initial three month foster care period, the Hes signed a “Petition for
Custody,” wherein they asked that “[c]ustody of [A.M.H.] be awarded to Jerry & Louise Baker, non-
relative[.]” On June 4, 1999 the juvenile court entered a “Consent Order Awarding Custody,”
wherein the juvenile court noted that the Hes admitted the following:
1. That they have been fully advised of their legal rights and that
a hearing before the Court is hereby expressly waived.
2. That all parties agree that it is in the best interest of the
child(ren) for custody and guardianship of the person of said
child to be awarded to Jerry and Louise Baker, non-relatives.
....
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED
that custody and guardianship of the person of said child(ren) be and
is hereby awarded to Jerry and Louise Baker, non-relatives with
authority to make appropriate plans for the care and supervision of
said child(ren).
(emphasis added).20 On May 29, 2001, Mother filed a “Petition to Modify Order” in the juvenile
court alleging that a change in circumstances warranted a change in the custody arrangement set forth
19
In a similar vein, any attempt by the Hes to assert a violation of the Fourteenth Amendment on the part of
Mid-South would not be meritorious. As of June 4, 1999, M id-South no longer had any involvement in this case, and
they have not been made a party to the instant controversy. Moreover, the Hes did not appeal the juvenile court’s June
4, 1999 order or the subsequent denial of their original petition to modify that order, which would necessarily include
an evaluation of Mid-South’s conduct up to that point in time.
20
As previously noted, Ms. Cloud typed the italicized language into the order above the phrase “custody to be
awarded” and “custody of said child(ren).”
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in the June 4, 1999 order.21 As previously noted, after the Bakers filed their petition to terminate the
Hes’ parental rights to A.M.H. in the chancery court, the court consolidated Mother’s petition with
the Bakers’ petition at the request of the Bakers.
On appeal, Mother argues that the trial court erred by not applying the “superior parental
rights doctrine” when analyzing Mother’s May 29, 2001 petition which, if done, would have
rendered the Bakers’ petition to terminate Mother’s parental rights moot. Specifically, Mother
asserts that, pursuant to certain enumerated exceptions in our supreme court’s decision in Blair v.
Badenhope, 77 S.W.3d 137 (Tenn. 2002), the “superior parental rights doctrine” must be applied
to her petition to modify the custody order at issue. Conversely, the Bakers contend that the
“superior parental rights doctrine” does not apply to the facts in the instant case.22
Due to the constitutionally protected right of biological parents to the care, custody and
control of their children, our supreme court has instructed that, in an initial custody determination
between a parent and a non-parent, the following standard must be applied to protect the biological
parents’ fundamental constitutional rights:
21
Ms. Cloud testified that, while Father was present at juvenile court when the May 29, 2001 petition was
drafted, only Mother signed the petition seeking a modification of the juvenile court’s earlier order.
22
The Bakers attempt to distinguish Blair by pointing to the fact that the non-parent in Blair was never awarded
guardianship of the minor child as was done in this case. They argue that they have been adjudicated guardians of
A.M.H., therefore, the following statute applies:
A custodian to whom legal custody has been given by the court under this part has
the right to the physical custody of the child, the right to determine the nature of the
care and treatment of the child, including ordinary medical care and the right and
duty to provide for the care, protection, training and education, and the physical,
mental and moral welfare of the child, subject to the conditions and limitations of
the order and to the remaining rights and duties of the child’s parents or guardian.
A custodian is also responsible for providing notices as required in § 49-6-3051, to
the principal of the school in which the child is enrolled.
Tenn. Code Ann. § 37-1-140(a) (2003). The Bakers assert that, unlike a “custody” determination which is modifiable,
an order appointing a “guardian” for a minor child becomes final and unappealable. As a result, they contend that the
Hes were required to file a petition to terminate the Bakers’ guardianship rights, and they were required to prove grounds
for termination by clear and convincing evidence. See Tenn. Code Ann. § 36-1-113(a), -113(d) (2003) (setting forth the
jurisdiction and venue of the courts in terminating parental or guardianship rights to a child).
The Bakers cite to no Tennessee case law, and our independent research has likewise failed to locate any
authority, which requires the result they urge this Court to adopt in the present case. Moreover, requiring biological
parents to seek to terminate the guardianship rights of a non-parent, as the Bakers suggest, would stand in direct
contravention of a biological parent’s fundamental right to the care, custody, and control of their children. See Santosky
v. Kram er, 455 U.S. 745, 753 (1982); Hawk v. Hawk, 855 S.W .2d 573, 579 (Tenn. 1993). To adopt such an approach
would be, in essence, to sanction de facto adoptions without the need of protecting the biological parents’ constitutionally
protected right to their minor child. This we decline to do.
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[I]n a contest between a parent and a non-parent, a parent cannot be
deprived of the custody of a child unless there has been a finding,
after notice required by due process, of substantial harm to the child.
Only then may a court engage in a general “best interest of the child”
evaluation in making a determination of custody.
In re Adoption of Female Child, 896 S.W.2d 546, 548 (Tenn. 1995). The supreme court reaffirmed
this principle in Blair v. Badenhope, stating:
The law is now well-settled that the Tennessee Constitution
protects the fundamental right of natural parents to have the care and
custody of their children. See Nale v. Robertson, 871 S.W.2d 674,
680 (Tenn. 1994); Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn.
1993). Through Article I, section 8 and its implicit recognition of
parental privacy rights, our Constitution requires that courts deciding
initial custody disputes give natural parents a presumption of
“superior parental rights” regarding the custody of their children. See
In re Askew, 993 S.W.2d 1, 4 (Tenn. 1999). Simply stated, this
presumption recognizes that “parental rights are superior to the rights
of others and continue without interruption unless a biological parent
consents to relinquish them, abandons his or her child, or forfeits his
or her parental rights by some conduct that substantially harms the
child.” See O'Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn. Ct.
App. 1995).
Blair, 77 S.W.3d at 141.
In Blair, our supreme court was asked to address the standard to be applied to a biological
parent’s petition to modify a previous custody order awarding custody of the child to a non-parent.
Blair, 77 S.W.3d at 139. The mother of the child succumbed to cancer in 1990. Id. Prior to her
death, the mother and the child were cared for by the child’s grandmother. Id. After the mother’s
death, the child continued to live with the grandmother. Id. The grandmother subsequently
petitioned for custody of the child, and the trial court awarded temporary custody of the child to the
grandmother. Id. After the biological father established his paternity to the child, he contested the
trial court’s award of custody to the grandmother. Id. However, before the trial court could reach
a decision in the matter, the father and the grandmother agreed to allow the grandmother to retain
custody of the child. Id. The trial court entered a consent order to solidify the agreement. Id.
Thereafter, in 1995, the father petitioned the trial court to modify the custody order, however,
the court found that a material change in circumstances did not warrant a change in custody. Id. In
1997, the father once again petitioned the trial court for a modification of its previous custody order
alleging that a material change in circumstances warranted such a change. Id. at 140. The father
also asserted that he enjoyed a presumption that his parental rights were superior to those of the
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grandmother, a non-parent, therefore, the trial court could not deny him custody of his daughter
unless he was shown to be an unfit parent. Id. The trial court, while acknowledging that the father
was a fit parent, concluded that a material change in circumstances did not exist to warrant a change
in custody. Id. This Court affirmed, and the supreme court reversed. Id. at 141.
At the outset, the supreme court examined the prior Tennessee cases addressing parent versus
non-parent custody disputes and made the following observation:
Examining the principles applied in each of these cases with
respect to custody modification issues, a natural parent enjoys the
presumption of superior rights under four circumstances: (1) when no
order exists that transfers custody from the natural parent; (2) when
the order transferring custody from the natural parent is accomplished
by fraud or without notice to the parent; (3) when the order
transferring custody from the natural parent is invalid on its face; and
(4) when the natural parent cedes only temporary and informal
custody to the non-parents. Consequently, when any of these
circumstances are present in a given case, then protection of the right
of natural parents to have the care and custody of their children
demands that they be accorded a presumption of superior parental
rights against claims of custody by non-parents.
Id. at 143 (emphasis added). In Blair, the supreme court noted that it was also being asked to decide
whether a “fifth circumstance” warranted the same result; “when the order transferring custody from
the natural parent is valid in all respects, even though it results from the natural parent voluntarily
surrendering full and [sic] custody of the child to the non-parent.” Id.
In concluding that this “fifth circumstance” did not warrant an application of the “superior
parental rights doctrine” to the father’s petition in Blair, our supreme court stated:
Though we have broadly recognized that the right of parental
privacy in this state is fundamental, see, e.g., Hawk, 855 S.W.2d at
579, nothing in the language of our Constitution, nor in the volumes
of our case law, suggests that the superior rights doctrine should assist
a parent to obtain custody of a child when a valid court order properly
transferred custody from that parent in the first instance. Nor is there
any suggestion from these sources that our right to privacy extends so
far as to warrant application of the superior rights doctrine even when
that valid order results from the natural parent voluntarily consenting
to give custody of the child to a non-parent. Because all of our prior
cases discussing awards of custody to a natural parent from a
non-parent have been those in which the initial transfer of custody
from the natural parent was not accomplished with a valid court order
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or was not consensual, these cases cannot be properly used to “say
what the law is” on this issue in Tennessee.
Id. After examining similar cases from sister states, the supreme court concluded as follows:
As these cases demonstrate, parents in the initial custody
proceedings enjoy a strong presumption that they are entitled to the
physical custody of their children. However, having once protected
the rights of natural parents to the care and custody of their children,
no constitutional principle demands that natural parents again be
afforded a presumption of superior rights in a subsequent
modification proceeding. Of course, where an initial order does not
exist, or is otherwise invalid, then the Constitution requires a court to
apply the superior rights doctrine. However, because these
circumstances do not exist in this case, we disagree that the
Tennessee Constitution compels application of that doctrine in the
face of a lawful and valid court order vesting custody of [the child] in
her grandmother.
Id. at 146.
The supreme court then turned its attention to the effect the father’s voluntary consent to
relinquish custody of his daughter to the grandmother had on his ability to assert his superior parental
rights in a proceeding to modify the previous custody order. Id. The supreme court found that the
father’s voluntary relinquishment of custody “undermine[d] his argument that the Constitution
commands application of the superior rights doctrine in this custody modification proceeding.” Id.
In fact, the court concluded that a “parent’s voluntary transfer of custody to a non-parent, with
knowledge of the consequences of that transfer, effectively operates as a waiver of these fundamental
parental rights.” Id. at 147 (emphasis added). In response to the arguments put forth by the dissent
in Blair, the majority made the following observation:
Importantly, the dissent maintains that “parents in many cases
may make custodial decisions without fully understanding the legal
ramifications of their choices.” Characterizing the voluntary waiver
of parental rights as a “trap for the unwary,” the dissent expresses
concern that parents may not fully understand the effect of such a
waiver.
We fully agree with the dissent in this regard, and we
emphasize here, as above, that a parent's voluntary relinquishment
of custody must be made with knowledge of the consequences of that
decision. Where a natural parent voluntarily relinquishes custody
without knowledge of the effect of that act, then it cannot be said that
these rights were accorded the protection demanded by the
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Constitution. As such, application of the superior rights doctrine in
a subsequent modification proceeding would be justified. However,
no such allegation has been made by [the father] in this case.
Id. at 147–48 n.3.
Mother relies on three of the “circumstances” enumerated by our supreme court in Blair in
support of her argument that the “superior parental rights doctrine” should apply to her petition to
modify the custody order. First, she alleges that the June 4, 1999 order entered by the juvenile court
was accomplished by fraud or without providing notice to her. Second, Mother asserts that, through
the June 4, 1999 order, she only ceded temporary and informal custody to the Bakers. Finally, she
asserts that the June 4, 1999 order is invalid on its face. We will address each of these arguments
in turn.
1.
Alleged Fraud and Lack of Notice
The chancery court concluded that “[a]ll parties, including Mr. and Mrs. He, knowingly and
voluntarily signed the June 4, 1999, Consent Order Awarding Custody, without being induced by
any fraud or undue influence.” All of the arguments put forth by Mother on appeal addressing this
issue fail to demonstrate how the trial court erred in finding a lack of fraud in the inducement of the
order. Moreover, Mother offers no argument regarding a lack of notice of the hearing on the order,
and she would be hard pressed to make such an argument given the fact that she agreed to an order
transferring custody and appeared at juvenile court on June 4, 1999.
Instead, Mother contends that she did not receive proper legal advice and did not enter into
the agreed order “with knowledge of the consequences of that transfer.” Mother primarily points to
the fact that, while Father attended the meeting with Mr. Weaver prior to the order being entered,
she was not present at that meeting. On the day the parties met at juvenile court to sign the order,
Mother, Ms. Cloud, Ms. Chunn, and Pastor Yau met in a separate room to discuss the order. Mother
asserts that this meeting resulted in her receiving legal advice from non-lawyers. Based on these
facts, Mother argues that she was not fully advised of her legal rights, and therefore, did not
“consent” to the transfer of custody or “expressly waive” her right to a hearing.
The trial court concluded that, based on the evidence at trial, Ms. Chunn, Ms. Cloud, and
Pastor Yau “fully explained the legal ramifications of both the Petition for Custody and the Consent
Order Awarding Custody, both of which Mrs. He later voluntarily signed.” There was conflicting
testimony offered at trial on the level of Mother’s understanding regarding the transfer of custody.
Mother testified that she did not understand the ramifications of the order. The trial court noted that,
both prior to and before June 4, 1999, the Hes engaged the services of at least three attorneys to
advise them in Mother’s civil case for the alleged assault in November of 1998 and Father’s criminal
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trial. However, the Hes never sought advice from these attorneys about the custody issue, and, in
fact, never mentioned the existence of A.M.H. to any of these attorneys. Regarding the meeting with
Mr. Weaver, Father denied ever calling Mother from the meeting to inquire if they should proceed
in her absence. In light of the testimony of the Bakers, Mr. Weaver, and Ms. Chunn to the contrary,
the trial court concluded that the call did, in fact, take place, and Mother waived her right to attend.
Since Mother did not attend this meeting, Ms. Chunn took Pastor Yau with her to meet with Mother
at the Hes’ apartment prior to the meeting in juvenile court to sign the order. Pastor Yau testified
that Ms. Chunn wanted to ensure that Mother understood the custody arrangement, and Mother
indicated that she understood the order and the process. Regarding the meeting in juvenile court on
June 4, 1999, both Pastor Yau and Ms. Chunn testified that Mother indicated that she understood
the order and the process.
The trial court’s findings in relation to this issue are based solely upon the credibility of the
witnesses. The record does not contain clear and convincing evidence that Mother lacked knowledge
as to the consequences of the transfer of custody. See Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779,
783 (Tenn. 1999). Accordingly, we must conclude that Mother’s attempts to argue that the “superior
parental rights doctrine” should apply for the above stated reasons must fail.
2.
Temporary Custody
While Mother had “knowledge of the consequences” of the transfer of custody, she contends
that her “knowledge” consisted of the understanding that the agreed order only transferred temporary
custody of A.M.H. to the Bakers. Mother argues that, pursuant to the June 4, 1999 order, she only
intended to cede temporary custody of A.M.H. to the Bakers, therefore, she is entitled to assert her
superior parental rights in her petition to modify custody. In support of this position, Mother relies
on this Court’s decision in Means v. Ashby, 130 S.W.3d 48 (Tenn. Ct. App. 2003). In Means, the
biological mother met her brother and sister-in-law at their attorney’s office to sign a custody
agreement transferring custody of the mother’s child to the brother and sister-in-law. Means, 130
S.W.3d at 52–53. Mother subsequently sought a return of custody, and the brother and sister-in-law
filed a petition for adoption and to terminate the mother’s parental rights. Id. at 53. The trial court
concluded that the mother did not abandon the child by willfully failing to visit or willfully failing
to support her. Id. However, the trial court ruled that the child should remain in the custody of the
brother and sister-in-law. Id. at 53–54. Regarding the trial court’s custody determination, this Court,
addressing the Blair exception relied upon by Mother in the instant case, vacated the trial court’s
custody determination and remanded the case to the trial court for further consideration in light of
the supreme court’s decision in Blair. Id. at 58. In support of our decision, we noted the testimony
of the attorney who drafted the order to the effect that “the primary purpose [of the custody
agreement] was to allow the minor child to be covered by insurance.” Id.
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In support of her argument that she only intended to cede temporary custody of A.M.H. to
the Bakers, Mother relies on the following testimony by Ms. Cloud who drafted the June 4, 1999
order:
Q. All right, and did either Mr. or Mrs. He tell you that they
wanted the Bakers to take care of their child on a permanent
basis?
A. No.
Q. Did the Hes ever say anything to you that indicated to you that
they were interested in either a temporary or permanent
arrangement?
A. Temporary.
Q. Can you tell us what you recall?
A. I recall mainly talking to Casey, that she was very concerned
that it was not a permanent situation. She did not want it to
be a permanent situation.
Q. She made that very clear to you?
A. Yes, sir.
....
Q. When Mr. and Mrs. Baker and Mr. and Mrs. He were before
you on June 4th of 1999, did they appear to be in agreement?
A. Yes.
Q. It did not appear to be a contested matter. Is that correct?
A. No.
Q. You understood Ms. He, through the interpreter, to wanting
this matter to be temporary only. Is that your understanding?
A. Yes.
Q. Was there any equivocation about that, any language problem
about that?
A. Not —
Q. I mean, you understood through the interpreter what she
wanted?
A. I believe I did.
Q. And is that what you understood that Mr. and Mrs. Baker
wanted?
A. Yes.
Q. If you understood that Mr. and Mrs. Baker wanted language
in the consent order that said that, “We will be able to raise
this child until she’s 18 years of age,” would you consider that
to be consistent with what Ms. He understood on that day?
A. No.
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....
Q. Ms. Cloud, what was the agreement that you were so sure that
all parties had consented to? Was it temporary or permanent?
A. Temporary.
....
Q. Temporary because it could be changed; right?
A. That would be one of the reasons, but I believe Casey was
fairly adamant that at some point she wanted her child back.
Regarding the meeting with Mother at juvenile court on June 4, 1999, Pastor Yau offered the
following testimony:
Q. Did you hear any discussion about insurance?
A. Yes.
Q. And what was said about insurance?
A. No detail was mentioned, but because of the need of medical
care for the baby, the guardians or the custodians needs to
have medical insurance for the baby.
Q. And were you asked to explain that to Ms. He?
A. Yes.
Q. And did you?
A. Yes.
Q. Did you explain anything about the word “temporary” to Ms.
He?
A. Yes, I did.
Q. And what did you tell her about that?
A. I told her that temporary custody means that someone was
willing to look after or take care of the well-being of the baby
for a period of time.
Q. For how long?
A. No specific time was mentioned.
....
Q. And what specifically — based on that, what specifically did
you explain to Ms. He?
A. In summary — you know, I can’t recall the word for word
question — said that because the Hes were unable to
financially support the baby at that time, that some family was
willing to take care of their baby on their behalf, but because
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of the legal procedure that necessitate to buy insurance or to
administer medication or whatever to the baby by the
custodian, Ms. He needs to give the authority to the custodian
by signing a document.
Q. Did you hear the word “temporary” in that meeting?
A. Yes.
Q. And were you asked to explain what the word “temporary”
meant for the benefit of Ms. He?
A. “Temporary” means a period of time against permanent?
The trial court found both Ms. Cloud and Pastor Yau to be credible witnesses.
While it is true that our supreme court stated in Blair that the “superior parental rights
doctrine” will apply “when the natural parent cedes only temporary and informal custody,” we
believe Mother has misconstrued this exception. The four “circumstances” enunciated in Blair
which the supreme court held would warrant application of the “superior parental rights doctrine”
to a modification proceeding were the result of the court’s analysis of previous cases addressing
parent versus non-parent custody disputes. Blair, 77 S.W.3d at 143. It is apparent that the supreme
court derived the “temporary and informal custody” exception from its prior decision in In re Askew,
993 S.W.2d 1 (Tenn. 1999). In that case, the biological mother was experiencing financial
difficulties at the time of giving birth to her daughter. In re Askew, 993 S.W.2d at 1. As a result,
the mother and the child began to reside with one of the mother’s female friends. Id. In 1994, the
non-parent female petitioned the juvenile court for custody of the child, simply stating in her petition
that the child had lived with her since 1991. Id. at 2. Thereafter, the juvenile court granted the
petition and awarded custody to the non-parent female in a perfunctory order which made no
findings regarding the mother’s unfitness as a parent. Id. The mother subsequently filed for a return
of custody citing a change in circumstances and asked that the juvenile court’s order be set aside
because she did not receive notice of the prior hearing. Id. The juvenile court determined that the
1994 order should be set aside because the mother was not given proper notice, but the court
awarded “temporary custody” to the non-parent female. Id. It its order, the juvenile court stated
that, while the mother’s interest in her child was superior to that of the non-parent female, the mother
had to demonstrate that she was presently able to care for the child before the court would return
custody to her. Id. The mother subsequently filed a renewed petition to regain custody which the
juvenile court denied. Id.
The mother filed an appeal to the circuit court, but the circuit court concluded that the mother
failed to carry her burden of proving a change in circumstances warranting a change in custody. Id.
at 3. On appeal, this Court noted that, since the mother did not appeal the 1994 order, the res
judicata effect of the order made it final. Id. The supreme court disagreed, stating:
In addition, we are also troubled by the Court of Appeals’ analysis of
the res judicata effect of this August 1994 order. The order conveys
no suggestion of finality but, instead, characterizes the custody award
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as “temporary,” stating that “the Court is only delaying restoring
custody to the natural parents,” and emphasizing that the rights of the
natural parents are superior to the interest of [the non-parent female].
We would characterize this order as a continuance of the case until
the court heard more proof from [the mother]. Under these
circumstances, [the mother] had virtually no incentive to appeal what
was not a final order, since the juvenile court explicitly indicated that
[the child] would soon be returned to the custody of her natural
parents.
Id. at 4. Thus, when discussing the “temporary” nature of the order in In re Askew, our supreme
court was concerned with the order’s lack of finality.23
In the instant case, Mother seeks to argue that the supreme court’s reference to “temporary
and informal custody” in Blair is addressed to the length of the custody arrangement set forth in the
order. However, this language simply reflected the supreme court’s interpretation of then existing
precedent. It is clear from the supreme court’s discussion in In re Askew that the court’s interest is
in the effect of the order itself (i.e., its finality) as opposed to the length of the custody arrangement.
There is nothing in the juvenile court’s June 4, 1999 order which signifies a lack of finality. Stated
differently, there is no indication in the order that the juvenile court intended to hold the change in
custody in abeyance until Mother met certain requirements.
Orders transferring custody of a minor child to another parent or a non-parent are, by their
very nature, “temporary” (i.e., as defined by Mother to mean subject to being changed at a later date).
The parent relinquishing custody is always free to petition the court to change a prior custody
arrangement when circumstances warrant. See Tenn. Code Ann. § 36-6-101(a)(1) (2003) (“Such
decree shall remain within the control of the court and be subject to such changes or modification
as the exigencies of the case may require.”); see also Kendrick v. Shoemake, 90 S.W.3d 566, 570
(Tenn. 2002) (discussing the standard to apply to a petition to modify a valid order of custody). To
hold, as Mother suggests, that the supreme court intended the word “temporary” in Blair to refer to
“the length of the custody arrangement” would relegate the courts of this state into a perpetual state
of defining the meaning of “temporary” as it pertains to custody decisions. In fact, the Hes
acknowledge the absurdity of such a result in their brief filed on appeal. In their brief, the Hes assert
that “there is no evidence that the parties understood the technical definition of ‘temporary,’ in the
same manner that a lawyer would understand that term.” The Hes go on to conclude that the concept
of “permanent” custody orders is, in reality, a misnomer since permanent orders of custody actually
take the form of adoption proceedings. Thus, if we were to adopt Mother’s logic, we would need
23
Ordinarily, “[c]ustody orders are res judicata and cannot be modified unless there has been a material change
in circumstances that makes a change of custody in the child’s best interest.” In re E.J.M ., No. W 2003-02603-COA-R3-
JV, 2005 Tenn. App. LEXIS 146, at *46 (Tenn. Ct. App. Mar. 10, 2005) (no perm. app. filed) (citing Kendrick v.
Shoem ake, 90 S.W .3d 566, 570 (Tenn. 2002); Blair, 77 S.W .3d at 148)); see also Rushing v. Rushing, No. W 2003-
01413-COA-R3-CV, 2004 Tenn. App. LEXIS 708, at *14 (Tenn. Ct. App. Oct. 27, 2004) (no perm. app. filed).
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to engage in an evaluation of the biological parent’s subjective understanding of the concept of
“temporary” custody each and every time we were asked to evaluate whether the natural parent
intended to cede “only temporary and informal custody” to the non-parent. See Blair, 77 S.W.3d
at 143.
It is apparent that the supreme court’s discussion of the “temporary” nature of the order in
In re Askew was aimed at addressing the mother’s failure to appeal that order, and not the “length
of the custody” ordered. See In re Askew, 993 S.W.2d at 4–5. The primary import of the court’s
analysis in In re Askew focused on the juvenile court’s failure to recognize the biological parent’s
superior rights to her minor child when deciding the initial custody issue. See id. at 5. Accordingly,
we interpret our supreme court’s decisions in Blair and In re Askew to mean that, when a trial court
enters an order which is temporary (i.e., the court has not entered a definitive and unalterable ruling
on the custody of the child), and the court has not previously permitted the biological parent to assert
her superior parental rights, the superior parental rights doctrine may be asserted by the biological
parent in a subsequent modification proceeding.
We are cognizant of Mother’s reliance on our decision in Means in support of her position
on appeal. However, Means was decided after the decision in In re Askew but before the decision
in Blair. Means, 130 S.W.3d at 57. Moreover, while we noted the lawyer’s testimony regarding the
“primary purpose” for the custody order at issue in Means, we did not reach a decision on the merits
as to the correctness of the trial court’s custody decision. Id. at 58. Instead, we remanded the case
to the trial court for further consideration in light of the supreme court’s decisions in Blair and In
re Askew. Id. Accordingly, we are of the conclusion that this Court’s holding in Means does not
support the proposition urged upon this Court by Mother.
Regardless of whether Mother believed the June 4, 1999 order was “temporary” (i.e., custody
of short duration), it is clear from the face of the order and the surrounding facts that all of the parties
intended for the order to transfer custody of A.M.H. from the Hes to the Bakers, and it was to remain
effective until such time as the Hes sought to file a petition to regain custody. Mr. Weaver testified
that he informed Father at their meeting on June 2, 1999 that the Hes would need to file a petition
to modify the custody order if they wanted a return of custody in the future. Ms. Cloud testified that
she advised the Hes that, if they desired to change the custody arrangement in the future, they would
need to petition the court to modify the custody order. Based on this testimony, the trial court
concluded that Mother understood the need to file a petition to modify the custody order in the
future, and we find nothing in the record to warrant a different conclusion. Accordingly, we find that
Mother’s argument in this regard is without merit.
3.
Validity of the June 4, 1999 Custody Order
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On appeal, Mother asserts that she was entitled to assert her superior parental rights in the
trial court because the June 4, 1999 custody order is invalid on its face. See Blair, 77 S.W.3d at 143.
Specifically, Mother asserts that the juvenile court’s custody order fails to comply with certain
provisions found in Title 34, Chapter 1, Part 1 of the Tennessee Code. First, Mother argues that the
trial court did not conduct an open-court hearing to consider any additional person who would be
better suited to act as guardians of A.M.H. See Tenn. Code Ann. § 34-2-103 (2003). Next, Mother
asserts that the juvenile court’s order fails to comply with the following statutory provision:
The petition for the appointment of a guardian, which shall be sworn,
should contain the following:
....
(3) The name, age, mailing address and relationship of the proposed
guardian and, if the proposed guardian is other than the petitioner, a
statement signed by the proposed guardian acknowledging awareness
of the petition and willingness to serve;
....
(5) An explanation of the reason for seeking appointment of a
guardian[.]
Tenn. Code Ann. § 34-2-104 (2003). Mother notes that, while the Hes original petition for custody
mentions the Bakers and lists their address, it only mentions them in regards to a transfer of custody,
not guardianship. Furthermore, the petition does not explain the reason for seeking the appointment
of a guardian. Finally, Mother argues that, “[i]f the court determines a guardian is needed, the court
shall enter an order which shall . . . [s]tate any other authority or direction as the court determines
is appropriate to properly care for the person and property of the minor.” Tenn. Code Ann. § 34-2-
105(3) (2003).
At trial, Ms. Cloud, the individual who drafted the petition and resulting custody order,
testified that she made the decision to include the guardianship language in the June 4, 1999 custody
order based upon her conversations with the parties. It is apparent to this Court that, in arguing her
position on appeal regarding this issue, Mother has placed form over substance. We need not decide
whether the juvenile court entered the original custody order in compliance with the above cited
statutes relied upon by Mother on appeal.
As we noted previously, the enunciation of this “circumstance” in Blair resulted from the
supreme court’s evaluation of its prior decisions addressing custody disputes between the natural
parents and non-parent individuals. Blair, 77 S.W.3d at 143. Once again, we turn to the supreme
court’s decision in In re Askew as the source of this “circumstance” warranting the application of the
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“superior parental rights doctrine” to a petition to modify a prior custody order. Regarding the
invalidity of the initial custody order, the supreme court held as follows:
It appears that no valid initial determination was ever made
that [the mother’s] custody of [the child] would result in “substantial
harm” to the child. Absent such a finding, we conclude that the
deprivation of the custody of her child has resulted in an abridgment
of [the mother’s] fundamental right to privacy. Bond, 896 S.W.2d at
548; Nale, 871 S.W.2d at 680; Hawk, 855 S.W.2d at 577. In light of
the unique circumstances of this case, we believe that the Court of
Appeals has misapplied modification of custody principles when no
valid initial order depriving the natural mother of custody existed. In
the absence of such a valid initial order, we believe that it would be
unconstitutional for the natural mother to bear the burden of proving
the absence of substantial harm. Because the record does not show
that a finding of substantial harm was made in this case,
constitutional principles compel us to reverse the decisions of the
lower courts.
In re Askew, 993 S.W.2d at 5. Thus, in In re Askew, the supreme court, when speaking of the
original custody order’s “invalidity,” was concerned with whether the natural parent’s constitutional
rights were protected in the initial custody hearing (i.e., the lack of a finding of substantial harm to
the child). We decline to extend this “circumstance” beyond the import of the supreme court’s
discussion regarding the invalidity of the initial order in In re Askew to include the facts in the
present case.24
The trial court determined that, based upon the testimony of the witnesses at trial, that Mother
was fully advised of the meaning of the June 4, 1999 consent order. As previously noted, we find
no justification for disturbing this credibility determination on appeal. The record demonstrates that
the parties, including Mother, understood this order to transfer temporary custody of A.M.H. from
the Hes to the Bakers. Furthermore, the record demonstrates that Mother was informed that she
would need to file a petition with the court to regain custody of A.M.H. at a future date. Armed with
this knowledge, Mother voluntarily consented to the entry of the order and waived a hearing on the
custody issue. The custody order does not have the indicia of a lack of finality as discussed by our
supreme court in In re Askew. Accordingly, none of the “circumstances” set forth by our supreme
court in Blair warrant the application of the “superior parental rights doctrine” to Mother’s petition
to modify custody in this case, therefore, we are bound by the following statement by our supreme
court in Blair:
24
Furthermore, Mother’s attempts to attack the validity of the June 4, 1999 custody order in this regard amount
to an attempt to avoid the consequences of her failure to appeal that order to this Court.
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[P]arents in the initial custody proceedings enjoy a strong
presumption that they are entitled to the physical custody of their
children. However, having once protected the rights of natural
parents to the care and custody of their children, no constitutional
principle demands that natural parents again be afforded a
presumption of superior rights in a subsequent modification
proceeding. Of course, where an initial order does not exist, or is
otherwise invalid, then the Constitution requires a court to apply the
superior rights doctrine. However, because these circumstances do
not exist in this case, we disagree that the Tennessee Constitution
compels application of that doctrine in the face of a lawful and valid
court order vesting custody of [the child] in her grandmother.
....
Based on our prior case law interpreting Article I, section 8 in
this context, and given the overwhelming authority from other
jurisdictions on this issue, we conclude that our Constitution does not
accord natural parents a presumption of superior rights to modify an
existing and valid order of custody, even when that order results from
the parent voluntarily agreeing to give custody to the non-parent.
Though strong in many respects, no aspect of the fundamental right
of parental privacy is absolute, and a parent who is given the
opportunity to rely upon the presumption of superior rights in an
initial custody determination may not again invoke that doctrine to
modify a valid custody order. Absent proof of the custody order’s
invalidity or proof that the parental rights were not protected in the
initial custody proceeding, the child's interest in a stable and secure
environment is at least as important, and probably more so, than the
parent’s interest in having custody of the child returned.
Blair, 77 S.W.3d at 146–48. We conclude that the trial court did not err by refusing to apply the
“superior parental rights doctrine” to Mother’s petition to modify the June 4, 1999 custody order.
F.
Grounds for Termination
1.
Application of the “Settled Purpose Doctrine”
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At the outset, we note that the Bakers filed their petition to terminate the Hes’ parental rights
on June 20, 2001. The applicable statute in effect on the date the Bakers filed their petition provided
that “[a]bandonment by the parent or guardian, as defined in § 36-1-102,” qualifies as a ground for
terminating the biological parent’s parental rights. Tenn. Code Ann. § 36-1-113(g)(1) (2001). At
issue in this case is the definition of abandonment set forth in section 36-1-102 of the Tennessee
Code. Since the petition at issue was filed in 2001, we must evaluate this case under the adoption
statutes in effect at that time. See In re Swanson, 2 S.W.3d 180, 185 (Tenn. 1999).
In its memorandum opinion, the trial court, perhaps out of an abundance of caution,
concluded as follows:
Although the “settled purpose doctrine” was repealed legislatively in
1996 and no longer has any force or effect as law in Tennessee, a
review of the evidence in this cause establishes that the actions of the
Hes evince a settled purpose to forego all parental rights and
responsibilities.
Prior to 1995, the courts of this state utilized a judicially created standard to evaluate whether a
biological parent abandoned his or her child in adoption cases. In re Swanson, 2 S.W.3d at 184;
O’Daniel v. Messier, 905 S.W.2d 182, 186 n.3 (Tenn. Ct. App. 1995). This Court set forth the
judicially created standard to be applied in adoption cases by stating:
So, the issue of abandonment should be resolved by the Circuit Court
under the following statement of the law:
“Abandonment imports any conduct on the part of the
parent which evinces a settled purpose to forego all
parental duties and relinquish all parental claims to
the child. It does not follow that the purpose may not
be repented of, and, in proper cases all parental rights
again acquired. * * * but when abandonment is shown
to have existed, it becomes a judicial question
whether it really has been terminated, or can be,
consistently with the welfare of the child.” 1 Am. Jur.
Adoption of Children, Section 42.
Ex parte Wolfenden, 349 S.W.2d 713, 714 (Tenn. Ct. App. 1959) (emphasis added); see also In re
Adoption of Self, 836 S.W.2d 581, 582–83 (Tenn. Ct. App. 1992); Fancher v. Mann, 432 S.W.2d
63, 65–66 (Tenn. Ct. App. 1968). In 1982, the Tennessee Supreme Court, relying on our decision
in Ex Parte Wolfenden, reaffirmed that the “settled purpose doctrine” remained the standard
applicable to a determination of abandonment in adoption cases. In re Adoption of Bowling, 631
S.W.2d 386, 389 (Tenn. 1982).
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In 1995, this Court noted in O’Daniel that Tennessee lacked a uniform standard for
ascertaining whether a biological parent had abandoned his or her child. O’Daniel, 905 S.W.2d at
186. At the time we decided O’Daniel, the courts of this state applied one of three possible
standards to determine abandonment according to the type of proceeding involved. Id. at 186 n.3.
At the same time we were deciding O’Daniel, the Tennessee General Assembly was undertaking an
effort to rewrite the then existing adoption laws. See 1995 Tenn. Pub. Acts ch. 532; O’Daniel, 905
S.W.2d at 187 n.5. However, since the proposed legislation was pending at the time of our decision
in O’Daniel, we were forced to evaluate whether the mother in that case abandoned her daughter
under the existing legal framework (i.e., the “settled purpose doctrine”) applicable to adoption
proceedings. O’Daniel, 905 S.W.2d at 187 (citing In re Adoption of Bowling, 631 S.W.2d at 389).
In evaluating the line of cases establishing the “settled purpose doctrine” in this state up to that point
in time, we made the following observation:
These decisions demonstrate that the courts consider the following
matters when determining whether an abandonment has occurred: (1)
the parent’s ability to support the child; (2) the amount of support the
parent has provided to the child; (3) the extent and nature of the
contact between the parent and the child; (4) the frequency of gifts on
special occasions; (5) whether the parent voluntarily relinquished
custody of the child; (6) the length of time the child has been
separated from the parent; and (7) the home environment and conduct
of the parent prior to the removal of the child. See In re Rigsby,
supra, slip op. at 10; Koivu v. Irwin, 721 S.W.2d at 807. No single
factor is controlling. Abandonment inquiries are heavily
fact-oriented, so the courts may consider any fact that assists in
deciding whether the parent’s conduct demonstrates a conscious or
willful disregard of all of his or her parental duties. In re Rigsby,
supra, slip op. at 10.
Id. at 187. It is this judicially created legal framework which Appellants urge this Court to apply to
the present case.
The Tennessee General Assembly’s efforts in 1995 to amend the adoption statutes resulted
in the creation of a statutory definition of abandonment applicable to adoption cases. See 1995 Tenn.
Pub. Acts ch. 532, § 1. This definition, which remained in effect when the Bakers filed their petition
in the instant case, provided, in relevant part, as follows:
(1) (A) “Abandonment” means, for purposes of terminating the
parental or guardian rights of parent(s) or guardian(s) of a child to
that child in order to make that child available for adoption, that:
(i) For a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate the
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parental rights of the parent(s) or guardian(s) of the child who is the
subject of the petition for termination of parental rights or adoption,
that the parent(s) or guardian(s) either have willfully failed to visit or
have willfully failed to support or make reasonable payments toward
the support of the child;
....
(B) For purposes of this subdivision (1), “token support” means that
the support, under the circumstances of the individual case, is
insignificant given the parent’s means;
(C) For purposes of this subdivision (1), “token visitation” means
that the visitation, under the circumstances of the individual case,
constitutes nothing more than perfunctory visitation or visitation of
such an infrequent nature or of such short duration as to merely
establish minimal or insubstantial contact with the child;
(D) For purposes of this subdivision (1), “willfully failed to support”
or “willfully failed to make reasonable payments toward such child’s
support” means that, for a period of four (4) consecutive months, no
monetary support was paid or that the amount of support paid is
token support;
(E) For purposes of this subdivision (1), “willfully failed to visit”
means the willful failure, for a period of four (4) consecutive months,
to visit or engage in more than token visitation;
(F) Abandonment may not be repented of by resuming visitation or
support subsequent to the filing of any petition seeking to terminate
parental or guardianship rights or seeking the adoption of a child; and
(G) “Abandonment” and “abandonment of an infant” do not have any
other definition except that which is set forth in this section, it being
the intent of the general assembly to establish the only grounds for
abandonment by statutory definition. Specifically, it shall not be
required that a parent be shown to have evinced a settled purpose to
forego all parental rights and responsibilities in order for a
determination of abandonment to be made. Decisions of any court to
the contrary are hereby legislatively overruled[.]
Tenn. Code Ann. § 36-1-102(1) (2001) (emphasis added).
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The Tennessee Supreme Court was ultimately called upon to evaluate the constitutionality
of this definition, specifically subsection (D) defining “willfully failed to support.” In In re
Swanson, 2 S.W.3d 180, 182 (Tenn. 1999), the biological father of a minor child appealed this
Court’s determination that he abandoned his child pursuant to the statutory definition of
abandonment. At the outset, the supreme court set forth the aforementioned legal framework which
established the “settled purpose doctrine” and led the legislature to amend the adoption statutes in
1995. Id. at 184–85. On appeal, the father argued that the statutory definition of “willfully failed
to support” was unconstitutional because it did not contain a provision requiring that the parent’s
failure to pay support to be intentional. Id. at 185–86. He asserted that, since the statutory definition
created a conclusive presumption that failure to provide support would result in a termination of
parental rights, the statute failed to comport with his fundamental constitutional right to the care,
custody, and control of his child. Id. at 186. The supreme court agreed.
In determining that the definition of “willful failure to support” was unconstitutional, the
supreme court noted that the previous definition of abandonment pertaining to failure to support
“always contained an element of intent or purposefulness.” Id. at 187. It was clear to the supreme
court that, by enacting the statutory definition of abandonment, the legislature “intended to limit the
discretion of trial judges when making a determination as to whether abandonment has occurred.”
Id. at 186. Thus, the supreme court held as follows:
Since the statutory definitions of “willfully failed to support”
and “willfully failed to make reasonable payment toward such child’s
support” in effect create an irrebuttable presumption that the failure
to provide monetary support for the four months preceding the
petition to terminate parental rights constitutes abandonment,
irrespective of whether that failure was intentional, we hold that those
definitions are unconstitutional. The statutory definitions simply do
not allow for the type of individualized decision- making which must
take place when a fundamental constitutional right is at stake.
Therefore, they impermissibly infringe upon a parent’s right to the
care and custody of his or her children.
The federal and state constitutions require the opportunity for
an individualized determination that a parent is either unfit or will
cause substantial harm to his or her child before the fundamental right
to the care and custody of the child can be taken away. Stanley, 405
U.S. at 658-59; Bond, 896 S.W.2d at 548.
Id. at 188. The court went on to hold that “we are able to elide the unconstitutional portion of the
statute, and the remaining provisions of the Act may be enforced.” Id. Accordingly, the supreme
court instructed that “the definition in effect under prior law shall be applied” until the legislature
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chooses to amend the statute,25 stating:
We wish to make it clear that the definition previously in effect was
the definition as it existed in 1994. Under the prior statute, the
definition of “abandoned child” contained an element of intent both
in failures to visit and failures to support.26
Id. at 189 n.14.
Despite the supreme court’s holding in In re Swanson, the Hes argue on appeal that the trial
court erred by holding that the “settle purpose doctrine” no longer has the force of law in Tennessee.
According to the Hes, the “settled purpose doctrine” remains a viable legal doctrine, and the trial
court should have utilized the doctrine to ascertain whether the Hes abandoned A.M.H. Moreover,
the Hes assert that, since the “settled purpose doctrine” applies in this case, the trial court erred in
finding that the Hes’ actions evinced a “settled purpose to forego all parental rights and
responsibilities.”27 Conversely, the Bakers assert that the trial court correctly observed that the
“settled purpose doctrine” has been legislatively repealed and has no continued viability in
Tennessee law. In the alternative, the Bakers assert that, if the doctrine is held to apply to this case,
the facts in the record support the trial court’s finding that the Hes had a settled purpose to forego
all of their parental rights and responsibilities regarding A.M.H. We cannot agree with the position
urged upon this Court by the Appellants.
25
The legislature did not choose to act to amend the statute until 2003. Effective June 2, 2003, the statute was
amended to include the following language:
(D) For purposes of this subdivision (1), “willfully failed to support” or “willfully
failed to make reasonable payments toward such child’s support” means the willful
failure, for a period of four (4) consecutive months, to provide monetary support or
the willful failure to provide more than token payments toward the support of the
child[.]
Tenn. Code Ann. § 36-1-102(1)(D) (Supp. 2004) (emphasis added); 2003 Tenn. Pub. Acts ch. 231, § 3. Since this
amendment was not in effect at the time the Bakers filed their petition to terminate the Hes’ parental rights, it is
inapplicable to the present appeal. See In re Swanson, 2 S.W .3d at 185; O’Daniel v. Messier, 905 S.W .2d 182, 187
n.5 (Tenn. Ct. App. 1995).
26
Under the definition in effect prior to 1995, an “abandoned child” was defined as:
(i) A child whose parents have willfully failed to visit or have willfully failed to
support or make reasonable payments towards such child’s support for four (4)
consecutive months immediately preceding institution of an action or proceeding
to declare the child to be an abandoned child . . . .
Tenn. Code Ann. § 36-1-102(1)(A) (1994) (emphasis added); see also 1978 Tenn. Pub. Acts ch. 704, § 1.
27
The Hes’ position on appeal regarding this issue is, in essence, the same argument espoused by Amici in their
brief.
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In In re Swanson, the supreme court, while noting the history leading to the creation of the
judicially created “settled purpose doctrine,” did not direct the court’s of this state to utilize the
doctrine in lieu of the unconstitutional provision in the 1995 statute. Instead, the court expressly
directed that the statutory definition of “abandoned child” would remain in effect until the
legislature acted to amend the constitutionally defective statute. Id. at 189 n.14. Second, our
supreme court was careful to note that only the definition of “willful failure to support” in the 1995
statutory amendment was unconstitutional, leaving the remainder of the statute in force. Id. at 188.
Of particular significance is the fact that the following language from section 36-1-102 of the
Tennessee Code, which was in effect when he Bakers filed their petition in this case, remained
applicable to proceedings of this nature after the supreme court’s decision in In re Swanson:
(G) “Abandonment” and “abandonment of an infant” do not have any
other definition except that which is set forth in this section, it being
the intent of the general assembly to establish the only grounds for
abandonment by statutory definition. Specifically, it shall not be
required that a parent be shown to have evinced a settled purpose to
forego all parental rights and responsibilities in order for a
determination of abandonment to be made. Decisions of any court to
the contrary are hereby legislatively overruled[.]
Tenn. Code Ann. § 36-1-102(1)(G) (2001) (emphasis added); see also In re Swanson, 2 S.W.3d at
188–89. Accordingly, we must conclude that reference to the “settled purpose doctrine” is no longer
appropriate given the 1995 amendments to section 36-1-102(1) of the Tennessee Code and our
supreme court’s decision in In re Swanson.
To some extent, of course, the meaning of a “settled purpose” overlaps with and is subsumed
within the statutory definition of willfulness in effect when the Bakers filed their petition to
terminate the Hes’ parental rights.28 However, to the extent that the “settled purpose doctrine”
28
The Hes and the Amici direct our attention to cases decided by this Court after the supreme court’s ruling
in In re Swanson and addressing petitions filed prior to the 2003 amendments to the statute at issue, wherein reference
is made to the applicability of the “settled purpose doctrine” in deciding issues related to abandonment. See State v. R.S.,
No. M2002-00919-COA-R3-CV, 2003 Tenn. App. LEXIS 657, at *25 (Tenn. Ct. App. Sept. 11, 2003); Dep’t of
Children’s Services v. C.L., No. M2001-02729-COA-R3-JV, 2003 Tenn. App. LEXIS 606, at *50–51 (Tenn. Ct. App.
Aug. 29, 2003) (no perm. app. filed); State v. Dem arr, No. M 2002-02603-COA-R3-JV, 2003 Tenn. App. LEXIS 569,
at *27 (Tenn. Ct. App. Aug. 13, 2003) (no perm. app. filed); Spencer v. Aydlotte, No. W 2001-00995-COA-R3-CV, 2001
Tenn. App. LEXIS 957, at *9 (Tenn. Ct. App. Dec. 28, 2001) (no perm. app. filed); Martin v. Martin, No. M1999-
00210-COA-R3-CV, 2000 Tenn. App. LEXIS 178, at *2–3 (Tenn. Ct. App. Mar. 23, 2000) (no perm. app. filed).
However, in other cases dealing with petitions filed after In re Swanson but before the 2003 amendments to the statute
at issue, this Court did not refer to the “settled purpose doctrine” but simply determined whether the biological parent’s
conduct was willful. See In re Adoption of S.M.F., No. M2004-00876-COA-R9-PT, 2004 Tenn. App. LEXIS 826, at
*24 (Tenn. Ct. App. Dec. 6, 2004) (no perm. app. filed); In re S.M ., 149 S.W .3d 632, 641–42 (Tenn. Ct. App. 2004);
In re Adoption of M uir, No. M2002-02963-COA-R3-CV, 2003 Tenn. App. LEXIS 831, at *13–14 (Tenn. Ct. App. Nov.
25, 2003) (no perm. app. filed); In re L.J.C., 124 S.W .3d 609, 620–21 (Tenn. Ct. App. 2003); In re Adoption of
Copeland, 43 S.W.3d 483, 488 (Tenn. Ct. App. 2000). Regardless of any confusion which may have resulted from these
(continued...)
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extends beyond the definition of abandonment set forth in the statute at issue, the statutory definition
must be the standard applied by this Court to the present case. Consequently, we must conclude that
reference to the “settled purpose doctrine” is no longer appropriate given the 1995 legislative
amendments to the statutes governing termination of parental rights. Thus, the proper inquiry for
this Court is whether the Hes’ conduct, by failing to visit or failing to support A.M.H. during the four
months immediately preceding the Bakers’ petition, was “willful.” See Tenn. Code Ann. § 36-1-
102(1)(E) (2001) (defining willful failure to visit as “the willful failure, for a period of four (4)
consecutive months, to visit or engage in more than token visitation”); In re Swanson, 2 S.W.3d at
189 n.14 (noting that the prior definition of “abandoned child” required that the biological parent’s
conduct in failing to support the child be willful).
In determining whether a parent’s conduct was “willful,” the legislature has confined the
courts of this state to a particular period of time. The statute in effect on the date that the Bakers
filed their petition to terminate the Hes’ parental rights defined abandonment, in relevant part, as
follows:
For a period of four (4) consecutive months immediately preceding
the filing of a proceeding or pleading to terminate the parental rights
of the parent(s) . . . of the child who is the subject of the petition for
termination of parental rights or adoption, that the parent(s) . . . either
have willfully failed to visit or have willfully failed to support or
make reasonable payments toward the support of the child[.]
Tenn. Code Ann. § 36-1-1-102(1)(A)(i) (2001) (emphasis added). This Court has previously noted
the significance of this legislatively created time period, stating:
Finally, we note that the trial court, in deciding whether J.M.S.
abandoned S.M.F., did not confine itself to consideration of his
conduct during the four-month periods immediately preceding the
filing of the petition for adoption and termination and S.M.F.’s birth.
In doing so, the trial court deviated from the statutory definition of
“abandonment” contained in Tenn. Code Ann. § 36-1-102(1)(A)(i)
and (iii). In Tennessee, the grounds for terminating parental rights are
governed solely by statute, and Tenn. Code Ann. § 36-1-102(1)(G)
specifically provides that “abandonment” does “not have any other
definition except that which is set forth in this section, it being the
intent of the general assembly to establish the only grounds for
abandonment by statutory definition.” Thus, the trial court erred to
28
(...continued)
earlier cases, our supreme court’s opinion in In re Swanson makes clear that the legislature abrogated the “settled purpose
doctrine,” and the supreme court instructed that parties seeking to terminate a biological parent’s parental rights thereafter
must prove that the parent “willfully” failed to support the child.
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the extent that it based its decision regarding abandonment on
J.M.S.’s conduct occurring after the conclusion of the statutory
four-month periods.
In re Adoption of S.M.F., No. M2004-00876-COA-R9-PT, 2004 Tenn. App. LEXIS 826, at *30–31
(Tenn. Ct. App. Dec. 6, 2004) (no perm. app. filed); see also In re Muir, No. M2002-02963-COA-
R3-CV, 2003 Tenn. App. LEXIS 831, at *19 (Tenn. Ct. App. Nov. 25, 2003) (no perm. app. filed)
(noting that the “pivotal question” when evaluating the willful failure to visit or support is the
conduct of the biological parent within the four months preceding the filing of the petition to
terminate). The Bakers filed their petition to terminate the Hes’ parental rights on June 20, 2001,
therefore, we must necessarily direct our attention to the conduct of the Hes within the four months
immediately preceding that date. See In re D.L.B., 118 S.W.3d 360, 366 (Tenn. 2003) (“[W]e hold
that only a parent’s conduct in the four months immediately preceding the filing of a petition then
before the court may be used as grounds to terminate parental rights under Tennessee Code
Annotated section 36-1-102(1)(A)(i).”).
This Court has previously addressed the concept of “willfulness” as it relates to the
abandonment ground for terminating a biological parent’s parental rights, stating:
The concept of “willfulness” is at the core of the statutory
definition of abandonment. For the purpose of Tenn. Code Ann. §
36-1-102(1)(A)(i), a parent cannot be found to have abandoned a
child unless the parent either has “willfully” failed to engage in more
than token visitation or has “willfully” failed to provide more than
token monetary support to the child for four consecutive months.
“Willfully” is a word of many meanings, and so each use of the word
must be interpreted with reference to the statutory context in which
it appears. United States v. Sanchez-Corcino, 85 F.3d 549, 552-53
(11th Cir. 1996); GEORGE W. PATON, A TEXTBOOK ON
JURISPRUDENCE 313 n.2 (4th ed. 1972) (suggesting that use of the
word should be avoided because of its ambiguities).
“Willfulness” does not require the same standard of
culpability required by the penal code. G.T. v. Adoption of A.E.T.,
725 So. 2d 404, 409 (Fla. Dist. Ct. App. 1999). Nor does it require
malevolence or ill will. In re Adoption of a Minor, 343 Mass. 292,
178 N.E.2d 264, 267 (Mass. 1961). Willful conduct consists of acts
or failures to act that are intentional or voluntary rather than
accidental or inadvertent. In re Mazzeo, 131 F.3d 295, 299 (2d Cir.
1997); United States v. Phillips, 19 F.3d 1565, 1576 (11th Cir. 1994);
In re Adoption of Earhart, 117 Ohio App. 73, 190 N.E.2d 468, 470
(Ohio Ct. App. 1961); Meyer v. Skyline Mobile Homes, 99 Idaho 754,
589 P.2d 89, 96 (Idaho 1979). Conduct is “willful” if it is the product
of free will rather than coercion. Thus, a person acts “willfully” if he
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or she is a free agent, knows what he or she is doing, and intends to
do what he or she is doing.
....
The willfulness of particular conduct depends upon the actor’s
intent. Intent is seldom capable of direct proof, and triers-of-fact lack
the ability to peer into a person’s mind to assess intentions or
motivations. American Cable Corp. v. ACI Mgt., Inc., 2000 Tenn.
App. LEXIS 615, No. M1997-00280-COA-R3- CV, 2000 WL
1291265, at *4 (Tenn. Ct. App. Sept. 14, 2000) (No Tenn. R. App. P.
11 application filed). Accordingly, triers-of-fact must infer intent
from the circumstantial evidence, including a person’s actions or
conduct. See Johnson City v. Wolfe, 103 Tenn. 277, 282, 52 S.W.
991, 992 (1899); Absar v. Jones, 833 S.W.2d 86, 89-90 (Tenn. Ct.
App. 1992); State v. Washington, 658 S.W.2d 144, 146 (Tenn. Crim.
App. 1983); see also In re K.L.C., 9 S.W.3d 768, 773 (Mo. Ct. App.
2000). A person’s demeanor and credibility as a witness also play an
important role in determining intent. Accordingly, trial courts are
best suited for making willfulness determinations. In re D.L.B., 118
S.W.3d at 367, 2003 Tenn. LEXIS 983, 2003 WL 22383609, at *6.
In re Muir, 2003 Tenn. App. LEXIS 831, at *13–17. Determining whether a biological parent has
willfully failed to visit or support his or her child is a fact intensive inquiry, and the courts of this
state are required to engage in an “individualized determination” of whether the standard has been
met in a given case. See In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).
2.
Willful Failure to Support
Regarding the willful failure to support component of abandonment, the trial court made
the following relevant factual findings:
157. The Hes had the ability to pay child support payments for
AMH from January 28, 2001, to June 20, 2001.
158. The Hes swore, under oath, in the Petition to Modify custody
they signed on May 3, 2000, that “circumstances had
changed” and that the Hes were “fully willing and able to
properly care and provide for AMH,” yet they willfully failed
to provide support for AMH after May 3, 2000.
159. Mrs. He swore under oath on April 9, 2001, in the Petition to
Modify custody, that the Hes were “able to provide care,
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support and proper supervision for AMH,” yet, again, they
willfully failed to provide support for AMH before and after
April 9, 2001.
160. Even though there was no child support order in place, the
Hes knew they had an obligation to provide child support for
AMH from January 28, 2001, to June 20, 2001, as evidenced
by statements made to [the juvenile court referee] and the fact
that they provided support for their son, Andy.
161. The Hes paid no support for AMH from January 28, 2001, to
June 20, 2001.
162. During the June 28, 2000, hearing before [the juvenile court
referee], Mr. He told [the referee] that the Hes would send
$25.00 per month to China for AMH’s support, if the Hes
regained custody of AMH.
163. The Hes paid someone to take their younger son, Andy, to
[China] during the month of May 2001. The Hes began
sending $1,000.00 per month to China to support their son,
Andy, sometime during May 2001.
164. Sometime after sending her son, Andy, to China, Mrs. He
purchased a new computer.
165. The Hes took vacation trips to New Orleans, Atlanta,
Arizona, Ohio, and California, between June 4, 1999 and June
20, 2001. The Hes also took trips for other purposes to
Atlanta and Washington, D.C., during the same time period.
166. The Hes lived in an apartment and paid monthly rental
payments of $625.00 during the period from January 28,
2001, to June 20, 2001.
167. The Hes used their economic resources to accumulate and
purchase non-necessary possessions and to take multiple
vacations for pleasure and several trips for other purposes, all
consistent with the Hes’ agreement with the Bakers that the
Bakers would raise AMH until age eighteen, and evincing the
Hes’ intention to forego all parental obligations and
responsibilities for AMH.
....
168. During the foster care period, February 24, 1999, to May 23,
1999, the Hes put a sum of money, approximately $300.00, on
the Bakers’ couch during a visit. Mrs. He told the Bakers that
the Hes would give the Bakers more money for AMH’s
support as soon as they were financially able. Mrs. Baker told
the Hes that the Bakers could not take the money. The Bakers
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were not allowed to accept money for foster children in their
care, except for the $6.00 per day that Mid-South paid the
Bakers under the foster care agreement with Mid-South.
169. On June 4, 1999, when the Hes signed the Juvenile Court
Consent Order Awarding Custody, there was no mention of
child support.
170. Because of the agreement with the Hes that the Bakers were
to rear AMH to age eighteen, the Bakers did not expect the
Hes to make payments to support AMH, and the Bakers never
asked the Hes to pay child support for AMH, after the June 4,
1999, Consent Order Awarding Custody was entered.
....
172. During the Hes’ approximate eighty (80) visits with AMH,
between June 4, 1999, to January 28, 2001, they occasionally
brought items for AMH . . . . All of these items were of
insubstantial economic value and amounted to token support.
Based on these facts, the trial court concluded that the Hes abandoned A.M.H. by willfully failing
to support her for the four consecutive months prior to June 20, 2001.
After reviewing the record, we must conclude that the evidence in the record does not
preponderate against the trial court’s findings of fact in this case. See In re M.J.B., 140 S.W.3d 643,
654 (Tenn. Ct. App. 2004). Our inquiry at this point must shift to a determination of whether these
facts clearly and convincingly establish a willful failure to support A.M.H. on the part of the Hes.
See id.
This Court has previously addressed the “willfulness” aspect of a parent’s failure to support
a child, stating:
Failure to support a child is “willful” when a person is aware of his
or her duty to support, has the capacity to provide support, makes no
attempt to provide support, and has no justifiable excuse for not
providing the support.
In re Muir, 2003 Tenn. App. LEXIS 831, at *15; see also In re M.J.B., 140 S.W.3d at 654. Upon
reviewing the trial court’s findings of fact relevant to this issue, we note that many of the facts relied
upon by the trial court in deciding that the Hes willfully failed to support A.M.H. constitute actions
by the Hes well beyond the four month period immediately preceding the date the Bakers filed their
petition in this case. In determining whether a biological parent’s conduct in failing to support a
child amounts to “willfulness,” it may become necessary in a given case to evaluate events occurring
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prior to the start of the four month period.29 See In re Adoption of Kleshinski, No. M2004-00986-
COA-R3-CV, 2005 Tenn. App. LEXIS 275, at *65 (Tenn. Ct. App. May 4, 2005) (“In the overall
circumstances, Father’s physical abuse of Mother during their marriage is relevant, since it is the
backdrop for the trial court’s consideration of Mother’s claim of fear of physical abuse.”).
The legislature has charged the parents of a minor child with the duty to support the child.
See Tenn. Code Ann. § 34-1-102(a), (b) (2003); see also Smith v. Gore, 728 S.W.2d 738, 750 (Tenn.
1987); In re M.J.B., 140 S.W.3d at 655. The Hes do not deny an awareness of the parents’ general
responsibility to provide financial support for their child. The Hes’ awareness is evidenced by their
payment of $1,000.00 per month for their son’s support while in China, their stated intention to pay
$25.00 per month for A.M.H.’s care if they regained custody and sent her to China, and their
payment of $300.00 to the Bakers during the foster care period. The facts also demonstrate that the
Hes were financially able to support A.M.H. during the relevant four month period. The Hes stated
under oath in their petitions to modify the custody order that they were once again able to provide
financially for A.M.H., they purchased a new car in October of 2001, Mother purchased a new
computer, and the Hes took trips to several American cities.
The Hes argue, however, that they cannot be found to have willfully failed to support A.M.H.
because they were never informed they had a duty to support her while she remained in the Bakers’
custody. In support of this position, the Hes cite to cases in which this Court found that the parent
did not willfully fail to support the child when the Tennessee Department of Children’s Services
failed to inform the parent of a duty to support. See In re J.J.C., 148 S.W.3d 919, 927 (Tenn. Ct.
App. 2004); State v. DeMarr, No. M2002-02603-COA-R3-JV, 2003 Tenn. App. LEXIS 569, at *38
(Tenn. Ct. App. Aug. 13, 2003) (no perm. app. filed). They also note that the June 4, 1999 custody
order did not mention a duty to support A.M.H., citing to cases in which this Court noted the lack
of a court order directing the parent to pay support when finding that a parent did not willfully fail
to support the child. See DeMarr, 2003 Tenn. App. LEXIS 569, at *38; Hickman v. Hickman, No.
E2000-00927-COA-R3-CV, 2000 Tenn. App. LEXIS 653, at *4 (Tenn. Ct. App. Sept. 28, 2000) (no
29
W e are cognizant of our prior statement in In re S.M.F., 2004 Tenn. App. LEXIS 826, at *30–31, and we
agree that an inquiry into whether a parent’s conduct is “willful” should generally focus on the four months immediately
preceding the filing of a petition to terminate the parental rights of the parent. See In re D.L.B., 118 S.W .3d 360, 366
(Tenn. 2003). W e note, however, that in In re S.M.F., the trial court “based its decision regarding abandonment on [the
parent’s] conduct occurring after the conclusion of the statutory four-month period.” In re S.M.F., 2004 Tenn. App.
LEXIS 826, at *31 (emphasis added). Conduct after the termination petition is filed is obviously of no value in
determining whether a parent’s conduct prior to the filing of the petition was willful. In some instances, such as this case,
a parent may have done nothing (i.e., provided no support or did not visit) within the four month period. If we were
constrained to considering only this “conduct,” it would preclude the courts of this state from considering events
occurring prior to the four month period which bear on the “willfulness” of the parent’s conduct during the four month
period. See In re Swanson, 2 S.W .3d 180, 188 (Tenn. 1999) (noting that the federal and state constitutions “require the
opportunity for an individualized determination” before a parent’s fundamental right to the care, custody, and control
of the child may be severed).
The statutory four-month period, besides being legislatively mandated, necessarily limits the inclusion of totally
unnecessary and irrelevant facts into the trial court’s evaluation of willfulness. W e wish to emphasize that we do not
mean to imply that a trial court has carte blanche to evaluate facts outside the four-month statutory period which have
no bearing on the determination of a parent’s “willfulness.”
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perm. app. filed); Martin v. Martin, No. M1999-00210-COA-R3-CV, 2000 Tenn. App. LEXIS 178,
at *4 (Tenn. Ct. App. Mar. 23, 2000) (no perm. app. filed). According to the Hes, these cases stand
for the proposition that “without notice, their can be no willfulness.” The Hes argument in this
regard is closely akin to their previous argument regarding the constitutionality of the adoption
statutes. We have previously dealt with the Hes’ constitutional arguments, and we need not return
to those arguments in this section of the Opinion.
For purposes of our discussion here, however, we note that both In re J.J.C. and DeMarr
involved the failure on the part of the Tennessee Department of Children’s Services, a state agency,
to provide the parent with notice of a duty to support in cases where the child was taken from the
parent’s custody by the department. See Tenn. Code Ann. § 37-2-403 (2003) (governing the duty
of an “agency” to provide parental notification of the law governing abandonment). The adoption
statutes contain no reciprocal requirement. See Tenn. Code Ann. § 36-1-101 et seq. (2003). At the
time the Hes appealed the present controversy to this Court, no Tennessee case had addressed the
effect of a parent’s lack of notice regarding a duty to support in the context of a private agreement
transferring custody of a child to a non-parent. Since that time, however, this Court has had occasion
to address the issue, stating:
When the Department of Children’s Services or other child-placing
agency obtains custody of children removed from the parents’ home,
it is required to notify the parents of the statutory definitions of
abandonment and the criteria and procedures for termination of
parental rights. Tenn. Code Ann. § 37-2-403(a)(2)(A). In such
situations, a court cannot terminate a parent’s rights on the ground of
abandonment unless such notice, including the consequence of
abandonment, has been given by the agency petitioning for
termination or the court itself. Tenn. Code Ann. § 37-2-403(a)(2)(B).
In the case before us, neither DCS nor another agency was involved,
so the statute does not apply. Nonetheless, Mother’s knowledge of
a duty or expectation that she provide support and visit is a factor in
determining willfulness. We find nothing in the record to indicate she
was ever told she was expected to provide support or face termination
of her parental rights.
In re W.B., IV, No. M2004-00999-COA-R3-PT, 2005 Tenn. App. LEXIS 262, at *38 (Tenn. Ct.
App. Apr. 29, 2005) (no perm. app. filed) (emphasis added). Accordingly, we decline the Hes’
invitation to formulate a per se rule to defeat a finding of willfulness when a biological parent
voluntarily relinquishes custody of a child to a non-parent pursuant to a private agreement. Such a
rule would thwart the individualized decision making required in cases of this nature, see In re
Swanson, 2 S.W.3d at 188, especially when the facts establish that the biological parents are clearly
aware of their duty to support their child despite the lack of formal notice.
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Instead, the biological parents’ lack of notice regarding the duty to support their minor child
is merely a factor to consider when determining if that failure was “willful.” See In re W.B., IV,
2005 Tenn. App. LEXIS 262, at *38; In re Adoption of Kleshinski, 2005 Tenn. App. LEXIS 275,
at *53–57. Thus, a determination of whether the aforementioned evidence clearly and convincingly
establishes that the Hes “willfully” failed to support A.M.H. hinges upon whether they “voluntarily
and intentionally [chose] not to provide financial support without a justifiable excuse.” In re M.J.B.,
140 S.W.3d at 654 (citing In re Muir, 2003 Tenn. App. LEXIS 831, at *15). The determinative fact
in this case is the Bakers’ refusal to accept any money offered by the Hes for the support of A.M.H.
During the initial three month foster care period, the Bakers refused the $300.00 offered by the Hes.
At trial, the Bakers testified that they did not expect the Hes to pay child support because they
believed they would be responsible for raising A.M.H. until she became an adult. We cannot say
that a parent’s failure to pay child support is “willful” when any attempt to offer such support is
rebuffed. We find that the evidence in the record does not clearly and convincingly establish that
the Hes “willfully” failed to support A.M.H. during the four month period immediately preceding
the Bakers’ petition to terminate the Hes’ parental rights. Accordingly, we reverse the trial court’s
decision on this issue.
3.
Willful Failure to Visit
Regarding the willful failure to visit component of the abandonment ground, the trial court
made the following findings of fact and conclusions of law:
150. On January 28, 2001, AMH’s second birthday, the Hes came
to the Bakers’ home to visit AMH and requested of the
Bakers that the Hes be allowed to take AMH with them to
have a family portrait made. The Bakers refused the Hes’
request because AMH had been ill for several days prior to
January 28, 2001. The Hes then became upset and angry,
started raising their voices, and Mrs. He started screaming and
crying. AMH then became upset and the Bakers asked the
Hes to leave the Bakers’ home. The Hes refused to leave.
Mr. He became very pushy and told Mr. Baker to call the
police. Mr. He told the Bakers, “I won’t leave here.” The
Bakers then called the police to have the Hes removed from
the Bakers’ home.
151. Shelby County Sheriff’s [Deputy Astor ] . . . came to the
Bakers’ home in response to the January 28, 2001,
disturbance call. When the Deput[y] arrived at the Bakers’
home, Mr. and Mrs. Baker were calm and Mr. and Mrs. He
were very irate and agitated. The Hes continued to be upset
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and agitated while the deput[y] conducted [his] investigation
of the incident. During the investigation, the Hes were
outside the Bakers’ home yelling, screaming, and causing a
disturbance.
152. . . . After spending approximately forty-five minutes to one
hour at the Bakers’ home on January 28, 2001, Deputy Astor
told the Hes to leave the Bakers’ home and not to come back
that day. The reason Deputy Astor told the Hes not to come
back to the Bakers’ home that day was because he wanted to
neutralize the situation and because he did not want Mrs. He
to be arrested. Deputy Astor advised the Hes that their
disagreement with the Bakers was a civil matter, and he
advised the Hes to seek legal advice from an attorney about
the matter.
153. Both Mr. and Mrs. He testified that they did not return to the
Bakers’ home to visit AMH after the January 28, 2001,
incident because they were afraid that they would be arrested
by the police. However, this Court finds this testimony
lacking in credibility, since there have been numerous
instances when the police were called due to Mrs. He’s
inappropriate behavior. . . .
....
174. The Hes did not attempt to otherwise call, write, or make any
other attempt to contact the Bakers about visiting AMH, or to
inquire about AMH’s well-being from January 29, 2001, to
June 20, 2001.
175. The Hes willfully failed to visit AMH from January 29, 2001,
to June 20, 2001.
176. The Hes testified that they did not visit AMH after January
28, 2001, because they feared for their personal safety if they
returned to the Bakers’ home for a visit. The Court finds the
Hes’ testimony to be lacking in credibility.
177. After January 28, 2001, the Hes willfully made the decision
not to visit AMH.
178. Between January 28, 2001, and June 20, 2001, the Hes never
visited AMH and never made a request to the Bakers to visit
AMH.
179. The Hes right to visit AMH was never restricted by any court
until February 8, 2002, when this Court entered an order
prohibiting the Hes from attempting “to have any contact,
direct or indirect, in person, or otherwise, with AMH,” until
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further order of the Court. The Court entered the February 8,
2002, “no-contact” order because, on February 7, 2002, the
Court had ordered the Hes to deliver AMH’s passport to the
Clerk & Master by 4:00 P.M. that day. At 4:00 P.M. on
February 7, 2002, the Hes’ counsel telephoned the Court and
advised the Court that the Hes had no intention of complying
with the Court’s order, and the Court then entered the “no-
contact” order the next day.
180. The Bakers were willing to allow the Hes to have visits with
AMH after the January 28, 2001, disturbance in the Bakers’
home, but the Hes never contacted the Bakers and requested
any visitation with AMH.
181. Immediately after the January 28, 2001, disturbance, the
Bakers decided that all future visits by the Hes would have to
be arranged at a location other than the Bakers’ home because
of the August 1, 2000, and January 28, 2001, disturbances.
182. Immediately after January 28, 2001, in futherance of the
necessity to arrange future visitations at a site other than the
Bakers’ home, Mrs. Baker telephoned the Exchange Club
Family Center to inquire about its ability to provide visitation
services and facilities for any future visits with AMH by the
Hes.
183. The Bakers were willing to allow the Hes to have visits with
AMH, through the facilities of the Exchange Club Family
Center, even after Mrs. He signed her second Petition to
Modify custody.
184. The only contact the Hes made with the Bakers after January
28, 2001, occurred on April 2, 2001. On that date, Mrs. He
called the Bakers’ home and left the following message on the
Bakers’ telephone answering machine: “Come to my home
and get your baby bed, we are moving, thank you, bye bye.”
185. The Bakers did not respond to Mrs. He’s April 2, 2001,
telephone call because Mrs. He did not say anything about
AMH or about wanting to visit AMH. The Bakers did not go
to the Hes’ apartment after Mrs. He’s April 2, 2001, telephone
call.
186. The INS contacted Mr. He about the Hes’ immigration status
in March, April, or May, 2001.
187. Mrs. He signed a second Petition to Modify the Consent
Order Awarding Custody on April 9, 2001, that was
subsequently filed in Juvenile Court on May 29, 2001. The
Court notes that Mrs. He did not request visitation with AMH
when she filed the petition to modify custody. It is well-
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settled that a parent may always petition to have visitation
reinstated upon a showing of changed circumstances. Mrs.
Hes’ [sic] willful failure to seek reinstatement of visitation
with AMH demonstrates that her goal in filing the Petition to
Modify to regain custody was for the sole purpose of
remaining in the United States and avoiding deportation.
Mrs. Hes’ failure to ask the Court to reinstate visitation with
AMH, when she could have easily done so, evinces Mrs. Hes’
[sic] willful abandonment of AMH.
(citations omitted). After reviewing the record, we cannot say that the evidence in the record
preponderates against the trial court’s findings of fact, see In re M.J.B., 140 S.W.3d at 654, many
of which resulted from the trial court’s conclusions regarding the credibility of the witnesses. See
Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999) (noting that we will not re-evaluate
the trial court’s findings regarding the credibility of a witness absent clear and convincing evidence
warranting a different result). Thus, as we did when evaluating the Hes’ alleged willful failure to
support A.M.H., we must now determine whether these facts constitute clear and convincing
evidence of the Hes’ willful failure to visit A.M.H. See In re M.J.B., 140 S.W.3d at 654.
The aforementioned facts do not constitute all of the findings of fact made by the trial court
regarding this issue. In a separate section of its opinion, the trial court included numerous findings
related to the Hes’ visitation with A.M.H. between June 4, 1999 (the date of the juvenile court’s
consent order awarding custody of A.M.H. to the Bakers) and January 28, 2001 (the last time the Hes
visited A.M.H.).30 As we previously noted, we must constrain our focus to whether the Hes’ failure
to visit within the four months immediately preceding the date the Bakers’ filed their petition to
terminate the Hes’ parental rights was willful. See In re S.M.F., No. M2004-00876-COA-R9-PT,
2004 Tenn. App. LEXIS 826, at *30–31 (Tenn. Ct. App. Dec. 6, 2004) (no perm. app. filed).
However, to properly examine the willfulness, or lack thereof, of a biological parent’s failure to visit
within the four month period, it may become necessary in a given case to look to facts occurring
outside the four month period. See In re Adoption of Kleshinski, No. M2004-00986-COA-R3-CV,
2005 Tenn. App. LEXIS 275, at *65 (Tenn. Ct. App. May 4, 2005) (no perm. app. filed). In
discussing the Hes’ visitation during the period between June 4, 1999 and January 28, 2001, the trial
30
On appeal, the Hes raise, as a separate issue, whether the trial court erred by recognizing a purported
agreement which contravenes the public policy of Tennessee. The Hes continue to dispute that they entered into an oral
agreement with the B akers whereby the Bakers would raise A.M.H. until she turned eighteen. The trial court, after
hearing the conflicting testimony, found that the parties did enter into the oral agreement. W e find no clear and
convincing evidence in the record to disrupt this finding by the trial court. See Wells v. Tenn. Bd. of Regents, 9 S.W .3d
779, 783 (Tenn. 1999). The Hes assert that, by terminating their parental rights for willfully abandoning A.M.H., the
trial court, in essence, enforced an illegal contract violating the public policy of this state.
The trial court’s order, when discussing the Hes’ willful failure to visit and willful failure to support, merely
lists this agreement as one of the facts in support of the trial court’s finding of willfulness on the part of the Hes. To the
extent the trial court considered the agreement as a factor in deciding willfulness, we find no error. However, the record
before this Court does not support the Hes’ assertion that the trial court sought to enforce the parties’ “contract.”
Accordingly, we find this issue to be without merit.
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court made findings related to the substance, length, and token nature of those visits. Since many
of these findings have no bearing on the Hes’ “willfulness” during the four month period at issue,
they do not warrant mention. See Tenn. Code Ann. § 36-1-102(1)(E) (2001) (defining “willful
failure to support” as “the willful failure, for a period of four (4) consecutive months, to visit or
engage in more than token visitation”); see also In re D.L.B., 118 S.W.3d 360, 366 (Tenn. 2003)
(“[W]e hold that only a parent’s conduct in the four months immediately preceding the filing of a
petition then before the court may be used as grounds to terminate parental rights under Tennessee
Code Annotated section 36-1-102(1)(A)(i).”).
On appeal, the Hes assert that there are additional facts contained in the record which warrant
consideration when evaluating this issue. The Hes cite to our decision in In re Z.C.G., No. M2000-
02939-COA-R3-CV, 2001 Tenn. App. LEXIS 783, at *19 (Tenn. Ct. App. Oct. 22, 2001) (no perm.
app. filed), wherein we acknowledged the validity of the trial court’s credibility determinations, but
we reversed the finding that the father had willfully failed to visit his child by making reference to
several uncontroverted facts overlooked by the trial court. However, our decision in In re Z.C.G.
is distinguishable from the present case because that case involved the biological mother’s attempt
to overtly impede the father’s visitation, and we noted that the father called the mother to inquire
about his visitation. See id. at *19–20. In the present case, it is undisputed that the Hes did not call
the Bakers to inquire about visitation during the four month period at issue. Moreover, any evidence
tending to show that the Bakers attempted to impede the Hes’ visitation at certain times prior to the
four month period at issue fails to demonstrate why the Hes did not visit A.M.H. during the four
month period.
“The question of intent or willfulness is fact specific and depends on the totality of the
circumstances.” In re W.B., IV, No. M2004-00999-COA-R3-PT, 2005 Tenn. App. LEXIS 262, at
*28 (Tenn. Ct. App. Apr. 29, 2005). As with the willful failure to support component of
abandonment, the Hes again argue that they did not receive notice that their failure to visit A.M.H.
could result in a termination of their parental rights, therefore, their failure to visit cannot be deemed
willful. The parties do not dispute that the Hes never received such notice. However, as we
previously noted, the Hes lack of knowledge regarding the need to visit A.M.H. is merely “a factor
in determining willfulness.” Id. at *38. Thus, we must look to the other factual findings of the trial
court to determine if they constitute clear and convincing evidence of the Hes’ willful failure to visit
A.M.H.
The trial court determined that, upon responding to the incident at the Bakers’ home on
January 28, 2001, Deputy Astor instructed the Hes to refrain from returning to the Bakers home that
day. At trial, the Hes testified that they understood Deputy Astor’s instructions to mean do not ever
return. The Hes also stated that they feared arrest or physical harm if they returned to the Bakers’
residence after that date. Stated differently, the Hes seek to assert that they were complying with the
instructions of an authority figure and felt intimidated. However, the Hes have demonstrated on
several occasions that they are not intimidated by the authority of others. The Bakers called the
police on August 1, 2000 when Mother refused to leave their home after causing a disturbance.
After the police arrived and instructed her to leave, Mother left the Bakers’ residence. However, she
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subsequently returned and continued her weekly visits with A.M.H. On another occasion Mother
picketed the Bakers’ home and a neighbor asked Mother to move her car. When Mother refused,
the neighbor called the police. After the police instructed Mother to move the vehicle, Mother
complied and returned to picketing the Bakers’ home. On April 2, 2001, Mother called the Bakers’
home to instruct them to come retrieve a baby bed that Mrs. Baker had loaned the Hes. However,
Mother did not leave a message requesting to visit A.M.H., further evidencing her lack of fear in
contacting the Bakers. Finally, when ordered by Chancellor Alissandratos to surrender A.M.H.’s
passport to the court, the Hes refused to comply. These incidences demonstrate that the Hes’
justification for not returning to the Bakers’ home after January 28, 2001 is not well founded.
The Hes engaged in several courses of conduct during the four month period immediately
preceding the date the Bakers filed their petition to terminate the Hes’ parental rights which are
relevant to resolving this issue. In February of 2001, Father faxed a letter to the juvenile court and
the media expressing a desire to regain custody of A.M.H. In April of 2001, the Hes went to the
juvenile court and spoke with Ms. Brown. Ms. Brown stated that Mother appeared genuinely
interested in regaining custody of A.M.H., and Ms. Brown prepared a petition for Mother asking the
juvenile court to modify the June 4, 1999 custody order. This petition, which was filed in May of
2001, asked for a modification of custody, but it did not ask for visitation. During March, April, or
May of 2001, immigration officials contacted Father about the Hes’ immigration status. The trial
court concluded that the Hes’ attempts to regain custody of A.M.H. during this period were for the
sole purpose of avoiding deportation.
The Hes assert that the record does not support the trial court’s conclusion since there is no
evidence showing a connection between the calls from immigration officials and the Hes’ desire to
have A.M.H. returned to them. We cannot conclude that the record does not support this conclusion.
The trial court determined that, at the end of the initial three month foster care period, the Hes met
with the Bakers and asked them to raise A.M.H. until she turned eighteen, but they wanted to retain
their parental rights in order to remain in this country. In May of 2000, the Hes filed their first
petition seeking to modify the June 4, 1999 custody order. Father testified that he had been
contacted by immigration officials before the Hes filed this petition. After filing the May 2000
petition, Father met with Mr. Baker at the Hes’ apartment to discuss the petition. One of the options
presented by Father included the Bakers promising to refrain from any action which would cause the
Hes to be deported. The CASA assigned to investigate the Hes’ May 2000 petition filed a report
with the juvenile court expressing concern that the Hes were seeking to regain custody to avoid
deportation. Thus, the Hes’ desire to avoid deportation has been a consistent theme throughout the
tortured history of this case.
We once again resort to a prior decision of this Court addressing the concept of “willfulness,”
wherein we stated:
The willfulness of particular conduct depends upon the actor’s intent.
Intent is seldom capable of direct proof, and triers-of-fact lack the
ability to peer into a person’s mind to assess intentions or
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motivations. American Cable Corp. v. ACI Mgt., Inc., 2000 Tenn.
App. LEXIS 615, No. M1997-00280-COA-R3- CV, 2000 WL
1291265, at *4 (Tenn. Ct. App. Sept. 14, 2000) (No Tenn. R. App. P.
11 application filed). Accordingly, triers-of-fact must infer intent
from the circumstantial evidence, including a person’s actions or
conduct. See Johnson City v. Wolfe, 103 Tenn. 277, 282, 52 S.W.
991, 992 (1899); Absar v. Jones, 833 S.W.2d 86, 89-90 (Tenn. Ct.
App. 1992); State v. Washington, 658 S.W.2d 144, 146 (Tenn. Crim.
App. 1983); see also In re K.L.C., 9 S.W.3d 768, 773 (Mo. Ct. App.
2000). A person’s demeanor and credibility as a witness also play an
important role in determining intent. Accordingly, trial courts are
best suited for making willfulness determinations. In re D.L.B., 118
S.W.3d at 367, 2003 Tenn. LEXIS 983, 2003 WL 22383609, at *6.
In re Muir, No. M2002-02963-COA-R3-CV, 2003 Tenn. App. LEXIS 831, at *17 (Tenn. Ct. App.
Nov. 25, 2003) (no perm. app. filed); see also In re S.M.F., No. M2004-00876-COA-R9-PT, 2004
Tenn. App. LEXIS 826, at *24–26 (Tenn. Ct. App. Dec. 6, 2004) (no perm. app. filed). Based on
the record presently before this Court, we conclude that the Bakers proved, by clear and convincing
evidence, that the Hes willfully failed to visit A.M.H. during the four months immediately preceding
the filing of the Bakers’ petition to terminate the Hes’ parental rights. Accordingly, we affirm the
trial court’s finding that the Hes have abandoned A.M.H.
4.
Father’s Status as a Legal Parent
When the Bakers filed their petition to terminate the Hes’ parental rights in this case, the
following version of section 36-1-113 was in effect:
The parental rights of any person who is not the legal parent or
guardian of a child . . . may also be terminated based upon any one (1)
or more of the following additional grounds:
....
(ii) The person has failed, without good cause or excuse, to
make reasonable and consistent payments for the support of the child
in accordance with the child support guidelines promulgated by the
department pursuant to § 36-5-101;
....
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(iv) The person has failed to manifest an ability and
willingness to assume legal and physical custody of the child;
(v) Placing custody of the child in the person’s legal and
physical custody would pose a risk of substantial harm to the physical
or psychological welfare of the child; or
(vi) The person has failed to file a petition to establish
paternity of the child within thirty (30) days after notice of alleged
paternity by the child’s mother . . . .
Tenn. Code Ann. § 36-1-113(g)(9)(A) (2001). In its memorandum opinion, the trial court made the
following ruling regarding Father’s parental rights to AMH:
Tennessee Code Annotated § 36-1-113(g)(9)(ii), (iv), (v), and (vi):
The Court concludes, by clear and convincing evidence that, at the
time of the filing of the Petition to Terminate Parental Rights, Shaio-
Qiang (Jack) He, was not the legal parent or guardian of AMH. The
Court further concludes, by clear and convincing evidence, that
Shaio-Qiang (Jack) He’s parental rights should be terminated
because:
(1) Mr. He has failed, without good cause or excuse, to make
reasonable and consistent payments for the support of AMH in
accordance with his ability to pay;
(2) Mr. He has engaged in only token visitation with AMH;
(3) Mr. He has failed to manifest an ability and willingness to assume
legal and physical custody of AMH; and
(4) Placing custody of AMH in Mr. He’s legal and physical custody
would pose a risk of substantial harm to the physical or psychological
welfare of the child.
(emphasis added).
On appeal, Father argues that the trial court erred in relying on the above cited statute to
terminate his parental rights. He cites to the voluntary acknowledgment of paternity he executed on
March 15, 2002 and contends that this acknowledgment, consistent with our supreme court’s
decision in Jones v. Garrett, 92 S.W.3d 835 (Tenn. 2002), makes the aforementioned statute
inapplicable to the present case. Conversely, the Bakers argue that, since Father did not file a
petition to establish paternity as required by section 36-1-113(g)(9)(A)(vi) of the Tennessee Code
within thirty (30) days after he received notice he was the biological father of AMH, the
aforementioned statute does apply in this case. The Bakers also assert that no Tennessee court has
ever ruled that a voluntary acknowledgment of paternity is on equal footing with the statutorily
required “petition to establish paternity,” therefore, the statute applies since there has never been an
adjudication of any such petition in this case. Moreover, the Bakers argue that the legislature
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recently amended the aforementioned statute, and they urge this Court to apply the policy for the
amendment, as they perceive it, to the present case.
At the outset, we must determine which version of the statute at issue applies to the present
case. The Bakers filed their petition to terminate the Hes’ parental rights to A.M.H. on June 20,
2001. The legislature amended section 36-1-113(g)(9) of the Tennessee Code in 2003 to provide
as follows:
The parental rights of any person who, at the time of the filing of a
petition to terminate the parental rights of such person or, if no such
petition is filed, at the time of the filing of a petition to adopt a child,
is not the legal parent or guardian of such child . . . may also be
terminated based upon any one (1) or more of the following
additional grounds[.]
Tenn. Code Ann. § 36-1-113(g)(9)(A) (2003) (emphasis added); see also 2003 Tenn. Pub. Acts ch.
231, § 10. In light of this amendment, our supreme court has noted that “there now exists statutory
authority to apply the additional grounds for termination enumerated in section 36-1-113(g)(9)(A)
to persons who have established legal parentage, but did so subsequently to the filing of a petition
seeking termination of their parental rights.”31 In re D.A.H., 142 S.W.3d 267, 272–73 (Tenn. 2004).
In In re D.A.H., the petitioner argued that the new statutory language should be applied retroactively
to enable the trial court to apply the statute to the biological father in that case. Id. at 273. Our
supreme court disagreed, holding that the amended statute does not apply retroactively to cover
events alleged in a termination petition filed prior to the amendment of the statute. Id. at 274–75.
Accordingly, we must apply the pre-2003 version of the statute in effect at the time the Bakers filed
their petition in the instant case.
Our supreme court addressed the pre-2003 language in section 36-1-113(g)(9)(A) of the
Tennessee Code in Jones v. Garrett, 92 S.W.3d 835 (Tenn. 2002). In Jones, the biological mother
and father of the child never married. Jones, 92 S.W.3d at 836. The mother voluntarily surrendered
her parental rights to the child, and a non-relative couple subsequently filed a petition to adopt the
child on April 9, 1998. Id. In their petition, the adoptive parents sought to terminate the parental
rights of the biological father alleging abandonment of the child. Id. Thereafter, on May 26, 1998,
the father filed a petition to establish his parentage of the child. Id. at 837. On February 5, 1999,
the trial court entered an “Agreed Order” declaring the father to be the biological father of the child.
Id. At the conclusion of the hearing on the adoptive parents’ petition, the trial court found that the
father “failed to file a petition to establish paternity within thirty days after receiving notice from the
child’s mother that he was believed to be the father of the child.” Id. As a result, the trial court
31
The Bakers filed their petition on June 20, 2001. Father did not file the acknowledgment of paternity in this
case until March 15, 2002, therefore, the current version of the statute would negate his attempts to establish paternity
after the filing of the termination petition.
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terminated the father’s parental rights pursuant to section 36-1-113(g)(9)(A) of the Tennessee Code.
Id. Our supreme court disagreed, holding:
The legislature’s use of the present tense (“is not the legal parent”)
indicates that the grounds for terminating parental rights under
Tennessee Code Annotated section [36-1-113(g)(9)(A)] do not apply
to persons who are legal parents at the time of the proceeding.
Clearly, [the father] meets the definition of “legal parent” because he
was adjudicated to be the father of [the mother’s] child prior to the
proceeding which resulted in the termination of his parental rights.
Thus, we find that the plain language of Tennessee Code Annotated
section [36-1-119(g)(9)(A)] supports [the father’s] contention that the
statute is inapplicable to him.
....
A father who establishes paternity prior to a termination
proceeding should be permitted to enjoy the benefit of having
established paternity. One such benefit is to be exempt from the
additional grounds for terminating parental rights under Tennessee
Code Annotated section [36-1-113(g)(9)(A)]. After a father has been
granted an adjudication of paternity, it is incongruous to terminate his
parental rights because he failed to timely file a petition to establish
paternity.
Id. at 839 (emphasis added).
The Bakers argue that there has never been an “adjudication of paternity” in the present case.
The Bakers cite to the introductory paragraph of our supreme court’s holding in Jones, wherein the
court stated as follows: “We hold that Tennessee Code Annotated section [36-1-113(g)(9)(A)(vi)]
applies only to cases in which no legal relationship between the parent and child has been
established.” Id. at 836. The Bakers note that the supreme court did not elaborate on what
constitutes a “legal relationship between the parent and the child.” In light of the supreme court’s
decision in Jones, the Bakers seemingly concede that an “Agreed Order” establishing paternity is
sufficient, however, a voluntary acknowledgment of paternity is not sufficient as it is not an
“adjudication.” Conversely, the Hes assert that the Bakers’ position on appeal overlooks section 24-
7-113 of the Tennessee Code which they contend places a voluntary acknowledgment of paternity
on equal footing with an adjudication of a petition to establish paternity.
We find the Bakers’ position on appeal to amount to an attempt to limit impermissibly the
supreme court’s holding in Jones. Section 24-7-113 of the Tennessee Code provides, in relevant
part, as follows:
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(a) A voluntary acknowledgment of paternity . . . shall constitute a
legal finding of paternity on the individual named as the father of the
child in the acknowledgment, subject to rescission as provided in
subsection (c). The acknowledgment, unless rescinded pursuant to
subsection (c), shall be conclusive of that father’s paternity without
further order of the court.
....
[(b)](3) No judicial or administrative proceedings are required, nor
shall any such proceedings be permitted, to ratify an unchallenged
acknowledgment of paternity in order to create the conclusive status
of the acknowledgment of paternity.
....
(e) (1) If the voluntary acknowledgment has not been rescinded
pursuant to subsection (c), the acknowledgment may only be
challenged on the basis of fraud, whether extrinsic or intrinsic,
duress, or material mistake of fact.
Tenn. Code Ann. § 24-7-113 (2003) (emphasis added). “[Section 24-7-113 of the Tennessee Code]
establishes a simplified procedure for unmarried fathers to legally establish their paternity without
the intervention of the court, by simply executing a voluntary acknowledgment of paternity.” In re
C.A.F., 114 S.W.3d 524, 528 (Tenn. Ct. App. 2003) (emphasis added).
Admittedly, all of the cases which have addressed the application of the statute at issue
involved a biological father filing a petition to establish paternity. See In re D.A.H., 142 S.W.3d
at 271; Jones, 92 S.W.3d at 837; In re S.M., 149 S.W.3d 632, 641 (Tenn. Ct. App. 2004); In re
H.E.J., 124 S.W.3d 110, 113 (Tenn. Ct. App. 2003). However, we believe that a biological father
who executes a voluntary acknowledgment of paternity prior to the termination proceeding is exempt
from the application of the version of section 36-1-113(g)(9)(A) of the Tennessee Code applicable
to this case. See Jones, 92 S.W.3d at 840 (“A father who establishes paternity prior to a termination
proceeding should be permitted to enjoy the benefit of having established paternity.”). The Bakers
also overlook the definition of “legal parent” found in the adoption code:
(28) “Legal parent” means:
....
(D) A man who has been adjudicated to be the legal father of the
child by any court or administrative body of this state . . . or who has
signed, pursuant to § 24-7-113 . . . an unrevoked and sworn
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acknowledgment of paternity under the provisions of Tennessee law
....
Tenn. Code Ann. § 36-1-102(28) (2001) (emphasis added). The legislature expressly qualified the
application of section 36-1-113(g)(9)(A) by stating that its provisions apply when “[t]he parental
rights of any person who is not the legal parent or guardian of such child” have not been established.
Tenn. Code Ann. § 36-1-113(g)(9)(A) (2001) (emphasis added). Pursuant to the statutory definition
of “legal parent,” a voluntary acknowledgment of paternity entered pursuant to section 24-7-113 of
the Tennessee Code and prior to the trial court’s ruling on the termination petition prevents the
operation of section 36-1-113(g)(9)(A) of the Tennessee Code.
Since Father executed an acknowledgment of paternity prior to the termination proceedings
in the instant case, we conclude that, consistent with the supreme court’s holding in Jones and the
definition of “legal parent” in the version of section 36-1-102(28)(D) of the Tennessee Code
applicable to this case, Father established a “legal relationship” between himself and A.M.H. making
section 36-1-119(g)(9)(A) of the Tennessee Code inapplicable to the present case. Accordingly, we
reverse the trial court’s decision regarding this issue.
5.
Persistent Conditions Ground for Termination
Section 36-1-113(g)(3)(A) of the Tennessee, commonly referred to as the “persistent
conditions ground” for termination, provides as follows:
(3) (A) The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:
(i) The conditions which led to the child’s removal or other
conditions which in all reasonable probability would cause the child
to be subjected to further abuse or neglect and which, therefore,
prevent the child’s safe return to the care of the parent(s) or
guardian(s), still persist;
(ii) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely returned to
the parent(s) or guardian(s) in the near future; and
(iii) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early integration
into a safe, stable and permanent home.
Tenn. Code Ann. § 36-1-113(g)(3)(A) (2001) (emphasis added). In its memorandum opinion, the
trial court concluded, as a matter of law, that “this section of the statute [is] inapplicable to this cause
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because AMH was not removed from [the Hes’] custody by State action, rather [the Hes] voluntarily
relinquished custody and guardianship of AMH through a consent order awarding custody.”
On appeal, the Bakers argue that this ground for termination does not require removal of a
child by the state before it may apply in a given case. Further, the Bakers contend that the statute
does not require that the child at issue be “forcibly removed” from the parent’s custody, but it merely
requires that a child is “no longer an occupant of the parent’s home.” They assert that “removal” can
even be accomplished by a biological parent’s voluntary relinquishment of custody to another party.
Conversely, the Hes argue that the statute requires some form of state action in accomplishing the
removal before it may apply in a given case.
When we are called upon to construe the language inserted into a statute by the legislature,
we employ the following principles:
Construction of statutes and application of law to facts are questions
of law, which we review under a purely de novo standard, according
no deference to the conclusions of law made by the lower courts. See
Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997). In
construing statutes, this Court’s role is “‘to ascertain and give effect
to the legislative intent without unduly restricting or expanding a
statute’s coverage beyond its intended scope.’” Houghton v. Aramark
Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002) (quoting Owens
v. State, 908 S.W.2d 923, 926 (Tenn. 1995); State v. Sliger, 846
S.W.2d 262, 263 (Tenn. 1993)). Legislative intent is derived from
the plain and ordinary meaning of the statutory language unless the
statute is ambiguous. See Owens, 908 S.W.2d at 926. If statutory
language is ambiguous, then we must look to the entire statutory
scheme to determine legislative intent. Id. Component parts of a
statute should be construed, if possible, consistently and reasonably.
See State v. Alford, 970 S.W.2d 944, 946 (Tenn. 1998).
In re D.L.B., 118 S.W.3d 360, 365 (Tenn. 2003). “If a statute’s language is expressed in a manner
devoid of ambiguity, courts are not at liberty to depart from the statute’s words.” Freeman v. Marco
Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000).
The definition section of the adoption code does not define the term “removed.” See Tenn.
Code Ann. § 36-1-102 (2003). “When approaching statutory text, courts must also presume that the
legislature says in a statute what it means and means in a statute what it says there.” BellSouth
Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997). As such, we turn to the
ordinary dictionary definition of the term at issue. See Freeman, 27 S.W.3d at 912; Gleaves v.
Checker Cab Transit Corp., Inc., 15 S.W.3d 799, 803 (Tenn. 2000). “Removal” is defined as “[t]he
transfer or moving of a person or thing from one location, position, or residence to another.” Black’s
Law Dictionary 1298 (7th ed. 1999). Conspicuously absent from this definition is the requirement
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that removal be accomplished by a state entity. The Hes and the Amici argue that the requirement
that the removal be conducted “by order of a court” adds credence to their assertion that the removal
must be accomplished by a state entity in order for this ground for termination to apply. We decline
to adopt such a restrictive application of the statute.
We are cognizant of the fact that many of our decisions, too numerous to cite here, deal with
this ground for termination in the context of a child being removed from the parents by the
Tennessee Department of Children’s Services. However, our research has revealed no Tennessee
case interpreting the statute at issue in the manner urged upon this Court by the Hes and the Amici.
In fact, this Court has previously addressed the application of the aforementioned ground for
termination in two cases where the child was removed from the parent and placed with another party
without state involvement. See In re R.D.T., No. E2003-01835-COA-R3-PT, 2004 Tenn. App.
LEXIS 516, at *37–39 (Tenn. Ct. App. Aug. 12, 2004) (perm. app. denied, 2004 Tenn. LEXIS 947
(Nov. 8, 2004)); In re V.D., No. M2003-00186-COA-R3-CV, 2004 Tenn. App. LEXIS 465, at
*24–28 (Tenn. Ct. App. July 26, 2004) (no perm. app. filed). It is not for the courts of this state to
alter or amend a statute. Instead, we must simply interpret and apply the statute as written by the
legislature. See Gleaves, 15 S.W.3d at 803. The statute at issue is plain and unambiguous. Had the
legislature intended for this ground for termination to apply only in those instances when the
Tennessee Department of Children’s Services removed the child from the biological parents, it could
have clearly stated as much. Accordingly, we find that the statute at issue may apply when a parent
voluntarily relinquishes custody of a minor child to another party pursuant to a consent custody
order. Thus, we reverse the trial court’s conclusion of law on this issue.
While the trial court’s legal justification for holding that section 36-1-113(g)(3)(A) of the
Tennessee Code did not apply in this case constitutes error, the statute remains inapplicable for
another reason. In In re Audrey S., No. M2004-02758-COA-R3-PT, 2005 Tenn. App. LEXIS 539,
at *76 (Tenn. Ct. App. Aug. 25, 2005), this Court refused to interpret section 36-1-113(g)(3)(A) of
the Tennessee Code, as we do in the present case, to exclude orders entered in cases involving child
custody disputes. However, in In re Audrey S., we held that the persistent conditions ground for
termination applies only “where the prior court order removing the child from the parent’s home was
based on a judicial finding of dependency, neglect, or abuse.” Id. at *82; see also In re K.C., Jr.,
No. M2005-00633-COA-R3-PT, 2005 Tenn. App. LEXIS 636, at *34–37 (Tenn. Ct. App. Oct. 4,
2005). Thus, while it is possible that the persistent conditions ground for termination may apply in
cases where the child is not removed by the state, the order directing the change in custody must be
prompted by a finding of dependency, neglect, or abuse. The June 4, 1999 consent order transferring
custody of A.M.H. to the Bakers was not based on a finding of dependency, neglect, or abuse. As
a result, section 36-1-113(g)(3)(A) of the Tennessee Code is inapplicable to the present case.
Accordingly, we affirm the trial court’s decision on this issue, albeit for different legal reasons.
G.
Best Interest of A.M.H.
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A finding that the record contains clear and convincing evidence of one of the statutory
grounds for termination does not end our inquiry on appeal. We must now turn our attention to the
trial court’s conclusion that terminating the Hes’ parental rights was in the best interest of A.M.H.
See Tenn. Code Ann. § 36-1-113(c)(2) (2001). When conducting the statutorily required best
interest analysis, the trial court must consider numerous factors which may include the following:
(i) In determining whether termination of parental or guardianship
rights is in the best interest of the child pursuant to this part, the court
shall consider, but is not limited to, the following:
(1) Whether the parent or guardian has made such an
adjustment of circumstance, conduct, or conditions as to make it safe
and in the child’s best interest to be in the home of the parent or
guardian;
(2) Whether the parent or guardian has failed to effect a
lasting adjustment after reasonable efforts by available social services
agencies for such duration of time that lasting adjustment does not
reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical
environment is likely to have on the child’s emotional, psychological
and medical condition;
(6) Whether the parent or guardian, or other person residing
with the parent or guardian, has shown brutality, physical, sexual,
emotional or psychological abuse, or neglect toward the child, or
another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal activity
in the home, or whether there is such use of alcohol or controlled
substances as may render the parent or guardian consistently unable
to care for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or
emotional status would be detrimental to the child or prevent the
parent or guardian from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent or guardian has paid child support
consistent with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
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Tenn. Code Ann. § 36-1-113(i) (2001). This list is not exhaustive, and the statute does not require
the court to find the existence of every factor before concluding that terminating the biological
parent’s parental rights is in the child’s best interest. State v. T.S.W., No. M2001-01735-COA-R3-
JV, 2002 Tenn. App. LEXIS 340, at *9 (Tenn. Ct. App. May 10, 2002).
In conducting the best interest analysis in this case, the trial court made the following
findings:
277. The Court concludes, by clear and convincing evidence, that
AMH is a minor child of tender years, who has developed a
strong psychological and emotional attachment to the Bakers,
and that removal of AMH from the Bakers would cause
substantial harm to AMH.
278. The Court concludes, by clear and convincing evidence, that
the Bakers have provided AMH a safe, stable, healthy, loving
environment for such a length of time that removal of AMH
from that environment would cause substantial harm to AMH.
279. The Court concludes by clear and convincing evidence, that
continuation of any parent-child relationship between AMH
and either Mr. or Mrs. He greatly diminishes AMH’s chances
of early integration into a safe, stable, and permanent home.
280. The Court concludes that the risks inherent in removing AMH
from AMH’s present circumstances substantially outweigh
any risks posed by transcultural placement and loss of contact
with AMH’s biological parents, the Hes.
281. The Court concludes, by clear and convincing evidence, that
there is parental misconduct or inability to parent by the Hes.
282. The Court concludes, by clear and convincing evidence, that
both Mr. and Mrs. He are unfit parents, based on
abandonment of AMH by both Mr. and Mrs. He.
283. The Court concludes, by clear and convincing evidence, that
it is in AMH’s best interest to terminate the parental rights of
both Mr. and Mrs. He.
284. Applying the factors in Tennessee Code Annotated § 36-1-
113(i)(1–9) for determining whether termination of parental
rights is in the best interest of the minor child, the Court
concludes, by clear and convincing evidence, that termination
of the Hes’ parental rights is in the best interest of AMH
because:
(1) the Hes have failed to make such an adjustment of
circumstances, conduct, and conditions as to make it
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safe and in AMH’s best interest to be in the Hes’
home;
(2) the Hes have failed to maintain regular, meaningful
visitation and contact with AMH;
(3) the Hes have failed to establish a meaningful
relationship with AMH due to the Hes neglect and
inattentiveness;
(4) the effect of a change of caretakers and physical
environment will have a negative and detrimental
impact on AMH’s emotional and psychological well-
being;
(5) the physical environment of the Hes’ home is
unhealthy and unsafe;
(6) Mrs. Hes’ [sic] emotional instability would be
detrimental to AMH; and
(7) the Hes’ [sic] have failed to provide anything more
than token support for AMH, despite the Hes’ ability
to pay such support.
On appeal, the Hes argue that the record does not support the trial court’s findings. Greater Seattle
has submitted a brief to this Court presenting certain social science information aimed at addressing
the need for the courts of this state to consider cultural factors when deciding cases of this nature.
Since voluntarily relinquishing custody of A.M.H. to the Bakers, the Hes have not maintained
regular visitation with A.M.H. See Tenn. Code Ann. § 36-1-113(i)(3) (2001). Regarding the initial
three month foster care period, the trial court made the following finding which the Hes do not
dispute:
During the ninety-day foster care period, February 24, 1999, to May
23, 1999, the Hes visited the Bakers’ home for approximately one (1)
hour each week, a total of approximately twelve (12) hours during the
first three months of AMH’s life. During this period, neither the
Bakers nor Mid-South placed any restrictions on the frequency or
duration of the Hes’ visits in the Bakers’ home. The Hes never
requested to visit AMH more frequently or for longer periods during
the ninety-day foster care period . . . .
As for the Hes’ visitation between June 4, 1999 (the date of the juvenile court’s consent custody
order) and January 28, 2001 (the last time the Hes visited A.M.H.), the trial court made the following
finding which the Hes do not dispute:
Between June 4, 1999, and January 28, 2001, either Mr. or Mrs. He,
or both, visited AMH in the Bakers’ home, approximately eighty (80)
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times. The Hes visited AMH, on average, approximately once per
week. There were some occasions when the Hes would go two weeks
or longer between visits with AMH. The average time of each visit
was approximately one (1) hour, with the shortest visit lasting
approximately thirty (30) minutes and the longest visits lasting
approximately two (2) hours. The approximately eighty (80) hours
of time that the Hes have visited AMH, from June 5, 1999, to January
28, 2001, amount to a total of less than four (4) days of AMH’s life.
The Hes did not visit AMH after the January 28, 2001 incident at the Bakers’ home. The only
contact after that date was a phone call by Mother to the Bakers instructing them to come to the Hes’
apartment to retrieve a baby bed the Bakers previously gave the Hes.
The record also establishes that the Hes have not established a meaningful relationship with
A.M.H. See Tenn. Code Ann. § 36-1-113(i)(4) (2001). Mother gave birth to A.M.H. on January
28, 1999, and the Hes voluntarily placed A.M.H. in the care of the Bakers on February 24, 1999, a
few weeks after she was born. A.M.H. has remained in the continuous custody of the Bakers’ since
that time, which amounted to the first five years of her life by the time the trial in this matter was
conducted.32 On May 8, 1999, the Hes sent Mrs. Baker a Mother’s Day card which stated: “You are
the real Mom of [A.M.H.].” After the juvenile court entered the June 4, 1999 consent custody order,
the Hes wanted A.M.H. to call the Bakers “mommy” and “daddy” and refer to the Hes as “Jack” and
“Casey.” The very bond that the Hes sought to foster between A.M.H. and the Bakers was, as the
record demonstrates, established in this case. Dr. Goldstein, the court appointed psychologist,
testified that A.M.H. views the Bakers as her “psychological parents.” In conducting his evaluation
of A.M.H., he noted that she has a high level of attachment to the Bakers, but she does not have a
similar attachment to the Hes. He conducted an “attachment session” in September of 2003 and
noted that A.M.H.’s behavior, as demonstrated by the videotape of the session, supports these
conclusions. While he agreed that A.M.H. did approach the Hes during the session, he opined that
she did so based on the Hes’ use of food and gifts to reinforce her interaction.
The record also demonstrates that a change in caretakers and physical environment at this
stage in A.M.H.’s life will likely have an adverse affect on her emotional and psychological well
being. See Tenn. Code Ann. § 36-1-113(i)(5) (2001). After stating his opinion regarding the strong
attachment A.M.H. now has for the Bakers, Dr. Goldstein testified that A.M.H. would likely
experience separation anxiety and could possibly develop a severe depressive disorder if she were
removed from the Bakers. We are also mindful of the strong attachment A.M.H. has developed to
the Bakers’ other children. We are cognizant of the fact that the Hes presented expert testimony to
contradict Dr. Goldstein’s assertions, however, the trial court found that the Hes’ experts lacked
32
A.M.H. has lived with the Bakers since she was less than one month old, and for almost seven years she has
known no other parents, no other home, no other environment, no other siblings, and no other life. The dissent concedes
that there is no meaningful relationship of parent and child between the Hes and A.M.H.
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credibility. We find no clear and convincing evidence in the record to disturb this finding. See
Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999).
As previously discussed, we do not give the same weight as the trial court did to the Hes’
failure to pay child support for A.M.H. during the pendency of this case below due to the Baker’s
refusal to accept such support. See Tenn. Code Ann. § 36-1-113(i)(9) (2001). Admittedly, there is
nothing in the record to indicate that the Hes are presently unable to care for A.M.H. financially.
However, we are permitted, as did the trial court, to consider the parties’ ability to support A.M.H.
should they receive custody of the child. Mother testified that, if she were to regain custody of
A.M.H., she planned to return to China. She stated that she has an a one-bedroom apartment in
China currently occupied by her grandparents, and she, Father, A.M.H., and their two other children
would reside in the apartment. Mother indicated that her family would help to provide for the Hes’
financial needs upon returning to China until Father found a job. Father noted at trial that the
Bakers’ have incurred a sizeable amount of debt in prosecuting their petition to adopt A.M.H. and
terminate the Hes’ parental rights. However, the Bakers, unlike the Hes who face deportation, do
not presently face the possibility of losing their current sources of income. Moreover, there is
nothing in the record to demonstrate that, in spite of their sizeable legal bill, the Bakers are presently
unable to provide for A.M.H.
The Hes also presented the testimony of their expert, Dr. Cooper, to address the issue of the
“one-child” rule in China. On direct examination, Dr. Cooper testified that the Chinese government
does not impose fines on parents who have more than one child outside of China then return to that
country. However, under cross-examination, Dr. Cooper conceded that the Chinese government
could impose such fines. In a letter addressed to this Court, the Chinese Embassy seeks to defend
its “one-child” policy by stating that “there are various circumstances under which people can have
more than one or two children. These circumstances apply to Chinese citizens who return to China
from abroad with more than one child.” Further, the letter seeks to inform the Court that the Chinese
government does not impose financial penalties or remove government services and benefits for
violations of this policy. It is entirely within the purview of the Chinese government, as a sovereign
nation, to formulate and enforce such a policy within China. However, our focus in this case must
be on the best interest of A.M.H., an American citizen, and the effect such a policy may have on the
Hes’ ability to provide for her well-being should they regain custody of A.M.H. and return to China.
Most noteworthy is the fact that the letter does not elaborate on what “circumstances” warrant an
exception to the “one-child” policy or if the Hes qualify for such an exception. Nor does the letter
indicate what sanctions are imposed for violating the policy. Thus, we must conclude, as did the trial
court, that the possibility remains that the Hes could be adversely penalized in some manner for
violating the “one-child” policy which, in turn, could have an adverse affect on A.M.H.
Finally, the trial court noted the Hes’ questionable character as evidenced in the record by
the Hes’ defiance to legal authority and untruthful statements over the course of events giving rise
to the current appeal. The trial court determined that such character flaws could have an adverse
effect on A.M.H. The record in this case supports this conclusion.
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The record, viewed in its entirety, fully supports the trial court’s conclusion that terminating
the Hes’ parental rights is in the best interest of A.M.H. Accordingly, we affirm the trial court’s
decision in this regard.
V.
CONCLUSION
In the dissenting opinion filed in this case, it is argued that we apply “a different standard
than would have been applied had the termination of parental rights been sought by the
Tennessee Department of Children’s Services (“DCS”).” The dissent contends that our approach
on this issue “is wrong.” The dissenting opinion is replete with references to how the result in
this case would be different if only DCS were involved. Respectfully, this Court can only
adjudicate the case before it. We are not at liberty to create hypotheticals or to wish that the facts
in a given case were otherwise.
We are asked simply to resolve whether the Hes’ conduct in the four months immediately
preceding the Bakers’ petition to terminate their parental rights was willful. The dissent
acknowledges that in In re W.B., IV we stated that, in cases involving private parties, a parent’s
lack of knowledge regarding the abandonment ground for termination is merely “a factor in
determining willfulness.” In re W.B., IV, No. M2004-00999-COA-R3-PT, 2005 Tenn. App.
LEXIS 262, at *38 (Tenn. Ct. App. Apr. 29, 2005) (emphasis added). A “factor” is defined as
“[o]ne of two or more quantities that when multiplied together yield a given product.” Webster’s
II New College Dictionary 401 (2001). A factor is, therefore, but one element to be considered,
perhaps among many, in reaching a conclusion. Thus, whether or not a private party with
custody of the child notified the biological parents of the potential grounds for terminating their
parental rights is but one factor to be considered. Yet, the dissent would impose a per se rule in
cases of this nature, stating: “How can this disparity be justified? Fairness dictates that parents
and petitioners in all termination cases be held to the same standard, regardless of whether DCS
is involved . . . .”
The answer to the question posited by the dissent is quite simple. Ours is a limited role.
“The grounds for terminating parental rights in Tennessee are defined by statute.” Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); see also Tenn. Code Ann. § 36-1-113(g) (2003). As
the judicial branch of government, we are to address the issue presented by the Hes in this case
and asercertain whether the statutory scheme adopted by the legislature comports with the
Fourteenth Amendment of the United States Constitution. The dissent overlooks the constraints,
or the lack thereof, imposed by the United States Constitution and proceeds to formulate what it
believes to be sound policy in this area of the law. We are told repeatedly by the dissent that it is
not fair for the legislature to require DCS to provide parents with notice of the abandonment
ground for termination while not requiring the same notice when private individuals are
involved. Compare Tenn. Code Ann. § 37-2-403(a)(2) (2003) with Tenn. Code Ann. § 36-1-102
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(2003) and Tenn. Code Ann. § 36-1-113(2003). The reason the legislature is permitted to make
this distinction is well settled in the law. When DCS, a state agency, seeks to terminate a
biological parent’s parental rights, the notice requirement imposed upon DCS by the legislature
seeks to ensure that the biological parent’s fundamental rights as parents are protected from
unwarranted state infringement. The United States Supreme Court has recognized as much,
stating: “When the State moves to destroy weakened familial bonds, it must provide the parents
with fundamentally fair procedures.” Santosky v. Kramer, 455 U.S. 745, 753-54 (1982)
(emphasis added.) Why do we draw a distinction when private parties are involved? Because it
is only state action, not the actions of private individuals, which the Fourteenth Amendment
seeks to safeguard against. The Civil Rights Cases, 109 U.S. 3, 11 (1883). Therefore, the
legislature is permitted to make the distinction which the dissent finds most troubling.
While the dissent may find this distinction unjust, it comprises the legal framework which
must guide our resolution of this issue. “The powers of the government shall be divided into
three distinct departments: legislative, executive, and judicial.” Tenn. Const. art. II, § l. “No
person or persons belonging to one of these departments shall exercise any of the powers
properly belonging to either of the others, except in the cases herein directed or permitted.”
Tenn. Const. art. II, § 2. “It is primarily for the Legislature to determine the public policy of this
state . . . .” Cary v. Cary, 937 S.W.2d 777, 781 (Tenn. 1996). “When the legislature, acting
within its constitutional powers, has spoken upon a particular subject, its utterance is the public
policy of the State upon that subject, and the courts are without power to read into the
Constitution a restraint of the legislature with respect thereto.” Cavender v. Hewitt, 239 S.W.
767, 768 (Tenn. 1921) (emphasis added). “[I]f a modification or change in such policy is
desired, the lawmaking department must be applied to, and not the judiciary, whose function is to
declare the law but not to make it.” Fields v. Metro. Life Ins. Co., 249 S.W. 798, 800 (Tenn.
1922). By extending an invitation to our supreme court and the state legislature to enact changes
in the law, the dissent, after trying to convince us that the law supports a different conclusion on
this issue, concedes that the law is not as the dissent attempts to portray it. Otherwise, no such
invitation would be necessary.
We are troubled by the dissent’s attempt to fit the facts of this case into our decision in In
re W.B., IV. The dissent states: “The majority in this case dismisses the Hes’ lack of knowledge
as ‘merely’ a factor to consider in determining whether their failure to visit A.M.H. was willful,
even though that same factor was found to be determinative in In re W.B., IV.” (emphasis
added). Regarding the mother’s failure to visit her children in In re W.B., IV, the Court, in
addition to noting the lack of notice to the mother, also noted that the mother did not know the
whereabouts of her children. In re W.B., IV, 2005 Tenn. App. LEXIS 262, at *36. As the Court
stated, “[i]t is difficult to understand how Mother could have visited the children while she was
unaware of their whereabouts.” Id. In the present case, the Hes knew the whereabouts of
A.M.H. for the entire four month period at issue. Our reading of In re W.B., IV reveals that the
Court found that the mother’s lack of notice of the ground of abandonment coupled with the
mother’s lack of knowledge regarding the whereabouts of her children constituted evidence that
the mother’s failure to visit was not willful. Thus, it is difficult to understand how the dissent
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justifies its conclusion that the lack of notice of the ground of abandonment alone produced the
result this Court reached in In re W.B., IV.33
The dissent devotes a significant amount of discussion to our failure to discuss the trial
court’s finding that the visitation by the Hes prior to the four month period at issue constituted
“token visitation.” The dissent refers to the statutory definition of “token visitation,” see Tenn.
Code Ann. § 36-1-102(1)(C) (2003), and concludes that “visitation is token if it is either
perfunctory, or of an infrequent nature, or both.” (emphasis in original). The dissent contends
that the Hes’ visitation with A.M.H. prior to the four month period at issue is crucial to a
determination of whether their failure to visit within the four month period was willful.34
Pursuant to the definition of “token support,” the courts of this state are only concerned
with whether the visitation during the four month period at issue was token in nature. See Tenn.
Code Ann. § 36-1-102(1)(E) (2003) (defining “willfully failed to visit” as “the willful failure, for
a period of four (4) consecutive months, to visit or engage in more than token visitation”). Thus,
when we examine the four-month period at issue in this case, we find that the Hes did not visit
their daughter at all. The dissent notes that visitation can be token if it is “perfunctory” or
“infrequent.” It is difficult to see how no visits during the four-month period at issue cannot,
therefore, be included in the definition of “token visitation.” Instead of focusing on the statutory
four-month period at issue, the dissent contends that we should consider the pattern of visitation
engaged in by the Hes since the beginning of their relationship with the Bakers in order to
ascertain if they willfully failed to visit A.M.H. What else should the Court consider outside of
the statutory four-month period? One could consider the fact that the Hes wanted the Bakers to
raise A.M.H. until she turned eighteen so the Hes could remain in the United States. There is the
fact that the Hes wanted A.M.H. to call the Bakers “mommy” and “daddy” and the Hes “Jack”
and “Casey” which could be relevant to a determination of the Hes’ willfulness. These facts
occurred, however, well beyond the four month period at issue. We are careful to note that,
under our statutory scheme, they can have no bearing on our determination of whether the Hes’
conduct within the four-month period was willful. The dissent acknowledges the most crucial
fact to our determination: “Of course, all of the Hes’ visits with A.M.H. took place prior to the
commencement of the statutory four-month period.”
33
The dissent charges that we “sidestep the real problem” because the statutory definition of abandonment is
the same regardless of whether the petitioner is DCS or a private individual; however, the dissent’s complaint to the
legislature does not relate to the definition of abandonment, but rather to the question of notice. The dissent attempts
to apply a blanket rule both to state action and the conduct of private parties, although the statute by its terms addresses
only state action.
34
Conduct prior to, or outside of, the statutory four-month period is relevant only to the question of willfulness,
or support, or the lack thereof, within the four-month period prescribed in the statute. This principle does not open the
floodgates so as to allow a broad sweep of allegations and events in the hope that one or more of them might stick. There
must be a nexus established between the events alleged and the crucial four-month period that we are mandated to
examine. The dissent has failed to show that facts which occurred before the statutory period are determinative of
whether the Hes’ failure to visit within the four months was willful.
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We approach our duty in this case somewhat differently than the dissent by confining our
analysis to the parameters of the statute which must guide our decision. The legislature has
directed that we are to consider the parents’ conduct in the four months preceding the filing of
the petition to terminate their parental rights. See Tenn. Code Ann. § 36-1-102(1) (2003). In the
present case, it is undisputed that the Hes did not visit A.M.H. during the four months prior to the
Bakers’ petition to terminate the Hes’ parental rights.
Once the parameters of our analysis are limited to the statutory four-month period, it is
apparent that the line of demarcation between the majority opinion and the dissent is not as
distinct as it might first appear. The dissent concedes the existence of many of the facts we
deem determinative of this issue. The dissent notes that “[i]t is undisputed that the Hes did not
visit A.M.H. after the altercation at the Bakers’ home on January 28, 2001”; “The majority
rightly concludes” that “the Hes’ failure to visit was not based on the Hes’ fear that they would
be arrested and physically harmed, as the Hes asserted”; and, “In the petition Brown prepared,
Mother sought custody of A.M.H., but did not request visitation.”
With reference to the Hes’ motivation to avoid deportation, the dissent focuses upon
Father’s testimony regarding the correlation between the calls from immigration officials and the
filing of the petitions to regain custody of A.M.H., finding such testimony to be inconclusive.
The dissent argues that “there is no evidence on the substance of the conversation between Father
and the INS official, any issues raised by the official, or how the filing of the petition for custody
would have addressed any INS concerns.” The dissent seeks to impose a “proof beyond a
reasonable doubt” standard in parental termination cases. However, our case law does not
support the dissent’s characterization of the evidence. When evaluating a trial court’s decision in
parental termination cases, we must first evaluate a trial court’s findings of fact de novo,
presuming those findings to be correct unless the preponderance of the evidence is otherwise. In
re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). (emphasis added). “Second, we must
determine whether the facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements required to
terminate a biological parent’s parental rights.” Id. (emphasis added). “‘Willfulness’ does not
require the same standard of culpability required by the penal code.” In re Muir, No. M2002-
02963-COA-R3-CV, 2003 Tenn. App. LEXIS 831, at *14 (Tenn. Ct. App. Nov. 25, 2003)
(citation omitted). “Intent is seldom capable of direct proof, and triers-of-fact lack the ability to
peer into a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact must
infer intent from circumstantial evidence, including a person’s actions or conduct.” Id. at *17
(citations omitted).
It is apparent that the dissent has lost sight of the manner in which the trier of fact
evaluates evidence. Father’s testimony is but one component of the trial court’s finding that the
Hes’ reasons for filing the petitions to regain custody were driven by a desire to avoid
deportation. As we set forth heretofore, the record is replete with instances when the Hes
expressed concerns about deportation as it relates to custody of their daughter. Parental
termination cases are factually driven and require individualized decision making. See In re
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Swanson, 2 S.W.3d 180, 188 (Tenn. 1999). The trier of fact is permitted to draw all reasonable
inferences from the evidence presented on an issue. We must also defer to credibility
determinations made by the trier of fact. See Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783
(Tenn. 1999). From the aggregate of the aforementioned facts, it was reasonable for the trial
court to infer that the Hes’ actions in filing the petitions to regain custody of their daughter were
designed to avoid deportation. On appeal, this Court is not permitted to reject the inferences
drawn by the trial court from the circumstantial evidence and substitute our own inferences
instead. See State v. Thacker, 164 S.W.3d 208, 221 (Tenn. 2005) (citing State v. Evans, 108
S.W.3d 231, 236–37 (Tenn. 2003)).
The Bakers have asked this Court to reverse the trial court’s order consolidating their
petition to terminate the Hes’ parental rights with Mother’s petition to modify the June 4, 1999
custody order, and we find this issue to be without merit. Regarding the trial court’s rulings on
the Hes’ pre-trial motions, we affirm the trial court’s order denying the Hes’ motion, pursuant to
Rule 60.02, to set aside the June 4, 1999 custody order; we affirm the trial court’s order denying
the Hes’ motion to dismiss the Bakers’ adoption petition; and we affirm the trial court’s order
denying the Hes’ motion to bifurcate the proceedings. Regarding the Hes’ constitutional
arguments, we find that section 36-1-102 and section 36-1-113 of the Tennessee Code are not
unconstitutional in light of the facts in this case. We conclude that the trial court did not err in
ruling that the notice provisions found in section 37-2-403 of the Tennessee Code did not apply
in this case. We conclude that the trial court did not err by ruling that the “superior parental
rights doctrine” did not apply to Mother’s petition to modify the June 4, 1999 consent custody
order.
Regarding the grounds for termination, the trial court did not err in ruling that the “settled
purpose doctrine” did not apply in this case. Turning to the abandonment ground for termination,
we reverse the trial court’s ruling that the Appellants willfully failed to support A.M.H. in this
case as the record does not contain clear and convincing evidence to support such a finding. We
conclude that the trial court erred in finding that Father was not the legal parent of A.M.H. when
the Appellees filed their petition in this case, therefore, termination of Father’s parental rights
under section 36-1-113(g)(9) of the Tennessee Code was not appropriate in this case. The trial
court erred in finding that the “persistent conditions” ground for termination codified at section
36-1-113(g)(3)(A) of the Tennessee Code requires the removal of a child by the state. For other
legal reasons, however, we affirm the trial court’s ruling that section 36-1-113(g)(3)(A) of the
Tennessee Code does not apply to this case. We affirm the trial court’s ruling that the record
contains clear and convincing evidence to support a finding that the Appellants willfully failed to
visit A.M.H., therefore, termination of their parental rights was justified in this case. Finally, we
affirm the trial court’s conclusion that terminating the Appellants’ parental rights is in the best
interest of the minor child at issue in this case.
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We are cognizant of the fact that the parties have raised other issues in their briefs which
are not addressed in this Opinion.35 In light of our holdings on the issues which are discussed in
this Opinion, a discussion of the other issues raised by the parties would have no bearing on the
outcome of the case on appeal, therefore, they are pretermitted. Costs of this appeal are to be
taxed to the Appellants, Shao-Qiang (Jack) He and Qin Luo (Casey) He, and their surety, for
which execution may issue if necessary.
___________________________________
ALAN E. HIGHERS, JUDGE
35
Specifically, the Hes ask this Court to evaluate the following: whether the trial court erred in issuing a no-
contact order prior to a trial in this matter; whether the trial court erred in entering an order appointing the Bakers
guardians of A.M.H.; and whether the trial court erred in denying their motion to set aside the order appointing Mid-
South as next friend to investigate the Bakers’ adoption petition. As previously noted, a majority of the issues presented
by the Bakers are not independent issues which deserve evaluation, but they constitute responses to the issues raised by
the Hes in this case. From the Bakers statement of the issues, we have elided two independent issues which have been
addressed herein.
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