IN THE COURT OF APPEALS AT TENNESSEE

WESTERN SECTION AT JACKSON

_________________________________________________________________________

 

IN RE:  ADOPTION OF

AMH, a minor,

 

JERRY L. BAKER and wife,

LOUISE K. BAKER,

           

Petitioners/Appellees,

 

                       

v.                                                                                 W2004-01225-COA-R3-PT

                                                                                                                                   

SHAO-QIANG (JACK) HE and wife,

QIN (CASEY) LUO,

           

Respondents/Appellants.          

________________________________________________________________________

 

BRIEF OF APPELLANTS

________________________________________________________________________

 

 

 

David A. Siegel (11870)

                                                                                    Attorney for Appellant,

                                                                                    Shao-Qiang (Jack) He

                                                                                    5100 Poplar Avenue, Suite 2500

                                                                                    Memphis, Tennessee 38137

                                                                                    (901) 462-3352

 

 

                                                                                    Richard A. Gordon (12321)

                                                                                    Attorney for Appellant,

                                                                                    Qin (Casey) Luo

                                                                                    264 Barry Road

                                                                                    Memphis, Tennessee 38117

                                                                                    (901) 681-0707

 

 

 

ORAL ARGUMENT REQUESTED





STATEMENT OF ISSUES

1.  Whether the trial court erred in ruling that the ※settled purpose doctrine§ no longer has any force or effect as law in Tennessee.

             2.  Whether the trial court erred in ruling that the actions of the respondents evinced a ※settled purpose to forego all parental rights and responsibilities.§

3.  Whether the trial court erred in ruling there was clear and convincing evidence to support a finding that Respondents had ※willfully§ abandoned their child, irrespective of the applicability of the settled purpose doctrine.

4.  The Trial Court*s Findings of Fact and Conclusions of Law are not supported by clear and convincing evidence, and cannot, therefore, be a basis for termination of parental rights.

5.  Whether the trial court erred in failing to find that Tennessee Code Annotated ∫ 36-1-102 and ∫ 36-1-113 unconstitutionally deprives natural parents of the right to receive prior actual notice and warnings of the definitions of abandonment, the right to receive information regarding the criteria and procedures for termination of parental rights, the right to receive information concerning the law of abandonment, the right to receive prior warnings that the failure to visit or support the child for a statutorily prescribed period such as four (4) months could be grounds for termination of parental rights, and the right to receive information regarding the necessity for and assistance of counsel.

6.  Even if the trial court had been correct in upholding the constitutionality of Tennessee Code Annotated ∫ 36-1-102 and ∫ 36-1-113, the trial court erred in failing to find that the Respondents were constitutionally entitled to the same or similar protections found in Tennessee Code Annotated ∫ 37-2-403(a)(2)(A) and (2)(B)(i), requiring prior notification to biological parents of the meaning, definitions, and consequences of abandonment in circumstances where a child is placed in the foster care of an agency.

7.   Because Mid-South Christian Services in an ※agency§ within the meaning of Tennessee Code Annotated ∫ 37-2-402 and because AMH was placed in ※foster care§ with Mid-South Christian Services, the trial court erred in failing to apply the notice provisions of Tennessee Code Annotated ∫ 37-2-403(a) (2) (A) and 2 (B) (i) in the instant case.

8.  Whether the trial court erred by recognizing a purported agreement, that if found to exist, would contravene the public policy of Tennessee.

9.  Because Mr. He*s status as ※legal parent§ was conclusively established prior to trial, the trial court erred in terminating the parental rights of Mr. He under Tennessee Code Annotated ∫ 36-1-113(g)(9)(A)(ii), (iii), (iv), (v) and (vi).

9A.  Whether the trial court erred in finding that termination of parental rights is in the best interest of  AMH.

10.  Whether trial court erred by not applying the doctrine of superior parental rights so as to award custody to the respondents, thereby rendering moot the Bakers* pending petition to terminate parental rights.

11.  Whether the trial court erred in denying Respondents* Motion and Amended Motion Pursuant to Rule 60.02 to Set Aside Consent Order Awarding Custody Entered June 4, 1999.

12. Whether the trial court erred in issuing a no-contact order prohibiting the respondents from having direct or indirect contact with AMH.

13.  Whether the trial court erred in denying Respondents* Motion to Set Aside and Vacate Chancery Court*s Order Appointing Petitioners Guardians of AMH.

14.  Whether the trial court erred in denying Respondents* Motion to Set Aside Order of Reference and Appointment of Next Friend.

15.  Whether the trial court erred in denying Respondents* Motion for Entry of Final Order Dismissing Adoption Pursuant to Tennessee Code Annotated ∫36-1-119(d) and Rule 6.02 of The Tennessee Rules of Civil Procedure.

16.  Whether the trial court erred in denying Respondents* Motion to Bifurcate.


STATEMENT OF THE CASE

 

            On June 4, 1999, the parties signed a Consent Order Awarding Custody in the Juvenile Court of Memphis and Shelby County, Tennessee.  On June 19, 2000, Respondents filed in the Juvenile Court a Petition to Modify Order (although signed on May 3, 2000).  The Juvenile Court denied this petition on June 28, 2000.  On May 29, 2001, the respondents filed a second Petition to Modify Order in the Juvenile Court.  This petition had been previously signed by Mrs. He on April 9, 2001.  (T.R. Vol. 1, p. 20-25).

            By order entered June 6, 2001, the pending Petition to Modify was continued to June 22, 2001 at the request of the Bakers.  On June 20, 2001, the Bakers filed the instant Petition for Adoption and Termination of Parental Rights, resulting in the suspension of all proceedings in the Juvenile Court. (T.R. Vol. 1, p. 20-25)

            Respondents filed their Answer and Amended Answer to the Petition for Adoption and Termination of Parental Rights on June 29, 2001 and July 3, 2001 respectively.  (T.R. Vol. 1, p. 16, 26)  The Answer and Amended Answer contained a request for parenting time in the form of a mandatory injunction.  It does not appear these injunctions were signed by the trial court.  (T.R. Vol. 1, p. 19, 29)  The trial court entered a ※no-contact order§ on February 8, 2002, prohibiting the respondents from having both direct and indirect contact with AMH, in person or otherwise.  (T.R. Vol. 2, p. 214-216).  As part of the same order, the trial court appointed the petitioners co-guardians of AMH.  It appears that no evidentiary hearing preceded the entry of this order; nor does it appear that any motion was filed or heard in connection with this order.  (R. Vol. 56, p. 2683).

            Petitioners filed their ※First Supplemental and Sworn Petition for Adoption, Declaratory Judgment and Termination of Parental Rights on May 1, 2002. (T.R. Vol. 3, p. 380)  Respondents filed their Answer to said amended petition on May 15, 2002.  Discovery was exchanged between the parties and numerous depositions were taken.  (T.R. Vol. 3, p. 418).

            Ultimately, this matter was tried from February 23, 2004 through March 2, 2004.  Many of the parties* pending motions were heard on March 22 through March 23, 2004.  Closing arguments were presented on April 12, 2004.  (T.R. Vol. 10, p. 1436)  The Court entered its Memorandum Opinion and Order of Judgment on Petition to Terminate Parental Rights and Petition to Modify Custody on May 12, 2004, granting the petitioners* request for termination of parental rights and denying the respondents* request for custody.  (T.R. Vol. 11, p. 1507)  Respondents filed their Notice of Appeal on May 19, 2004. (T.R. Vol. 11, p. 1511) .


STATEMENT OF FACTS

            Mr. He first learned that his wife was pregnant with AMH in July 1998.  Mr. He was working as a full-time student at the University of Memphis at that time and was also working as a part-time teaching assistant or research assistant.  The respondents* financial situation was relatively stable compared with other students.  Mr. He was enjoying a full scholarship from the University of Memphis, which included tuition and a stipend of $1,050.00 per month.  Mrs. He was working part-time as a waitress at the North China Restaurant where she was earning approximately $200.00 or $300.00 per month.  (Mr. He, pp. 1613-1620).

            On or about October 1998, Mr. He was falsely accused of sexually assaulting a female student in a classroom at the University of Memphis.  Although the alleged accuser did not report the incident until six days later and no investigation had yet taken place, Mr. He received a call from the campus police advising him that he could not work at the university anymore.  At the time he received that call, Mr. He was working at the McCall library.  This call from the campus police occurred on the same day that the student lodged her initial complaint (six days after the alleged incident).  As a result, Mr. He*s scholarship was effectively terminated, resulting in the complete loss of his income.  Mrs. He was approximately five months pregnant with AMH at that time.  (Mr. He, pp. 1620-1625).

            On Thanksgiving day of 1998, Mr. and Mrs. He were assaulted at a Chinese grocery store when they ran into the alleged accuser and two men, one of whom was the accuser*s husband.  Although married, the accuser had been living with another man while her husband worked out of town.  As a result of this incident, Mrs. He lost her balance and fell into the shopping cart.  She began to bleed in the ankle. She soon experienced vaginal bleeding while baby-sitting for Ms. Elizabeth Marshall.  Ms. Marshall immediately took the respondents to St. Francis Hospital.  Mrs. He was approximately seven months pregnant at that time.  Because Mr. He*s scholarship had been terminated, his income was literally zero; and Mrs. He*s income was somewhere between $300.00 and $500.00 per month.  (Mr. He, pp. 1623-1626).

A few days following the Thanksgiving assault, the respondents would be referred to Mid-South Christian Services for assistance with their unborn child.  It was Elizabeth Marshall who suggested Mid-South Christian Services as she realized the respondents were considering foster care.   (Elizabeth Marshall, p. 1339, lines 3-6).  

Diane Chunn first met the respondents while acting in her capacity as a birth-parent counselor for Mid-South Christian Services, Inc. (hereinafter ※Mid-South§, on or about December 1, 1998.  Mid-South is a licensed child placing agency which provides adoption services and short term foster care services.  (Diane Chunn, p. 935, lines 14-24).

As a result of the meeting with Diane Chunn, on or about December 1, 1998, the respondents completed a ※pregnancy counseling status sheet§ providing Mid-South basic information about respondents.  On the same day, Mid-South formally opened a ※birth-parent file§ relating to the respondents.  (Diane Chunn, pp. 988-989).

Ms. Chunn*s responsibilities were to provide counseling to the birth parents to help them look at the options of parenting versus adoption and to help the birth parents facilitate whatever plan they chose. (Diane Chunn, p. 988, lines 12-16).  As a birth parent counselor for respondents, Ms. Chunn considered the respondents to be her clients. (Diane Chunn, p. 989, lines 1-3).  Ms. Chunn also understood that she owed a duty of confidentiality to the respondents, which included ※working for their needs.§  (Diane Chunn, p. 989, lines 5-8).

Although AMH was not due to be born until February 1999, she was actually born prematurely on January 28, 1999 as a result of the Thanksgiving assault.  (Mr. He, p. 1632). 

Just prior to the birth of the child, Diane Chunn visited the respondents at the hospital.  During Ms. Chunn*s visit at the hospital, it became clear to Ms. Chunn, as expressed through Mr. He, that Mrs. He was opposed to an adoption. (Diane Chunn, p. 940).  In fact, a family that had previously expressed an interest in adoption actually visited the hospital.  However, Ms. Chunn informed them that the respondents were not interested in placing AMH for adoption.  As a result, they left even before AMH was born (Diane Chunn, p. 940-941).  According to Diane Chunn, the respondents had decided to parent the child, not place the child for adoption.  (Diane Chunn, p. 942, lines 14-15).

Having had no previous experience with this kind of situation before and having just come to the United States, the respondents were told by some local friends in the Chinese community to contact some services for assistance such as food stamps, TennCare and the like.  (Mr. He, p. 1629).  As a result of the direction they had received from their friends, the respondents went to Juvenile Court where they met Sarah Cloud.  (Mr. He, pp. 1629-1630).   The respondents viewed Juvenile Court as a trustworthy option because the Chinese tend to view the court system as ※government.§ (Mr. He, p. 1630).

While at Juvenile Court, the respondents advised Sarah Cloud that they were not able to financially take care of AMH at that time and indicated that they had previously seen Diane Chunn at some point through Mid-South Christian Services.  (Sarah Cloud, p. 1208).  According to Sarah Cloud, Mr. He was having some legal problems and was not able to finish his Master*s program at the University of Memphis, and the respondents were not financially prepared to care for the infant.  (Sarah Cloud, p. 1209). 

As a result, and on or about February 24, 1999, Sarah Cloud called Diane Chunn at Juvenile Court and asked whether Mid-South could provide some short-term care for the respondents, ※just to provide some help to the family.§  (Diane Chunn, p. 945)  During that conversation, Ms. Chunn explained that the respondents had initially wanted to put the baby up for adoption but had changed their minds and were seeking some foster care placement.  (Sarah Cloud, p. 1208).

  In addition to the financial problems previously discussed above, the respondents did not have health insurance on AMH, even though they had previously tried to obtain it. (Mr. He, pp. 1631-1632).    As a result, Mid-South made the decision to provide three months of free foster care for the respondents.  (Diane Chunn, p. 945, lines 11-18).  On the same day, the respondents were introduced to the Bakers by Diane Chunn, and this marked the beginning of the 90-day foster period.  (Mr. He, p. 1635).  Accordingly, the respondents placed AMH in the care of Mid-South Christian Services on February 24, 1999, through the execution of a document entitled ※Interim Care Agreement and Consent Form.§ (Exhibit 19, p. HE00021).  The Bakers were to serve as foster parents during this period of interim care.  (T.R., Vol.  7 , p. 1006 , ¶ 48).

At trial, Mr. He described the respondents* reasons for selecting the Bakers to foster their child:

We- - I was thinking that at that time, you know, we did not have health insurance for our child, and we had the darkest time- - hardship.  So I would think that for the benefit of the child, maybe it*s a good idea to stay with the Bakers for three months because the Bakers told me- - Mr. Baker told me very clearly that they are Christian families generation after generation.  We are just like brothers and sisters, and that*s God*s will, for him to get to know me.  So I was very moved to tears by Mr. Baker*s remarks.  So I think that*s a very good idea.  (Mr. He, p. 1636).

 

The Bakers had actually met Diane Chunn about one year earlier in December of 1997 when they became interested in fostering some children through Mid-South Christian Services.  (Louise Baker, pp. 416-417).  In fact, on December 31, 1997, the Bakers had completed a ※Foster Home Application§ (Exhibit 10) where they provided the following answer to the following question:

Q.  What do you plan to accomplish as a family by this ministry?

 

A.  By providing a Christian Home with lots of love, we know that we are helping others, while they are making some major decisions that will affect the rest of their lives, also this will be a way for us to make our decision if we still in a year want to continue our desire for adoption.

 

(Exhibit 10, p. 3; emphasis added).

 

            AMH was born about one year from the date of the Bakers* foster home application.  (Louise Baker, p. 420), and the Bakers began the 90-day foster period with AMH only one month after that.  (Louise Baker, p. 422).

            At trial Ms. Baker was asked what she meant by her ※desire§ for adoption:

Q.  And do you see- - and the decision that you were contemplating in that year was whether or not you would pursue an adoption.  Do you see that?

 

A.  Our desire for one.

 

Q.  Your desire for an adoption.  And so do I take that sentence to suggest that you had the desire for an adoption?

 

A.  We had thought about it.

 

Q.  I*m sorry?

 

A.  We had thought about it, yes, sir.

 

Q.  Well, would you say desire is a little bit stronger than thought?

 

A.  Bad choice of words, maybe.

 

Q.  So you think that the application that you signed was a bad choice of words, or do you think that your testimony today is a bad choice of words?

 

A.  We had thought about adoption.

 

(Louise Baker, p. 420; emphasis added).

 

            Louise Baker previously had her ※tubes tied§ back in 1989 in order to prevent further pregnancies.  (Louise Baker, p. 259).   Mrs. Baker had a ※tubal reversal§ in August of 1998 so that she could become pregnant.  (Louise Baker, p. 719).  Therefore, at the time the Bakers completed the above foster care application (December 31, 1997), Louise Baker would have been unable to get pregnant because her tubal reversal had not yet taken place.   In fact, the tubal reversal did not occur until about eight (8) months after the date of the Bakers* foster care application referenced above.  (Louise Baker, p. 719). 

            Although Louise Baker had her tubal reversal in August of 1998 and would have theoretically been able to get pregnant, she was still not pregnant by the time the 90-day foster began on February 24, 1999.  (Louise Baker, p. 733).  This was a good six months after her tubal reversal.  Moreover, Mrs. Baker would have been 36 years old at that time and would soon turn 37 in July of 1999.[1] (Exhibit 10, p. 1).   Thus, in May 1999, the Bakers became interested in adopting AMH.  (T.R., Vol. 7, p. 1011, ¶ 84).

            On the date of the June 4, 1999 Juvenile Court consent order, the Bakers had no knowledge that Louise Baker might be pregnant because the Bakers did not learn of Ms. Baker*s pregnancy until two weeks after the June 4, 1999 order.  (Louise Baker, p. 733).  However, by that time (June 4, 1999) the Bakers had already grown attached to AMH.  (Louise Baker, pp. 428-429).

The 90-day foster period was scheduled to end on or about May 23, 1999.  In the middle of April 1999, the respondents decided to obtain a passport for AMH because they knew the 90-day foster period was about to expire and they wanted to make arrangements to send their daughter to China to live with relatives.  (Mr. He, p. 1642). Louise Baker took AMH to Sears at the request of Mr. He in order to have Anna*s picture made for the passport, and, therefore, knew of the Hes* plan to send AMH back to China.  (T.R. Vol. 7, p. 1011, ¶ 78)

On April 27, 1999, at approximately 1:30 a.m., Mr. He was arrested for the sexual assault incident which was alleged to have occurred more than six months earlier.  (Mr. He, p. 1626).   The respondents had to borrow some money from friends in order to get the money to pay for Mr. He*s criminal attorney.  (Mr. He, p. 1628).

On May 1, 1999, just 22 days before the expiration of the 90-day foster period, the passport, as previously requested, was officially issued.  (Exhibit 11).  By the end of the ninety-day foster period, the Bakers had grown attached to AMH.  (Louise Baker, pp. 428-429).

The Bakers also knew that Mrs. He had no desire whatsoever for an adoption and that she would not ※relinquish.§ (Louise Baker, p. 429).  By the end of the ninety-day foster period, the Bakers knew that the Hes wanted to retain their parental rights. (Louise Baker, p. 430).  The Bakers also knew that the Hes were having financial problems by the end of the ninety-day foster period. (Louise Baker, p. 430).  On the other hand, Jerry Baker was earning approximately $286,000.00 per year by the end of the ninety-day foster period.  (Louise Baker, p. 431).

Aware that the Hes were interested in sending AMH to China, that they were unwilling to relinquish their daughter, that they wanted to retain their parental rights and that they were in financial difficulty, Jerry Baker attempted to persuade Mr. He not to send AMH to China, stating that such a plan was not a good idea because the Hes would be sending AMH to the other side of the earth and it would be very difficult for the Hes to see or visit their daughter.  (Mr. He, p. 1645).  As a result, Jerry Baker indicated that the Bakers would take good care of AMH, and when the Hes were ready to get their daughter back, they could get her back very easily.  (Mr. He, p. 1646)

Mr. He then discussed this offer with Mrs. He, and although Mrs. He thought Mr. Baker*s proposal was a good idea, Mrs. He wanted to first try to find a dependable person with a green card who could be trusted to take AMH from Memphis to China.  (Mr. He, p. 1646).  Because the respondents were unable to find such a suitable person, they made the decision to allow AMH to stay with the Bakers until their situation improved, which, Mr. He concluded would be around August of 1999, when he was scheduled to graduate from the University of Memphis with a Master*s Degree in Information Science. (Mr. He, pp. 1646-1647).

            The idea, according to Mr. He, was to continue the previous agreement they had with the Bakers which was in effect during the ninety-day foster period.  (Mr. He, p. 1647).

            Diane Chunn, acting in her capacity as birth parent counselor for the respondents, and during the course and scope of her employment for Mid-South Christian Services, arranged for Mid-South*s attorney, Kevin Weaver, to counsel the respondents and the Bakers concerning the implications of signing over temporary custody to the Bakers. (Diane Chunn, pp. 953-954).   AMH was still in foster care with Mid-South Christian Services at that time because the Hes had not yet released AMH from their care.    (Exhibit 19, p. HE00073).  In fact, AMH would not be released from their care until June 4, 1999.  (Exhibit 19, p. HE00073).

As a result of the arrangements made by Diane Chunn, a meeting took place at the office of Attorney Kevin Weaver on June 2, 1999, only two (2) days prior to the purported transfer of custody to the Bakers.  In attendance at this meeting, were the Bakers, Diane Chunn and Mr. He.  Mrs. He was not present at this meeting.  (Diane Chunn, p. 953).   AMH was still in foster care with Mid-South Christian Services as this meeting was taking place.  Exhibit 19, p. HE00073).

                At no time during the conference of June 2, 1999, did either Diane Chunn or Kevin Weaver ever advise Mr. He that he should have his own legal representative present.  (Diane Chunn, p. 1028), even though AMH was still in foster care with Mid-South Christian Services. 

            During the meeting of June 2, 1999, Kevin Weaver did not advise Mr. He what might happen if the Hes failed to visit for four consecutive months. (Kevin Weaver, p. 1180), even though AMH was still in foster care with Mid-South Christian Services.

            During the meeting of June 2, 1999, Kevin Weaver did not advise Mr. He what might happen if the Hes failed to pay child support for four consecutive months. (Kevin Weaver, pp. 1180-1181), even though AMH was still in foster care with Mid-South Christian Services.

            During the meeting of June 2, 1999, Kevin Weaver had no discussions with Mr. He regarding the law of abandonment. (Kevin Weaver, p. 1181), even though AMH was still in foster care with Mid-South Christian Services.

            During the meeting of June 2, 1999, Kevin Weaver had no discussion at all with Mr. He regarding the consequences of abandonment. (Kevin Weaver, p. 1181), even though AMH was still in foster care with Mid-South Christian Services.

            Kevin Weaver made no effort at all to understand the idiosyncrasies of Chinese culture as it relates to concepts of custody and extended family.  (Kevin Weaver, p. 1182), even though AMH was still in foster care with Mid-South Christian Services.  Kevin Weaver was not aware that the Hes* lifelong upbringing in China and their culture might make it difficult for them to relate to what Mr. Weaver was discussing regarding custody.  (Kevin Weaver, p. 1182).

            Kevin Weaver is ※almost certain§ that he did not talk about guardianship during the meeting of June 2, 1999. (Kevin Weaver, p. 1179), even though AMH was still in foster care with Mid-South Christian Services.

            Diane Chunn admitted that she does not know the difference between guardianship and custody, and, therefore, could not have explained that difference during the meeting of June 2, 1999.  (Diane Chunn, pp. 1030-1031).

            Diane Chunn also admitted that she did not feel competent to give legal advice to those present during the meeting of June 2, 1999 regarding the ramifications of a custody situation. (Diane Chunn, p. 954).

            Kevin Weaver could not recall any discussions regarding child support during the meeting of June 2, 1999.  (Kevin Weaver, p. 1178), even though AMH was still in foster care with Mid-South Christian Services.

            According to Kevin Weaver, one of the concerns as expressed by Mr. He during the meeting of June 2, 1999, was whether the Hes could visit their child.  (Kevin Weaver, p. 1180).

            At the June 2, 1999 meeting, Kevin Weaver, Esq. made it clear to those present that transferring custody of Ward to the Bakers would not terminate the parental rights of the Hes. (T.R. Vol,. 7, p. 1013, ¶ 92)

            Although Mid-South Christian Services was billed for the legal services provided by their attorney, Kevin Weaver, the bill for the June 2, 1999 conference was actually paid by the Bakers.  (Diane Chunn, p. 1031).

            Even though Mrs. He had received no legal advice from any duly licensed Tennessee attorney, the transfer of custody was scheduled for June 4, 1999 at the Juvenile Court of Memphis and Shelby County, Tennessee. (T.R. Vol. 7, p. 1019, ¶ 106).  Present at the Juvenile Court on June 4, 1999 were the Bakers, Diane Chunn, Sarah Cloud, the respondents and an interpreter.  (T.R. Vol. 7, p. 1019, ¶ 107).

                        At no time during the June 4, 1999 meeting at Juvenile Court did either of the respondents ever indicate that they wanted someone to take care of their child on a permanent basis.  (Sarah Cloud, p. 1210).  When Sarah Cloud was asked whether the Hes ever indicated whether they were interested in a temporary or permanent arrangement, Ms. Cloud responded, ※temporary.§ (Sarah Cloud, p. 1210).  Specifically, Sarah Cloud recalls that Mrs. He was ※very concerned that it was not a permanent situation.  She did not want it to be a permanent situation.§  She made that very clear to Ms. Cloud. (Sarah Cloud, pp. 1210-1211).  According to Sarah Cloud, Mrs. He was ※fairly adamant that at some point she wanted her child back.§  (Sarah Cloud, p. 1263).  Sarah Cloud also understood that the Bakers wanted a temporary arrangement.  (Sarah Cloud, p. 1252-1253).

            With respect to the Bakers* contention that they had agreed to raise AMH until she was 18 years of age, Sarah Cloud testified as follows:

Q.        If you understood that Mr. and Ms. 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.

                        (Sarah Cloud, p. 1253).

            The phrase ※the parents are unable to financially care and provide for said at this time§ as typed on the June 4, 1999 petition for custody is not part of the preprinted language on the Juvenile Court form used by the respondents to file the petition; but rather, said language is ※fill-in-the blank§ because every family*s case is unique and, therefore, ※unique language should go into it pertaining to what their situation is.§  (Sarah Cloud, pp. 1213-1214; emphasis added).  According to Sarah Cloud, who believes she was the one that probably typed the June 4, 1999 petition, the phrase ※at this time§ indicated to her that ※the Hes felt like they had a temporary financial setback and they were at this time unable to provide for the child financially.  (Sarah Cloud, p. 1214).

            The June 4, 1999 order made no reference to child support.  (Sarah Cloud, p. 1217)

            Although the June 4, 1999 order does mention ※guardianship,§ the petition that preceded that order contains no reference to the word ※guardianship.§  (Sarah Cloud, p. 1217).  The Juvenile Court will type a guardianship provision in their order when they are told by the people who are taking custody that they need to provide medical insurance for the child because, according to Sarah Cloud, you cannot provide medical insurance on a custody order.  (Sarah Cloud, p. 1237).    Sarah Cloud also testified again during cross examination that the word ※guardianship§ is something standard that relates to provision of health insurance.  (Sarah Cloud, p. 1252).  According to Sarah Cloud, the guardianship provision had no significance with respect to any Petition to Modify if it were brought before the Court.  (Sarah Cloud, p. 1252).  Sarah Cloud could not recall a time when she ever included a guardianship provision simply because the persons receiving custody did not want any limitations on their rights to take of the child.  (Sarah Cloud, p. 1237-1238).

            At no time during the Juvenile Court meeting of June 4, 1999 did Sarah Cloud or Diane Chunn ever advise the respondents that the respondents* parental rights could be subject to termination if the respondents willfully failed to pay child support or visit the minor child for at least four (4) consecutive months.    At no time during the Juvenile Court meeting of June 4, 1999 did Sarah Cloud or Diane Chunn ever advise the respondents regarding the law of abandonment, termination of parental rights and/or the consequences of abandonment.  (Pastor Kenny Yau, p. 1996).

            At no time during the Juvenile Court meeting of June 4, 1999 did any judge or referee ever advise the respondents that the respondents* parental rights could be subject to termination if the respondents willfully failed to pay child support or visit the minor child for at least four (4) consecutive months.  (Sarah Cloud, p. 1218).  At no time during the Juvenile Court meeting of June 4, 1999 did any judge or referee ever advise the respondents regarding the law of abandonment, termination of parental rights and/or the consequences of abandonment.  (Sarah Cloud, p. 1218).  Sarah Cloud could not recall whether anyone ever explained to the respondents that they could have a judge consider their June 4, 1999 petition in open court.  (Sarah Cloud, pp. 1217-1218)

            At no time did any judge conduct any kind of open court examination to make sure that the respondents understood what was occurring on June 4, 1999.  (Sarah Cloud, p. 1218).  This is true even though the June 4, 1999 petition petitions Juvenile Court with the words:  ※Premises considered, petitioner [Mr. He/Ms. Luo] prays that the Court make inquiry into the allegations herein set forth and make such orders as the Court may deem proper and in the best interest of said child(ren).§  (T.R. Vol. 8,Exhibit A; emphasis added).  According to Sarah Cloud, ※we explained everything to them through the interpreter,§ and that would have been the means by which Sarah Cloud knew that the respondents understood what they were signing.  (Sarah Cloud, pp. 1238-1239).

            Pastor Kenny Yau, the interpreter during the June 4, 1999 proceeding in Juvenile Court, testified that he was asked to interpret the documents for Mrs. He so she understood what the document was and why she had to sign it.  (Pastor Kenny Yau, p. 2008).  Pastor Yau was never asked to read the documents word for word in Chinese to Mrs. He, even though it would have been possible for him to do so.  (Pastor Kenny Yau, pp. 1997, 2008).

            According to Pastor Yau, ※guardianship§ was explained as being the willingness of the Bakers to ※temporarily take care of the baby.§ (Pastor Kenny Yau, p. 1994).  Because of the need for medical care for the baby, the ※guardians or the custodians§ need to have medical insurance for the baby.  (Pastor Kenny Yau, p. 1995).

            On June 4, 1999, Pastor Yau explained the following (not word for word) to Mrs. He:

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 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.  (Pastor Kenny Yau, p. 1998).

 

            Pastor Yau explained to Mrs. He the meaning of the word ※temporary§ as ※someone was willing to look after or take care of the well-being of the baby for a period of time.§  (Pastor Kenny Yau, p. 1995).

            Although Pastor Yau agreed during cross examination that technically the duration of ※temporary§ lasts until the period is over (meaning it might be one day, one minute or 50 years), the word was used in a very specific way on June 4, 1999.  Specifically, as used on June 4, 1999, the word ※temporary§ was assumed to be ※only for a short period of time.§  (Pastor Kenny Yau, pp. 2017, 2020; emphasis added).   When Pastor Yau was asked whether he was merely assuming that the word ※temporary§ meant a short period of time on June 4, 1999, he replied ※no.§  (Pastor Kenny Yau, p. 2018).

So when you say it was assumed to be a short period of time, that is something that you just gleaned from the totality of the circumstances.  Is that correct?

 

No.  I was born and raised and grew up in the Chinese community.  So I know the language of the Chinese, and I*ve been learning English for the past 30 years.  The word ※temporary§ could not be meant indefinite.  Temporary 每 to the best of my understanding of the English word, temporary means it is a short period or - - it is indefinite, but it is a short period of indefinite time#.

 

                                    (Pastor Kenny Yau, p. 2020; emphasis added).

            There are two or three or four different ways to say the English word ※temporary.§  (Pastor Kenny Yau, p. 2018).

            Pastor Yau made no explanation to Mrs. He as to what it would take for her to get the child back.  (Pastor Kenny Yau, p. 1995).

            During cross examination, Pastor Yau was asked whether he recalled explaining that if either party, the Bakers or the Hes, in the future wish to change what was being done and the other party objected, they would have to go to the judge and let the judge decide.  Pastor Yau responded as follows:  ※The possible complication, like if a party or either party, you know, disagree or disagree, was not mentioned during that day - - during that time.§  (Pastor Kenny Yau, p. 2017; emphasis added).

            Diane Chunn*s note of the June 4, 1999 meeting at Juvenile Court, mentions the word ※temporary§ three times.  (Diane Chunn, p. 1110).

            On June 4, 1999, no discussions occurred regarding the law of abandonment or what might happen if the Hes failed to pay child support or to visit for four months.  (Pastor Kenny Yau, p. 1996).

            On June 4, 1999 (the date of the Juvenile Court custody transfer), Jerry Baker was working for Pinnfund USA where he was earning approximately $280,000.00.  (Jerry Baker, pp. 834-837; Exhibit 10, p. 1).    During his last year at Pinnfund, Mr. Baker had grossed a little over $400,000.00. (Jerry Baker, p. 837).   Mr. Baker lost his job with Pinnfund around the first quarter of 2001 or 2002.  (Jerry Baker, p. 836).

            During the 90-day foster period, the Hes did attempt to pay $300.00 cash to the Bakers while in the Bakers* living room, but the Bakers did not accept the money.  (Mrs. He, pp. 2181-2182).  Louise Baker first described the $300 payment as ※they threw a big sum of money on the couch#.§  (Louise Baker, p. 432; emphasis added).  However, when Mrs. Baker was later asked if she could explain how the $300.00 was ※thrown§ on her couch, she testified that ※It was just here, and we*re trying to figure out what it is, you know, what it*s for.§  (Louise Baker, p. 695).  Louise Baker testified that the Bakers could not accept the $300.00 while they were foster parents with Mid-South.  (Louise Baker, p. 432).

            However, Diane Chunn from Mid-South testified that there would have been no written prohibition preventing the Bakers from accepting the $300.00; but rather, there was ※kind of a silent understanding that they*re not going to be reimbursing you for this.§  (Diane Chunn, pp. 1107-1109).  When Louise Baker was asked whether she considered turning the $300.00 over to Mid-South Christian Services, Louise Baker testified as follows:  ※I didn*t have any reason to.  It was returned to them.  We weren*t accepting it all.§  (Louise Baker, pp.694-695).

           Sarah Cloud, did not recall hearing any conversation about child support on June 4, 1999  (Sarah Cloud, p. 1257).  Diane Chunn admitted that she had previously told Mr. Parrish that she did not think there was going to be any kind of support being paid.  (Diane Chunn, p. 1037).   Diane Chunn also testified that she did not remember anything about child support being mentioned.  (Diane Chunn, p. 1037).  According the Jerry Baker, Mr. and Mrs. Baker never asked the respondents to pay child support.  (T.R. Vol. 7, p. 1026, ¶ 133C).  During the June 4, 1999 Juvenile Court proceedings, the subject of child support was never mentioned.  (T.R. Vol. 7, p. 1027, ¶ 136).  The Bakers did not expect the Hes to pay them child support. (Louise Baker, p. 432).  The Bakers are now seeking to terminate the Hes* parental rights for failure to pay child support.  (See petition and supplemental petition filed by Bakers).

           Although the Bakers admit that the Consent Order Awarding Custody was a temporary custody arrangement through the Court, they also claim there was some other agreement between the parties that they would ※raise her for the rest of her life.§  (Louise Baker, p. 443).   In spite of the Bakers* claim, there is no written agreement which would reflect this ※other agreement.§  (Louise Baker, pp. 446-447).   The Bakers have nothing in writing at all that can substantiate this ※other agreement.§  (Louise Baker, p. 446-447). Nor do they have any witness that can substantiate this ※other agreement.§  (Louise Baker, pp. 446-447).

The Journal of Louise Baker:  A Surreptitious Paper Trail Designed to Prevent the Return of AMH to Her Natural Parents.

The day after the respondents signed over custody to the Bakers, Louise Baker began keeping a secret journal of every visit made by the respondents with respect to the minor child. (Louise Baker, p. 447, 449; Exhibit 6).

Louise Baker admitted her purpose in keeping the journal was to establish some kind of document or paper trail so that if the Hes say ※we want her back,§ Ms. Baker would have a record to use in court:

Q.       Well, did you not have the intention of establishing some kind of document or paper trail so that if they say, ※We want her back,§ you would have a record to use in court?  Isn*t that right?

 

Yes, I wanted a record, and everybody, I think, would have kept a record in this situation.

 

(Louise Baker, p. 448).

 

            Louise Baker had never kept any kind of record like that in the past.  (Louise Baker, p. 448).  Louise Baker never revealed to the Hes that she was keeping a journal of their visits with AMH.  (Louise Baker, p. 449).  Louise Baker's journal is entitled "Visits from Jack and Casey."  (Exhibit 6).    The very first entry in Louise Baker's journal reads as follows:  "gained custody on 6-4-99."  (Louise Baker, pp. 448-449; Exhibit 6; emphasis added).

On August 28, 1999, William Webb accompanied the Hes for a visit a visit at the Baker home.  (William Webb, p. 1366).  Mr. Webb testified that the Hes were very loving to their daughter and that their daughter seemed perfectly comfortable with them.  Mr. Webb also testified that Mrs. He played with AMH, picked her up and held her.  In addition, Mr. He was seen taking pictures.  (William Webb, pp. 1360-1361).

Interference By the Bakers With Respondents* Visitation of AMH

            As the journal develops, it becomes clear that the more Mr. and Mrs. He want to visit their daughter, the greater resistance they receive from the Bakers. 

The October 3, 1999 journal entry of Louise Baker reads as follows:

Jack and Casey came at 3:00.  Anna played for a minute with them and then wanted us.  The visit was very discouraging to usThey wanted to see if they could come and get Anna and keep her for the day next Sun.  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 friend that kept asking about her and a Dr. at Church wanted to see her.  We told them she didn't need to see a Dr. and if anyone wanted to see her they could come to our homeWe stood strong with this.  I think Jack was just trying to please Casey.  No words were exchanged.  We feel like Jack will try something nowWe would like to get visits to every other weekWe 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 to com[e] Thurs, 8:45 AM because Jerry is going to be out of town.  Jack will not come to our home without Jerry being here.  (emphasis added).        

                       

(Exhibit 6).

 

In trying to determine what Louise Baker meant when she wrote ※the visit was very discouraging to us,§ the following exchange occurred:

Q.    And isn*t it true that on that entry, you characterize that visit as discouraging because they wanted to see if they could take their daughter out for the day?

 

A.  Absolutely

 

(Louise Baker, p. 449).

            Louise Baker also admitted that she was exerting her ※control§ in order to prevent the Hes from taking AMH out of the home:

Q.        Because you were controlling the situation, weren*t you?

 

A.     We were in control of the situation.

 

Q.    And you were not about to let her take that child out of the home, were you?

 

A.     Absolutely not.

 

(Louise Baker, p. 194).

 

            Louise Baker also testified as follows:

Q.     And do you recall saying that, ※We stood strong with this§?

 

A.     Well, we did.  They weren*t going to take her out of our home.

 

(Louise Baker, p. 453).

 

            Nothing in the journal entry of October 3, 1999 as set forth above, indicates the Bakers were concerned that the Hes would steal the child or that they were a flight risk.  (Exhibit 6).  Quite the contrary, the journal entry of October 3, 1999 merely states that AMH is ※too little to be away from us.§ (Louise Baker, p. 451; Exhibit 6).

When Louise Baker was asked what she meant when she wrote "We feel like Jack will try something now," she stated the following:

That they would try to go get more custody.  I don't know.  Not more custody, more visitation.  (emphasis added).

 

(Louise Baker, p. 458).

 

            Louise Baker*s solution to the problem of the Hes wanting more time with their daughter was to recommend cutting the visits to every other week:

Q.      But your solution to that problem - - rather than give her more time like she was asking for, your solution to the problem was to recommend cutting the visits to every other week.  Isn*t that right?

 

A.     That*s correct.

 

Q.    And you actually wrote that in your journal, didn*t you?

 

A.     I sure did.

 

Q.     And you even say that, ※We feel like they would wean away, but the last two visits, we could see Casey is wanting to come more.§  Did you write that?

 

A.     I most certainly did.

 

(Louise Baker, pp. 454-455).

 

During the visit of October 6, 1999 (Thursday morning), Jerry Baker informed Mr. He that he could not visit on Sunday.  (Louise Baker, pp. 459-460; Exhibit 6).  When Louise Baker was asked why Jerry Baker told Mr. He that he could not visit on Sunday, Louise Baker replied: "I don't know."  (Louise Baker, pp. 459-460).   As Louise Baker put it, ※That is the choice I gave him.  He didn*t much like the decision, but that is the choice I gave him.§  (Louise Baker, p. 459).

By November of 1999, the Hes* relationship with the Bakers was becoming gradually worse because they had a kind of ※confrontation.§  (Mr. He. p. 1669).  Around November of 1999, Mr. He approached Mr. Baker to request the return AMH, thanked Mr. Baker for helping out with AMH, stated that he appreciated their time and efforts and that they wanted to pay the Bakers back because he was sure that he would find a good job, and Mr. Baker replied, ※We did not want your money.  We do not want you to pay me back, but we do not want to give the child back to you.§  (Mr. He, p. 1669).

Mr. Baker advised Mr. He not to discuss this issue with him again because it would upset his wife who had a previous miscarriage, and if she has another miscarriage because of this, Mr. Baker would hold Mr. He responsible.  (Mr. He, p. 1669).  Ms. Baker was, in fact, pregnant at that time.  (Mr. He, p. 1669).  According to Mrs. He, the Hes then decided to be patient and wait for the Bakers* baby to be born.  (Mrs. He, p. 2307). 

The Bakers* baby was born in February of 2000.  (Mrs. He, p. 2307).  By May of 2000, the Hes* patience had run out and they decided to go to court that month to regain custody of their daughter.  (Mrs. He, p. 2309).

On May 3, 2000, Respondents signed at the Juvenile Court a Petition to Modify Order in which they requested that custody and guardianship of the minor child be removed from the Bakers and restored to Respondents.   On the very next day, May 4, 2000, Diane Chunn of Mid-South Christian Services called Louise Baker and informed her that the respondents had been to Juvenile Court to petition to get Anna back.  (Louise Baker, p. 460-462).  This is true even though Mid-South Christian Services had supposedly been out of the picture for the better part of a year.  (Louise Baker, p. 206).

When asked whether Diane Chunn had called Louise Baker as a ※friend,§ Ms. Baker initially attempted to deny it:

Q.    She was not doing it as a friend?

A.     No, as someone that had been involved in the situation.

Q.    Is that your statement under oath?

A.     I guess, yes.

(Louise Baker, p. 464).

            However, after being impeached with her prior deposition testimony, Louise Baker made the following concession:

Q.      Did you or did you not tell me in your deposition on that day that Diane Chunn was helping you as a friend?

 

A.     Yes, she did.  I mean, she let us know - - if we had a problem or we needed something or, you know, she would let us know, or I would call her and ask her opinion on something.

 

Q.    And as a result - -

 

A.     But we were not good friends.

 

(Louise Baker, p. 466).  

 

As a result of the telephone call from Ms. Chunn advising the Bakers of the respondent's petition, Jerry Baker called their attorney, Kevin Weaver, who also happened to be the attorney for Mid-South Christian Services that previously counseled Mr. He and the Bakers during the conference of June 2, 1999, while AMH was still under the foster care of Mid-South Christian Services and the Bakers.  (Louise Baker, pp. 466-467).

After Jerry Baker received notice that respondents had filed their first petition in Juvenile Court to regain custody of AMH, Mr. Baker contacted Mr. He and made arrangements to meet at Mr. He*s apartment, at which time a discussion occurred behind the clubhouse near the swimming pool area.  (Jerry Baker, pp. 804-805).  During this discussion behind the clubhouse, a document consisting of three ※options§ was written by Mr. Baker and Mr. He.  According to Jerry Baker, options 1 and 2 were in the handwriting of Jerry Baker but dictated by Mr. He; and option 3 was in the handwriting of Mr. He.  (Jerry Baker, pp. 840-847; Exhibit 17).

During cross examination, Mr. Baker made the following concessions with respect to the three options:

Q.    Mr. Baker, looking at Exhibit D, would you agree with me that that is not really any agreement at all?

 

A.     Yes

 

Q.     And if you*ll look at Option No. 3 at the very bottom, do you see where it says, ※The Bakers and the Hes agree to continue their current agreement with one supplement?§  Do you see that?

A.     Yes, sir.

 

Q.       Isn*t it true that there is absolutely nothing on that entire page that would tell the reader what that current agreement is?  Would you agree with that?

 

A.     Yes.

***

 

Q.    My question is:  Option 3 states that there is one

supplement to that current agreement, and then there are three concepts that are listed as defining what that supplement or addition is.  I want to know out of those three concepts, which one do you say is the addition to the current agreement as you understood that current agreement to exist?

 

A.     You know, I*m not an attorney, and I haven*t gone to school for years.  This was two people sitting at a swimming pool.  It was supposed to be all three.

 

Q.    Thank you.  So if it was all three, then one of the additions to that current agreement would have been 18 years.  Is that right?

 

A.     If it were all three, one of them would be 18 years?  That was your question?

 

Q.    Yes.

 

A.     Yes, sir.

 

(Jerry Baker, pp. 840-847; emphasis added; Exhibit 17)

 

            According to the following portion of Jerry*s Baker deposition which was read into evidence, it was at this point in time (after the first petition to modify filed by the Hes) that the Bakers made their decision to terminate the parental rights of the respondents:

Q.  What was your reasoning for seeking to terminate the parental rights as opposed to just keeping custody?

 

A.  Prior to them filing their motion for custody the first time, I wouldn*t- - we didn*t think that we would have a reason to term- - to submit to terminate their rights.  After they had filed the motion, we realized that what they had said wasn*t going to happen.  Therefore, we filed.

 

Q.  The petition to terminate parental rights?

 

A.  Yes, sir.

 

Q.  In other words, when it became clear to you that Jack and Casey no longer wanted you to keep Anna Mae permanently, you thought that the only way you were going to be able to make that happen, that is, to keep her permanently, was to terminate their parental rights?

 

A.  We had taken- - agreed to raise Anna for her life off what they had told us.  When they filed the papers to have custody returned, then we realized that we were unable to go off what they had told us.  Therefore, we filed for- - to terminate their rights.

 

Q.  (By Mr. Siegel) So, they- - in your mind, they rescinded the deal, so to speak.  They rescinded their agreement with you, from your perspective.  Is that right?

 

A.  I don*t know about rescinded and all that stuff.  In my mind, we had a contract, and then they decided they weren*t going to fulfill it.

 

Q.  And, in your mind, they had breached that contract.  Is that right?

 

A.  Yes.

 

Q.  And, so, your solution was to terminate their parental rights.  Is that right?

 

A.  They had failed to- - yes, sir.  (emphasis added).

 

(Dep. of Jerry Baker, p. 50, lines 14-24; p.51, lines 1-24; p. 52, lines 1-22;  see

 

also trial testimony of Jerry Baker, pp. 865-873).

 

Jerry Baker testified at trial that he waited more than a year to actually file the petition to terminate parental rights on the advice of his attorney.  (Jerry Baker, pp. 874-875).

Q.     Well, you waited more than a year to actually file that petition to terminate parental rights.  So why didn*t you file the petition earlier?

 

A.     I suspect it was at my attorney*s advice.

(Jerry Baker, pp. 874-875).

            On June 28, 2000, Kevin W. Weaver, Esq., appeared in Juvenile Court as counsel for the Bakers to oppose the May 3, 2000 petition filed by the Hes.  During all pertinent times herein, Kevin Weaver was also the attorney for Mid-South Christian Services, and, in fact, was counsel for Mid-South at the time he counseled Mr. He and the Bakers during the conference of June 2, 1999.  (T.R. Vol 7, p. 1038, 1039, ¶*s 184A, 188)   On June 28, 2000, the Petition to Modify was denied in the Juvenile Court.  (T.R. Vol. 7, 1039, ¶ 190).   Jerry Baker was still working for Pinnfund USA on June 28, 2000.  (Jerry Baker, p. 836).  The order of June 28, 2000 makes no mention of child support.

On Wednesday, August 1, 2000, Mrs. He arrived at approximately 10:45 a.m. to the Baker home for a visit with the minor child.  (Exhibit 6).  At approximately 12 noon, Louise Baker asked Mrs. He to leave.  (Exhibit 6).  All she told Mrs. He was that she had an appointment and that she had to go.  (Louise Baker, p. 467)).  In reality, Louise Baker wanted Mrs. He to leave because she wanted to have lunch with Jerry Baker and she wanted to get out of the way for the housekeeper.  (Louise Baker, p. 467).  When Mrs. He would not leave, the police were called to the Bakers* home to enforce Mrs. Baker*s request that Mrs. He leave the home.  (T.R. Vol. 8, p. 1042, ¶ 209).                  

On Sunday, August 13, 2000, Mr. He asked Jerry Baker if the Bakers would take the minor child to their apartment for one hour.  (Exhibit 6).  Jerry Baker indicated that "at this time" they did not feel comfortable doing that, and advised Mr. He that Mrs. He could come over only if he (Jerry Baker) is home. (Louise Baker, p. 468; Exhibit 6).

During the visit of January 28, 2001, Respondents were told by the Bakers that the minor child was sick and that Respondents would not be permitted to take her out of the Baker home to have her picture made.  (Louise Baker, pp. 468-470).  January 28, 2001 was the minor child's second birthday.  (Louise Baker, p. 468)  The respondents even invited the Bakers to go with them to have Anna's picture made.  (T.R. Vol 8, p. 1043, ¶ 223).

The Bakers did not attempt to call, nor did they ever call, the doctor for the minor child at any time on January 28, 2001.  (T.R., Vol. 8, p. 1043, ¶ 219).  This is true even though there was a phone number they could have called on that Sunday to make such a call.  (T.R., Vol. 8, p. 1043, ¶ 220).

The Bakers did not attempt to take, nor did they ever take, the minor child to the doctor on January 28, 2001. (Louise Baker, p. 469).  The last time AMH had been to the doctor was eight days earlier on January 20, 2001 (Louise Baker, p. 469), at which time she had been given a five day antibiotic.  (Louise Baker, p. 470).

During the visit of January 28, 2001, Jerry Baker called the police, and the Respondents were escorted out of the home.  (T.R., Vol. 8, p. 1044, ¶ 230).  The Respondents were told by the police not to return to the Baker home or they would be arrested.  (Dep. of Shao-Qiang (Jack) He, p. 272, L. 11-22). 

At trial, Louise Baker initially testified that she did not know what the police officers told the Hes on January 28, 2001 because ※We didn*t hear the conversation with the police.§  (Louise Baker, p. 473).  However, when confronted with her own sworn interrogatory response (number 3), which stated that ※Deputy Blankenship was called to the home of the petitioners#and ※instructed Mr. He and Ms. Luo not to return to the home of the petitioners,§ the following exchange occurred at trial:

Q.     And do you see the part where it says, ※And instructed Mr. He and Ms. Luo not to return to the home of the petitioners?§

A.     On that day.

Q.    Well, do you say ※on that day§?

A.     I must have left a few words out.

Q.    You just happen to leave that word out?

A.     Absolutely.

(Louise Baker, p. 477; emphasis added).

            When Jerry Baker was asked at trial about his interrogatory response in which he, too, indicated that the Hes were instructed not to return to the home of the Bakers, the following exchange occurred:

Q.    Can you tell me why you didn*t qualify your answer to Interrogatory No. 3 by simply saying what you*re trying to say right now, which is the police only told the Hes not to come back that day?

 

A.     How many interrogatories were there?

Q.    Mr. Baker, I am not the one answering these questions.

A.     The only thing I could think of is there were so many there that that word- - you know, the extra word slipped by.  I mean, I apologize.

 

Q.    Well, when you signed the interrogatories, were you not advised by your attorney that it*s under oath?

 

A.     I wasn*t- - if I would have realized that - - and I should have- - I would have changed it, but I didn*t realize it.

 

Q.    Realized what?

A.     If it says that they were told not to return to our home, then I*m mistaken.

***

Q.    Would you agree with me that your memory was probably better two years ago than it is right now about an incident that occurred back in 2001?

 

A.     I would agree- - I would agree that my memory, for the most part, was better on some things two years ago, but not that.

 

Q.    Oh, so somehow your memory about this particular event is better two years ago down the road?  Is that what you*re trying to tell me here?

 

A.     No, I think I remembered that then.  I*m just saying that I screwed up and that it wasn*t supposed to be- - there was supposed to be another word there.  But if you want to take it for the other thing, it*s there. So be it.

 

(Jerry Baker, pp. 879-881; emphasis added).

Respondents have not been back to the Baker home since January 28, 2001.  (T.R., Vol. 8, p. 1045, ¶ 240).[2]  Louise Baker admitted during cross examination that after the incident of January 28, 2001, the Bakers did not want the Hes back in their home.  (Louise Baker, p. 479).

Shortly after the incident of January 28, 2001, Louise Baker claims to have called the Exchange Club to gather ※information about what to do§ regarding future visits.  (Louise Baker, pp. 479-480).  However, Louise Baker did not bother to call Mr. and Mrs. He to let them know about the new information she had allegedly just received from the Exchange Club, stating that ※it wasn*t my place to call Mr. and Ms. He.  They would call when they wanted to visit.§  (Louise Baker, p. 480).

Louise Baker testified that the purpose of her journal was to document all events that she personally viewed as significant with respect to the Hes.  (Louise Baker, p. 779):

Q.       But you didn*t put anything in that journal between January 28th, 2001 and April of 2001 about this call to The Exchange Club, did you?

A.     No, I did not.

(Louise Baker, pp. 779-780).

Louise Baker admits that she had done nothing to promote a relationship between the child and the Hes since January 28, 2001.  (Louise Baker, p. 731).

Respondents* Additional Efforts to Regain Custody

Following their Removal from Baker Home.

On February 15, 2001, the respondents faxed a letter dated February 1, 2001 to the Juvenile Court requesting the return of AMH and complaining about the incident of January 28, 2001 involving the Bakers.  This letter became part of the Juvenile Court*s ※social file§ under number 243061.  (Candice Brown, pp. 1283-1286; Collective Exhibit 21).

Sarah Cloud testified that she remembered seeing the Hes several times at Juvenile Court after the Bakers had stopped visitation, and they wanted their child back.  (Sarah Cloud, pp. 1219-1220).  Sarah Cloud further testified that when she saw the Hes at Juvenile Court, they had brought a photo album with many pictures of AMH, including one large picture.  (Sarah Cloud, p. 1220).  During those visits, the Hes had indicated to Ms. Cloud that the kind of arrangement they thought they had with the Bakers was a ※temporary arrangement with open visitation.§  (Sarah Cloud, p. 1220).

On April 9, 2001 (just over two months after Respondents were removed from the Baker home), Mrs. He signed a Petition to Modify Order with the Juvenile Court where it was requested that custody and guardianship of the minor child be removed from the Bakers and restored to Respondents, Mr. and Mrs. He.  Just above the affidavit bearing Mrs. He's signature, are the printed names "Qin Luo and Shao-Qing He, mother and father," with the designation "Petitioner."  This Petition to Modify bears a file-marked date of May 29, 2001.   This was the Respondents* second attempt through the courts at regaining custody of their daughter since the initial transfer of custody to the Bakers.

Although the petition which was signed on April 9, 2001 bears only the signature of Mrs. He, Candice Brown testified that both of the respondents were present and interviewed on that day; and the only reason she could think of to explain why only Mrs. He*s signature appeared on the petition was that, at the time, Ms. Brown was fairly new and she probably just had one person sign.  (Candice Brown, p. 1282).

After the Bakers were served with the April 9, 2001 petition filed by the Hes, Louise Baker made no effort to explain to the Hes what she had allegedly learned from the Exchange Club:

Q.    When you were served with the Juvenile Court petition that had been signed in April of 2001 and you had already called the Exchange Club early- - or a few months or a few weeks earlier than that- - -

 

A.     That was in February.

Q.    - - - you knew, did you not, by the filing of that petition that they wanted their daughter back, didn*t you?

 

A.     They wanted to regain custody.

Q.     Did you bother to call them and say, ※Look.  I realize you*ve filed this Petition for Custody, but I*ve called The Exchange Club.  Would you like to see her?  I can tell you all the new services that I*ve learned about at The Exchange Club.§  Did you do that?

 

A.     No, I did not.

(Louise Baker, p. 483).

Candice Brown testified that Mrs. He could not stop crying, and that her reason for crying was that ※she wanted her daughter back.§  (Candice Brown, pp. 1286-1287). Candice Brown further testified that she recalled the Hes stating ※pretty often§ and ※several times§ that they did not know what they were doing when they signed the consent order and that they did not understand the American system.  (Candice Brown, p. 1287).

Additional ※Legal§ Obstacles for Respondents

Following Removal from Baker Home.

The initial court date on the Petition to Modify referred to in the immediately preceding paragraph was June 6, 2001.  (T.R., Vol. 8, p. 1046, ¶ 250).  However, the Bakers had earlier retained attorney Kevin Weaver sometime in May of 2001 to represent them in opposing the Hes* petition.  (Kevin Weaver, pp. 1182-1183).  During this attorney/client meeting in May of 2001 with Kevin Weaver and the Bakers, Mr. Weaver testified that he did discuss termination of parental rights with the Bakers.  (Kevin Weaver, p. 1184).

During the initial court proceeding of June 6, 2001, Jerry Baker announced that the Bakers' attorney could not be present that day.  Accordingly, the case was continued to June 22, 2001. (T.R., Vol. 8, p. 1047, ¶*s 251 and 252).  However, on June 20, 2001, two days before the scheduled Juvenile Court hearing, the Bakers, through counsel, filed a Petition for Adoption and Termination of Parental Rights in the Chancery Court of Shelby County, Tennessee, resulting in the suspension of all proceedings in the Juvenile Court.  (T.R., Vol. 8, p. 1047, ¶ 253).

Additional Conflicts of Interest

            On June 27, 2001, one week after the petition to terminate parental rights had been filed, the Bakers, acting through counsel for Mid-South Christian Services (Kevin Weaver), caused to be entered an ※Order of Reference and Appointment of Next Friend.§  This order directs Mid-South to investigate the condition and antecedents of the child for the purpose of ascertaining whether she is a proper subject for adoption, to make appropriate inquiry to determine whether the proposed adoptive home is a suitable one for the child, and to investigate any other circumstances or conditions which may have a bearing on the adoption and of which the court should have knowledge, and report to the court within a specified time of 60 days.  (Diane Chunn, pp. 1040-1045; emphasis added; see also Order of Reference and Appointment of Next Friend entered on June 27, 2001).

On July 13, 2001, Mid-South Christian Services opened an ※adoptive family file§ for the Bakers in connection with the minor child, AMH.  (Diane Chunn, p. 1042).  The adoptive family file was opened shortly after the Bakers contacted Mid-South Christian Services about supervising the minor child, AMH, during the pendency of the adoption petition and the petition to terminate parental rights. (Diane Chunn, pp. 1042-1044).

            On the same day, July 13, 2001, Diane Chunn, acting within the course and scope of her employment with Mid-South Christian Services, visited the home of the Bakers in order to perform an ※update§ in furtherance of the pending petition for adoption and to terminate parental rights.  (Diane Chunn, pp. 1042-1043).  While at the home on this date, Diane Chunn already knew that the Bakers had filed a petition seeking to terminate the parental rights of Ms. Chunn*s other clients, Mr. He and Mrs. He. (Diane Chunn, pp. 1043-1044).

            When questioned regarding the ethical implications involved in supervising the adoption when it was clear to Mid-South that their birth-parent clients, Mr. He and Mrs. He, were opposed to the adoption and the termination of their parental rights, the following exchange occurred:

Q.     And while at the Baker home, were you not aware that Mr. and Mrs. He had been your previous clients?

 

A.     Correct.  I was aware.

 

Q.    Were you also not aware that Mr. and Mrs. He had been consistently against the idea of an adoption, at least after the expiration of the 90-day foster period?

 

A.     That Casey was severely against that, yes.

 

Q.       Did you make any effort at all to call your former clients, Mr. and Mrs. He, to see whether they were still opposed to an adoption?

 

A.     No.

 

Q.    And the reason you didn*t make such a call, isn*t it true, is because you knew they were already opposed to an adoption, right?

 

A.     I knew that we didn*t do an adoption, yes.

 

Q.      And isn*t it also true, Mrs. Chunn, that you actually considered yourself whether or not what you were doing was ethical?

 

A.     I wondered if it was a conflict of interest, yes.

 

Q.    And in furtherance of that curiosity, you contacted your attorney, Mr. Kevin Weaver, to seek legal advice about that subject, didn*t you?

 

A.     I did.

 

Q.     But that attorney was also the attorney for the Bakers, wasn*t it, at that time?

 

A.     He was.

 

Q.    And so what advice did Mr. Weaver give you?

 

A.  He didn*t feel it was a conflict of interest.

 

(Diane Chunn, pp. 1043-1044; emphasis added).

Financial Condition of Prospective Adoptive and/or Custodial Parents

As of trial, the Bakers owed $24,000 to American Express, $9,611 on a Visa card, $4,800 on another Visa Card, $346 on another Visa card, $872 on another Visa card, $200 to Dress Barn, $100 on a Chadwick*s account, $400 to Sears, $2,500 to Goldsmith*s, $18,000 to Toyota Motor Credit, $6,000 to Trust One Bank, $8,000 to Trust One Bank and $300,000 to Larry Parrish.  (Jerry Baker, pp. 856-857).

When Mr. Baker was asked how he expected to financially provide for AMH, he testified that he might have to get a second job.  (Jerry Baker, p. 857).  As of trial, Mr. Baker had not yet looked for that second job.  (Jerry Baker, p. 857).  As of trial, Mr. Baker had known for the past five or six months that he might have to get a second job.  (Jerry Baker, p. 915).

General Testimony Regarding Respondents

Since the beginning of the 90-day foster period through January 28, 2001, the Hes brought various gifts and food for AMH to almost every visit.  (Mr. He, pp. 1641, 1656).

From February 24, 1999 through January 28, 2001, the Hes visited their daughter almost every week.  (T.R., Vol. 7, p. 1011  ¶  81).  From June 4, 1999 through January 28, 2001, the Hes visited their daughter almost weekly for a total of approximately 80 visits.  (T.R., Vol. 8, p. 1040, ¶ 196).  During almost each visit, the Hes took various photographs of their daughter and themselves.  (Mr. He, p. 1656).

William Webb testified that he visited the Hes at their apartment on a regular basis from 1998 through about 2002, at least once or twice a month.  (William Webb, p. 1362).  During those visits, Mrs. He would always pull out pictures of AMH, consisting of two or three thick and full photo albums.  (William Webb, pp. 1363-1364).

Elizabeth Marshall testified that she first met the Hes in August or September of 1998, and that Mrs. He would baby-sit for her two adopted Chinese children about three or four times a week.  (Elizabeth Marshall, pp. 1318-1319).  Ms. Marshall described Mrs. He*s behavior around her children as ※wonderful, affectionate.  They had a good rapport with each other.§  (Elizabeth Marshall, p. 1319).  Ms. Marshall further indicated that she never had any problems with Mrs. He when she baby-sat her children.  (Elizabeth Marshall, p. 1320).

Even though Mrs. He had never had any children at that time, Ms. Marshall described Mrs. He*s level of competence and ability with her children as ※very high,§ and, in fact, testified that Mrs. He was probably more skilled than she was.  (Elizabeth Marshall, p. 1321).

Expert Testimony of John F. Copper, Ph.D.

Mr. and Mrs. He were raised in a family-based cultural ethical value system known as Confucianism which has been the state ideology in China for 2000 years and affects the thinking of almost all Chinese in the world. (John F. Copper, Ph.D., p. 1412).

Family, which includes extended family, is at the center of life in China and is much more important than other societal organizations such as the clan, the village, the province or the government. (John F. Copper, Ph.D., p. 1419).

           Legal problems in China, except in the area of commercial law, are not handled through the legal system, but, instead, mainly within the family. (John F. Copper, Ph.D., p. 1399).

            It frequently occurs in China that students 每 especially those studying in the United States 每 will temporarily leave a child with relatives 每 even for several years 每 with the expectation that they may simply ask for the child back and that the child will be returned.  (John F. Copper, Ph.D., p. 1421).  It would be unheard of for someone in China to refuse to return a child to the child*s parents.  (John F. Copper, Ph.D., p. 1423).  Genetics play a very big role in Chinese culture, and they consider heredity more important than environment. (John F. Copper, Ph.D., p. 1420).  Family members would consider it their duty to care for a relative*s child and not expect money.  (John F. Copper, Ph.D., p. 1422).

            If a non-relative refused to return a child in China the aggrieved person would go to the head of his or her family and explain what had happened and the head of the family would contact the head of the other family and they would get together to resolve the dispute.  (John F. Copper, Ph.D., p. 1503).  If there remained an impasse the aggrieved person would go to an official, not a court or legal official, but to an official who would be regarded as having executive, legislative and judicial power who would resolve the problem.  (John F. Copper, Ph.D., p. 1503).  Chinese would expect that a judge would certainly rule in favor of biological parents over either other relatives or non-relatives.  (John F. Copper, Ph.D., p. 1451).

            Chinese view America as a land of freedom of expression and opportunity. (John F. Copper, Ph.D., p. 1428).  Chinese value retaining their culture in America.  (John F. Copper, Ph.D., p. 1430).  Chinese view pierced ears and dyed hair as grotesque.  (John F. Copper, p. 1426).

            The one-child policy has led to a preference among peasants and farmers in rural China for boys on farms, but not in urban China or among educated people.  (John F. Copper, Ph.D., p. 1465).  The one-child rule would not apply to a child born in the U.S., and when Chinese people return home they will not be in violation if they return with more than one child.  (John F. Copper, Ph.D., p. 1507).  Chun Ching is actually a metropolitan area and is very important.  (John F. Copper, Ph.D., p. 1505).

            Children in China are mistreated less than children in the United States.  (John F. Copper, Ph.D., p. 1468).  Chinese parents would rarely have children taken from them, but they also have responsibilities toward their children during their entire lives, and children also have responsibilities to care for their parents, grandparents, aunts and uncles in their old age.  (John F. Copper, Ph.D., p.1469, 1505).  In China the best interests of children are defined by the culture to be with their parents.  (John F. Copper, Ph.D., p. 1471).

            There is nothing in Chinese culture comparable to our concept of termination of parental rights.  (John F. Copper, Ph.D., p. 1504).  Divorce in China is rare.  (John F. Copper, Ph.D., p. 1505).

            In China if a couple has sex before marriage and the marriage stays together no one says anything about this or very little.  It is viewed as preserving the family.  (John F. Copper, Ph.D., p. 1537).

            It is a common Chinese superstition that infants should sleep on their backs 每 similar to our views of Sudden Infant Death Syndrome.  (John F. Copper, Ph.D., p. 1537).

Expert Testimony John Hutson, Ph.D.

 

Dr. Goldstein did not do what the court ordered him to do.  (John Hutson, Ph.D., p. 2073).  He had ample time to do his work.  (John Hutson, Ph.D., p.2077).  If he did not understand or could not do what he was supposed to do it was incumbent upon him to notify the court.  (John Hutson, Ph.D., p. 2073).  He did not comply with the original court order, then he defined on the witness stand that he thought he was to evaluate the psychological status of the child, to evaluate the psychological impact of removal and to evaluate the consequences of removal from the parents, and according to him, cultural. (John Hutson, Ph.D., p. 2071).  He did not address any of those issues appropriately.  He did nothing. . (John Hutson, Ph.D., p. 2072).

            Dr. Goldstein did not properly perform his duties as the court-appointed psychologist.  (John Hutson, Ph.D., p. 2076).  He evaluated none of the parties involved.  (John Hutson, Ph.D., p. 2076).  Although Dr. Goldstein did see the child and made some opinions in his report, Dr. Hutson would not call it a psychological evaluation of the child.  (John Hutson, Ph.D., p. 2076).  Dr. Hutson does not think Dr. Goldstein did anything with regard to evaluation.  (John Hutson, Ph.D., p. 2071).

            The distribution of visits by Dr. Goldstein with the Bakers and with Hes was  extremely disproportionate.  (John Hutson, Ph.D., p. 2077).  Dr. Goldstein had already made his assessment and submitted it in writing long before the video session and has submitted no addendum report.  (John Hutson, Ph.D., p. 2107).    The meeting was held at the prompting of the attorneys and not at his request.  (John Hutson, Ph.D., p. 2107).

            Dr. Hutson*s impression of the video was that there was a great deal of comfort.  The child made physical contact and got between the two of them.  (John Hutson, Ph.D., p. 2104).  Dr. Hutson was extremely impressed by Mrs. He bringing out a Chinese fruit they had previously shared years earlier 每 an act of genius.  (John Hutson, Ph.D., p. 2105).  If it was his rule that Avita not be brought into the session, Dr. Hutson does not understand why he didn*t enforce it.  (John Hutson, Ph.D., p. 2114).  Dr. Hutson would have brought Avita into the session.  Dr. Hutson did not think she was distracting.  She is a sibling and a member of the child*s family.  (John Hutson, Ph.D., p. 2106).  The video shows that Avita dropped Mrs. Baker*s picture in the Gap bag.  (John Hutson, Ph.D., p. 2124).  None of the adults did anything inappropriate at the session.  (John Hutson, Ph.D., p. 2108).  Dr. Hutson was aware that the session was the first contact between the Hes and the child since her second birthday 每 January 28, 2001 每 almost three years ago.  (John Hutson, Ph.D., p. 2113).

            Dr. Hutson made no statement regarding psychological attachment 每 only with regard to physical interaction. (John Hutson, Ph.D., p. 2122).  Dr. Hutson*s opinion is that removal from her parents and having no contact with her parents is the most significant psychological trauma this child may have had to date in her life, and you don*t have to evaluate a child to know that.  (John Hutson, Ph.D., p. 2074).  We do not know if the child feels unprotected or insecure as a result of termination of contact with her parents 每 and Dr. Goldstein did nothing to evaluate that.  (John Hutson, Ph.D., p. 2076).

            Dr. Goldstein*s report does not state what language the child speaks or her intellectual capabilities.  (John Hutson, Ph.D., p. 2072).  He did not address the child*s late developing speech problems, tantrums and outbursts and trauma, sleep disturbance, or shyness.  (John Hutson, Ph.D., p. 2073).

            Dr. Goldstein says he did not conduct a custody evaluation.  If it were, he would have evaluated potential custodians and parents.  This was not done. (John Hutson, Ph.D., p. 2077).  If it were an adoption evaluation, he would have evaluated the adoptive parents as to their interest and capability of caring for this child.  This was not done.  (John Hutson, Ph.D., p. 2077).

            Dr. Goldstein called the video an attachment evaluation for the first time on the witness stand.  Previously it had been called an interaction observation.  Before you can do an attachment evaluation you have to understand what the attachment is.  The child had some sort of evaluation with the Hes which he never investigated.  (John Hutson, Ph.D., p. 2077).

            The biological family history of illnesses and problems was not filled out. (John Hutson, Ph.D., p. 2081).  He should have seen the child in the presence of all adults as separate families without labeling them.  He should have interviewed the Baker children and watched the interaction since the Baker children are witnesses to the relationship.  He should have learned what the child was taught to call herself.  All that is relevant to connection, attachment, bonding, identification, but no information about that was ever investigated.  (John Hutson, Ph.D., p. 2080).

            The articles cited by Dr. Goldstein are inapplicable since we have parents who have been involved and interested in the child*s life and have not been declared unfit or abusive or drug addicts or alcoholics.  (John Hutson, Ph.D., p. 2083).

            When doing an evaluation one must consider everything that individuals bring to a session.  Restrictions on that risk altering the grist for the mill.  (John Hutson, Ph.D., p. 2087).  If Dr. Goldstein was upset about intrusions he could have met with the individuals to find out why they did it.  (John Hutson, Ph.D., p. 2088).

            Dr. Hutson is not comfortable with what Dr. Goldstein did in this case ethically, and he even voiced my concerns to him.  Dr. Hutson does not think the best interest of the child was protected or investigated.  Therapy must not be confused with evaluation.  (John Hutson, Ph.D., p. 2097).  Dr. Hutson  is appalled by the work of Dr Goldstein and thinks it contributed to injury to the child.  (John Hutson, Ph.D., p. 2100). 

You don*t do an evaluation without seeing the child and her parents.  You have to be equitable.  You must see the Bakers, their children, the child, the Hes and their other children.  (John Hutson, Ph.D., p. 2101).

Removal from parents is a traumatic event.  The end result depends on the personality of the child and the way removal occurs 每 neither of which was acknowledged by Dr. Goldstein.  (John Hutson, Ph.D., p. 2101).

Even if  the Hes* connection to the child was blood and genes only there would be trauma to the child if the relationship is broken off due to the abandonment issue.  The Hes are responsible for the child being on this earth.  The connection will remain in the child*s head all of her life and she will always wonder, fantasize why she was not good enough, were they not responsible enough, are they inept, did they not care?  The solution is not to maintain a separation to contribute to the fantasy but to provide the answer, put her in contact with these folks and let her find out.  Dr. Goldstein and Ms. Mullins have been afraid of this child*s emotions, feared that it might upset the child.  (John Hutson, Ph.D., p. 2110).

Symptoms of trauma may appear later as increased withdrawal from people, lack of trust, some confusion as to who to identify with, who to rely upon.  Can feel lost, confused.  Children will go where they are comfortable. (John Hutson, Ph.D., p. 2110).  Termination would probably have been less traumatic for her at age 2 than at age 5.  Since the relationship is dependent upon development of memory and language, the more they progress the more significant the impact.  (John Hutson, Ph.D., p. 2120).

Dr. Hutson cannot predict what the environment is going to be.  He is more concerned about dangerous and undangerous environments 每 where harm can come to the child.  (John Hutson, Ph.D., p. 2120).  Children should not be with biological parents when the parents are a danger to them.  (John Hutson, Ph.D., p. 2122).  The harm to the child here is the continued separation which Dr. Goldstein did nothing to ameliorate.  (John Hutson, Ph.D., p. 2124).

Adopted children have anxieties, grief issues, lack of knowledge about what they are at risk for, self-esteem issues, and they blame themselves 每 particularly if they have little or no information.  (John Hutson, Ph.D., p. 3002).  The child would not have resentment because the Bakers let her go to the Hes because virtually all children recognize that their parents are different than everybody else.  Her memories and verbal skills are only going to increase with age.  (John Hutson, Ph.D., p. 3002). 

Psychologically, there is no reason that a child be placed with adoptive parents when there exist fit biological parents.  In general, parental rights should not be terminated in such event.  (John Hutson, Ph.D., p. 3010).  The child is going to learn that she is not like everybody else.  (John Hutson, Ph.D., p. 3016). 

There is no evidence in Dr. Goldstein*s records of his having administered Conners.  He failed to note a significant event.  It is irresponsible for a forensic psychologist to come to court without his records.  (John Hutson, Ph.D., p. 3018).   There exists a conflict in his records about a possible speech problem.  Dr. Hutson expected him to investigate it and note it as well as the shy and having difficulty approaching strangers issue.  He should have investigated to see if related to visitation being terminated.  He did not identify termination as a possible traumatic event or investigate it.  He failed to get a good history by talking to the Hes.  You must ask.  There were 80 or so visits with other people as possible witnesses to the relationship. (John Hutson, Ph.D., p. 3018). 

Dr. Hutson cannot conceive of how somebody could conduct a study where they remove a child from her natural parents without them being dead, unfit or gone.  (John Hutson, Ph.D., p. 3028).

Dr. Hutson did not do a visitation evaluation but provided recommendations and guidelines for a birthday visit.  This is in accord with American Psychological Association guidelines.  Dr. Hutson thought everybody should know the ground rules going into the visit.  (John Hutson, Ph.D., p 3043). 

Expert Testimony of John V. Ciocca, Ph.D.

 

            After a great deal of review of Dr. Goldstein*s work, depositions, pleadings and responses and counter-pleadings, it was Dr. Ciocca*s opinion that there needed to be ongoing contact between the child and the Hes.  Dr. Ciocca did not care whether it was called visitation or an extension of Dr. Goldstein*s abruptly terminated evaluation.  (John Ciocca, Ph.D., p. 2140, 2146).

With respect to the video, Dr. Ciocca was very relieved to see the child responded very favorably to Mr. and Mrs. He, that the Hes responded appropriately and that the extended absence did not prevent the child from warming up to the Hes and engaging with them.  The connection between the child and the parents had survived.  (John Ciocca, Ph.D., p. 2141).  The child had behaviors despite extended time apart which were approaching to the Hes and interactive with the Hes.  Behaviors were recognizing of the Hes and not acting as if they were strangers.  (John Ciocca, Ph.D., p. 2144).  After Mrs. Baker left the room the child then moved even closed and spent more time in the vicinity of the Hes and actually sat between them for part of the time.  She recognized them and was in no way fearful of them.  No behavior reminiscent of separation anxiety or any negative reaction.  (John Ciocca, Ph.D., p. 2144).  Dr. Ciocca*s opinion that there should be ongoing contact is not based upon the video.  (John Ciocca, Ph.D., p. 2148).

Dr. Ciocca*s opinion is that a child reacts differently toward people he or she recognizes and trusts than toward strangers.  (John Ciocca, Ph.D., p. 2144).  To support that opinion you would want to repeat such session on multiple occasions with different people there to see how she reacted to other people.  (John Ciocca, Ph.D., p. 2147).  There appears through the video that there is still some life in that relationship.  (John Ciocca, Ph.D., p. 2151).

When the child takes a pear from Mrs. He and turns and goes right back to Mrs. Baker it is a possible indication that she has two sets of caretakers that she recognizes and she*s moving back and forth between them in a way that recognizes that they are both there and she wants to have contact with both of them.  (John Ciocca, Ph.D., p. 2152).  Dr. Ciocca observed a back and forth action that was relatively healthy, and the child came and went as she wanted.  Dr. Ciocca has nothing negative to say about Mr. and Mrs. Baker.  He could not see their facial expressions.  He just wishes that Dr. Goldstein had held more sessions so we would not be basing all of our opinions on one videotape.  (John Ciocca, Ph.D., p. 2155).  All this extraordinary emphasis on this one-hour videotaped session is a sign of what has gone wrong with the whole process.  (John Ciocca, Ph.D., p. 2888). 

There were no findings that Dr. Ciocca could find that the child was being harmed by contact with the Hes.  It is Dr. Ciocca*s opinion that during the pendency of proceedings it is very important to keep the relationship between a child and both parents or all parties in question alive because the question at issue is which relationship will survive the process.  (John Ciocca, Ph.D., p. 2874).  The potential consequences are that relationship which had been established and nurtured would die an untimely death., that the relationship would become attenuated and harder to revive and that it would have a negative impact upon the child later on.  (John Ciocca, Ph.D., p. 2877).  Dr. Ciocca also said that visitation should be initiated immediately under supervision of a neutral individual and gradually expanded.  (John Ciocca, Ph.D.,  p. 2877). 

Dr. Goldstein has never had any position on visitation and has made no claims that the child is at risk having contact with the Hes.  (John Ciocca, Ph.D.,  p. 2878).  Clearly, this child has the capacity to develop multiple relationships.  We should foster both relationships in concert and parallel.  (John Ciocca, Ph.D.,  p. 2880).  Children can form new attachments, so it is certainly possible to mend relationships.  (John Ciocca, Ph.D.  p. 2885).  The 2 ½ year gap in visits is significant because the relatively positive reaction to the Hes is a sign that there was a connection earlier and that the connection survived.  This was not a video of a child who was meeting a stranger.  (John Ciocca, Ph.D.  p. 2889).

Dr. Ciocca went to the video session to assist.  Dr. Goldstein did not object to the Hes bringing the bags or Avita in.  Only later did he testify that this was a problem. (John Ciocca, Ph.D.,  p. 2887).  Sometimes these initial sessions are a bit awkward, though this one was not.  (John Ciocca, Ph.D.,  p. 2888). 

Dr. Ciocca has not conducted an evaluation, nor has anyone else.  (John Ciocca, Ph.D.,  p. 2908).  If the trial court terminates the Hes* parental rights and they appeal, Dr. Ciocca would recommend immediate contact in the interim.  No matter how the trial court decides there will be a need for transition.  (John Ciocca, Ph.D.,  p. 2908).  Dr. Ciocca would expect the Bakers to do what they could to see that the transition was smooth and that the Hes had ongoing contact with this child.  I think they would do the right thing to make sure that there was no harm.  (John Ciocca, Ph.D.,  p. 2911).  The child could have maximum stability by having access to the Bakers and to the Hes on some basis.  The child should have been in that transition state all along.  (John Ciocca, Ph.D.,  p. 2912).  The Hes need to have contact with their child, and if it turns out badly in the end for them through the appeal process, that would have to be managed by the  Bakers who have been posited as reasonable, competent and kind people, through the use of proper advice.  (John Ciocca, Ph.D.,  p. 2912).  If the Hes get custody, they should allow the Bakers to continue to have a relationship with their child no matter what country they are living in. .  (John Ciocca, Ph.D.,  p. 2913).  Dr. Ciocca would advise the Bakers to make sure the Hes had ongoing access even if they are deported.  (John Ciocca, Ph.D.,  p. 2913). 

Dr. Chang*s data upon which her report is based is valid.  Life and procedures are not perfect.  (John Ciocca, Ph.D.,  p. 2925).  Dr. Ciocca cannot say I can 100% guarantee that this data was not tampered with if he did not watch them with my own eyes 100 % of the time, but he could testify in a qualified manner that given his experience as a clinical psychologist for about 20 years, and observing the process where he was there to monitor it, that given the way things went, he is reasonably certain that the data is valid.  (John Ciocca, Ph.D.,  p. 2927). 

Expert Testimony of Yih-Jia Chang, Ph.D.

 

            I conducted this evaluation based upon clinical interview, mental status examination and MMPI.  (Yih-Jia Chang, Ph.D., p. 524).   Mr. He*s mental status was fine and his MMPI profile is valid.  All of his clinical scales were within normal range.  (Yih-Jia Chang, Ph.D., p. 525).   Mrs. He*s mental status was always within normal limits.  Her MMPI was valid.  All of her scales are within average range.  There*s no psychological disturbance.  (Yih-Jia Chang, Ph.D., p. 527).   My opinion as to the mental health of Mr. He and Mrs. He  is that both of them are within normal range.  They are healthy. (Yih-Jia Chang, Ph.D., p. 538).  My recommendation concerning attachment is based on my clinical interview.  (Yih-Jia Chang, Ph.D., p. 637).

The evaluation is an integrated process.  (Yih-Jia Chang, Ph.D., p. 559). 

This was a clinical evaluation, not a forensic evaluation.  The clinician puts pieces of the  puzzle together.  (Yih-Jia Chang, Ph.D., p. 564).  The MMPI has built in validity, so that chances of faking are highly likely to show up. (Yih-Jia Chang, Ph.D., p. 602).  The  MMPI is a psychological snapshot of a person at the time he or she took the test.  (Yih-Jia Chang, Ph.D., p. 665).

I think return of child if court orders it would take a process.  That*s why I think the opportunities to foster their reattachment will be good, and meanwhile I would think that a mental health professional would be along the way to help them or to process or to work with them in terms of process.  (Yih-Jia Chang, Ph.D., p. 587).  It does not appear that the Hes were abusive and, usually, the reunification of the family would be something that clinical professionals, mental health professionals would encourage. (Yih-Jia Chang, Ph.D., p. 588).

Expert Testimony of David Goldstein, Ph.D.

 

            The responsibilities of a forensic psychologist are to provide the court with information that may be useful in helping the court render a decision as to what might be in the best interest of the child.  (David Goldstein, Ph.D., p.2808).  This case seems to be about termination of parental rights as well as custody.   (David Goldstein, Ph.D., p.2809).

I met with the child on February 11, 2002.  I had first seen the Bakers without the child on January 21, 2002.  (David Goldstein, Ph.D., p. 2762).  I met with the child in 2002 on 2/11, 2/12, 3/5, 3/19, 5/28, 6/3, 6/21, 7/2 and 7/30 and in 2003 on 5/7, 9/12 and 9/23. (David Goldstein, Ph.D., p. 2765).  I first saw the Hes on March 8, 2002, and also in 2002 on 4/1, 4/11 and 4/30 and in 2003 on 9/22 and 9/23.  (David Goldstein, Ph.D., p. 2771).  I can*t recall what caused me to write my report when I did.  (David Goldstein, Ph.D., p. 2766).

I used the Conner*s Parent Rating Scales as an information gathering tool only and a very extensive questionnaire I have developed called the Developmental Screening and Referral Inventory.  (David Goldstein, Ph.D., p. 2767).   My written report was made soon after July 2, 2002, although I failed to date it.  I have filed no supplemental reports. (David Goldstein, Ph.D., p.2810).

I did not do psychological evaluations of any of the adults, and I formed no opinions as to the behavior or emotional behavioral and adjustment or emotional adjustment of the Hes or of the Bakers.  (David Goldstein, Ph.D., p. 2772).

In my own experience, 90% of adopted children want to know more about their biological parents 每 especially during adolescence.  They want to know why they were given up, questions about identity, confusion.  (David Goldstein, Ph.D., p. 2776).

I felt that a visitation evaluation was outside the scope of my role.  (David Goldstein, Ph.D., p. 2784).

It is outside the scope of my evaluation to judge or assess how the child got into the situation she is in now or to consider the effect on the child if she learned later some things about the Bakers that perhaps are less flattering.  (David Goldstein, Ph.D., p. 2784).

I learned what my role would be in this case through the guardian ad litem.  We defined the parameters jointly.  (David Goldstein, Ph.D., p.2797).

I did not bring all of my notes with me to court.  (David Goldstein, Ph.D., p.2801).        I do believe that new attachments can be formed.  (David Goldstein, Ph.D., p.2804).

I have consistently been unable to say that visitation should or should not take place. (David Goldstein, Ph.D., p.2807).

I have not at any time in this case made any opinion as to custody.  (David Goldstein, Ph.D., p.2807).

It is outside the scope of my evaluation to answer what my opinion is of the single most significant psychological event in the child*s life.  (David Goldstein, Ph.D., p.2808).

The responsibilities of a forensic psychologist are to provide the court with information that may be useful in helping the court render a decision as to what might be in the best interest of the child.  (David Goldstein, Ph.D., p.2808).

I can only speculate whether the two-year additional delay in establishing contact improves, reduces or leaves unchanged the prospects of successful reunification or successful establishment of contact between the child and the Hes.  (David Goldstein, Ph.D., p.2810).

This would be both a transracial and transcultural adoption.  (David Goldstein, Ph.D., p.2811).

I am not rendering an opinion as to whether it is in the child*s best interest to have no further contact with her biological parents for the rest of her life.   (David Goldstein, Ph.D., p.2812).

It is possible that a child if cared for in a very comprehensive, maternal-like way, could form a primary attachment with a nanny.  (David Goldstein, Ph.D., p.2812).  I am not comfortable even responding to the question as to whether a child could form a primary secure attachment to a kidnapper.  It is outside the scope of my expertise.   (David Goldstein, Ph.D., p.2813).  I am certainly not going to make any predictions in this courtroom.   (David Goldstein, Ph.D., p.2815).

It is outside my area to answer whether there is any psychological preference as to whether families should be formed by adoption as a first resort or as a last resort. (David Goldstein, Ph.D., p.2816).

I do not feel qualified based on my evaluation in this case to have any opinion as to what role or capacity ought to be carved out for the biological parents of this child.  That is beyond the scope of my task here.  (David Goldstein, Ph.D., p.2817).

My opinion is not intended to be a recommendation concerning custody or a recommendation regarding termination of parental rights.   (David Goldstein, Ph.D., p.3072).

If there were an attempt to equalize the time and attachment opportunities for each party during the pendency of this suit, I would be concerned that there would be communication that would be going on.   (David Goldstein, Ph.D., p. 3082).

At the video session, the child was kissing the Hes, but it was directed behavior, not a show of  affection.   (David Goldstein, Ph.D., p. 3120).

I waited from May to September to have the assessment because I wanted to review the assessment literature.   (David Goldstein, Ph.D., p. 3122).

It was beyond the scope of my evaluation to consider a role to be carved out for the child to have contact with the Hes in the event the child is left with the Bakers.  (David Goldstein, Ph.D., p. 3124).

I have a lack of familiarity with Chinese language and culture.  (David Goldstein, Ph.D., p. 3125).

Testimony of Kimbrough Mullins, Guardian Ad Litem

 

            At the time of my appointment in July 2001 it had been about six months since there had been any visits between the child and Mr. and Mrs. He.  (Kimbrough Mullins, p. 2495).  I didn*t believe that throwing the child into something different than the status quo was necessarily in her best interest.  (Kimbrough Mullins, p. 2497).  

I had never been a guardian ad litem for a Chinese child before.  (Kimbrough Mullins, p. 2498).  I educated myself on Chinese culture by contacting a friend to help me find a translator.  (Kimbrough Mullins, p. 2498).  I called someone I met through my adoption work and was recommended a book on China.  (Kimbrough Mullins, p. 2499).

From the beginning it was very clear that the Hes wanted to go back to China if the child were returned to them.  (Kimbrough Mullins, p. 2500).

I can*t tell the court today I know what kind of life the child would have in China.  (Kimbrough Mullins, p. 2500).

I think there is a potential big loss for the child losing her culture.  (Kimbrough Mullins, p. 2508).  The child  perceived that she looked differently than the Bakers* other children.  (Kimbrough Mullins, p. 2507).

I met with the Bakers first, then spoke with Diane Chunn, then met with the Hes.  (Kimbrough Mullins, p. 2498). I first met with the child on October 21 or 22, 2001.   (Kimbrough Mullins, p. 2522).    Ms. Chunn told me before I met the Hes that Mrs. He was not interested in adoption once the child was born. (Kimbrough Mullins, p. 2519).

I wanted a psychologist involved to find out the effect on the child if removed from the Bakers and also wanted to know the potential effect if parental rights were terminated.  (Kimbrough Mullins, p. 2503).  I wanted to get something to gauge or quantify losses to the child.  (Kimbrough Mullins, p. 2504).

At the time of my interim report in October 2001 I had interviewed all parties and other people, but had not done home visits or met the child.  (Kimbrough Mullins, p. 2680).  I recommended in my October 10, 2001 report that it could be helpful to the court to have the adults evaluated.  (Kimbrough Mullins, p. 2508).  The court seemed favorable to both suggestions.  (Kimbrough Mullins, p. 2509). 

When we were at court on February 7, 2002 I reiterated to the court that it would be helpful to have the adults evaluated if there was money.  (Kimbrough Mullins, p. 2510).      

In a chambers conference in July 2002 the Chancellor was informed about Dr. Goldstein*s inability to perform psychological evaluations of the Hes due to the language problem, and the Chancellor decided not to do psychological testing on the Bakers.  (Kimbrough Mullins, p. 2512).

By July 2002 Dr. Goldstein had long since done the evaluation I requested with respect to the child.  (Kimbrough Mullins, p. 2512).

I spent comparably equal time with the Bakers and with the Hes.  (Kimbrough Mullins, p. 2515).  I visited the Hes* home on November 13, 2001 and in September 2003, and I visited the Bakers* home probably one more time than the Hes*.  (Kimbrough Mullins, p. 2582)..

I have never seen Andy.  (Kimbrough Mullins, p. 2515).  When I went to the Hes home in November 2001 they told me Andy was in China.  (Kimbrough Mullins, p. 2516).  I have seen a DVD of Andy in China, and I know that Andy is back in U. S. now.  (Kimbrough Mullins, p. 2517).

I brought up the issue of DNA paternity testing with Mr. He.  (Kimbrough Mullins, p. 2519).

I have no suspicion of drug abuse on the part of the Hes or the Bakers.  (Kimbrough Mullins, p. 2519).

I do not have a degree in child development, but my father is a developmental pediatrician, and I have two children aged 7 and 10, and my father and I share a keen interest in child development.  (Kimbrough Mullins, p. 2519).

I did not investigate the reported dental condition which required crowns for the child.  (Kimbrough Mullins, p. 2539).

I was exposed to Avita and to Mrs. He taking care of Avita at court hearings and depositions, and I also observed Avita at the Hes* home in September 2003.  (Kimbrough Mullins, p. 2542).  I think all the places I saw the Hes with Avita were appropriate. .  (Kimbrough Mullins, p. 2543).  When I visited the Hes* home in September 2003 there was an absence of negative behavior, and Mrs. He was attentive to Avita. (Kimbrough Mullins, p. 2544).  There was no evidence in September 2003 that Avita was not being properly cared for.  (Kimbrough Mullins, p. 2548).  

I noted in my report that Mr. He bragged that Chun Ching was the most polluted city in China.  (Kimbrough Mullins, p. 2548).  A secondary issue for me was what kind of environment this child might expect in China.  (Kimbrough Mullins, p. 2549).     

Nobody had ever said Andy was abused, and I was not worried about Andy being abused.  (Kimbrough Mullins, p. 2550).

I was the one who actually defined for Dr. Goldstein what the scope of his assignment would be.  (Kimbrough Mullins, p. 2552).  I don*t remember what the court order said.  (Kimbrough Mullins, p. 2552).

I was concerned about establishing a new status quo for the child which she might possibly lose.  (Kimbrough Mullins, p. 2564).  Although the Hes were visiting the child, they weren*t available to her when she was forming the primary attachments of her life for whatever reason, and because of that, because they were not available, she made herself the child of the people who were.  (Kimbrough Mullins, p. 2565).  I did not presume the result of this case.  (Kimbrough Mullins, p. 2566).

I have reviewed the February 7, 2002 transcript and I don*t see where the no contact order was in the transcript.  (Kimbrough Mullins, p. 2569).  The no contact order memorialized the status quo which I wanted to maintain.  (Kimbrough Mullins, p. 2572).   

I was not recommending visits but was considering additional assessment sessions.  (Kimbrough Mullins, p. 2593).  I did not perceive that a delay in an attachment assessment between May 19, 2003 and August 28, 2003 was an undue amount of time. (Kimbrough Mullins, p. 2581).

I already believed or thought that forging this new relationship with the child could be harmful in some way to the child if she was going to lose it, although Doctors Ciocca and Hutson don*t agree with me on that. (Kimbrough Mullins, p. 2596).

I didn*t know whether the Bakers could have benefited from the child support checks sent by the Hes. (Kimbrough Mullins, p. 2627).

We had gathered at court on February 7, 2002 on Mr. Parrish*s motion for guardian ad litem fees.  (Kimbrough Mullins, p. 2661).

I raised the question about the Hes continuing to have the child*s passport, so the hearing went beyond what it was originally set for. .  (Kimbrough Mullins, p. 2662).

There was a lot of fear going on surrounding the passport, and I did know that it was the Hes* intention to take the child back to China, and she*s an American citizen, and I wanted to be sure that we sort of ratcheted down the fear level some, and ultimately, the court agreed with me.  (Kimbrough Mullins, p. 2662).

.           There was no petition or motion for an order of guardianship before the court on February 7, 2002.  (Kimbrough Mullins, p. 2683).

This is the first time I have ever served as a guardian ad litem with respect to an adoption.  (Kimbrough Mullins, p. 2686).

By the time I became involved in this case, to have had visitation would have potentially created a new kind of loss for the child, so I took the position that the adoption needed to be concluded first before the child should be exposed to the Hes.  (Kimbrough Mullins, p. 2690).  Think the level of attachment between the child and the Hes was already not going to be positive when I got on the case, and I don*t really think the lapse of and additional 2 ½ years has made the situation worse.  (Kimbrough Mullins, p. 2691).  I think the opportunities to form attachments had passed by the time I got involved.  (Kimbrough Mullins, p. 2692).

I cannot understand why the Hes may fees I had presumed the ultimate result almost from the moment I took the case.  (Kimbrough Mullins, p. 2693).  I considered the stressors on Mrs. He in placing the child with the Bakers, but I wouldn*t have done it.  (Kimbrough Mullins, p. 2694).

The child is an American citizen.  I do not know whether she is also a Chinese citizen.  (Kimbrough Mullins, p. 2696).

I do not think I have had cultural bias.  (Kimbrough Mullins, p. 2699).  I have also inquired as to cultural issues through personal experiences of close friends and family member who have gone to China and adopted children.  (Kimbrough Mullins, p. 2698). 

.           The Bakers have never been psychologically evaluated.  (Kimbrough Mullins, p. 2705).

I did not really observe any characteristics of the Hes in the child.  The child is reserved and the Hes are not.  (Kimbrough Mullins, p. 2708).

I took the Bakers* word that they had contacted the Exchange Club.  (Kimbrough Mullins, p. 2711).

Comparison Chart Showing Trial Court*s Findings of Fact

In Relation in Countervailing Evidence Adduced at Trial

The following is a comparison chart setting forth many of the trial court*s critical findings of fact in relation to other, countervailing evidence presented at trial.   Most of the countervailing evidence comes from independent witnesses the court specifically found to be credible. (See column 2).   Much of the countervailing evidence comes from the Bakers themselves.  At a glance, one can easily see the differences between the trial court*s findings and the actual evidence adduced at trial.  The chart attempts to isolate the Hes* testimony in column 3, since the trial court found the Hes lacking in credibility.

           

Trial Court*s Findings of Fact and Conclusions of Law

Countervailing Evidence Not from Respondents

Countervailing Evidence  from Respondents

 

 

 

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.

The guardian ad litem admitted that she brought up the issue of DNA paternity testing with Mr. He.  (Kim Mullins, p. 2519)

 

Respondents* former counsel, Dennis Sossamon, advised the Court on February 7, 2002, as follows:  ※My statement to your Honor when we were discussing the DNA is that my client would not object to DNA testing.  If he has something to show otherwise, I do not believe I said my client wants DNA testing.  Your Honor, if the Court please, the DNA testing was done at the choice of the petitioners in this cause.  My client should not share in the cost of DNA testing.  It was a matter they wanted for their proof.  (February 7, 2002 transcript of hearing, p. 24, lines 24-25; p. 25, lines 1-12).

Mr. He testified that he did not tell the guardian ad litem that he wanted a DNA test. (Mr. He, p. 1875).

32.  Mr. Baker testified in an honest, straightforward, sincere manner.

In Mr. Baker*s answer to interrogatory number 3, he took the position that during the incident of January 28, 2001, the Hes were instructed not to return to the home of the Bakers.  This was without qualification.  (T.R. Vol. 2, 295A, p. D) 

 

At trial, Mr. Baker testified that the police merely told the Hes* not to return ※that day.§  (Jerry Baker, pp. 879-881).

The respondents were told by the police not to return to the Baker home or they would be arrested. (Dep. of Shao-Qiang (Jack) He, p. 272, L. 11-22)

33.  Mrs. Baker impressed the Court as a sincere, honest, credible witness.

During the 90-day foster period, the Hes attempted to pay $300.00 cash to the Bakers while in the Bakers* living room, but the Bakers did not accept the money.  (Mrs. He, pp. 2181-2182).

Louise Baker first described the $300 payment as ※they threw a big sum of money on the couch#.§  (Louise Baker, p. 432; emphasis added).

 

However, when Mrs. Baker was later asked if she could explain how the $300.00 was ※thrown§ on her couch, she testified that ※It was just here, and we*re trying to figure out what it is, you know, what it*s for.§  (Louise Baker, p. 695).

 

Louise Baker admitted that her purpose in keeping the journal was to establish some kind of document or paper trail so that if the Hes say ※we want her back,§ Ms. Baker would have a record to use in court. (Louise Baker, p. 448)

 

Louise Baker never revealed to the Hes that she was keeping a journal of their visits with AMH.  (Louise Baker, p. 449).

 

Louise Baker's journal is entitled "Visits from Jack and Casey."  (Exhibit 50). 

 

The very first entry in Louise Baker's journal reads as follows:  "gained custody on 6-4-99."  (Louise Baker, pp. 448-449; Exhibit 50; emphasis added).

 

Diane Chunn of Mid-South Christian Services called Mrs. Baker on May 4, 2000, to inform her that the Hes* had filed a petition in juvenile court for the return of AMH. (Louise Baker, p. 460-462). 

 

When asked whether Diane Chunn had called Louise Baker as a ※friend,§ Mrs. Baker initially denied it. (Louise Baker, p. 464). 

 

However, after being impeached with her prior deposition testimony, she admitted that Ms. Chunn was helping her as a ※friend#but we were not good friends.§  (Louise Baker, p. 466).

 

In Mrs. Baker*s answer to interrogatory number 3, she took the position that during the incident of January 28, 2001, the Hes were instructed not to return to the home of the Bakers.  This was without qualification.  (T.R.  Vol. 2,  p.290). 

 

At trial, Mrs. Baker testified that the police merely told the Hes* not to return ※that day.§  (Louise Baker, p. 477).

 

Louise Baker admitted during cross examination that after the incident of January 28, 2001, the Bakers did not want the Hes back in their home.  (Louise Baker, p. 479).

 

Shortly after the incident of January 28, 2001, Louise Baker claims to have called the Exchange Club to gather ※information about what to do§ regarding future visits.  (Louise Baker, pp. 479-480).

 

However, Louise Baker did not bother to call Mr. and Mrs. He to let them know about the new information she had allegedly just received from the Exchange Club, stating that ※it wasn*t my place to call Mr. and Ms. He.  They would call when they wanted to visit.§  (Louise Baker, p. 480).

 

Louise Baker testified that the purpose of her journal was to document all events that she personally viewed as significant with respect to the Hes, yet she made no mention of her purported call to the exchange club in her journal.  (Louise Baker, p. 779-780).

The respondents were told by the police not to return to the Baker home or they would be arrested. (Dep. of Shao-Qiang (Jack) He, p. 272, L. 11-22)

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.

In her October 3, 1999 journal entry, Louise Baker writes, ※The visit was very discouraging to us.  They wanted to see if they could come and get Anna and keep her for the day next Sun.  I told them No.  She is too little to be away from us.  Casey was very distraught, crying very loud#.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.§  (Exhibit 6; emphasis added)

 

Louise Baker admitted at trial that she characterized the visit as discouraging because the Hes wanted to take their daughter out for the day.  (Louise Baker, p. 449).

 

When Louise Baker was asked at trial to explain what she meant when she wrote ※We feel like Jack will try something now,§ she admitted being concerned that:  ※they would try to go get more custody.  I don*t know. Not more custody, more visitation.§  (Louise Baker, p. 458).

 

Louise Baker further admitted that her stated solution to this ※problem§ was ※cutting the visits to every other week.§ (Louise Baker, p. 454-455).

 

44.  Although Mrs. He does not speak the English language fluently, she appears to speak and understand English better than she professes.

It is not clear whether the Court was referring to her understanding of English at the time of trial or when she signed the consent order transferring custody on June 4, 1999.   However, it is undisputed that her understanding was very limited.  For example, Louise Baker admitted in her own journal on October 31, 1999 that ※It*s sometimes awkward, because she doesn*t speak English.§  (Exhibit 6)

 

Diane Chunn testified that Mrs. He did not speak English well, and, therefore (according to Ms. Chunn), Mrs. He*s presence could not have indicated to her what Mrs. He understood or what Mrs. He did not understand  (Diane Chunn, p. 990, L. 14-19)

Mrs. He arrived in the United States on June 30, 1998. (Mrs. He, p. 2171, L. 21-22).  Thus, by the time of trial, she had been in this country for almost six years.  On the other hand, when she signed the consent order transferring custody on June 4, 1999, she had been in this country for only one year.  Certainly, her English could have improved by the time of trial, and Mrs. He acknowledged some improvement when she testified at trial that her English had improved "not a lot,§ which, of course, is very subjective. (Mrs. He, p. 2176, L. 15-16).

 

 

44.  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.

See above

See above

44.  She also spoke English during the incident when she was holding a sign outside of the Bakers* home, and the Bakers* neighbor, Rebecca Smith, asked Mrs. He to move her car, and she spoke English during the December 2003 incident at the Wal-Mart store.

 

See above

See above

44.  During the trial, in response to a question from attorney Linda Holmes, Mrs. He responded to the question by speaking in 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.

See above

 

This in no way demonstrates a proficiency in anything other than the most basic of English

See above

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.

There is no evidence in the record that Mrs. He ever received any calls from the INS. 

 

There is no evidence in the record that Mrs. He even knew of any calls from the INS.

 

Neither the petitioners nor the guardian ad litem called any witnesses from the INS to testify regarding the timing of calls from the INS.

 

Neither the petitioners nor the guardian ad litem presented any affirmative proof of their own on this issue.

 

Even if there had been a connection between the petitions and the INS calls, it is more reasonable to conclude that the respondents were trying to get their daughter back so they could take her with them to China prior to being deported.

 

No immigration expert testimony was presented at trial opining that a pending custody petition would entitle an illegal alien to a stay of deportation proceedings.

 

There is no evidence in the record that the Hes* believed, rightly or wrongly, that a pending custody petition would entitle them to a stay of deportation proceedings.

 

Correlation does not imply causation.  The mere fact that two events might be related in time, in no way establishes that one event caused the other, particularly under a clear and convincing standard.

 

 

 

As for Mr. He, he only recalled receiving a call from the INS about one month prior to the filing of the first juvenile court petition to modify in the year 2000. ( Mr. He, p. 1775-1779)

 

With regard to the timing of the April 9, 2001 juvenile court petition, Mr. He guessed that he might have been called by the INS between March and May.  However, when specifically asked if he received the call before April 9, 2001 (being the date of the second juvenile court petition), he responded, ※I*m not sure, ma*am.§  (R. 1926, L. 14-24).

 

Even assuming close proximity, the only evidence presented on the issue of whether the petitions were related to the INS calls, was the testimony of Mr. He that ※they*re not related§ and ※there*s no cause and effect relationship.§ (Mr. He, p. 1924, L. 15-21)

 

If the parties had only been interested in regaining custody when deportation seemed imminent, then the Hes* would have filed ※many§ petitions to regain custody, rather than just two, because Mr. He had been in immigration court ※many times§ and/or ※a few times.§ (Mr. He, p. 1175, L. 20-24; 1176, L. 3-8).

 

Mr. He testified that he was, indeed, afraid of deportation, but his fear was that he would be deported before getting his child back.  (Mr. He, p. 1933, L. 1-15).

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.

 

There is no evidence in the record indicating that the Hes have ever been convicted of any crime.

 

It is undisputed that Mr. He was acquitted of the sexual assault charge.

50.  Dr. Copper testified that in China telling a falsehood about family matters would be bad, but telling a falsehood to the government would not be as bad.  The Court finds Dr. Copper*s testimony to be totally lacking in credibility.

There was no countervailing expert testimony presented to rebut this statement.

 

Dr. Copper*s point was that, in Chinese culture, preserving the family unit is of such vital importance, that telling a falsehood to an official authority in order to preserve the family is not viewed as negatively as it would be in the United States. (Dr. Copper, p. 1447-1448).  

 

Dr. Copper*s credentials are quite impressive.  (Exhibits 22, 23)

 

50.  The Court agrees with the findings of the United States Bankruptcy Court for the Western District of Tennessee, in its October 31, 2003, Memorandum Opinion, which was entered into evidence as Trial Exhibit 26, that Dr. Copper*s testimony is unbelievable, and totally lacking in credibility.

The findings of the United States Bankruptcy Court were related to the personal affairs of Dr. Copper with regard to his ex-spouse and have no bearing on his credibility as a scholar in Asian studies and Chinese culture. 

 

In fact, the Bankruptcy Court Judge noted in her opinion the following:

 

※The Debtor is the Stanley J. Buckman Distinguished Professor of International Studies at Rhodes College in Memphis, Tennessee, a post he has held since 1984. He is a world-renowned expert on China and Taiwan, has authored more than 25 books on Asian affairs, and travels to Taipei frequently as the guest of various educational and governmental agencies.§ (Exhibit 26; emphasis added).

 

His professional credentials are superior and impressive.  He has been a professor for approximately 35 years, consisting of 26 years as a professor of International Studies at Rhodes college.  He was at Stanford University at the Hoover institution and on the faculty of the Far East Division from the University of Maryland.  Prior to that, he taught at a Chinese university in Taiwan.  He has authored over 20 books plus over 100 academic journals, newspapers and other writings.  Almost all of his published articles, books or treatises have been about China.  He had a White House appointment on the Board of Governors of the East/West Center for six years, and, in 1979, testified before the Senate Foreign Relations Committee.  Subsequently, he testified before the Subcommittees and the House Foreign Affairs Committee.  Just two weeks prior to this trial, he had testified before the U.S./China Commission which is in Congress.  (Dr. Copper, p. 1391-1397).

 

50.  The Court further finds that Dr. Copper is not an expert in Chinese Adoption law, nor is he an expert on termination of parental rights.

Dr. Copper was not offered as an expert in Chinese Adoption law or termination of parental rights. 

 

Instead, he was offered as an expert in Chinese culture. (Dr. Copper, p. 1398, L. 14-16).

 

51.  The Court has previously ruled that the underlying facts or data relied upon by Dr. Chang in forming her opinion regarding Mrs. He*s mental health indicate lack of trustworthiness, and excluded Dr. Chang*s testimony as to Mrs. He.

Neither the petitioner nor the guardian ad litem presented any expert testimony regarding the mental competency of Mrs. He. 

 

Neither the petitioner nor the guardian ad litem ever filed a Motion for Mental Examination of Mrs. He under Rule 35 of the Tennessee Rules of Civil Procedure.

 

52.  The Court finds the credibility of Mr. He to be seriously lacking; therefore, the opinions given by Dr. Chang, based on Mr. He*s credibility, are entitled to no weight.

Neither the petitioner nor the guardian ad litem presented any expert testimony regarding the mental competency of Mr. He. 

 

Neither the petitioner nor the guardian ad litem ever filed a Motion for Mental Examination of Mr. He under Rule 35 of the Tennessee Rules of Civil Procedure.

 

54.  Dr. Goldstein served the Court and provided the Court with his opinion, without any interest in the outcome of the cause and without representing the interests of either the Hes or the Bakers.

Dr. Hutson testified as follows:

 

Dr. Goldstein did not properly perform his duties as the court-appointed psychologist.  (John Hutson, Ph.D., p. 2076). 

 

He evaluated none of the parties involved.  (John Hutson, Ph.D., p. 2076). 

 

Although he did see the child and made some opinions in his report, I would not call it a psychological evaluation of the child either.  (John Hutson, Ph.D., p. 2076). 

 

I don*t think he did anything with regard to evaluation.  (John Hutson, Ph.D., p. 2945).

           

The distribution of visits by Dr, Goldstein with the Bakers and with Hes was  extremely disproportionate.  (John Hutson, Ph.D., p. 2077). 

 

Dr. Goldstein had already made his assessment and submitted it in writing long before the video session and has submitted no addendum report.  (John Hutson, Ph.D., p. 2107).   

 

I understand that the meeting was held at the prompting of the attorneys and not at his request.  (John Hutson, Ph.D., p. 2107).

 

 

55.  Dr. Goldstein was diligent and thorough in his examination and evaluation of AMH and AMH*s attachment with the Bakers, and with his evaluation of AMH*s reaction to AMH*s visit with the Hes in Dr. Goldstein*s office, on September 23, 2003.

Dr. Goldstein did not do psychological evaluations of any of the adults, and  formed no opinions as to the behavior or emotional behavioral and adjustment or emotional adjustment of the Hes or of the Bakers.  (David Goldstein, Ph.D., p. 2772).

 

In Dr. Goldstein*s own experience, 90% of adopted children want to know more about their biological parents 每 especially during adolescence.  They want to know why they were given up, questions about identity, confusion.  (David Goldstein, Ph.D., p. 2776).

 

Dr. Goldstein felt that a visitation evaluation was outside the scope of his role.  (David Goldstein, Ph.D., p. 2784).

 

According to Dr. Goldstein, it was outside the scope of his evaluation to judge or assess how the child got into the situation she is in now or to consider the effect on the child if she learned later some things about the Bakers that perhaps are less flattering.  (David Goldstein, Ph.D., p. 2784).

 

Dr. Goldstein learned what his role would be in this case through the guardian ad litem.  They defined the parameters jointly.  (David Goldstein, Ph.D., p.2797).

 

Dr. Goldstein did not bring all of his notes with him to court.  (David Goldstein, Ph.D., p.2801).           

 

Dr. Goldstein does believe that new attachments can be formed.  (David Goldstein, Ph.D., p.2804).

 

Dr. Goldstein has consistently been unable to say that visitation should or should not take place. (David Goldstein, Ph.D., p.2807).

 

Dr. Goldstein has not at any time in this case made any opinion as to custody.  (David Goldstein, Ph.D., p.2807).

 

According to Dr. Goldstein, it is outside the scope of his evaluation to give an opinion as to the single most significant psychological event in the child*s life.  (David Goldstein, Ph.D., p.2808).

 

Dr. Goldstein can only speculate whether the two-year additional delay in establishing contact improves, reduces or leaves unchanged the prospects of successful reunification or successful establishment of contact between the child and the Hes.  (David Goldstein, Ph.D., p.2810).

 

According to Dr. Goldstein, he was not rendering an opinion as to whether it is in the child*s best interest to have no further contact with her biological parents for the rest of her life.   (David Goldstein, Ph.D., p.2812).

 

According to Dr. Goldstein, it is possible that a child if cared for in a very comprehensive, maternal-like way, could form a primary attachment with a nanny.  (David Goldstein, Ph.D., p.2812).

 

It is outside my area to answer whether there is any psychological preference as to whether families should be formed by adoption as a first resort or as a last resort. (David Goldstein, Ph.D., p.2816).

 

Dr. Goldstein does not feel qualified based on his evaluation in this case to have any opinion as to what role or capacity ought to be carved out for the biological parents of this child.  (David Goldstein, Ph.D., p.2817).

 

Dr. Goldstein*s opinion is not intended to be a recommendation concerning custody or a recommendation regarding termination of parental rights.   (David Goldstein, Ph.D., p.3072).

 

It was beyond the scope of Dr. Goldstein*s evaluation to consider a role to be carved out for the child to have contact with the Hes in the event the child is left with the Bakers.  (David Goldstein, Ph.D., p. 3124).

 

Dr. Goldstein has a lack of familiarity with Chinese language and culture.  (David Goldstein, Ph.D., p. 3125).

 

56.  Dr. Hutson never personally interviewed or evaluated AMH, so his testimony was limited to that which he observed on the videotaped session with the Bakers, the Hes, and AMH in Dr. Goldstein*s office on September 23, 2003, and his experience as a psychologist.  Dr. Hutson*s testimony was of little assistance to the Court.

Dr. Hutson*s testimony was not limited to the videotape. He also reviewed Dr. Goldstein*s records, the deposition of Dr. Goldstein taken on May 19, 2003, the former testimony of Dr. Goldstein taken during a hearing conducted on January 27, 2004, the order defining the scope of Dr. Goldstein*s role, and the testimony of Dr. Goldstein at this trial. (Dr. Hutson, p. 2068, 2070-2074, 2938).

 

In addition to providing opinions on the video, Dr. Hutson was also offered to give an opinion regarding the manner in which Dr. Goldstein performed his duties as a court-appointed psychologist. (Dr. Hutson, p. 2073, L.6-9).  

 

57.  Dr. Ciocca never personally interviewed or evaluated AMH, so his testimony was limited to that which he observed on the videotaped session with the Bakers, the Hes, and AMH in Dr. Goldstein*s office on September 23, 2003, and his experience as a psychologist.  Dr. Ciocca had no opinion as to the level of AMH*s psychological attachment to the Bakers or the Hes.  Dr. Ciocca*s testimony was of little assistance to the Court.

Dr. Ciocca*s opinion was not limited to the videotape. He also reviewed Dr. Goldstein*s work, the depositions, the pleadings responses, and the testimony of Dr. Goldstein at this trial.  (Dr. Ciocca, p. 2146, L. 1-5; 2864).

 

58.  Ms. Mullins, in her fiduciary capacity to AMH and to the Court, has acted in good faith, has shown no bias or prejudice in the performance of her duties, but has steadfastly and diligently advocated for what Ms. Mullins considers to be in AMH*s best interest, regardless of the consequences, based solely upon the information she gathered during her investigation.

The following is a condensed summary of Ms. Mullins* testimony at trial:

 

I had never been a guardian ad litem for a Chinese child before.  (Kimbrough Mullins, p. 2498).

 

This is the first time I have ever served as a guardian ad litem with respect to an adoption.  (Kimbrough Mullins, p. 2686). 

 

I educated myself on Chinese culture by contacting a friend to help me find a translator.  (Kimbrough Mullins, p. 2498). 

 

I called someone I met through my adoption work and was recommended a book on China.  (Kimbrough Mullins, p. 2499).

 

From the beginning it was very clear that the Hes wanted to go back to China if the child were returned to them.  (Kimbrough Mullins, p. 2500).

 

I can*t tell the court today I know what kind of life the child would have in China.  (Kimbrough Mullins, p. 2500).

 

I think there is a potential big loss for the child losing her culture.  (Kimbrough Mullins, p. 2508). 

 

The child perceived that she looked differently than the Bakers* other children.  (Kimbrough Mullins, p. 2507).

 

At the time of my interim report in October 2001, I had interviewed all parties and other people, but had not done home visits or met the child.  (Kimbrough Mullins, p. 2680). 

 

I recommended in my October 10, 2001 report that it could be helpful to the court to have the adults evaluated.  (Kimbrough Mullins, p. 2508).  The court seemed favorable to both suggestions.  (Kimbrough Mullins, p. 2509). 

 

When we were at court on February 7, 2002 I reiterated to the court that it would be helpful to have the adults evaluated if there was money.  (Kimbrough Mullins, p. 2510).

 

I have never seen Andy.  (Kimbrough Mullins, p. 2515). 

 

When I went to the Hes home in November 2001, they told me Andy was in China.  (Kimbrough Mullins, p. 2516). 

 

I have seen a DVD of Andy in China, and I know that Andy is back in U. S. now.  (Kimbrough Mullins, p. 2517).

 

I brought up the issue of DNA paternity testing with Mr. He.  (Kimbrough Mullins, p. 2519).

 

I have no suspicion of drug abuse on the part of the Hes or the Bakers.  (Kimbrough Mullins, p. 2519).

 

I do not have a degree in child development, but my father is a developmental pediatrician, and I have two children aged 7 and 10, and my father and I share a keen interest in child development.  (Kimbrough Mullins, p. 2519).

 

I did not investigate the reported dental condition which required crowns for the child.  (Kimbrough Mullins, p. 2539).

 

I was exposed to Avita and to Mrs. He taking care of Avita at court hearings and depositions, and I also observed Avita at the Hes* home in September 2003.  (Kimbrough Mullins, p. 2542). 

 

I think all the places I saw the Hes with Avita were appropriate. .  (Kimbrough Mullins, p. 2543). 

 

When I visited the Hes* home in September 2003 there was an absence of negative behavior, and Mrs. He was attentive to Avita. (Kimbrough Mullins, p. 2544). 

 

There was no evidence in September 2003 that Avita was not being properly cared for.  (Kimbrough Mullins, p. 2548).

 

Nobody had ever said Andy was abused, and I was not worried about Andy being abused.  (Kimbrough Mullins, p. 2550).

 

I was the one who actually defined for Dr. Goldstein what the scope of his assignment would be.  (Kimbrough Mullins, p. 2552). 

 

I don*t remember what the court order said.  (Kimbrough Mullins, p. 2552).

 

I was concerned about establishing a new status quo for the child which she might possibly lose.  (Kimbrough Mullins, p. 2564). 

 

Although the Hes were visiting the child, they weren*t available to her when she was forming the primary attachments of her life for whatever reason, and because of that, because they were not available, she made herself the child of the people who were.  (Kimbrough Mullins, p. 2565). 

 

I did not presume the result of this case.  (Kimbrough Mullins, p. 2566).

 

I have reviewed the February 7, 2002 transcript and I don*t see where the no contact order was in the transcript.  (Kimbrough Mullins, p. 2569). 

 

The no contact order memorialized the status quo which I wanted to maintain.  (Kimbrough Mullins, p. 2572).

 

I already believed or thought that forging this new relationship with the child could be harmful in some way to the child if she was going to lose it, although Doctors Ciocca and Hutson don*t agree with me on that. (Kimbrough Mullins, p. 2596).

 

By the time I became involved in this case, to have had visitation would have potentially created a new kind of loss for the child, so I took the position that the adoption needed to be concluded first before the child should be exposed to the Hes.  (Kimbrough Mullins, p. 2690). 

 

I think the level of attachment between the child and the Hes was already not going to be positive when I got on the case, and I don*t really think the lapse of and additional 2 ½ years has made the situation worse.  (Kimbrough Mullins, p. 2691). 

 

I think the opportunities to form attachments had passed by the time I got involved.  (Kimbrough Mullins, p. 2692).

 

I cannot understand why the Hes may feel I had presumed the ultimate result almost from the moment I took the case.  (Kimbrough Mullins, p. 2693). 

 

The child is an American citizen.  I do not know whether she is also a Chinese citizen.  (Kimbrough Mullins, p. 2696).

 

I do not think I have had cultural bias.  (Kimbrough Mullins, p. 2699). 

 

I have also inquired as to cultural issues through personal experiences of close friends and family member who have gone to China and adopted children.  (Kimbrough Mullins, p. 2698).

 

I took the Bakers* word that they had contacted the Exchange Club.  (Kimbrough Mullins, p. 2711).

 

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: Mr. AC Wharton, Mr. Stephen Sauer, and Mr. James Hodges, Jr.  Mrs. He accompanied Mr. He on many occasions when Mr. He met with these attorneys.  Neither of the Hes ever mentioned to any of these attorneys any need for representation or advice relative to AMH*s custody.  In fact, the Hes never even told these three attorneys about the existence of AMH.

The name James Hodges, Jr. does not appear anywhere in the testimony of Mr. He.

 

 

Mrs. He does testify that she was with Mr. He when he hired his three different criminal defense lawyers, James Hodges, AC Wharton and Stephen Sauer.  (Mrs. He, p.. 173, L. 2-23).

 

However, there is no indication in the record as to when Mr. Hodges was hired or when he was utilized by Mr. He. 

 

The Hes had continuous legal representation in the custody matter ever since Dennis Sossoman undertook their representation in June of 2001. (T.R., Vol. 1, p. 19).

 

Mr. Hes* criminal matter lingered until his acquittal of February 2003.  Thus, from June 2001 through the acquittal and beyond, Mr. and Mrs. He have had continuous legal representation in the custody matter.

65. Mrs. He testified that she sent her younger son, Andy, to the Peoples Republic of China because Mr. Hes* criminal attorney, AC Wharton, told Mrs. He that ※they§ would take the Hes* son and put him up for adoption if Mr. He did not agree to accept the guilty plea offer on Mr. He*s criminal charge.  Neither of the Hes ever mentioned to Attorney Wharton that they also had an older child (AMH), or that they were having difficulty regaining custody of AMH.

 

Mrs. He testified that she was not sure if her husband had asked for help in finding a lawyer for representation in Juvenile Court. (Mrs. He, p. 113, L. 21-24).

 

Mr. Hes* testimony does not appear to address this issue as to Mr. Wharton.

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.

At no time during the conference of June 2, 1999, did either Diane Chunn or Kevin Weaver ever advise Mr. He that he should have his own legal representative present.  (Diane Chunn, p. 1028). 

 

During the meeting of June 1999, Kevin Weaver did not advise Mr. He what might happen if the Hes failed to visit for four consecutive months. (Kevin Weaver, p. 1180).

 

During the meeting of June 2, 1999, Kevin Weaver did not advise Mr. He what might happen if the Hes failed to pay child support for four consecutive months. (Kevin Weaver, pp. 1180-1181).

 

During the meeting of June 2, 1999, Kevin Weaver had no discussions with Mr. He regarding the law of abandonment. (Kevin Weaver, p. 1181).

 

During the meeting of June 2, 1999, Kevin Weaver had no discussion at all with Mr. He regarding the consequences of abandonment.(Kevin Weaver, p. 1181).

 

Kevin Weaver made no effort at all to understand the idiosyncrasies of Chinese culture as it relates to concepts of custody and extended family.  (Kevin Weaver, p. 1182).

 

Kevin Weaver was not aware that the Hes* lifelong upbringing in China and their culture might make it even more difficult for them to understand or relate to what Mr. Weaver was discussing regarding custody.  (Kevin Weaver, p. 1182).

 

Kevin Weaver is ※almost certain§ that he did not talk about guardianship during the meeting of June 2, 1999. (Kevin Weaver, p. 1179).

 

Kevin Weaver could not recall any discussions regarding child support during the meeting of June 2, 1999.  (Kevin Weaver, p. 1178)

 

At the June 2, 1999 meeting, Kevin Weaver, Esq. made it clear to those present that transferring custody of Ward to the Bakers would not terminate the parental rights of the Hes. (T.R., Vol. 7, p. 1013,  ¶ 92)

Mr. He testified that Mr. Weaver advised him that by signing ※something with Court§ then his child would be enrolled into their health insurance program. (Mr. He, p. 1649, L. 19-22).

 

It was just a temporary agreement so AMH could be covered by the Bakers* health insurance program. (Mr. He, p. 1650, L. 4-8).

 

 

67. 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 she was ready to proceed.

The meeting should have been adjourned for a time when, Mrs. He, the mother, could be present.  If Mrs. He could never be present, then the meeting should never have taken place.

Mrs. He was not aware that a meeting had been set for the Bakers and the Hes to meet with attorney Kevin Weaver. (Mrs. He, p. 2265, L. 5-8)

 

Mrs. He did not recall Mr. He calling her on his cell phone to tell her that Mr. He was meeting with Mr. Weaver. (Mrs. He, p. 117-118).

 

Mr. He testified that he did not call Mrs. He during the meeting with Mr. Weaver and the Bakers. (Mr. He, p. 1650-1651).

 

Mr. He did not own a cell phone in the United States until May of 2000. (Mr. He, p. 1651, L. 1-3).

 

Mrs. He was later told that a meeting had taken place, but Mr. He did not tell her that this person was a lawyer. (Mrs. He 2265, L. 9-18).

67. Mr. Weaver answered all of Mr. He*s and the Bakers* questions during the meeting.

 

This in no way implies that all the right questions were asked or that Mr. He had enough information or knowledge from which to formulate relevant questions.

 

67. Mr. He later advised Mrs. He of the information that Mr. Weaver imparted at the meeting.

There is no testimony from Mrs. He in the record indicating she was advised one way or the other regarding the information imparted at the meeting.

 

 

Mr. He testified that he did inform Mrs. He about the meeting, but only told her that it was the same kind of agreement as before (during the 90-day foster period) with one difference:  that they would need to sign something so that AMH could be covered by the Bakers* health insurance. (Mr. He, p. 1651, L. 4-15).

 

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.  Ms. Chunn wanted to make certain that Mrs. He understood what she would be doing if Mrs. He signed a consent custody order, and whether Mrs. He was one hundred percent willing for a transfer of custody of AMH from the Hes to the Bakers.  Ms. Chunn explained to Mrs. He the things that Kevin Weaver had said to Ms. Chunn, the Bakers, and Mr. He, the day before in the meeting in Mr. Weaver*s office.  Mrs. He indicated that she understood everything that Ms. Chunn had told her through Mr. Yao.  Mrs. He asked no questions of Ms. Chunn, through Mr. Yao.

 

 There is no evidence in the record indicating that Ms. Chunn, Mr. Yao or anyone else met with Mrs. He at her apartment or anywhere else on June 3, 1999. (Diane Chunn, p. 950, L. 4-11).

 

Diane Chunn, stated just the opposite, when she testified that following the meeting of June 2, 1999 (in which Mrs. He was absent), Ms. Chunn was not in the presence of Mrs. He until June 4, 1999. (Diane Chunn, p. 950, L. 4-11)

 

Mrs. Hes* first explanation of the upcoming custody transfer, occurred on the same day as the transfer, June 4, 1999, at which time the only information she received was that which was imparted to her from Sarah Cloud through the interpreter, Pastor Kenny Yau.  (Sarah Cloud, p. 1238-1239).

 

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.

The only information Mrs. He received was that which was imparted to her from Sarah Cloud through the interpreter, Pastor Kenny Yau.  (Sarah Cloud, p. 1238-1239).

 

Mrs. He was given the following information from Pastor Yau on June 4, 1999:

 

According to Pastor Yau, ※guardianship§ was explained as being the willingness of the Bakers to ※temporarily take care of the baby.§ (Pastor Kenny Yau, p. 1994).

           

Because of the need for medical care for the baby, the ※guardians or the custodians§ need to have medical insurance for the baby.  (Pastor Kenny Yau, p. 1995).

 

Although Pastor Yau agreed during cross examination that technically the duration of ※temporary§ lasts until the period is over (meaning it might be one day, one minute or 50 years), the word was used in a very specific way on June 4, 1999.  Specifically, as used on June 4, 1999, the word ※temporary§ was assumed to be ※only for a short period of time.§  (Pastor Kenny Yau, pp. 2017, 2020; emphasis added).

 

When Pastor Yau was asked whether he was merely assuming that the word ※temporary§ meant a short period of time on June 4, 1999, he replied ※no.§  (Pastor Kenny Yau, p. 2018).

 

Pastor Yau elaborated as follows:  ※I was born and raised and grew up in the Chinese community.  So I know the language of the Chinese, and I*ve been learning English for the past 30 years.  The word ※temporary§ could not be meant indefinite.  Temporary 每 to the best of my understanding of the English word, temporary means it is a short period or - - it is indefinite, but it is a short period of indefinite time#.§

(Pastor Kenny Yau, p. 2020; emphasis added).

 

Pastor Yau made no explanation to Mrs. He as to what it would take for her to get the child back.  (Pastor Kenny Yau, p. 1995).

 

Pastor Yau testified as follows:  ※The possible complication, like if a party or either party, you know, disagree or disagree, was not mentioned during that day - - during that time.§  (Pastor Kenny Yau, p. 2017; emphasis added).

 

When Sarah Cloud was asked whether the Hes ever indicated whether they were interested in a temporary or permanent arrangement, Ms. Cloud responded, ※temporary.§ (Sarah Cloud, p. 1210).

 

 Sarah Cloud recalls that Casey was ※very concerned that it was not a permanent situation.  She did not want it to be a permanent situation.§  She made that very clear to Ms. Cloud. (Sarah Cloud, pp. 1210-1211).

           

According to Sarah Cloud, Mrs. He was ※fairly adamant that at some point she wanted her child back.§  (Sarah Cloud, p. 1263).

           

Sarah Cloud also understood that the Bakers wanted a temporary arrangement.  (Sarah Cloud, p. 1252-1253).

 

According to Sarah Cloud, who believes she was the one that probably typed the June 4, 1999 petition, the phrase ※at this time§ indicated to her that ※the Hes felt like they had a temporary financial setback and they were at this time unable to provide for the child financially.  (Sarah Cloud, p. 1214).

 

At no time during the Juvenile Court meeting of June 4, 1999 did Sarah Cloud or Diane Chunn ever advise the respondents that the respondents* parental rights could be subject to termination if the respondents willfully failed to pay child support or visit the minor child for at least four (4) consecutive months.   

 

At no time during the Juvenile Court meeting of June 4, 1999 did Sarah Cloud or Diane Chunn ever advise the respondents regarding the law of abandonment, termination of parental rights and/or the consequences of abandonment. 

 

At no time during the Juvenile Court meeting of June 4, 1999 did any judge or referee ever advise the respondents that the respondents* parental rights could be subject to termination if the respondents willfully failed to pay child support or visit the minor child for at least four (4) consecutive months.  (Sarah Cloud, p. 1218).

 

At no time during the Juvenile Court meeting of June 4, 1999 did any judge or referee ever advise the respondents regarding the law of abandonment, termination of parental rights and/or the consequences of abandonment.  (Sarah Cloud, p. 1218).

 

Sarah Cloud could not recall whether anyone ever explained to the respondents that they could have a judge consider their June 4, 1999 petition in open court.  (Sarah Cloud, pp. 1217-1218)

 

At no time did any judge conduct any kind of open court examination to make sure that the respondents understood what was occurring on June 4, 1999.  (Sarah Cloud, p. 1218). 

 

This is true even though the June 4, 1999 petition petitions Juvenile Court with the words:  ※Premises considered, petitioner [Mr. He/Ms. Luo] prays that the Court make inquiry into the allegations herein set forth and make such orders as the Court may deem proper and in the best interest of said child(ren).§  (JPO, Exhibit A; emphasis added).

 

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.

Perhaps the Hes* did not believe they needed an attorney.  Perhaps they were satisfied with whatever advice they had received. 

 

Sarah Cloud and Pastor Yau, as indicated above, went at great lengths to assure Mrs. He that the arrangement was temporary; i.e., not in the legal sense, but as a non-lawyer would understand the term〞for a short period of time. 

 

72. Both Mr. and Mrs. He had many opportunities to obtain legal advice, and did receive legal advice from attorney Kevin Weaver, about their decision to petition the Juvenile Court to place custody of AMH with the Bakers, before the Hes signed the petition and consent order.

Only Mr. He, not Mrs. He, met with Mr. Weaver.

 

Mr. Weaver was also the attorney for Mid-South Christian Services.

 

Diane Chunn, Director of Mid-South Christian Services, arranged the June 2, 1999 meeting with Mr. Weaver.

 

The Bakers paid the bill for Mr. Weaver*s services regarding the June 2, 1999 meeting.

 

Louise Baker considered Diane Chunn a friend.

 

The Bakers had a previous relationship with Mid-South going back over one year before the birth of AMH.

 

Counsel for Mid-South Christian Services, Mr. Weaver, represented the Bakers against the Hes in the two subsequent juvenile court proceedings and in the termination of parental rights proceeding filed in Chancery Court.

 

Mid-South Christian Services was appointed by the Chancery Court to supervise the adoption of AMH at the request of counsel for Mid-South, Mr. Weaver.

 

73. There was no law, rule, regulation, fraud, duress, undue influence, or trickery which caused the Hes, at the outset, to petition the Juvenile Court to give legal custody of AMH to the Bakers.

The Hes were motivated purely by financial need and inability to care for AMH at that time.  (Sarah Cloud, p. 1214).

 

76. The first time the Bakers considered the idea of adopting AMH was in May 1999, when the Hes suggested to the Bakers that the Hes wanted the Bakers to adopt and raise AMH.

The Bakers had long been interested in adopting a child.  For example, when they completed their foster care application with Mid-South Christian Services almost 1 and ½ years earlier (December 31, 1997), they wrote: ※also this will be a way for us to make our decision if we still in a year want to continue our desire for adoption.§ (Exhibit 10; p. 3; Louise Baker 416-417)

 

When Louise Baker was asked what she meant by the use of the phrase ※desire for adoption§ in the Bakers* foster care application, she testified, ※bad choice of words, maybe.§ (Louise Baker, 420).

 

Diane Chunn testified that the Bakers did say that ※they had thought about adoption in the future.§ (Diane Chunn. P. 994, L. 5-10).

 

In spite of the Bakers* claim that there was an agreement that they would raise AMH ※for the rest of her life,§ Louise Baker admitted at trial that they have nothing in writing to substantiate such an agreement; nor do they have any witness that could substantiate the purported agreement. (Louise Baker 446-447).

Aware that the Hes were interested in sending AMH to China, that they were unwilling to relinquish their daughter, that they wanted to retain their parental rights and that they were in financial difficulty, Jerry Baker attempted to persuade Mr. He not to send AMH to China, stating that such a plan was not a good idea because the Hes would be sending AMH to the other side of the earth and it would be very difficult for the Hes to see or visit their daughter.  (Mr. He, p. 1645).

 

As a result, Jerry Baker indicated that the Bakers would take good care of AMH, and when the Hes were ready to get their daughter back, they could get her back very easily.  (Mr. He, p. 1646)

78. The Bakers did not decide to file a petition to adopt and terminate parental rights until after  being served with the Hes* second Petition to Modify custody, filed in Juvenile Court on May 29, 2001.

The testimony of Mr. Baker himself, a witness the court found to be credible, directly contradicts this.  Specifically, Mr. Baker testified that they wanted to terminate parental rights after the Hes filed their first petition (May 3, 2000) to modify custody, because that was when it was clear to them that the Hes had ※breached that contract.§ (Jerry Baker, p. 865-873).

 

Jerry Baker admitted that his reason for waiting more than a year to actually file the petition to terminate parental rights was due to the advice of his attorney. (Jerry Baker, 874-875)  

 

81. As a birth-parent counselor for the Hes, Ms. Chunn*s responsibilities were to provide ongoing counseling to the birth parents so the Hes could work through the pros and cons of adoption.

Ms. Chunn*s responsibilities were to provide counseling to the birth parents to help them look at the options of parenting versus adoption and to help the birth parents facilitate whatever plan they chose. (Diane Chunn, p. 988, lines 12-16; emphasis added). 

 

As a birth parent counselor for respondents, Ms. Chunn considered the respondents to be her clients. (Diane Chunn, p. 989, lines 1-3). 

 

Ms. Chunn also understood that she owed a duty of confidentiality to the respondents, which included ※working for their needs.§  (Diane Chunn, p. 989, lines 5-8).

 

 

82. Mr. He told Ms. Chunn that Mrs. He felt ※cheated§ because the prospective adoptive family that the Hes met with on December 1, 1998, were not wealthy, as was the Hes* request.

Ms. Chunn*s testimony only indicates what Mr. He told her.  There is no evidence in the record that Mrs. He ever said these words to Ms. Chunn, either directly or through an interpreter.

 

In fact, out of the thirteen meetings Ms. Chunn had with the Hes, Ms. Chunn had an interpreter present only twice for Mrs. He. (Diane Chunn, p.1101, L. 4-13)

 

This is true even though Ms. Chunn knew that Mrs. He ※spoke very little, if any, English. (Diane Chunn, p. 1101, L. 14-16)

 

This is also true even though Ms. Chunn had doubts about whether Mr. He was ※translating everything in our conversation.§ (Diane Chunn, p. 1101, L. 17-21).

 

82. Mr. He told Ms. Chunn that the Hes felt that the prospective adoptive family should be ※taking care of them§ during the birth process, that is, the family should be visiting the Hes and bringing nutritious food and other things for the Hes.

See number 82 above

 

82. The Hes did not go through with the adoption to the family they had first selected to adopt AMH because Mrs. He thought that family was not wealthy enough and was too young.

See number 82 above

 

84. After AMH*s birth, Mrs. He changed her mind about giving AMH up for adoption, even though the Hes had already selected parents to adopt AMH and accepted gifts from them.  Mrs. He informed Ms. Chunn of her decision.

The record does not indicate that Mrs. He personally communicated her own interest in an adoption.

 

86. On February 22, 1999, Mr. He called Ms. Chunn and told her that the Hes were still considering placing AMH for adoption.  Ms. Chunn met with the Hes on February 23, 1999, and discussed adoption and long-term foster care.

During this meeting, Ms. Chunn made the following note:

 

※Met with Jack and Casey. Jack continued to say adoption is the best plan for this child, who he has not fully bonded with. Casey is an attentive mother who appears distant from our conversationAccording to Jack, she is becoming more realistic about their situation. Jack feels the second-best solution is long-term foster care. DCS foster care discussed. Jack feels they will need six months to a year of care,[3] will go to Juvenile Court possibly to inquire.§ (Diane Chunn,  p. 1019, L. 17-24; 1020, L. 1-2).

 

88. On February 24, 1999, the Hes delivered AMH to Mid-South and signed an agreement requesting that Mid-South take AMH into foster care for ninety (90) days.

In spite of the delivery of AMH into ※foster care§ with Mid-South, a licensed ※child-placing agency,§ Mid-South failed to provide the notices and warnings required by T.C.A. ∫ 37-2-403(a)(2)(A) and (2)(B)(i), which provides very specific due process protections for natural parents who place their children in the foster care of an agency.

 

Mid-South*s violation of this law was further exacerbated by their continued involvement at the end of the 90-day foster period when they:

 

1.      Arranged for their own attorney to meet with the Hes and the Bakers on June 2, 1999;

 

2.      Allowed their own attorney to oppose the Hes in subsequent petitions for custody filed by the Hes;

 

3.      Allowed their own attorney to request that Mid-South be allowed to supervise the adoption in connection with the Petition for Adoption and to Terminate Parental Rights filed by the Bakers against the Hes;

 

4.      Allowed their own attorney to represent the Bakers against the Hes in connection with the Petition for Adoption and to Terminate Parental Rights.

 

5.      Consulted with the Bakers* attorney, who also happened to be their own attorney, to inquire whether Mid-South*s supervision of the adoption amounted to a conflict of interest.

 

90. The Bakers agreed to an extended foster care period for AMH because the Bakers had always accepted the children that Mid-South offered, and because the Hes needed a three (3) month period of time to decide whether they wanted to keep AMH or to give AMH up for adoption.

Mrs. He was already opposed to an adoption and Mid-South was acutely aware of this fact.

 

For example, just prior to the birth of AMH, Diane Chunn visited the respondents at the hospital and Mr. He informed Ms. Chunn that Mrs. He was unwilling to surrender AMH for adoption. (Diane Chunn, p. 940, L. 14-24; 941, L. 1-10).

 

91.  Prior to February 24, 1999, the Bakers had made a deliberate decision that they had no interest in adopting any children, and in furtherance of that decision, Mrs. Baker had surgery in August 1998, to reverse an earlier tubal ligation, in order to make it possible for the Bakers to give birth to another child of their own.

Although Louise Baker had her tubal reversal in August of 1998 and would have theoretically been able to get pregnant, she was still not pregnant by the time the 90-day foster period began on February 24, 1999.  (Louise Baker, p. 733). 

 

This was a good six months after her tubal reversal.  Moreover, Mrs. Baker would have been 36 years old at that time and would soon turn 37 in July of 1999. (Exhibit 10, p. 1). 

 

It is reasonable to infer that the Bakers probably thought the tubal reversal had failed and that Louise Baker*s chances of getting pregnant at this late date, particularly given her age, were remote. 

 

It is also reasonable to infer that the Bakers were starting to view adoption as a viable option once again, all in conformity with their original foster care application dated December 31, 1997 in which they stated ※#also this will be a way for us to make our decision if we still in a year want to continue our desire for adoption.§ (Exhibit 10, p.3).

 

Thus, in May 1999, the Bakers became interested in adopting AMH, not knowing that Louise Baker was about to learn of her own pregnancy in the latter part of June 1999.  (T.R., Vol. 7, p. 1011 ¶ 84; Louise Baker, 733).

 

By the time the Bakers received legal custody of AMH, they still had no knowledge that Louise Baker was pregnant because the Bakers did not learn of Ms. Baker*s pregnancy until two weeks after the June 4, 1999 order.  (Louise Baker, p. 733).

 

However, by that time (June 4, 1999) the Bakers had already grown attached to AMH.  (Louise Baker, pp. 428).

 

93. No one forced the Hes to relinquish care, custody, and control of AMH to Mid-South Christian Services, or to the Bakers.  The Hes voluntarily exercised their fundamental right as parents to transfer custody of AMH to the Bakers.

The Hes transferred custody to the Bakers for financial reasons and health insurance purposes, fully being advised that the arrangement was temporary, and in conformity with the definition Mrs. He received from the interpreter, Pastor Yau, as being for ※a short period of time.§ (Yau, p. 2020)

 

95. On March 8, 1999, the Hes visited with AMH in the Bakers* home with Ms. Chunn present.  Mr. He told Ms. Chunn that Mrs. He would readily agree to adoption if the adoptive couple would allow weekly visits until Mrs. He became pregnant with another child.  Mr. He also told Ms. Chunn that, according to Chinese superstition, AMH was less than an ideal child because of AMH*s difficult birth.

There is no evidence in the record to suggest that Mrs. He ever personally communicated an interest in relinquishing AMH for adoption.  Diane Chunn*s notes were based on statements allegedly made by Mr. He.

 

However, Ms. Chunn had doubts about whether Mr. He was ※translating everything in our conversation.§ (Diane Chunn, p. 1101, L. 17-21).

 

Even Mr. He*s initial consideration of adoption as an alternative is of little consequence because clearly he changed his mind; i.e., no surrender was ever executed by either parent. 

 

95. On March 30, 1999, Mr. He spoke with Ms. Chunn again about the possibility of adoption; he told Ms. Chunn that Mrs. He was comfortable with adoption, but Mrs. He wanted to maintain parental rights of AMH so she could remain in the United States.

There is no proof in the record that Mrs. He ever uttered these words.

 

Diane Chunn*s notes were based on statements allegedly made by Mr. He.

 

However, Ms. Chunn had doubts about whether Mr. He was ※translating everything in our conversation.§ (Diane Chunn, p. 1101, L. 17-21).

 

99. On May 19, 1999, four (4) days before the end of the ninety-day foster care agreement, Ms. Chunn met with Mr. He to discuss future options for AMH*s care.  Mr. He indicated to Ms. Chunn that the Hes wanted to maintain parental rights, but allow the Bakers to keep and raise AMH.

There is no proof in the record that Mrs. He ever uttered these words.

 

Diane Chunn*s notes were based on statements allegedly made by Mr. He.

 

However, Ms. Chunn had doubts about whether Mr. He was ※translating everything in our conversation.§ (Diane Chunn, p. 1101, L. 17-21).

 

100. The Bakers did not suggest to the Hes that the Bakers had any interest in adopting AMH until shortly before the May 23, 1999, expiration of the ninety-day foster care period, when the Hes approached the Bakers with a request that the Bakers adopt AMH.

The Bakers had long been interested in adopting a child.  For example, when they completed their foster care application with Mid-South Christian Services almost 1 and ½ years earlier (December 31, 1997), they wrote: ※also this will be a way for us to make our decision if we still in a year want to continue our desire for adoption.§ (Exhibit 10; p. 3; Louise Baker 416-417)

 

When Louise Baker was asked what she meant by the use of the phrase ※desire for adoption§ in the Bakers* foster care application, she responded, ※bad choice of words, maybe.§ (Louise Baker, 420).

 

Diane Chunn testified that the Bakers did say that ※they had thought about adoption in the future.§ (Diane Chunn, p. 994, L. 5-10).

 

In spite of the Bakers* claim that there was an agreement that they would raise AMH ※for the rest of her life,§ Louise Baker admitted at trial that they have nothing in writing to substantiate such an agreement; nor do they any witness that could substantiate the purported agreement. (Louise Baker 446-447).

Aware that the Hes were interested in sending AMH to China, that they were unwilling to relinquish their daughter, that they wanted to retain their parental rights and that they were in financial difficulty, Jerry Baker attempted to persuade Mr. He not to send AMH to China, stating that such a plan was not a good idea because the Hes would be sending AMH to the other side of the earth and it would be very difficult for the Hes to see or visit their daughter.  (Mr. He, p. 1645).

 

As a result, Jerry Baker indicated that the Bakers would take good care of AMH, and when the Hes were ready to get their daughter back, they could get her back very easily.  (Mr. He, p. 1646)

101. On or about May 23, 1999, the Hes met with the Bakers in the Bakers* home.  Mr. He told the Bakers that the Hes had decided that the Bakers were the family that the Hes wanted to adopt AMH.  However, Mr. He told the Bakers that Mrs. He wanted to retain parental rights so AMH would retain the He surname.  Mr. He explained to the Bakers that Mrs. He wanted AMH to retain the He surname because Mrs. He wanted to stay in the United States and she thought that if AMH kept the He surname it would help the Hes remain in America.   The Bakers told Mr. He that they were unwilling to keep AMH on that basis.

There is no evidence that Mrs. He made these statements or that she participated in this alleged conversation.

 

Even so, none of this diminishes the fact that Sarah Cloud from Juvenile Court was very clear about the motives of Mrs. He:

 

Sarah Cloud recalls that Mrs. He was ※very concerned that it was not a permanent situation.  She did not want it to be a permanent situation.§  She made that very clear to Ms. Cloud. (Sarah Cloud, pp. 1210-1211)..

           

According to Sarah Cloud, Mrs. He was ※fairly adamant that at some point she wanted her child back.§  (Sarah Cloud, p. 1263).

           

Sarah Cloud also understood that the Bakers wanted a temporary arrangement.  (Sarah Cloud, p. 1252-1253).

 

If Mrs. He*s only motive was to use AMH to remain in the United States, why was she so adamant about getting assurances that she could get her child back?

 

If Mrs. He*s only motive was to remain in the United States, why does Louise Baker complain in her journal entry of October 3, 1999, that: ※The visit was very discouraging to us.  They wanted to see if they could come and get Anna and keep her for the day next Sun.  I told them No.  She is too little to be away from us.  Casey was very distraught, crying very loud#.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.§  (Exhibit 6; emphasis added)

 

Louise Baker admitted at trial that she characterized the visit as discouraging because the Hes wanted to take their daughter out for the day.  (Louise Baker, p. 449).

 

When Louise Baker was asked at trial to explain what she meant when she wrote ※We feel like Jack will try something now,§ she admitted being concerned that:  ※they would try to go get more custody.  I don*t know. Not more custody, more visitation.§  (Louise Baker, p. 458).

 

102. Mr. He then told the Bakers that the Hes would take AMH back from the Bakers because the Hes wanted to give AMH to an attorney, in exchange for the attorney helping the Hes with Mrs. He*s civil lawsuit, involving the alleged personal injuries she received while pregnant with AMH.

There is no evidence that Mrs. He made these statements or that she participated in this alleged conversation.

 

102. Mr. He then told the Bakers that both Mr. and Mrs. He wanted the Bakers to take and raise AMH.

There is no evidence that Mrs. He made these statements or that she participated in this alleged conversation.

 

The testimony of Sarah Cloud and Pastor Yau as described above, directly contradict the notion that the Hes were looking for a permanent arrangement.

 

The October 3, 1999 journal entry from Louise Baker contradicts the idea of permanency.

 

The testimony of Louise Baker when she admitted being worried that ※they would try to go get more custody.  I don*t know. Not more custody, more visitation.§  (Louise Baker, p. 202), runs counter to the assertion that the Hes expected the Bakers to raise AMH to adulthood.

 

On October 3, 1999, why did Louise Baker express hope that the Hes would ※wean away§ if the Hes ever intended to allow the Bakers to permanently raise AMH?

 

If the Hes intended permanency, why did Louise Baker, as early as October 3, 1999, recommend cutting the visits to every other week?

 

 

102. The Bakers then agreed to custody, rather than adoption with the Hes still retaining their parental rights, because the Bakers were afraid of what might happen to AMH if they did not agree to take custody of, and raise, AMH.

This is the subjective view of the Bakers alone. 

 

In actuality, the evidence reveals that the Bakers were concerned that the Hes wanted their daughter back  to send her to China to live with relatives:

 

It is undisputed that Louise Baker took AMH to Sears at the request of Mr. He in order to have Anna*s picture made for the passport, and, therefore, knew of the Hes* plan to send AMH back to China.  (T.R., Vol. 7, p. 1011 ¶ 78)

 

On May 1, 1999, just 22 days before the expiration of the 90-day foster period, the passport, as previously requested, was officially issued.  (Exhibit 11).

 

By the end of the ninety-day foster period, the Bakers had grown attached to AMH.  (Louise Baker, pp. 428-429).

Aware that the Hes were interested in sending AMH to China, that they were unwilling to relinquish their daughter, that they wanted to retain their parental rights and that they were in financial difficulty, Jerry Baker attempted to persuade Mr. He not to send AMH to China, stating that such a plan was not a good idea because the Hes would be sending AMH to the other side of the earth and it would be very difficult for the Hes to see or visit their daughter.  (Mr. He, p. 1645).

103. On May 24, 1999, Mr. He and Mrs. Baker called Ms. Chunn and told her that the Bakers and Hes had talked and the Bakers were now willing to accept temporary custody of AMH.

 

 

103. Ms. Chunn got the impression from her conversation with Mr. He and Mrs. Baker that the Hes and the Bakers had agreed that the Bakers would raise AMH.

First, an impression does not rise the level of clear an convincing evidence.

 

Second, Ms. Chunn did not get this impression from any conversation she had with Mrs. He.

 

Third, the testimony of Sarah Cloud, Pastor Yau and even the October 3, 1999 journal entry of Louise Baker, contradict any inference of permanency.

 

106. After the May 24, 1999, conversation with Mrs. Baker and Mr. He, Ms. Chunn arranged a meeting with attorney Kevin Weaver on June 2, 1999, to explain the legal implications of transferring custody from the Hes to the Bakers.  Mr. Weaver had previously advised Mid-South, as well as several other adoption agencies, on various legal matters, from time to time.  Mr. Weaver was not acting as the attorney for Mid-South at the June 2, 1999, meeting, but was conducting the meeting as a favor to Mid-South.

See number 88 above.

 

106. Mr. Weaver was not acting as the attorney for either the Bakers or the Hes at this meeting.

It is undisputed that Mr. Weaver rendered legal advice to the Bakers and Mr. He on June 2, 1999.

 

It is undisputed that this legal advice was arranged by Mid-South Christian Services as the 90-day foster period was coming to an end.

 

It is undisputed that the Bakers paid Mr. Weaver*s legal fees for this meeting. (Diane Chunn, p. 1031)

 

107. Both the Bakers and the Hes were scheduled to meet with Mr. Weaver on June 2, 1999. However, at the last minute, Mrs. He was unable to attend this meeting because of her work schedule.  Mr. Weaver asked Mr. He if he wanted to postpone the meeting so Mrs. He could be present.  Before the meeting began, Mr. He telephoned Mrs. He and explained to her that everyone was present and ready for the meeting and they were waiting on her to begin the meeting.Mrs. He told Mr. He that she was ready for the meeting to go forward and that they could proceed with the meeting without her.  Mr. He told Mr. Weaver, Ms. Chunn, and the Bakers that he had spoken with Mrs. He and that she was ready to go forward, that they could proceed with the meeting without Mrs. He, and that Mr. He would explain everything to Mrs. He later.

The meeting should have been adjourned for a time when, Mrs. He, the mother, could be present.  If Mrs. He could never be present, then the meeting should never have taken place.

 

There is no testimony from Mrs. He in the record indicating she was advised one way or the other regarding the information imparted at the meeting.

Mrs. He was not aware that a meeting had been set for the Bakers and the Hes to meet with attorney Kevin Weaver. (Mrs. He, p.. 2265, L. 5-8)

 

Mrs. He did not recall Mr. He calling her on his cell phone to tell her that Mr. He was meeting with Mr. Weaver. (Mrs. He, p. 117-118).

 

Mr. He testified that he did not call Mrs. He during the meeting with Mr. Weaver and the Bakers. (Mr. He, p 1650-1651).

 

Mr. He did not own a cell phone in the United States until May of 2000. (Mr. He 1651, L. 1-3).

 

Mrs. He was later told that a meeting had taken place, but Mr. He did not tell her that this person was a lawyer. (Mrs. He 2265, L. 9-18).

 

Mr. He testified that he did inform Mrs. He about the meeting, but only told her that it was the same kind of agreement as before (during the 90-day foster period) with one difference:  that they would need to sign something so that AMH could be covered by the Bakers* health insurance. (Mr. He, p. 1651, L. 4-15).

108. Mr. Weaver explained that the Hes would be giving up certain parental rights, but not necessarily all parental rights.

However, Mr. Weaver never explained what it would take to lose those parental rights.

 

 

 

108. Mr. Weaver explained that the Bakers would be the ones with the ability to make the everyday decisions for AMH, i.e. school, healthcare, etc., but that the Hes would not be giving up their other parental rights.

If Mr. Weaver explained that the Hes would not be giving up their parental rights, why didn*t he explain how those rights could be terminated?

 

110. Mr. Weaver also explained to Mr. He the risk that if a temporary custody order was entered, a court would have to decide if there was a contest about the Hes regaining custody of AMH.

There is no evidence that this was ever communicated to Mrs. He.

 

110. Mr. Weaver explained that anyone who gives up even temporary custody takes the risk that they may not get custody back.

There is no evidence that this was ever communicated to Mrs. He.

 

110. Mr. Weaver also explained that a court would look at whether there was a change of circumstances, and what was in the child*s best interest in deciding whether to allow a change in custody.

There is no evidence that this was ever communicated to Mrs. He.

 

112. 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.  Ms. Chunn wanted to make certain that Mrs. He understood what she would be doing if Mrs. He signed a consent custody order, and whether Mrs. He was one hundred percent willing for a transfer of custody of AMH from the Hes to the Bakers.  Ms. Chunn explained to Mrs. He the things that Kevin Weaver had said to Ms. Chunn, the Bakers, and Mr. He, the day before in the meeting in Mr. Weaver*s office.  Mrs. He indicated that she understood everything that Ms. Chunn had told her through Mr. Yao.

This is simply not accurate. The testimony of Diane Chunn, one of the persons purported to be at this meeting, directly contradicts this.  See number 68 above.

 

As set forth in number 68 above, Diane Chunn clearly indicates that she had no meetings with Mrs. He after Mr. Weaver*s meeting with Mr. He and the Bakers, until June 4, 1999, which was the date of the custody transfer in Juvenile Court.

 

117. The Bakers and Ms. Chunn had requested an interpreter for Mrs. He to make certain that Mrs. He understood the proceedings and what she was agreeing to.  The Bakers were concerned about Mrs. He changing her mind because she had changed her mind several times before.   They were also concerned that Mrs. He might later claim that she did not understand what she was signing.

The Bakers* concerns are purely subjective on their part and have no basis in fact. 

 

Mrs. He has never wavered in her opposition to adoption.  Any impressions to the contrary, were not caused by anything Mrs. He ever said to the Bakers.

 

 

 

119. Ms. Cloud related everything necessary to the interpreter, Mr. Yao, to explain to Mrs. He the meaning of the Consent Order Awarding Custody.  Mr. Yao explained the Consent Order in the way he thought best for Mrs. He to understand it.  He did not read the document to her word for word.  Mr. Yao felt that he sufficiently explained the meaning of the document to Mrs. He.

Pastor Yau*s testimony at trial speaks for itself as to what he explained to Mrs. He:

 

According to Pastor Yau, ※guardianship§ was explained as being the willingness of the Bakers to ※temporarily take care of the baby.§ (Pastor Kenny Yau, p. 1994).

           

Because of the need for medical care for the baby, the ※guardians or the custodians§ need to have medical insurance for the baby.  (Pastor Kenny Yau, p. 1995).

 

Although Pastor Yau agreed during cross examination that technically the duration of ※temporary§ lasts until the period is over (meaning it might be one day, one minute or 50 years), the word was used in a very specific way on June 4, 1999.  Specifically, as used on June 4, 1999, the word ※temporary§ was assumed to be ※only for a short period of time.§  (Pastor Kenny Yau, pp. 2017, 2020; emphasis added).

 

When Pastor Yau was asked whether he was merely assuming that the word ※temporary§ meant a short period of time on June 4, 1999, he replied ※no.§  (Pastor Kenny Yau, p. 2018).

 

Pastor Yau elaborated as follows:  ※I was born and raised and grew up in the Chinese community.  So I know the language of the Chinese, and I*ve been learning English for the past 30 years.  The word ※temporary§ could not be meant indefinite.  Temporary 每 to the best of my understanding of the English word, temporary means it is a short period or - - it is indefinite, but it is a short period of indefinite time#.§

(Pastor Kenny Yau, p. 2020; emphasis added).

 

Pastor Yau made no explanation to Mrs. He as to what it would take for her to get the child back.  (Pastor Kenny Yau, p. 1995).

 

Pastor Yau testified as follows:  ※The possible complication, like if a party or either party, you know, disagree or disagree, was not mentioned during that day - - during that time.§  (Pastor Kenny Yau, p. 2017; emphasis added).

 

119. Mrs. He said that she understood what Ms. Cloud had said during this meeting, and she made no statements to Ms. Cloud, Mr. Yao, or Ms. Chunn that she did not understand everything that Mr. Yao told her.

There was no reason for Mrs. He to question what was communicated to her. She was told exactly what she wanted to hear-- that the arrangement would be for a short period of time.

 

119. Mrs. He did ask if this would be temporary custody, and she said the word ※temporary§ in English.

According to Pastor Yau, there are two or three or four different ways to say the English word ※temporary.§  (Pastor Kenny Yau, p. 2018).

 

121. After the private conference with Mrs. He, Ms. Cloud talked to both Mr. and Mrs. He and told the Hes that if the Bakers later refused to return custody of AMH to them, that the Hes would have to go to court and let a judge decide whether the Hes could have custody of AMH returned to them.

It is undisputed that all information imparted to Mrs. He was interpreted and communicated to her by Pastor Yau. 

 

Pastor Yau*s testimony is in direct contradiction to the trial court*s finding of fact:

 

During cross examination, Pastor Yau was asked whether he recalled explaining that if either party, the Bakers or the Hes, in the future wish to change what was being done and the other party objected, they would have to go to the judge and let the judge decide.  Pastor Yau responded as follows:  ※The possible complication, like if a party or either party, you know, disagree or disagree, was not mentioned during that day - - during that time.§  (Pastor Kenny Yau, p.2017; emphasis added).

 

 

122. Ms. Cloud had a routine manner of handling petitions for custody, and she has handled hundreds of those cases.  If anyone disagreed, or expressed any doubts about the understanding of, or willingness to sign, a consent order awarding custody, it was Ms. Cloud*s practice to set petitions for custody for a hearing before the Juvenile Court Judge or a Referee.  Ms. Cloud had no doubt that both Mr. and Mrs. He understood the Consent Order Awarding Custody, and signed it freely and voluntarily.

Because it is undisputed that Mrs. He received all of Sarah Cloud*s communications through Pastor Yau, Mrs. Hes* understanding of what transpired on June 4, 1999, is best expressed through the testimony of Pastor Yau.

 

Mrs. He had no reason to express any doubts or concerns regarding what she was signing.  She was told exactly what she wanted to hear〞the transfer of custody would be for a short period of time.  If she signed anything freely and voluntarily, it is only because she believed she was entering into a transaction of limited duration.

 

123. Neither the Hes nor the Bakers asked any questions when all of the parties signed the Consent Order Awarding Custody.

There was no reason to ask any questions.  The Hes clearly thought they knew what they were signing; i.e., a temporary arrangement of short duration.

 

124. Ms. Cloud would not have allowed any of the parties to sign the consent order if either Mr. or Mrs. He, or Mr. and Mrs. Baker were not in agreement regarding custody of AMH.  Ms. Cloud would not have allowed any of the parties to sign the consent order if she felt that anyone was being forced to sign the Order, or if she felt that anyone did not understand the Order.

See numbers 122 and 123 above.

 

126. The evidence establishes that both the Hes and the Bakers understood the June 4, 1999, Consent Order Awarding Custody before they signed it.

Mrs. He understood exactly what Pastor Yau told her: that the custody arrangement was for a short period of time.

 

127. The evidence establishes that Mr. and Mrs. He understood that if the Bakers did not agree to relinquish custody of AMH, the only way for the Hes to regain custody of AMH would be for the Hes to petition a court to regain custody, and the court would then determine whether the Hes would be allowed to regain custody of AMH based on a change in circumstances.

As set forth above, the testimony of Pastor Yau directly contradicts this finding:

 

During cross examination, Pastor Yau was asked whether he recalled explaining that if either party, the Bakers or the Hes, in the future wish to change what was being done and the other party objected, they would have to go to the judge and let the judge decide.  Pastor Yau responded as follows:  ※The possible complication, like if a party or either party, you know, disagree or disagree, was not mentioned during that day - - during that time.§  (Pastor Kenny Yau, p. 2017; emphasis added).

 

According to Pastor Yau, he made no explanation to Mrs. He as to what it would take for her to get the child back.  (Pastor Kenny Yau, p. 1995).

 

128. The evidence establishes that both Mr. and Mrs. He understood, before they signed the June 4, 1999, Consent Order Awarding Custody, that if they filed a subsequent petition to regain custody of AMH, there would be no guarantee or assurance that a court would allow the Hes to regain custody of AMH.

See 121 through 127 above.

 

129. There is no credible evidence to support the Hes* contention that on June 4, 1999, the Hes understood that all the Hes had to do to regain custody of AMH in the future was to petition a court and custody of AMH would be returned automatically to the Hes.

Respectfully, there is, indeed, credible evidence to support this assertion through the testimony of Pastor Yau, a witness whom the trial court found to be credible in its Memorandum Opinion entered May 12, 2004. (T.R. 1453, ¶ 60).

 

Specifically, Pastor Yau testified as used on June 4, 1999, the word ※temporary§ was assumed to be ※only for a short period of time.§  (Pastor Kenny Yau, pp. 2017, 2020; emphasis added).

 

This implies that the Hes would have no trouble getting their child back. 

 

132. Mrs. Baker began keeping a journal of ※Visits from Jack and Casey§ on June 5, 1999.  She kept this journal because Attorney Kevin Weaver had advised the Bakers and Mr. He, at the June 2, 1999, meeting, that the consent custody arrangement could go on for one (1) year or for eighteen (18) years.  Because of the uncertainty of the length of time of the custody arrangement, and because of the Bakers* fear of what would happen to AMH if the Hes obtained custody of AMH, Mrs. Baker wanted to keep a record of the visits.

Louise Baker admitted that her purpose in keeping the journal was to establish some kind of document or paper trail so that if the Hes say ※we want her back,§ Ms. Baker would have a record to use in court. (Louise Baker, p. 448)

 

Louise Baker never revealed to the Hes that she was keeping a journal of their visits with AMH.  (Louise Baker, p. 449).

 

The very first entry in Louise Baker's journal reads as follows:  "gained custody on 6-4-99."  (Louise Baker, pp. 448-449; Exhibit 6; emphasis added).

 

 

134. On November 14, 1999, Mr. He called Mrs. Baker and told her that the Hes were bringing a friend, Elizabeth Marshall, with them to visit AMH the next day.  Mr. He asked the Bakers to pretend that they were foster parents of AMH, not custodial parents, during this visit.  Ms. Marshall asked Mrs. Baker how long the Bakers had been foster parents and how she could give AMH up after fostering AMH for so long.  Mrs. Baker told Ms. Marshall that the Bakers had no intention of giving up AMH.  During the visit, Ms. Marshall kept referring to AMH as ※(AMH) Marshall.§

Elizabeth Marshall testified that she had no intention of adopting AMH and that was not an issue; and even if AMH were available for adoption ※which she was not§, then Ms. Marshall would not be the one doing it. (Elizabeth Marshall, p. 1325, L. 3-8)

 

In fact, Ms. Marshall testified that her purpose in going to the Baker home was to meet AMH ※because Jack and Casey were proud of her being their daughter, and you know, they wanted me to meet her.§ (Elizabeth Marshall, p. 1322, L. 10-13).

 

Ms. Marshall further testified that if she did attach the name ※Marshall§ to AMH*s name during that visit, she could have been doing it is a joke or in a complimentary manner as if to say ※I liked her child so much that it could be mine and that sort of thing.§ (Elizabeth Marshall, p. 1335-1336).

 

134. At a minimum, the implication is that there had been discussions between the Hes and Ms. Marshall about adopting AMH.

According to Ms. Marshall*s testimony, this is simply not accurate.  (Elizabeth Marshall, p. 1334-1335).

 

Moreover, implications do not rise to the level of clear and convincing evidence.

 

140. Due to the close proximity of the call from the INS and the filing of the petition, the evidence shows that the Hes wanted to retain some parental rights only for the purpose of remaining in the United States.

See number 48 above.

See number 48 above.

141. On May 4, 2000, Ms. Chunn called Mrs. Baker to inform her that the Hes had signed a petition to modify custody in Juvenile Court .  Mr. Baker called Mr. He to arrange a meeting between the two of them.

When asked whether Diane Chunn had called Louise Baker as a ※friend,§ Mrs. Baker initially denied it. (Louise Baker, p. 208). 

 

However, after being impeached with her prior deposition testimony, she admitted that Ms. Chunn was helping her as a ※friend#but we were not good friends.§  (Louise Baker, p. 466).

 

141. That same day, Mr. Baker met with Mr. He near the clubhouse at the Hes* apartment complex.

Mrs. He was not present at this meeting.

 

141. Mr. Baker asked Mr. He why the Hes had signed the Petition to Modify in Juvenile Court.  Mr. He told Mr. Baker that it was not Mr. He, but Mrs. He, who insisted on filing the Petition to Modify.

Mrs. He was not present at this meeting. 

 

141. Mr. Baker reminded Mr. He that the Hes had requested and agreed that the Bakers would raise AMH until age eighteen.  Mr. He acknowledged that there was such an agreement, but that he and Mr. Baker needed to discuss making changes to that agreement.

This is only according to the testimony of Jerry Baker, a party interested in the outcome of his own petition to terminate parental rights. 

 

As indicated above, there is ample testimony in the record suggesting that the arrangement was intended to be for a short period of time. 

 

141. Mr. He told Mr. Baker that the Hes were going to ship AMH to China, but that he did not want to do that because the death rate for children of AMH*s gender was fifty (50%) percent in the Peoples Republic of China.  Mr. He stated that he did not want that to happen to AMH, but that he wanted AMH to stay with the Bakers.  Mr. Baker got upset and started crying.  Mr. Baker told Mr. He that Mr. Baker would do everything physically and financially he could do to prevent the Hes from sending AMH to the Peoples Republic of China.  Mr. Baker then agreed to discuss making changes to their original agreement with Mr. He.

This is only according to the testimony of Jerry Baker.  Again, Mrs. He was not present at this meeting.

 

Why would Mr. Baker attempt to make changes to a purported agreement when the mother of the child at issue is not present to agree on the changes?

 

142. Mr. He discussed three possible changes to the original agreement with Mr. Baker.  Mr. He wrote the first two options in his handwriting on a piece of paper, and he then dictated the third option, which Mr. Baker wrote on the same piece of paper.

This piece of paper fails to indicate what the ※original agreement§ was.  (Jerry Baker, p. 840-847).

 

 

 

142. Option number three: The Bakers and the Hes agree to keep their current agreement, with one supplement; the Hes may take AMH back to their home one day every other week.  Such agreement will continue for 18 years.  The Hes agree to leave care of AMH*s passport to the Bakers.

During cross-examination, Jerry Baker admitted that one of the ※supplements§ to the current agreement was the concept of 18 years.  (Jerry Baker, p. 840-847).

 

This means that the ※current agreement§ (whatever it was) did not include the idea that the child would be raised for 18 years, because the concept of 18 years was part of the supplement to the original agreement.

 

In any event, it is undisputed that this page of options was not an agreement at all.  (Jerry Baker, p. 840).

 

143. On May 7, 2000, Mrs. Baker was in the kitchen when Mr. He came into the kitchen and told her that ※everything is going to be alright.§   Later, Mr. He patted Mrs. Baker on the back and told her ※don*t worry,  I will talk Casey into letting AMH stay.§

This clearly proves that Mrs. He was continuing to insist on the return of AMH to her custody.

 

146. Referee Haltom asked Mr. He how the Hes planned to take care of AMH if they regained custody.  Mr. He responded that the Hes planned to send AMH to the Peoples Republic of China and the Hes would send $25.00 per month to China for AMH*s support.

According to Dr. Copper, a person could live on $25.00 per month in rural China. (Dr. Copper, p. 1427, L. 12-15).

 

In American dollars, the average annual salary in China is $800.00.  This includes the cities where salaries are high. (Dr. Copper, p. 1427, L. 16-24).

 

Neither the petitioners nor the GAL presented any expert testimony to refute this.

 

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 last time AMH had been to the doctor was eight days earlier on January 20, 2001 (Louise Baker, p. 469), at which time she had been given a five day antibiotic.  (Louise Baker, p. 470).

 

The Bakers did not attempt to call, nor did they ever call, the doctor for the minor child at any time on January 28, 2001.  (T.R., Vol. 8, p. 1043, ¶ 219). 

 

This is true even though there was a phone number they could have called on that Sunday to make such a call.  (T.R., Vol. 8, p. 1043, ¶ 220).

 

The Bakers did not attempt to take, nor did they ever take, the minor child to the doctor on January 28, 2001. (Louise Baker, p. 469).

 

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 again that day. (emphasis added).

In Mr. Baker*s answer to interrogatory number 3, he took the position that during the incident of January 28, 2001, the Hes were instructed not to return to the home of the Bakers.  This was without qualification.  (T.R. Vol. 2, p. 295D) 

 

At trial, Mr. Baker testified that the police merely told the Hes* not to return ※that day.§  (Jerry Baker, pp. 879-881).

 

Mrs. Baker testified the same way in her answer to interrogatory number 3.

 

Irrespective of what Deputy Astor told the Hes, according to the Bakers* answers to interrogatory 3, it was Deputy Blankenship that advised the Hes ※not to return to the home of petitioners.§ (T.R. Vol 2, p. 290; Louise Baker, p. 477, L. 7-24).  This was without qualification and without limitation as to day or time.

 

Only Deputy Astor testified for the Bakers.  Deputy Blankenship was not called as witness for the Bakers.

The respondents were told by the police not to return to the Baker home or they would be arrested. (Dep. of Shao-Qiang (Jack) He, p. 272, L. 11-22)

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, the 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:

The trial court cited three instances when the police were called to support its finding that the Hes* testimony lacked credibility insofar as their fear of arrest was concerned: 

 

In the first example, November 8, 1998, the only involvement of the police occurred when they simply got Mrs. He to leave the conference room and go into an adjoining room regarding an alleged incident at the University of Memphis.  There is no indication that the police ever told Mrs. He not to come back.  Moreover, AMH was not even born at that time. 

 

In the second example, the police advised Mrs. He to leave the Bakers* home and Mrs. He complied and left.  Again, the police never told her not to come back. 

 

In the third example, Mrs. He never set foot on the Bakers* property.  She was holding a sign in front of the Bakers* home, pleading for the return of her daughter.  When the police arrived, Mrs. He complied with their request that she move her car.  It is noteworthy that this incident occurred after the incident of January 28, 2001, an incident in which the Hes* testified they were told by the police not to come back to the Baker home.  In this third example, Mrs. Hes* behavior is perfectly consistent with the previous request of the police on January 28, 2001; i.e., she did not set foot on the Bakers* property.

 

Finally, none of the above examples cited by the trial court involved Mr. He. 

 

158. The Hes swore, under oath, in the Petition to Modify custody that 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.

As set forth more fully throughout this brief, the Hes were never provided notice that non-payment of support for a specified number of months might result in the termination of their parental rights.  Thus, for purposes of abandonment (as opposed to the assessment of child support arrears) the Hes could not have been guilty of ※willfully§ failing to provide support.

 

In conjunction with the above, the following facts should also be considered in mitigation:

 

When the Hes attempted to pay $300.00 cash to the Bakers during the 90-day foster period, the Bakers not only rejected this offer, they also refused to consider turning the money over to Mid-South Christian Services: ※I didn*t have any reason to.  It was returned to them.  We weren*t accepting it at all.§  (Louise Baker, pp. 694-695: emphasis added).  This set the tone and standard for the future. 

 

The transition from the 90-day foster period to the June 4th transfer of custody to the Bakers was virtually seamless.

 

Sarah Cloud, did not recall hearing any conversation about child support on June 4, 1999  (Sarah Cloud, p. 1257). 

          

Diane Chunn admitted that she had previously told Mr. Parrish that she did not think there was going to be any kind of support being paid.  (Diane Chunn, p. 1037).

 

Diane Chunn also testified that she did not remember anything about child support being mentioned.  (Diane Chunn, p. 1037).

 

According the Jerry Baker, Mr. and Mrs. Baker never asked the respondents to pay child support.  (T.R., Vol. 7, p. 1026, ¶ 133C).

 

During the June 4, 1999 Juvenile Court proceedings, the subject of child support was never mentioned.  (T.R., Vol. 7, p. 1027, ¶ 136).

 

The Bakers did not expect the Hes to pay them child support. (Louise Baker, p. 432).

 

On June 4, 1999 (the date of the Juvenile Court custody transfer), Jerry Baker was working for Pinnfund USA where he was earning approximately $280,000.00.  (Jerry Baker, pp. 834-837; Exhibit 10, p. 1). 

           

During his last year at Pinnfund, Mr. Baker had grossed a little over $400,000.00. (Jerry Baker, p. 837).

 

 

159.  Mrs. He swore under oath on April 9, 2001, in the Petition to Modify custody, that the Hes were ※able to provide care, support and proper supervision for AMH,§ yet, again, they willfully failed to provide support for AMH before and after April 9, 2001.

See number 158 above. 

 

In addition, the respondents sought redress through the juvenile court, seeking more than mere visitation;  they wanted the complete and unconditional return of their daughter so they could assume full responsibility for her care and financial support.

 

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 Referee Haltom at Juvenile Court and the fact that they provided support for their son, Andy.

The fact they provided support to Andy in no way implies that they realized they were under any legal obligation to do so, particularly at the risk of losing parental rights to Andy.

 

Moreover, nothing in the record indicates that Andy*s caretakers in China ever refused the Hes* money, or that they did not want the money.

 

Nothing in the record indicates that Andy*s caretakers were making the kind of money Jerry Baker was earning.

 

161. The Hes paid no support for AMH from January 28, 2001, to June 20, 2001.

 

Since the beginning of the 90-day foster period through January 28, 2001, the Hes brought various gifts and food for AMH to almost every visit.  (Mr. He, pp. 1641, 1656).

162. During the June 28, 2000, hearing before Referee Haltom at the Juvenile Court, Mr. He told Referee Haltom that the Hes would send $25.00 per month to China for AMH*s support, if the Hes regained custody of AMH.

According to Dr. Copper, a person could live on $25.00 per month in rural China. (Dr. Copper, p. 1427, L. 12-15).

 

In American dollars, the average annual salary in China is $800.00.  This includes the cities where salaries are high. (Dr. Copper, p. 1427, L. 16-24).

 

Neither the petitioners nor the GAL presented any expert testimony to refute this.

 

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.

 

The New Orleans trip was before the birth of AMH. (Mrs. He, p. 91, L. 18-20; Dep. of Mr. He, p. 49, L. 5-11), and, therefore, prior to the time frame indicated by the trial court.

 

Arizona and California was one trip at one time.

 

The Ohio trip was for their friends* 50th year wedding anniversary. (Mrs. He, p. 92, L. 1-2).

 

The Hes went to Atlanta to visit CNN, hoping that would help secure the return of AMH.  (Mrs. He, p. 184, L. 7-10).

 

The purpose of the Washington, D.C. trip was to seek help from the Chinese Embassy and a human rights organization in an effort to secure the return of AMH. (Mrs. He, p. 183, 11-15).

 

Thus, out of the four trips taken by the Hes since June 4, 1999, two were directly attributable to regaining custody of their daughter.

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.

In reality, the Hes lived very frugally.  According to the Guardian Ad Litem, her visit to the Hes* apartment (November 13, 2001) revealed a clean, but sparse apartment.

 

The GAL further reported that during her second visit (September 18, 2003), the Hes* apartment consisted of the following:

 

  1. One bedroom with a larger combination sitting;
  2. Dining room where baby Avita*s bed was located;
  3. Table and dining chairs;
  4. Baby bed;
  5. Mattress and box springs;
  6. Computer;
  7. TV;
  8. VCR; and
  9. DVD player

 

In her report, the GAL characterized the apartment as of September 13, 2003, as ※sparsely furnished

(Exhibit 50).

As has been shown in number 165 above, the Hes did not take ※multiple vacations for pleasure.§

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.

Not only did the Bakers refuse to take the money, they also refused to give it to Mid-South Christian Services.  Louise Baker*s attitude was best expressed through her testimony at trial: ※I didn*t have any reason to.  It was returned to them.  We weren*t accepting it all.§  (Louise Baker, pp. 694-695).

 

See also number 158 above.

 

 

168. The Bakers 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.

However, Diane Chunn from Mid-South testified that there would have been no written prohibition preventing the Bakers from accepting the $300.00; but rather, there was ※kind of a silent understanding that they*re not going to be reimbursing you for this.§  (Diane Chunn, pp. 1107-1109).

 

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.

This connection is based exclusively on the testimony of the Bakers.

 

There is an abundance of evidence in the record which directly contradicts the assertion that the child would be raised by the Bakers until she was eighteen.  (See number 69 above).

 

171. By signing the June 4, 1999, Consent Order Awarding Custody, the Hes intended to absolve themselves of all parental obligations to provide support, or any other care for needs of AMH during the AMH*s minority.

See numbers 69 and 159 above.

 

 

 

172. During the Hes* approximate eighty (80) visits with AMH, between June 4, 1999, to January 28, 2001, they occasionally brought items for AMH.  The items the Hes brought to AMH were children*s books, food items (pears, apricots, watermelon seeds, Jello, baby food, porridge, and a whole, bone-in fish), articles of used clothing, a stuffed animal, a box of diapers, an inexpensive necklace, and a small Sesame Street suitcase.   All of these items were of insubstantial economic value and amounted to token support.

 

Since the beginning of the 90-day foster period through January 28, 2001, the Hes brought various gifts and food for AMH to almost every visit.  (Mr. He, pp. 1641, 1656).

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.

According to the sworn interrogatory testimony of Mr. and Mrs. Baker, Deputy Blankenship told the Hes ※not to return to the home of petitioners.§ (T.R. Vol 2, p. 290; Louise Baker, p. 477, L. 7-24).  This was without qualification and without limitation as to day or time.

 

See also number 152 above.

 

 

175. The Hes willfully failed to visit AMH from January 29, 2001, to June 20, 2001.

See numbers 152 and 174 above.

 

In addition, on February 15, 2001, the respondents faxed a letter dated February 1, 2001 to the Juvenile Court requesting the return of AMH and complaining about the incident of January 28, 2001 involving the Bakers.  This letter became part of the Juvenile Court*s ※social file§ under number 243061.  (Candice Brown, pp. 1283-1286; Collective Exhibit 21).

 

Sarah Cloud testified that she remembered seeing the Hes several times at Juvenile Court after the Bakers had stopped visitation, and they wanted their child back.  (Sarah Cloud, pp. 1219-1220).

 

Sarah Cloud further testified that when she saw the Hes at Juvenile Court, they had brought a photo album with many pictures of AMH, including one large picture.  (Sarah Cloud, p. 1220). 

 

During those visits, the Hes had indicated to Ms. Cloud that the kind of arrangement they thought they had with the Bakers was a ※temporary arrangement with open visitation.§  (Sarah Cloud, p. 1220).

 

In addition, the respondents sought redress through the juvenile court (within the four-month period next preceding the filing of the Bakers* Petition for Adoption and to Terminate Parental Rights), seeking more than mere visitation; they wanted the complete and unconditional return of their daughter so they could assume full responsibility for her care and financial support.

 

Although the petition which was signed on April 9, 2001 bears only the signature of Mrs. He, Candice Brown testified that both of the respondents were present and interviewed on that day; and the only reason she could think of to explain why only Mrs. He*s signature appeared on the petition was that, at the time, Ms. Brown was fairly new and she probably just had one person sign.

(Candice Brown, p. 1282).

 

 

 

177. After January 28, 2001, the Hes willfully made the decision not to visit AMH.

See numbers 152, 174 and 175 above.

 

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.

The Hes* made no request directly to the Bakers, and given the incident of January 28, 2001, there was no reason for them to do so.

 

Instead, they chose their remedies as indicated in numbers 152, 174 and 175 above.

 

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 further order of the Court.

The Hes* right to visit was restricted the moment Deputy Blankenship told the Hes ※not to return to the home of petitioners.§ (T.R. Vol. 2, p. 290; Louise Baker, p. 477, L. 7-24).  This was without qualification and without limitation as to day or time.

 

Louise Baker admitted during cross examination that after the incident of January 28, 2001, the Bakers did not want the Hes back in their home.  (Louise Baker, p. 479).

 

Therefore, since the Bakers* had control of the child and they did not want the Hes in their home, visitation was clearly restricted well in advance of February 8, 2002.

 

 

 

 

 

 

179. 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.

The Court*s finding here is based exclusively on evidence adduced pursuant to a Motion to Reopen proof that was filed on March 22, 2004, a full 20 days after all trial testimony had been supposedly concluded. (T.R. 1166).

 

However, during the previous trial, the following testimony was elicited:

 

At trial, the Guardian ad litem was unable to explain during cross-examination how the no-contact order was entered. (Ms. Mullins, pp. 2566, L. 24; 2567, L. 1-24; 2568, L. 1-24; 2569, L. 1-24; 2570; L. 1-24; 2571, L. 1-9)

 

The following exchange then occurred at trial:

 

  1. All I*m asking you is just to respond to my question.  Did you do anything at all to corroborate or conduct any investigation to determine why the no contact order was issued, since we know you don*t know why it was issued, my next question is, what did you do to investigate as the guardian ad litem for this child why a no contact order would be issued?

 

  1. I really don*t know the answer. Sorry.

 

(Ms. Mullins, p. 2573, L. 7-14)

 

Also at trial, counsel for the Petitioners took the stand and testified as follows regarding the no-contact order:

 

※So the hearing ended on February 7th, and the court reporter has winding up and everybody was winding up and headed out of court, and Chancellor Alissandratos had stood up and started to leave the bench.  And I can tell you exactly where I was standing in chancery court, and he turned around to me and he said, draft me an order on making this Court the guardian. He didn*t ask me what I thought about that or anything else.  He just told me that, and he said, I want no contact until I order otherwise.  Bring me an order tomorrow.  He didn*t want this included in any of the other orders.  I was taking instructions only.

 

※I went back to my office.  I sat down and drafted the order.  He told me the provision in the adoption statute that makes me the guardian.  He couldn*t cite the statute, nor could I at that time, but I went and looked it up.  I drafted as faithfully as I knew how what he told me to do.  I appeared in court.  He told me not to take the time to get the other attorney*s signature because there wasn*t another attorney.  You were not involved.  Ms. Holmes was not involved at the time, neither Mr. He nor Ms. Luo had an attorney at the time.  So, that is why he told me to do it, and he told me to do a certificate of service.§ (Larry Parrish, p. 2834, L. 17-24; 2835, L. 1-24; 2836, L. 1-8)

 

In reality, Mr. Sossaman*s Motion to Withdraw as attorney for the respondents was not heard until February 14, 2002.  (T.R. 229).  The no-contact order had been entered six days earlier on February 8, 2002. (T.R. 214).

 

 

 

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.

The Hes* made no request directly to the Bakers, and given the incident of January 28, 2001, there was no reason for them to do so.

 

Instead, they chose their remedies as indicated in numbers 152, 174 and 175 above.

 

182. Immediately after January 28, 2001, in furtherance 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.

However, Louise Baker did not bother to call Mr. and Mrs. He to let them know about the new information she had allegedly just received from the Exchange Club, stating that ※it wasn*t my place to call Mr. and Ms. He.  They would call when they wanted to visit.§  (Louise Baker, p. 480).

 

Louise Baker testified that the purpose of her journal was to document all events that she personally viewed as significant with respect to the Hes, yet she made no mention of her purported call to the exchange club in her journal.  (Louise Baker, p. 779-780).

 

Louise Baker admits that she had done nothing to promote a relationship between the child and the Hes since January 28, 2001.  (Louise Baker, p. 731).

 

 

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.

See number 182 above.

 

At trial, Louise Baker admitted she had done nothing to promote a relationship between the child and the Hes since January 28, 2001.  (Louise Baker, p. 731).

 

 

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.§

That is the only direct contact.

 

The Hes* made no request directly to the Bakers, and given the incident of January 28, 2001, there was no reason for them to do so.

 

Instead, they chose their remedies as indicated in numbers 152, 174 and 175 above. 

 

186. The INS contacted Mr. He about the Hes* immigration status in March, April, or May, 2001.

Please see number 48 above.

 

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.

When the respondents sought redress through the juvenile court, they were seeking more than mere visitation;  they wanted the complete and unconditional return of their daughter so they could assume full responsibility for her care and financial support.

 

In addition, on February 15, 2001, the respondents faxed a letter dated February 1, 2001 to the Juvenile Court requesting the return of AMH and complaining about the incident of January 28, 2001 involving the Bakers.  This letter became part of the Juvenile Court*s ※social file§ under number 243061.  (Candice Brown, pp. 10-13; Collective Exhibit 21).

 

Sarah Cloud testified that she remembered seeing the Hes several times at Juvenile Court after the Bakers had stopped visitation, and they wanted their child back.  (Sarah Cloud, pp. 1219-1220).

 

Sarah Cloud further testified that when she saw the Hes at Juvenile Court, they had brought a photo album with many pictures of AMH, including one large picture.  (Sarah Cloud, p. 1220). 

 

 

 

 

187.  Mrs. Hes* 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* willful abandonment of AMH.

Please see numbers 48 and 187 above.

 

190. The Bakers did not obstruct, inhibit, discourage, or otherwise interfere with any reasonable desire on the part of either Mr. or Mrs. He to visit AMH.

Please see number 34 above.

 

192. The visitation by either Mr. He or Mrs. He, or both, from June 4, 1999, to January 28, 2001,  was insignificant, token visitation.

The Bakers had full control over the time, place and manner of all visits.  Louise Baker expressed frustration when Mrs. He began demanding more time with her daughter. 

 

Please see number 34 above.

 

198.  Although Mr. Weaver explained to the Bakers their right to file a petition to adopt and to terminate parental rights in May 2000, the Bakers decided against filing such a petition.

The testimony of Mr. Baker himself, a witness the court found to be credible, directly contradicts this.  Specifically, Mr. Baker testified that they wanted to terminate parental rights after the Hes filed their first petition (May 3, 2000) to modify custody, because that was when it was clear to them that the Hes had ※breached that contract.§ (Jerry Baker, p. 865-873).

 

Jerry Baker admitted that his reason for waiting more than a year to actually file the petition to terminate parental rights was due to the advice of his attorney. (Jerry Baker, 874-875)

 

198. The Bakers did not discontinue, or attempt to discontinue, the Hes* visitation while the Hes* Petition to Modify custody, signed on May 3, 2000, and filed in Juvenile Court on June 19, 2000, was pending.  The Hes visits with AMH in the Bakers* home also continued uninterrupted, even after the Hes* Petition to Modify custody was dismissed by the Juvenile Court on June 28, 2000.

The following testimony contradicts this finding:

 

On Wednesday, August 1, 2000, Mrs. He arrived at approximately 10:45 a.m. to the Baker home for a visit with the minor child.  (Exhibit 6). 

 

At approximately 12 noon, Louise Baker asked Mrs. He to leave.  (Exhibit 6).  All she told Mrs. He was that she had an appointment and that she had to go.  (Louise Baker, p. 467). 

 

In reality, Louise Baker wanted Mrs. He to leave because she wanted to have lunch with Jerry Baker and she wanted to get out of the way for the housekeeper.  (Louise Baker, p. 467). 

 

When Mrs. He would not leave, the police were called to the Bakers* home to enforce Mrs. Baker*s request that Mrs. He leave the home.  (T.R., Vol. 8, p. 1042, ¶ 209).                         

On Sunday, August 13, 2000, Jack asked Jerry Baker if the Bakers would take the minor child to their apartment for one hour.  (Exhibit 6). 

 

Jerry Baker indicated that "at this time" they did not feel comfortable doing that, and advised Mr. He that Mrs. He could come over only if he (Jerry Baker) is home. (Louise Baker, p. 468; Exhibit 6).

 

During the visit of January 28, 2001, Respondents were told by the Bakers that the minor child was sick and that Respondents would not be permitted to take her out of the Baker home to have her picture made.  (Louise Baker, pp. 468-470). 

 

January 28, 2001 was the minor child's second birthday.  (Louise Baker, p. 468)

 

The respondents even invited the Bakers to go with them to have Anna's picture made.  (T.R., Vol. 8, p. 1043, ¶ 223).

 

The Bakers did not attempt to call, nor did they ever call, the doctor for the minor child at any time on January 28, 2001.  (T.R., Vol. 8, p. 1043, ¶ 219). 

 

This is true even though there was a phone number they could have called on that Sunday to make such a call.  (T.R., Vol. 8, p. 1043, ¶ 220).

 

The Bakers did not attempt to take, nor did they ever take, the minor child to the doctor on January 28, 2001. (Louise Baker, p. 469). 

 

The last time AMH had been to the doctor was eight days earlier on January 20, 2001 (Louise Baker, p. 213), at which time she had been given a five day antibiotic.  (Louise Baker, p. 214).

 

202.  The Hes first attempted to visit AMH after the June 20, 2001, Petition for Adoption and to Terminate Parental Rights, by filing a Motion for Immediate Visitation with this Court on February 20, 2002.

Respectfully, this is not accurate.  The Hes* immediately requested a mandatory injunction in their answer and amended answer, filed in June and July of 2001, ordering the petitioners to make AMH available for ※parenting time.§  This injunction was never signed by the Court. (T.R. 19, 29)

 

208. The United States Immigration officials have suspended the Hes* deportation proceedings until this cause is concluded.

If the deportation proceedings had not been suspended, the Hes* would have lost all hope of regaining their daughter.

 

210. The long-term risks of removing AMH from the Bakers* home include increased vulnerabilities to anxiety, mood disorders in adolescence and adulthood, reduced stress tolerances, and disturbances in future intimate relationships.  These risks would not dissipate even if the Hes were able to provide a stable home for AMH after AMH*s removal from the Bakers* home.

At trial, Dr. Hutson*s testimony reveals a different view:

 

My opinion is that removal from her parents and having no contact with her parents is the most significant psychological trauma this child may have had to date in her life, and you don*t have to evaluate a child to know that.  (John Hutson, Ph.D., p. 2948). 

 

We do not know if the child feels unprotected or insecure as a result of termination of contact with her parents 每 and Dr. Goldstein did nothing to evaluate that.  (John Hutson, Ph.D., p. 2950).

           

Dr. Goldstein*s report does not state what language the child speaks or her intellectual capabilities.  (John Hutson, Ph.D., p. 2946). 

 

He did not address the child*s late developing speech problems, tantrums and outbursts and trauma, sleep disturbance, or shyness.  (John Hutson, Ph.D., p. 2947).

 

Dr. Goldstein says he did not conduct a custody evaluation.  If it were, he would have evaluated potential custodians and parents.  This was not done. (John Hutson, Ph.D., p. 2951). 

 

If it were an adoption evaluation, he would have evaluated the adoptive parents as to their interest and capability of caring for this child.  This was not done.  (John Hutson, Ph.D., p. 2951).

 

Dr. Goldstein called the video an attachment evaluation for the first time on the witness stand.  Previously it had been called an interaction observation.  Before you can do an attachment evaluation you have to understand what the attachment is.  The child had some sort of evaluation with the Hes which he never investigated.  (John Hutson, Ph.D., p. 2951).

 

The biological family history of illnesses and problems was not filled out. (John Hutson, Ph.D., p. 2953). 

 

He should have seen the child in the presence of all adults as separate families without labeling them.  He should have interviewed the Baker children and watched the interaction since the Baker children are witnesses to the relationship.  He should have learned what the child was taught to call herself.  All that is relevant to connection, attachment, bonding, identification, but no information about that was ever investigated.  (John Hutson, Ph.D., p. 2954).

 

 

213. Separating AMH from the Bakers would cause serious and enduring emotional and/or psychological harm to AMH.

See number 210 above.

 

218.  AMH does not have a strongly bonded relationship with Mr. and Mrs. He.

See number 210 above.

 

Also, the guardian ad litem admitted during cross-examination that Dr. Goldstein had done nothing to assess the level of attachment between AMH and the Hes as of May 19, 2003.  (Ms. Mullins, p. 2553, L. 7-18)

 

As a result of that revelation, Ms. Mullins immediately wrote a letter to Dr. Goldstein dated May 22, 2003, requesting an assessment and supplemental report from Dr. Goldstein on the level of attachment between AMH and the Hes. (Ms. Mullins, p. 2554, L. 12-24; Exhibit 54).

 

However, no further action was initiated on this issue by both Dr. Goldstein and the GAL until sometime after August 28, 2003.  (Ms. Mullins, p. 2555, L. 12-24; 2556, L. 1-24; R. 2557, L. 1-8; Exhibit 55).

 

Ultimately, this requested attachment evaluation did not occur until September 23, 2003, in a videotaped session at Dr. Goldstein*s office. 

 

Nothing else was done to assess the level of attachment.

 

220. A videotape of the September 23, 2003, session in Dr. Goldstein*s office shows that AMH would continuously cling to Mrs. Baker when the Hes would attempt to get AMH to come to the Hes.  The Bakers tried to encourage AMH to have interaction with the Hes, but AMH was very reluctant to approach the Hes.  The Hes then used food to entice AMH to come to the Hes, but AMH would immediately return and cling to Mrs. Baker after AMH took the food from the Hes.  After the Bakers left the room, AMH sat between the Hes on a sofa for a few moments before the session concluded.

Dr. John Ciocca viewed the videotape session, and made the following observations:

 

With respect to the video, I was very relieved to see the child responded very favorably to Mr. and Mrs. He, that the Hes responded appropriately and that the extended absence did not prevent the child from warming up to the Hes and engaging with them.  The connection between the child and the parents had survived.  (John Ciocca, Ph.D., p. 2141). 

 

The child had behaviors despite extended time apart which were approaching to the Hes and interactive with the Hes.  Behaviors were recognizing of the Hes and not acting as if they were strangers.  (John Ciocca, Ph.D., p. 2144). 

 

After Mrs. Baker left the room the child then moved even closed and spent more time in the vicinity of the Hes and actually sat between them for part of the time.  She recognized them and was in no way fearful of them.  No behavior reminiscent of separation anxiety or any negative reaction.  (John Ciocca, Ph.D., p. 2144). 

 

My opinion that there should be ongoing contact is not based upon the video.  (John Ciocca, Ph.D., p. 2148).

 

It is my opinion that a child reacts differently toward people he or she recognizes and trust than toward strangers.  (John Ciocca, Ph.D., p. 2144). 

 

To support my opinion you would want to repeat such session on multiple occasions with different people there to see how she reacted to other people.  (John Ciocca, Ph.D., p. 2147). 

 

There appears through the video that there is still some life in that relationship.  (John Ciocca, Ph.D., p. 2151).

 

When the child takes a pear from Mrs. He and turns and goes right back to Mrs. Baker it is a possible indication that she has two sets of caretakers that she recognizes and she*s moving back and forth between them in a way that recognizes that they are both there and she wants to have contact with both of them.  (John Ciocca, Ph.D., p. 2152). 

 

I saw a back and forth action that was relatively healthy, and the child came and went as she wanted.  I have nothing negative to say about Mr. and Mrs. Baker.  I could not see their facial expressions.  I just wish he had held more sessions so we wouldn*t be basing all of our opinions on one videotape.  (John Ciocca, Ph.D., p. 2155). 

 

All this extraordinary emphasis on this one-hour videotaped session is a sign of what has gone wrong with the whole process.  (John Ciocca, Ph.D., p. 2888; emphasis added).

 

224. In contrast, the Hes have not exhibited that they would be able to provide the same safe and stable home, as evidenced by, among other things, the lack of cleanliness of the Hes* apartment.  For example, the Bakers gave the Hes a desk and a microwave cart.  When Mr. Baker took these items to the Hes* apartment, he saw beer cans everywhere, a filthy kitchen, bones everywhere from food, and there was a foul smell in the apartment.

Mrs. Baker was referring to a visit Mr. Baker allegedly made to the Hes* apartment on February 21, 2000, almost four years before the date of trial. (Louise Baker, p. 737, L. 6-22).

 

Louise Baker admitted she has never seen Mr. He drink beer; nor does she know if he drinks. (Louise Baker, p. 737, L. 20-22).   

 

The record is devoid of any other evidence which might suggest lack of cleanliness.

 

In fact, just the opposite is true. Page 14 of the GAL*s report dated September 25, 2003 states as follows:

 

※The condition of the He apartment on the Guardian Ad Litem*s first home visit was very clean, if not somewhat spare.  The new apartment on Enquiree Court, visited on September 18, 2003, was not as tidy, consisting of one bedroom with a larger combination sitting, dining room where baby Avita*s bed was located.  It was also sparsely furnished with table, dining chairs, baby bed, mattress and box springs, computer, TV, VCR and DVD player.§ (Exhibit 50).  

 

 

234.  There is no credible proof in the record to determine the employment prospects or the living conditions that the Hes would have in the Peoples Republic of China.

The burden of proof is on the Bakers to prove by clear and convincing that termination of parental rights is in the best interest of AMH.  The Bakers presented no evidence, expert or otherwise, regarding the employment prospects or the living conditions the Hes would have in China.

 

235. There is a ※one-child-per-family§ policy in the Peoples Republic of China.  Families with more than one child are subject to financial penalties and/or the loss of government services and benefits, including medical care and educational benefits.

The one-child policy has led to a preference among peasants and farmers in rural China for boys on farms, but not in urban China or among educated people.  (Dr. Copper, p. 1465) 

 

Chun Ching, where the Hes* intended to return with AMH, is a metropolitan area. (Copper, p. 1505) 

 

The one child rule would not apply to a child born in the U.S., and when Chinese people return home, they will not be in violation if they return with more than one child.  (Copper, p. 1507).

 

Finally, neither the petitioners nor the GAL offered any expert testimony regarding the one child rule.  

 

242.  On December 10, 2001, Mrs. He threatened the alleged victim of Mr. He*s assault in Criminal Court, and Judge Blackett admonished Mrs. He for her conduct.

This event goes beyond the scope of the pleadings as it allegedly occurred long after the Bakers had already filed their Petition for Adoption and Termination of Parental Rights, and the pleading were not supplemented to reflect this incident as an additional reason to terminate parental rights.   Accordingly, this alleged event, cannot be used a reason for concluding that termination of parental rights is in the best interest of AMH.

 

244.  On or about December 1, 2003, Mr. and Mrs. He approached AMH at a Wal-Mart store, in direct violation of the Court*s order prohibiting contact between the Hes and AMH.  Mrs. He assaulted the Bakers* teenage daughter, Hope, in an attempt to forcibly take AMH from the care and custody of the Bakers* teenage daughter and leave the Wal-Mart premises.

Julie Mize, one of the department managers at Wal-Mart, and a witness to this event, testified that she saw no physical contact. (Julie Mize, Vol. 22, p. 11, L. 21-23).

 

Julie Mize had no idea if Mrs. He was attempting to kidnap AMH.  (Julie Mize, Vol. 22, p. 12, L. 19-22).

 

Julie Mize has never seen the loss prevention tape.  (Julie Mize, Vol. 22, p. 13).

 

Michael Lowery, another Wal-Mart employee, observed no physical contact. (Michael Lowery, Vol. 23, p. 36).

 

Although Mr. Lowery initially testified that Mrs. He was ※trying to take the girl,§ he later conceded during cross-examination that all Mrs. He said was ※That*s my daughter. That*s my daughter,§ and he saw her leaning over.§

 

Q.  So all you*ve got, really, is the Asian lady saying, ※That*s my daughter. That*s my daughter,§ and leaning over.  Is that a fair statement of your testimony?

 

A.  That*s a fair statement.

 

(Mr. Lowery, Vol. 23, p. 37)

 

281.  The Court concludes, by clear and convincing evidence, that there is parental misconduct or inability to parent by the Hes.

The guardian ad litem testified as follows;

 

I was exposed to Avita and to Mrs. He taking care of Avita at court hearings and depositions, and I also observed Avita at the Hes* home in September 2003.  (Kimbrough Mullins, p. 2542). 

 

I think all the places I saw the Hes with Avita were appropriate. .  (Kimbrough Mullins, p. 2543). 

 

When I visited the Hes* home in September 2003 there was an absence of negative behavior, and Mrs. He was attentive to Avita. (Kimbrough Mullins, p. 2544). 

 

There was no evidence in September 2003 that Avita was not being properly cared for.  (Kimbrough Mullins, p. 2548).

 

Nobody had ever said Andy was abused, and I was not worried about Andy being abused.  (Kimbrough Mullins, p. 2550).

 

I have no suspicion of drug abuse on the part of the Hes or the Bakers.  (Kimbrough Mullins, p. 2519).

 

There is no evidence in the record that the Hes* two other children, Andy and Avita, have been declared dependent and neglected or that Hes have been declared unfit with respect to these children.

 

There is no evidence in the record that DCS or any other investigative body has contacted the Hes regarding their parenting behaviors.

 

 

 

282.  The Court concludes, by clear and convincing, that both Mr. and Mrs. He are unfit parents, based on abandonment of AMH by both Mr. and Mrs. He.

Please see arguments raised under issue number 16, infra.

 

 


ARGUMENT

 

1.  Whether the trial court erred in ruling that the ※settled purpose doctrine§ no longer has any force or effect as law in Tennessee.

            The Tennessee adoption statute has undergone several significant changes since its inception in 1951, particularly with respect to the issue of abandonment.[4]  In 1959, the Court of Appeals articulated a standard to determine ※abandonment§ in adoption cases.  In Ex parte Wolfenden, 349 S.W.2d 713 (Tenn. App. 1959), the Court of Appeals held that trial courts were not bound by the statutory definition of ※abandonment§ when making a determination in an adoption proceeding.  Specifically, the Court held that:

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#.

 

In 1982, the Supreme Court of Tennessee adopted an identical standard.  In re Adoption of Bowling, 631 S.W.2d 386, 389 (Tenn. 1982).

            In 1995 (effective January 1, 1996), the legislature amended the adoption code in a manner which, according to the Supreme Court in In re Swanson, 2 S.W. 3d 180 (Tenn. 1999), unconstitutionally deleted any requirement of ※willfulness§ in the definition of ※willfully failed to support§ and ※willfully failed to make reasonable payments toward such child*s support.§  In effect, reasoned the Court, this legislative enactment created a conclusive presumption that a failure to provide monetary support for four months preceding the filing of the petition to terminate renders a parent unfit.  The biological father argued that such a presumption fails to comport with a parent*s fundamental constitutional right to the care and custody of his or her children.

            The Supreme Court agreed with the father*s analysis and declared that portion of the statute unconstitutional.  Speaking for a unanimous Court, Justice Barker noted the following:

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, 92 S. Ct. 1208; Bond, 896 S.W.2d at 548.  As the Supreme Court noted in Stanley, a procedure which elevates a presumption over a requirement of proof of unfitness may be cheaper and easier to administer than an individualized determination, but it &needlessly risks running roughshod over the important interests of both parent and child.*  405 U.S. at 658, 92 S.Ct. 1208.

 

In addition, the 1995 enactment (effective January 1, 1996), added language which made it abundantly clear that the General Assembly intended to limit the discretion of trial judges when making a determination as to whether an abandonment has occurred:

Specifically, T.C.A. ∫ 36-1-102 (G) provides the following:

&Abandonment* does not have any other definition except that which is set forth herein, it being the intent of the general assembly to establish the only ground 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.

 

The Swanson Court, in holding the child support abandonment provision unconstitutional, declared that unless otherwise amended by our legislature, the definition of abandonment that was in effect prior to the 1995 legislative enactment (effective January 1, 1996) shall be applied, noting in footnote 14 the following:

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.

 

Under prior law, not only was the element of intent included in the statutory definition with respect to failure to pay child support for four months, but the Courts were not prohibited from considering whether the parents evinced ※a settled purpose to forego all parental rights and responsibilities§ as a means by which ※intent§ could be ascertained. 

It is respectfully submitted that in light of Swanson, the courts must now consider the ※settled purpose§ analysis in attempting to ascertain the intent of the respondents, since the prior definition of ※willfully§ included the common law ※settled purpose§ doctrine.  This is so, notwithstanding the plain language of the statute.  Were it otherwise, the courts would be relegated to the same mechanistic analysis of abandonment that was in effect prior to Swanson and after the legislation which took effect in January 1996.  Such a mechanistic approach would contravene both the letter and the spirit of Swanson, a decision which articulated a standard of ※individualized decision-making§ when fundamental constitutional rights are at stake.

            This reasoning appears to have been vindicated in the post-Swanson decision of Spencer v. Aydlotte, 2001 WL 1683698 (Tenn.App.), decided by the Western Section Court of Appeals on December 28, 2001.  Recognizing that the Swanson decision reinstated the definition of abandonment as it existed under prior law, the Spencer Court undertook its analysis of abandonment by citing appellate decisions dating as far back as 1961, 1968 and 1992.  All of these decisions were not only prior to the 1996 amendment to the adoption code, but they also utilized the ※settled purpose§ doctrine in defining abandonment.  See Ex parte Wolfenden, 348 S.W.2d 751, 755 (Tenn. App. 1961); Fancher v. Mann, 432 S.W.2d 63, 65 (Tenn. App. 1968); In re Adoption of Self, 836 S.W.2d 581 (Tenn. App. 1992).

            In relying on these prior decisions, the Spencer Court removed any doubt as to the applicability of the ※settled purpose doctrine§:

Tennessee courts have defined abandonment as ※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.§ (citation omitted).  The evidence of abandonment must show ※an actual desertion, accompanied with an intention to entirely sever, so far as it is possible to do so, the parental relationship and throw off all obligations growing out of the same.§  (citations omitted).  Abandonment may be found only when, given the benefit of every controverted fact, an inference of abandonment follows as a matter of law.  (emphasis added).

 

            In Spencer, the natural father failed to pay child support since November 2, 1996, almost  four (4) years (not months) prior to the filing of the termination petition.  In addition, the natural father failed to visit his child since April 6, 1998, almost two (2) years (not months) prior to the filing of the termination petition.  The termination petition was filed on June 21, 2000.  The trial court concluded that although the natural father ※has not pursued his parental rights as aggressively as he should have,§ the petitioners nevertheless failed to establish by clear and convincing evidence that the natural father engaged in conduct ※which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child."  Accordingly, the decision of the trial court in refusing to find abandonment was affirmed. 

2.  Whether the trial court erred in ruling that the actions of the respondents evinced a ※settled purpose to forego all parental rights and responsibilities[5]

            In the instant case, it is simply inconceivable to think the respondents ever evinced a settled purpose to forego all parental duties and to relinquish all parental claims[6] to their child.  In fact, just the opposite is true.  They never wanted to surrender their child for adoption in the first place and they reluctantly signed over custody to the Bakers for financial reasons.  Both before and after the transfer of custody to the Bakers, the respondents engaged in regular, weekly visits with their daughter at the Baker home.  This is undisputed. 

            It was not long before the respondents started showing an interest in expanding their time with their daughter to include visits outside the Baker home and for longer periods.  Much to the dismay and frustration of the respondents, the Bakers resisted these overtures for additional visitation, creating weak and unsubstantiated pretexts to deny the respondents quality time with their daughter. 

The October 3, 1999 journal entry of Louise Baker was cited by the respondents many times throughout the trial as a glaring and obvious example of the respondents* persistence and desire for more time with AMH, as well as exemplifying the many obstacles and resistance posed by the Bakers.  Even though this journal entry was written by Louise Baker, a witness found to be credible by the trial court, the trial court completely omitted any reference to this entry in its memorandum opinion, words which if accepted as true would have forced but one conclusion: the Hes were pushing extraordinarily hard for more time and the Bakers were not going to allow it. 

In its 72 page opinion, the trial court makes no reference to this journal entry.  Nowhere does the trial court attempt to explain it away, to discredit it or to justify it.  Yet ironically, this journal entry set the tone and standard at a very early stage of the Baker-He relationship.  It was a predictor of what was yet to come.  Its language is strong and clear:

Jack and Casey came at 3:00.  Anna played for a minute with them and then wanted us.  The visit was very discouraging to usThey wanted to see if they could come and get Anna and keep her for the day next Sun.  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 friend that kept asking about her and a Dr. at Church wanted to see her.  We told them she didn't need to see a Dr. and if anyone wanted to see her they could come to our homeWe stood strong with this.  I think Jack was just trying to please Casey.  No words were exchanged.  We feel like Jack will try something nowWe would like to get visits to every other weekWe 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 to com[e] Thurs, 8:45 AM because Jerry is going to be out of town.  Jack will not come to our home without Jerry being here.  (emphasis added).

 

            In utter frustration, the respondents eventually sought redress through the juvenile court, seeking more than mere visitation;  they wanted the complete and unconditional return of their daughter so they could assume full responsibility for her care and financial support.  Unfortunately, their request for custody was denied by the juvenile court.

            Notwithstanding the refusal of the juvenile court to grant their petition, the respondents resumed their regular visits at the Baker home and were soon subjected to additional interferences and pretexts, culminating in the removal of the respondents by the police from the Baker home on January 28, 2001.  Because of their rather precarious immigration status and Mr. He*s pending criminal matter, it is easy to understand why the respondents exercised little initiative directly with Bakers from the date they were removed from the Baker home through the filing date of the termination petition.  However, they did not give up. 

            Rather, they chose instead to again seek their remedies through the juvenile court.  As before, they sought more than mere visitation.  They sought the custody and return of their daughter so they could provide for her in a manner which would not have been limited by the amounts set forth in the child support guidelines.  By seeking custody, the respondents were, in effect, requesting to undertake full financial responsibility for their daughter. 

For these reasons, it cannot be reasonably argued that the respondents willfully intended to neglect their child support obligations or visitation for four months prior to the filing of the termination petition, or for any period of time.  They relentlessly persisted in their efforts at gaining the return of their daughter.  They were at direct odds with the Bakers; and  the Bakers were refusing to return their child.  Clearly, they had not demonstrated a settled purpose to forego all parental duties and relinquish all parental claims to the child.

3.  Whether the trial court erred in ruling there was clear and convincing evidence to support a finding that Respondents had ※willfully§ abandoned their child, irrespective of the applicability of the settled purpose doctrine.

            Even if the Court concludes that the ※settled purpose doctrine§ was not reinstated by Swanson, the Bakers cannot establish by clear and convincing evidence that respondents ※willfully§ abandoned their child.

            As recently as January 23, 2004, our Court of Appeals, Western Section, reversed the Honorable Harold W. Horne*s finding of willful abandonment in a case emanating from the Juvenile Court of Memphis and Shelby County, Tennessee. State v. John Calabretta (In Re J.J.C. et al) 2004 WL 115165 (Tenn. Ct. App. January 23, 2004).  In a unanimous decision, the appellate court refused to terminate the father*s parental rights when, by Father*s own admission, he had paid no child support to the Department of Children*s Services (hereinafter ※DCS§)[7] from April of 1998 through March 12, 2001, which was the date DCS filed its petition to terminate the father*s parental rights.  During that period, father was incarcerated for being an habitual motor vehicle offender from March of 1998 through June of 1999.  He was again incarcerated on March 11, 2001, the day before DCS filed its petition to terminate father*s parental rights. 

Respondents do not dispute that for purposes of the abandonment statute, the operative four-month period excludes periods of incarceration.  Thus, in Calabretta, Father*s obligation to pay child support for purposes of the abandonment statute would have been from June of 1999 (his release from prison) through March 11, 2001 and/or March 12, 2001 (father*s second incarceration followed by DCS* March 12, 2001 petition to terminate father*s parental rights).  This represents a time frame of approximately 20 months (1 year and 8 months) where Father was under an obligation to pay child support in order to avoid the effects of the abandonment statute, a statute which only requires willful non-support for four (4) consecutive months. 

In Calabretta, Father admitted he paid no support to DCS during that entire 20-month period.  He did state that he sent Mother (not DCS) six checks totaling $939.50 from jail while he was on a work release program, which he claimed was intended, ※in part,§ for the children.  Averaging these payments over the operative 20 months of non-incarceration, Father paid an average of $46.98 per month for the support of his children, notwithstanding the fact that while he was not in jail he was self-employed making anywhere from $20.00 to $100.00 per day ($433.00 to $2,165.00 per month).  Father estimated he earned approximately $14,000.00 during the year 2001.   Other than some gifts and food, that was the extent of Father*s contribution. 

DCS argued that given the fact that Father*s annual income was approximately $14,000.00 and that he had minimal living expenses, Father*s failure to support must be deemed willful.  DCS further argued that Father cannot excuse his failure to pay based on the lack of a court order requiring the support. Id.

            The Calabretta court specifically rejected that argument, noting there was no evidence that DCS had explained to Father that he was obligated to pay support, ※lest he lose all parental rights to his children.§ Id.  The appellate court further noted that Father did visit the children and bought them ※small gifts and food,§ and pointed to Father*s testimony that if he had been aware of his obligation to pay child support, he would have paid more support. Id.

            The Court of Appeals, in rejecting DCS* argument, was clearly mindful of its previous rulings that the obligation to pay support exists even in the absence of a court order to do so.  See State v. Manier,1997 WL 675209 (Tenn.Ct. App.Oct.31, 1997); In re Gordon (Webb v. Wilson), 980 S.W.2d 372, 373-78 (Tenn. Ct. App. 1998).  However, in spite of those decisions, the Court recognized that there are indeed circumstances where the absence of a court order requiring support, in conjunction with other facts, might well lead to the conclusion that the failure to provide support was not willful. 

In Calabretta, the appellate court placed particular emphasis on the fact that not only was the father unaware of his obligation to pay support, he was also unaware of the dire consequences that would result if he failed to pay that support; i.e., he was unaware that his parental rights could be terminated.  The Court of Appeals also noted that Father understood the permanency plan to imply that he was not obligated to make support payments in the absence of a court order requiring him to do so, thereby leading him to believe that support payments were not necessary to get his children back into his home.  Id.

In the instant case, just as in Calabretta, the respondents were led to believe that they would not be obligated to make support payments; and they certainly had no knowledge that the payment of child support was somehow linked to the preservation of their parental rights, particularly since Mr. He had been advised on June 2, 1999 by attorney Kevin Weaver that the respondents would be retaining their parental rights by entering into the custody transfer that ultimately took place two days later.  (T.R., Vol. 7, p. 1013, ¶ 92).   

           Sarah Cloud, did not recall hearing any conversation about child support on June 4, 1999  (Sarah Cloud, p. 1257).  Diane Chunn admitted that she had previously told Mr. Parrish that she did not think there was going to be any kind of support being paid.  (Diane Chunn, p. 1037).   Diane Chunn also testified that she did not remember anything about child support being mentioned.  (Diane Chunn, p. 1037).  According the Jerry Baker, Mr. and Mrs. Baker never asked the respondents to pay child support.    During the June 4, 1999 Juvenile Court proceedings, the subject of child support was never mentioned.   The Bakers did not expect the Hes to pay them child support. (Louise Baker, p. 432).  The June 4, 1999 Consent Order makes no mention of child support.  The subsequent juvenile court order entered on June 28, 2000, denying the respondents* request for change of custody, makes no mention of child support, presumably because the Bakers never requested it.  Ironically, the Bakers now seek to terminate the parental rights of the respondents because  the respondents did not pay child support.  Such a result could not be more anomalous.  

            Relying on In re Adoption of Muir, 2003 WL 22794524 (Tenn. Ct. App. Nov. 25, 2003), the Calabretta court listed four factors that must be considered in determining whether the failure to pay support under the termination statute is ※willful§:  (1) the parent must be aware of his or duty to support; (2) the parent must have the capacity to provide the support; (3) the parent makes no attempt to provide the support; and (4) the parent has no justifiable excuse for not providing the support. Id.  Because these factors are listed conjunctively, the absence of any single factor prohibits a finding of willfulness. 

Applying the above four factors to the instant case, the Bakers cannot demonstrate by clear and convincing evidence (or any evidence at all) that the respondents were aware of their duty to support (factor #1) or that they had no justifiable excuse for not providing the support (factor #4).  Accordingly, the Bakers cannot meet their burden of proving willfulness by clear and convincing evidence.

            In another recent decision, the Court of Appeals, Middle Section, reversed a finding of willful abandonment by the Davidson County Juvenile Court.  In re S.M. 2004 WL 66685 (Tenn.Ct.App., January 15, 2004).  Recognizing that a biological parent*s right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions,[8] the Court of Appeals refused to find willful abandonment even though it was undisputed that Father had failed to visit or financially support during the entire statutory period and longer.  The Association for Guidance, Aid, Placement and Empathy (hereinafter ※A.G.A.P.E.§), a licensed child-placing agency in Nashville, had custody of the minor child.  The appeals court observed that A.G.A.P.E. had not been promoting the development of a relationship between Father and daughter because it knew that doing so would undermine the placement and the planned adoption. 

In the instant case, the evidence clearly shows that the Bakers shared the same concerns as A.G.A.P.E. in In re S.M.  Both were reluctant to truly promote the development of a parent-child relationship for fear that their desired outcomes would be thwarted.  The desired outcome for the Bakers was to raise AMH for the rest of her life.  This fact is undisputed, irrespective of the existence of any agreement between the parties.  Louise Baker maintained her journal not to record fond memories, but to document her case; i.e., to facilitate her desired outcome. 

Why would Ms. Baker maintain such a journal unless she knew, or had reason to know, that the respondents might someday seek the return of AMH?  By Ms. Baker*s own admission, the journal was maintained to prevent the Hes from developing a relationship with their daughter.  More telling than the content of the journal is the reason for keeping it.  The journal allows one to truly understand the intent of the Bakers.  They needed a record in case the respondents wanted their daughter back.  The Bakers were not going to return AMH without a fight, and the journal, they thought, would be a valuable tool in their foreseeable battle with the Hes.

Louise Baker admitted that her purpose in keeping the journal was to establish some kind of document or paper trail so that if the Hes say ※we want her back,§ Ms. Baker would have a record to use in court.  (Louise Baker, p. 448).   

What is particularly sad is that the Bakers began their journal the day after they received custody in juvenile court on June 4, 1999.  AMH would have been just over four (4) months old.  The Bakers knew, even then, that the Hes might want their daughter back (or they would have not started a journal), and yet took proactive steps to document each and every visit, realizing as lawyers often do, that a well-documented case facilitates one*s testimony in court.           

The Court of Appeals in In re S.M. also noted that the father had a limited education and a limited command of English:[9]

It is unclear precisely how much of the process put in motion by A.G.A.P.E. he understood.  The record contains no evidence that he has refused to comply with any court order or that he has not diligently pursued establishing a relationship with S.M. through the courts.  He cannot be held responsible for the juvenile court*s failure to dispose of his petition to establish parentage in a timely manner.  Had the juvenile court done and ordered R.G.L. to begin paying child support, there is no indication in the record that he would have refused to do soId.  (emphasis added).

 

It is one thing to merely recognize that, as parents, we are expected to support our children.  It is an entirely different thing, however, to somehow know, or even be expected to know, that our parental rights can be terminated if we fail to support our children for a specified number of months as defined in various provisions of Tennessee Code Annotated, a confusing statute that was, in part, declared unconstitutional in Swanson.

            In State v. Demarr, 2003 WL 21946726 (Tenn. Ct. App. Aug. 13, 2003), the Court of Appeals reversed a finding of willful failure to support because DCS never explained to the biological parent that her failure to make support payments could result in her losing her child:

In [the mother*s] case, no child support was ever ordered by the court nor was a child support obligation ever placed in either Permanency Plan.  DCS provided no monitoring or assistance for over almost a year.  There is no evidence in the record that [the mother]  was ever requested by DCS to provide any form of support for her child, nor was it ever explained to her that failure to provide support could result in her losing her child permanently.  DCS continually reiterated the need for her to find a place of her own, regular employment, and childcare, all without offering any assistance.  Considering the burdens placed on [mother] by DCS, her limited income, and her lack of understanding of the importance of paying child support to her parental rights, we find no clear and convincing evidence that her failure to pay was willful. (emphasis added).

 

            While it is true that, in Demarr, DCS was involved, the due process considerations are no less applicable to the instant case. To draw any distinction between Demarr and the instant case simply because of DCS involvement, is to exalt form over substance.

The importance of notice is equally compelling in both instances.  Indeed, the concept of notice is inextricably linked to ※willfulness.§  Without notice, there can be no willfulness.  What is clear from Demarr, Calabretta and In re S.M., is that notice is pivotal, not merely notice of one*s obligation to provide support, but more importantly, notice that failure to provide that support might result in the termination of parental rights.   

Termination of parental rights is the ultimate penalty.  Indeed, it is the ※death penalty§ of family law.  A decree terminating a biological parent*s parental rights ※obliterates the parent-child relationship and, in the eyes of the law, relegates a biological parent to the role of a complete stranger to his or her child.§[10] (emphasis added).  Once a complete stranger, the biological parent is forever without the right to even visit his or her child and will forever lack any legal standing to petition a court for relief.

At least two post-Swanson decisions have held that the absence of a court order requiring child support precludes a finding of willful non-support for purposes of terminating parental rights under the abandonment statute.  In Hickman v. Hickman, 2000 WL 1449853 (Tenn.Ct.App.), the Court of Appeals affirmed the trial court*s determination that the prospective adoptive parent had failed to establish by clear and convincing evidence that mother*s parental rights should be terminated.  (Copy attached, Tab 3).  In refusing to find willful non-support, the Court expressly noted there was no Order directing mother to pay child support, the father admitted that mother was under no court order to pay support, and father had never asked that support be paid.  The Court also observed as a mitigating factor that the mother had made some efforts to provide clothing and other items for her children, ※albeit infrequently.§

In the instant case, it is undisputed that the Bakers never asked or expected to receive support; nor was there ever any court order requiring the payment of child support, despite two previous juvenile court orders that could have addressed the issue and obviously declined to do so. In addition, the Hes brought various gifts and food for AMH to almost every visit.  (Mr. He, pp. 1641, 1656). 

  When the respondents filed their first juvenile court petition to modify in May of 2000, had the Bakers wanted an order of support, they would have assuredly received such an order when the matter was heard before Referee Haltom. However, because the Bakers had then decided to pursue a termination of parental rights as a result of the first petition to modify (see Dep. of Jerry Baker, p. 50, lines 14-24; p.51, lines 1-24; p. 52, lines 1-22;  see also trial testimony of Jerry Baker, pp. 865-873), the last thing the Bakers wanted was an order requiring the Hes to pay support.  Such an order would have required the Hes to do the very thing that the Bakers needed them not to do under the law of abandonment 每 pay child support.  It should also be noted that the one time the Hes did attempt to pay child support, it was rejected by the Bakers during the 90 day foster period. (Mrs. He, pp. 21-22; Louise Baker, pp. 432, 695).  That rejection of support, coupled with two subsequent orders of juvenile court which were silent on the issue, set the tone, the standard and the expectation for the future. 

Thus, the Hes could not have intentionally failed to support their daughter under any legal standard, whether that standard is the ※settled purpose doctrine§ as advocated by the respondents or the definition of ※willfully§ as advocated by the petitioners.  Either way, it makes little difference.  It should also be noted that Hickman was decided on September 28, 2000, after the 1996 legislative revision to the adoption code and the Supreme Court*s ruling in In Re Swanson, 2 S.W.3d 180 (Tenn. 1999).

Another case decided after Swanson was Martin v. Martin, 2000 WL 298247 (Tenn.Ct. App.), where the Court of Appeals refused to find willful non-support even though the mother had paid no child support during the entire time that the father was the primary custodian. (Copy attached, Tab 4).  The Court noted that when the parties had previously entered into an agreed order vesting custody with the father, the mother was not ordered to pay child support.  The Court of Appeals held that because the mother was not required to pay any support in the agreed order, the petitioner was unable to provide clear and convincing evidence that mother intentionally failed to support the children.  Accordingly, the trial court*s dismissal of the appellants* Petition for Termination and Adoption was affirmed.

 It is, therefore, not surprising that given the gravity of these constitutional rights, parental rights cannot be terminated unless willfulness is established by clear and convincing evidence.  Moreover, the Bakers must prove each and every element of their case by clear and convincing evidence.  As the Tennessee Supreme Court held in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), a parent ※has a constitutional right to the custody, companionship, and care of a child, and should not be deprived thereof except by due process of law.§

4.  The Trial Court*s Findings of Fact and Conclusions of Law are not supported by clear and convincing evidence, and cannot, therefore, be a basis for termination of parental rights.

The central issue to be determined is whether the petitioners have shown by clear and convincing evidence that the respondents have abandoned their child.  The burden is on the petitioners to establish abandonment by clear and convincing evidence.  Carr v. Moore, 1999 WL 820608 (Tenn.App.); In re: Z.C.G., 2001 WL 1262609 (Tenn.App.). 

            It is well established under both the United States and Tennessee Constitutions that the parent*s right to the custody and upbringing of his or her child is a fundamental constitutionally protected right.  Stanley v. Illinois, 405 U.S. 645, 650, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Bond v. McKenzie (In re Adoption of Female Child), 896 S.W.2d 546 (Tenn. 1995); In re Swanson, 2. S.W.3d 180 (Tenn. 1999).  Because of the constitutional rights at stake, parental rights cannot be terminated unless the petitioners can prove by clear and convincing evidence that the respondents willfully abandoned their child.  In Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), the Supreme Court held that a parent ※has a constitutional right to the custody, companionship, and care of a child, and should not be deprived thereof except by due process of law.§ 

            In O*Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn.App.1995), the Court of Appeals observed the following:

The clear and convincing standard imposes a heightened burden on those seeking to terminate the rights of a natural parent.  To meet this standard, a party must go beyond the mere threshold of a preponderance of the evidence:  Clear and convincing evidence eliminates any serious doubt or substantial doubt concerning the correctness of the conclusions drawn from the evidence.  It should produce in the fact-finder*s mind a firm belief or conviction with regard to the truth of the allegations sought to be established.

 

            In a more recent decision, filed October 22, 2001, the Court of Appeals reversed the trial court*s finding that the father had abandoned his child, even though it was uncontroverted that the biological father failed to visit his child for at least 4 months prior to the filing of the petition seeking termination of parental rights.  In point of fact, the biological father failed to visit for more than 120 days preceding the filing of the petition.   See In re: Z.C.G., 2001 WL 1262609 (Tenn.App.).  In Z.C.G., the trial court found, in pertinent part, the following:

On December the 10th, 1999, the mother and the father had a telephone conversation and this conversation〞this was December the 10th was the weekend that the father was to have visitation with the child#.December the 10th was on a Friday in 1999.

 

***

 

Also, on that〞in that December 10th call, the mother did tell the father he could have the child all day Christmas, which to the Court, Christmas is December the 25th, she was saying you can have the child on December 25thThere was no response from the father about that offerThen the father didn*t visit on December the 10th and then the mother from December 24th to the 28th was in Greene county or at least part of the time was in Greene County, Tennessee.  She was in〞she visited with her mother and with her father.  She didn*t call Mr. Goins, but he also did not call her.

 

***

 

The stepfather did learn that the grandfather of the natural father had passed away and that the father wanted the child for a funeral and the stepfather said he told him to call back, that his wife, the mother of the child, wasn*t at home.  Mr. Goins says that he wanted- - he had asked that Mrs. Bergquist return his call. She didn*t return the call.  She did get the message or got a message from her husband that Mr. Goins had called, that the grandfather had passed away, that he did want the child for the funeral.  There was no follow-up by Mr. Goins in calling the mother back and there was no visitation.  The Court can*t find and does not find that the mother denied the father visitation on February the 28th.  The father just didn*t call back.

 

***

 

But what the circumstances are, Mr. Goins, is that for more than a hundred and twenty days preceding the filing of this petition for adoption and termination of parental rights on the 13th day of June 2000, you have willfully failed to visit and it*s a willful failure to visit.  The visitation was working.  It*s regrettable about the October 15th incident, but it seems that matters came on December 10th when you didn*t get December the 17th and you just hung up and did not make any more phone calls until February the 28th, then didn*t follow up on that.  (emphasis added).

 

            In spite of this strongly worded ruling by the trial court, the Court of Appeals reversed and concluded that the evidence did not establish a clear and convincing showing that Mr. Goins* failure to visit was willful.  Emphasizing the grave and irrevocable nature of a termination of parental rights proceeding, the Court of Appeals stated the following:

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.  Tenn. Code Ann. ∫ 36-1-113(l)(1).  Because of its consequences, which affect fundamental constitutional rights, courts apply a higher standard of proof when adjudicating termination cases#. Under this heightened standard of review, we must first review the trial court*s findings in accordance with Tenn. R. App. P. 13(d).  That review is de novo, with a presumption of correctness for the trial court*s findings of fact, unless the preponderance of the evidence is otherwise.  Then we must determine whether the facts make out a clear and convincing case in favor of terminating the parents* parental rights.

 

            It is interesting that in Z.C.G., the trial court specifically found that Mr. Goins (the biological father) had not been a credible witness and that Mr. Goins ※didn*t tell the truth from the witness stand.§ (emphasis added).  The Court of Appeals specifically acknowledged that finding, but concluded that the trial judge erred in failing to consider several uncontroverted facts which would have pointed toward a lack of willfulness.  For example, Mr. Goins had been visiting his son regularly and had no visitation problems until the biological mother decided to re-marry.  She then moved from Mr. Goins* county to an entirely different county and began interfering with Mr. Goins* visitation.  After several weeks of interference, Mr. Goins was forced to file a petition for contempt.

            A fair reading of Z.C.G reveals that the court must view the totality of the circumstances in analyzing the central issue of willfulness.  This means that the court should carefully consider the events and circumstances that occurred between the parties even prior to the beginning of the four-month period.  If there are any material facts which are uncontroverted and suggest lack of willfulness, then those facts must be acknowledged by the trial court, and the respondents must be accorded credit for those facts, even if the court otherwise has no faith in the credibility of the respondents.  The clear message of Z.C.G. is that uncontroverted facts stand on their own, independent of any analysis of credibility.  

For purposes of the instant case, the question then becomes, what are the uncontroverted facts that point toward a lack of willfulness with respect to the respondents* alleged failure to exercise visitation and/or pay child support during the four months immediately preceding the filing of the petition to terminate parental rights? 

Many of the reasons cited by the court of appeals in In re Z.C.G., 2001 WL 1262609 for concluding that abandonment had not been shown by clear and convincing evidence, are also found in the instant case.  In both cases, the respondents initially enjoyed regular visits without visitation problems until the occurrence of certain triggering events.  In both cases, the triggering events which caused the visitation to erode amounted to interferences with visitation.  Just as Mr. Goins in Z.C.G. was forced to file a petition for contempt in order to enforce his visitation rights, the respondents in the instant case were forced to file two separate petitions for custody in order to regain custody of their child. 

            The  appellate court in Z.C.G. further noted the following, yet still refused to find a willful abandonment:

Although, Mr. Goins behavior has been far from exemplary (often times down right reprehensible), Ms. Bergquist has, by her own testimony and admitted actions, been less than co-operative in working with Mr. Goins to make Z.C.G. available for visitation#.Regardless of her contempt for Mr. Goins and his family, as long as he has parental rights, it is her obligation, as custodial parent with primary control over the child, to work on her end to foster the relationship between Z.C.G. and his father.  In this case, it appears that she did just the opposite in the months leading up to the filing of the petition in this matter.  (emphasis added).

 

However, the foregoing being said, Mr. Goins is certainly skating on thin ice with regard to his parental rights.  Although the evidence at this time does not clearly show willful abandonment, Mr. Goins should now be on notice that any further neglect of his visitation will certainly be subject to more liberal interpretation as evidence of willfulness.

 

As we cannot find clear and convincing evidence of the element of willfulness necessary for abandonment, it is unnecessary to determine the child*s best interests based on the factors set out in T.C.A. ∫ 36-1-113(i) and Brown v. Rogers.

 

            The United States Supreme Court has previously noted that an elevated standard of proof in a parental rights termination proceeding would alleviate "the possible risk that a fact finder might decide to [deprive] an individual based solely on a few isolated instances of unusual conduct [or] ... idiosyncratic behavior."  Addington v. Texas, 441 U.S., at 427, 99 S.Ct., at 1810.

            The ※Statement of Facts§ section of this brief contains a comparison chart setting forth many of the trial court*s critical findings of fact in relation to other, countervailing evidence presented at trial.  Supra at 65-142.   Most of the countervailing evidence comes from independent witnesses the court specifically found to be credible. (See column 2).   Much of the countervailing evidence comes from the Bakers themselves.  At a glance, one can easily see the discrepancies between the trial court*s findings and the actual evidence adduced at trial.  The chart attempts to isolate the Hes* testimony in column 3, since the trial court found the Hes lacking in credibility.  Although the respondents dispute that credibility determination, they will not belabor the point, recognizing that the trial court*s determination of credibility is rarely disturbed on appeal.  Instead, the chart clearly shows, that even without the Hes* testimony, the countervailing evidence is overwhelming, and most of it comes from independent witnesses specifically found credible by the trial court.

            The 70-page space limitation for arguments obviously precludes an in-depth analysis of each and every fact unsupported by clear and convincing evidence.  Therefore, two examples will be provided here with the hope that this Court will review the chart for other instances of unsupported evidence, countervailing evidence and/or weak evidence. 

            Example 1:  The Court found that a meeting took place at the Hes* apartment on June 3, 1999, with Mrs. He, Kenny Yau (the interpreter) and Diane Chunn where Mrs. He was supposedly provided a detailed explanation of everything that attorney Kevin Weaver had imparted to Mr. He the day before.  In addition, the trial court found that Mrs. He indicated she understood everything imparted to her by Diane Chunn through the interpreter, Mr. Yau.[11]  The problem is that, according to Diane Chunn herself, no such meeting ever took place.  (Diane Chunn, p. 950, L. 4-11).  Diane Chunn*s own notes corroborate this. (Exhibit 19, p. HE00012-HE00013).

            Example 2:  The Court appears to base its entire theory of this case on the rather precarious assertion that due to the ※close proximity§ of the calls from the INS and the filing of the custody petitions, the Hes only seem to be interested in regaining custody of AMH when deportation seems imminent.  There is no evidence in the record that Mrs. He ever received any calls from the INS.  There is no evidence in the record that Mrs. He even knew of any calls from the INS.  Neither the petitioners nor the guardian ad litem called any witnesses from the INS to testify regarding the timing of calls from the INS.  Neither the petitioners nor the guardian ad litem presented any affirmative proof of their own on this issue.  Even if there had been a connection between the petitions and the INS calls, it is more reasonable to conclude that the respondents were trying to get their daughter back so they could take her with them to China prior to being deported. 

Thus, even assuming a connection, there are two different interpretations as to why the custody petitions were filed: 1) the trial court*s interpretation; or 2) because the Hes* wanted their daughter back before they get deported.  The clear and convincing evidence standard in termination cases requires the trial court to view countervailing evidence and/or differing plausible explanations in a light most favorable to the respondents.  (See  Fancher v. Mann, 432 S.W.2d at 66 (Tenn.App. 1968), in which the Court notes that ※abandonment may be found only when, given the benefit of every controverted fact, an inference of abandonment follows as a matter of law.§) (Emphasis added).   In the instant case, the trial court erred by resolving these differing positions in a light most favorable to the petitioners.  This is true, even though it appears the more plausible explanation is that the Hes* simply wanted their daughter back before they got deported. 

Even so, there is no credible evidence that any connection ever existed.  To search for such a connection, is to invite speculation.   Speculation can never be the basis for the termination of a fundamental right.  Even under the diluted preponderance of the evidence standard, it is clear that such a connection cannot be found to exist.

5.  Whether the trial court erred in failing to find that Tennessee Code Annotated ∫ 36-1-102 and ∫ 36-1-113 unconstitutionally deprives natural parents of the right to receive prior actual notice and warnings of the definitions of abandonment, the right to receive information regarding the criteria and procedures for termination of parental rights, the right to receive information concerning the law of abandonment, the right to receive prior warnings that the failure to visit or support the child for a statutorily prescribed period such as four (4) months could be grounds for termination of parental rights, and the right to receive information regarding the necessity for and assistance of counsel.

            These statutes unconstitutionally fail to require that natural parents receive prior actual notice and warning of the definitions of abandonment, the criteria and procedures for termination of parental rights, the law relating to abandonment, the fact that the consequences of failure to visit or support the child may be grounds for termination of parental rights and an explanation to the parents that they may seek an attorney.  

In stark contrast, T.C.A. ∫ 37-2-403(a)(2)(A) and (2)(B)(i), provides very specific due process protections for natural parents when their children are placed in the foster care of an agency:

The plan for any child in foster care shall include#the definitions of abandonment 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.  If the parent should fail or refuse to sign the plan, the agency shall seek ratification of the plan by the court.  The court must review the proposed plan, make any necessary modifications and ratify the plan within sixty (60) days of the foster care placement.

 

. . . 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.  (emphasis added).

 

The protections afforded natural parents under this statute go to the very core of fundamental due process and are designed to ensure that natural parents receive fair notice of the technical parameters of the abandonment statute.  Because parental rights are well-recognized fundamental constitutional rights, there must be a compelling governmental interest in order to justify affording natural parents greater due process protections in agency administered foster care arrangements than the protections currently available to natural parents in non-agency custody arrangements between private individuals.  The failure of the government to demonstrate why such a distinction exists in these varying contexts, renders the abandonment statute unconstitutionally deficient, both in its absence of due process notification and in its failure to provide equal protection to all groups of individuals who might fall within its grasp.

In Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 (1982), the United States Supreme Court noted the following:

The fundamental liberty interest of natural parents in the care, custody, and **1395 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 *754    destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. (emphasis added).

 

Fundamental fairness is the key.  The minor child in the instant case was awarded to the petitioners by virtue of a consent order granting temporary custody in the juvenile court. Both before and after the time of this transfer of custody, the natural parents received no formal or informal notice or warning of the definitions and consequences of abandonment.  The transition of AMH from Mid-South Christian Services (and the Bakers) to the respondents, and then back to the Bakers, was continuous, uninterrupted and seamless.  It was organized and facilitated by the foster care agency, Mid-South Christian Services.  It all occurred on a single day at one location on June 4, 1999.  An interpreter was present, but he was promising nothing less than an arrangement of short duration so the Bakers could place AMH on their health insurance. The respondents were satisfied.  Ignorance was bliss.          

T.C.A. ∫ 36-1-102 and ∫ 36-1-113 do not require natural parents to receive such notice in the context of a consent order transferring custody and not involving foster care placement with an agency.  Thus, parents of children placed in foster care with an agency receive an abundance of due process notice and warnings while parents of children involved in other custody arrangements are not statutorily required to receive any prior notice and warning concerning the definitions and consequences of abandonment.    These deficiencies render these statutes unconstitutional and in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

6.  Even if the trial court had been correct in upholding the constitutionality of Tennessee Code Annotated ∫ 36-1-102 and ∫ 36-1-113, the trial court erred in failing to find that the Respondents were constitutionally entitled to the same or similar protections found in Tennessee Code Annotated ∫ 37-2-403(a)(2)(A) and (2)(B)(i), requiring prior notification to biological parents of the meaning, definitions, and consequences of abandonment in circumstances where a child is placed in the foster care of an agency.

As previously discussed, the respondents are Chinese citizens and never had the benefit of any notice, either formal or informal, regarding the technical definitions of abandonment during the critical months preceding the filing of the termination petition; nor did they have the benefit of T.C.A. ∫ 37-2-403(a)(2)(A) and (2)(B)(i), which provides very specific due process protections for natural parents when their children are placed in the foster care of an agency.

On June 5, 2001, the Court of Appeals addressed this statute in In the Matter of C.L.H. and L.L.H., Jr., 2001 WL 605101 (Tenn. App.).  In that case, the father successfully argued that the State did not prove that the consequences of abandonment had been adequately explained to him as required by statute:

We have searched in vain for the required definitions in any of the permanency plans or where the required information was given to the parents in open court.  The permanency plans are otherwise filled with pertinent information, and we have no doubt that DCS attempted to comply with the statute, but the record simply does not show it.  Therefore, we have to conclude that the court erred in finding that either or both of the parents had abandoned the children.  (emphasis added).

 

Thus, as a result of the State*s failure to explain the consequences of abandonment to the father, the Court of Appeals reversed the trial court*s finding of abandonment. 

In the instant case, AMH was not ※technically§ placed in the foster care of an agency following the end of the 90-day foster period through Mid-South Christian Services, although it is equally clear that Mid-South Christian Services was actively involved in the placement of AMH with the Bakers and, in fact, facilitated a virtually seamless transfer of custody which ultimately occurred in Juvenile Court on June 4, 1999.  This is evidenced by the continued presence and participation of Diane Chunn of Mid-South Christian Services through June 4, 1999 and thereafter, and the legal advice provided to the Bakers and Mr. He by Mid-South*s counsel, Kevin Weaver, only two days prior to the purported transfer of custody, all of which had been arranged by Ms. Chunn.

Arguably, therefore, AMH was in the kind of foster care contemplated by T.C.A. ∫ 37-2-403(a)(2)(A) and (2)(B)(i) when she remained with the Bakers following the technical ending of the 90-day foster period through Mid-South Christian Services.  In fact, nothing really changed once the 90-day period expired, other than the fact that Mid-South professed no further involvement, which, in reality, proved not to be the case. 

The evidence is clear that Mid-South remained interested in the outcome of subsequent proceedings long after they claimed to be no longer involved.  This is evidenced by the fact that their own attorney, Kevin Weaver, subsequently undertook to represent the Bakers against the Hes in adversarial custody petitions, culminating in Mr. Weaver*s representation of the Bakers in the instant petition to terminate parental rights. 

Because these notification issues go to the very heart of due process, and because parental rights are well-recognized fundamental constitutional rights, it is a deprivation of the respondents* due process rights to not afford them the benefit of these statutory protections, assuming that the Court concludes that T.C.A. ∫37-2-403(a)(2)(A) and (2) (B)(i) are inapplicable to the Hes.   In light of the persistence of the respondents in seeking the return of their daughter, it is a foregone conclusion that they would have taken even additional steps in order to prevent the termination of their parental rights, had they simply been notified of the meaning and consequences of abandonment as technically defined in our adoption code.

            This principle was articulated by our Court of Appeals as early as 1969 in Pierce v. Bechtold, 448 S.W.2d 425 (Tenn. App. 1969; cert. denied by Sup.Ct.), in which a judgment of abandonment was reversed when the natural mother had no idea her parental rights could be at stake for leaving her child with the petitioners who were ostensibly caring for her child as a gratuity and out of kindness:

Petitioners criticize the mother for using her limited funds for trips instead of earlier re-establishment of her home.  Doubtless if the mother had been informed that the delay in regaining custody of her child would have been interpreted as an abandonment, her choice would have been otherwise. Id. (emphasis added).

 

            The appellate court went as far as to characterize the problem as ※the trap of abandonment§:

It frequently occurs that childless relatives welcome the opportunity of sheltering and supporting an attractive child, and consider the expense a privilege, rather than a burden.  Such relatives are a boon to unfortunate and abandoned mothers, and their generosity is not expected to hide the trap of abandonment and ultimate loss of parent-child relationship.  If there is any such expectation, the mother is entitled to be put on notice of the peril of accepting such generosityId. (emphasis added).

 

            The Court of Appeals also noted that the Chancellor, in finding that the mother had abandoned her child, was probably influenced by the superior environment and opportunities offered by the petitioners, and was, therefore, probably thinking more in terms of custody than adoption and/or termination of parental rights.  The court emphasized that such custody considerations are immaterial in adoption cases. Id. 

As will be shown below, the best interest analysis can be considered, if and only if, the court first concludes, with clear and convincing evidence, that the respondents were guilty of willful abandonment.  Even then, the best interest analysis to be applied is not with respect to placement of the child; but rather, the statutory test relates to termination of parental rights; i.e., is it in the child*s best interest to terminate the parental rights of her biological parents?  Put another way, is it in the child*s best interest to obliterate the parent-child relationship and, in the eyes of the law, relegate the biological parents to the role of complete strangers to their child, without so much as even the right to visit?

Pierce represents a clear, common law example of why notice is critical, not merely notice of one*s obligation to visit or support, but notice that the failure to visit or support is linked to the retention or termination of parental rights.  Pierce was decided years before the notice provisions under T.C.A. ∫ 37-2-403(a)(2)(A) and (2)(B(i) were enacted.  The failure to afford the respondents the same or similar protections as contemplated in Pierce and/or T.C.A. ∫ 37-2-403(a)(2)(A) and (2)(B(i), not only deprives them of due process, but also the equal protection of the laws.

             However, the notification and due process issues are no less compelling and certainly go to the core of the willfulness issue as was demonstrated in Demarr, Calabretta and In re S.M.  Although the Court has heretofore upheld the constitutionality of the challenged statute, nothing prohibits the Court from considering whether the Hes were entitled to meaningful notice of the definitions and consequences of abandonment as a matter of basic constitutional law and fundamental fairness, for this can be accomplished without declaring any statute unconstitutional.  An application of the principles articulated in Pierce, Demarr, Calabretta and In re S.M would achieve the same result.

            The Tennessee legislature, in enacting T.C.A. ∫ 37-2-403(a)(2) (A) and (2)(B)(i), obviously recognized what would seem to be common sense:  that it is important, if not critical, for biological parents to know they will lose their parental rights if they fail to meet certain statutorily prescribed requirements and if their failure continues throughout a pre-specified statutorily prescribed duration.  This was also recognized in Pierce, Demarr, Calabretta and In re S.M.  

The proof has shown, and it is undisputed, that the respondents never received any such notice.  Thus, consistent with notions of due process and fundamental fairness, one must ask the obvious and perhaps most overlooked question of all:  Is it fundamentally fair to terminate the Hes* parental rights without this notice?

7.   Because Mid-South Christian Services in an ※agency§ within the meaning of Tennessee Code Annotated ∫ 37-2-402 and because AMH was placed in ※foster care§ with Mid-South Christian Services, the trial court erred in failing to apply the notice provisions of Tennessee Code Annotated ∫ 37-2-403(a) (2) (A) and 2 (B) (i) in the instant case.

            T.C.A. ∫ 37-2-402 (1) defines ※agency§ in terms of the definitions applicable to child care agencies under title 37 or title 71:

            (1) "Agency" means 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;

 

            Title 37 defines ※child care agency§ as follows:

 

∫ 37-5-501. Definitions

 

(a) 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). (emphasis added).[12]

 

            T.C.A. ∫ 37-2-402 (5) defines ※foster care§ as follows:

           

(5) "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#.  (emphasis added).

 

The respondents placed AMH in the care of Mid-South Christian Services on  February 24, 1999, through the execution of a document entitled ※Interim Care Agreement and Consent Form.§ (Exhibit 19, p. HE00021).  The Bakers were to serve as foster parents during this period of interim care.  On June 4, 1999, more than 90 days later, the respondents signed a form provided by Mid-South requesting that AMH be removed from the care of Mid-South Christian Services. (Exhibit 19, p. HE00073)  On the same day, June 4, 1999, a consent order transferring custody was executed between the parties, purporting to transfer custody from the respondents to the petitioners.  (Diane Chunn, pp. 977-979).  Thus, the transition from ※foster care§ to ※custody§ was virtually seamless.

At no time during this ※foster care§ period with the above ※child placing agency§ (i.e., from February 24, 1999 through June 4, 1999) did the respondents ever receive the notices and warnings mandated by T.C.A. ∫ 37-2-403(a)(2) (A) and (2)(B)(i).  (Diane Chunn, pp. 1000-1008).  Mid-South*s entire birth parent file pertaining to the respondents is devoid of each and every notice and warning required under this statute.  (Exhibit 19).

As was demonstrated in In the Matter of C.L.H. and L.L.H., Jr., 2001 WL 605101 (Tenn. App.), the notice and warnings deficiencies are properly remedied by a reversal of the trial court*s finding of abandonment:

We have searched in vain for the required definitions in any of the permanency plans or where the required information was given to the parents in open court.  The permanency plans are otherwise filled with pertinent information, and we have no doubt that DCS attempted to comply with the statute, but the record simply does not show it.  Therefore, we have to conclude that the court erred in finding that either or both of the parents had abandoned the children.  (emphasis added).

 

8.  Whether the trial court erred by recognizing a purported agreement, that if found to exist, would contravene the public policy of Tennessee.

Assuming arguendo that the Bakers* are correct that the parties did, in fact, have an agreement that the Bakers* would raise AMH until she became an adult (which the respondents vehemently dispute), then to enforce that agreement or to infer willfulness as to the Hes* intentions regarding visitation and support because of said agreement, would contravene the public policy of this State.

            At the heart of the Bakers* position, is an attempt to enforce what amounts to an agreement, that if found to exist, would violate the public policy of Tennessee.  It is undisputed that the Bakers contend they entered into an agreement with the respondents to raise AMH until she became an adult.  In turn, the Hes would retain their parental rights. 

Implicit in this purported agreement was the assumption that the Hes* would pay no support.  The respondents dispute that they agreed the Bakers would raise AMH until she became an adult, but rather, contend the Bakers would temporarily care for AMH because Respondents were financially unable to provide for AMH ※at this time§ (as the language in their juvenile court petition clearly corroborates). 

            It is undisputed, and the testimony of Jerry Baker bears this out, that the Bakers decided to terminate the respondents* parental rights because the Bakers believed that the respondents, by petitioning the juvenile court for the return of AMH, had thereby breached their agreement that AMH be raised by the Bakers until she became an adult.  The remedy for this breach, according to Jerry Baker, was to seek the termination of the Hes* parental rights.[13]  Consider the following testimony of Jerry Baker at trial:

Q.  What was your reasoning for seeking to terminate the parental rights as opposed to just keeping custody?

 

A.  Prior to them filing their motion for custody the first time, I wouldn*t- - we didn*t think that we would have a reason to term- - to submit to terminate their rights.  After they had filed the motion, we realized that what they had said wasn*t going to happen.  Therefore, we filed.

 

Q.  The petition to terminate parental rights?

 

A.  Yes, sir.

 

Q.  In other words, when it became clear to you that Jack and Casey no longer wanted you to keep Anna Mae permanently, you thought that the only way you were going to be able to make that happen, that is, to keep her permanently, was to terminate their parental rights?

 

A.  We had taken- - agreed to raise Anna for her life off what they had told us.  When they filed the papers to have custody returned, then we realized that we were unable to go off what they had told us.  Therefore, we filed for- - to terminate their rights.

 

Q.  (By Mr. Siegel) So, they- - in your mind, they rescinded the deal, so to speak.  They rescinded their agreement with you, from your perspective.  Is that right?

 

A.  I don*t know about rescinded and all that stuff.  In my mind, we had a contract, and then they decided they weren*t going to fulfill it.

 

Q.  And, in your mind, they had breached that contract.  Is that right?

 

A.  Yes.

 

Q.  And, so, your solution was to terminate their parental rights.  Is that right?

 

A.  They had failed to- - yes, sir.  (emphasis added).

 

(Dep. of Jerry Baker, p. 50, lines 14-24; p.51, lines 1-24; p. 52, lines 1-22;  see also trial testimony of Jerry Baker, pp. 865-873).

It is well settled that private agreements which circumvent the support obligations established by law contravene public policy, and are, therefore, void.  Berryhill v. Rhodes, 21 S.W.3d 188 Tenn. 2000).  In a more recent decision, the Court of Appeals considered whether a father could voluntarily have his parental rights terminated when, by his own admission, he had not seen his daughter since birth, and had, for all practical purposes abandoned his child.  C.J.H. v. A.K.G., 2002 WL 1827660 (Tenn. Ct. App. August 9, 2002).  The mother and father both agreed to terminate father*s parental rights and they, therefore, submitted a joint petition for termination of father*s parental rights.  The trial court denied the father*s request and the Court of Appeals affirmed, citing public policy concerns and the fact that termination was not in the best interest of the child.  Thus, even in a case in which the father wanted the termination of his parental rights, the Court refused.

            In the instant case, there were certainly other legal avenues the parties could have utilized had they been truly interested in the creation of an agreement which would have had the legal effect of allowing the Bakers to permanently raise AMH while simultaneously excusing the Hes from the payment of child support.  For example, Tenn. Code Ann. ∫ 36-1-102(47) allows the parent or guardian of a child to execute a ※surrender,§ whereby the parent or guardian relinquishes all parental or guardianship rights to another person or public child care agency or licensed child-placing agency for the purposes of making that child available for adoption

It is undisputed that not only did this not occur, but the respondents, particularly, Mrs. He, expressed vehement opposition to the idea.  Had the parties truly contemplated an agreed abandonment, a surrender should have and would have been executed, thereby making AMH available for adoption.  The fact that a surrender did not occur, is perhaps the best evidence of the parties* intentions.  To enforce an agreement which, by its very nature, was designed to circumvent the surrender provisions of Tenn. Code Ann. ∫ 36-1-102(47) is clearly illegal and in violation of public policy.  By terminating the parental rights of the Hes, the trial court, in effect, undertook the enforcement of an illegal contract (although no such contract really existed), the breach of which resulted in the remedy of termination.

Similarly, to allow the Bakers to capitalize on their illegal contract by arguing that it somehow proves the Hes ※willfully§ never intended to pay support, is the legal equivalent of giving credence to the illegal contract itself.  If the contract is truly void, then it is worthy of no recognition in any context. 

The transfer of custody that occurred on June 4, 1999, in no way ratifies what was otherwise an illegal contract.  Quite the contrary, if the Bakers* contention is correct that such a contract really existed, then such a contract not only circumvents the surrender laws of our state, but it also undermines the legal effect of the custody order, which, by its nature, is subject to modification upon a showing of changed circumstances.  If custody orders are subject to modification, how can the Bakers logically or legally enter into a custody arrangement that unconditionally allows them to raise AMH until she becomes an adult?  The answer is clear.  They cannot.  Such an arrangement is nothing less than a legal paradox, an anomaly incapable of enforcement.

Therefore, if we are to believe such a contract existed as claimed by the Bakers, then we must also accept the proposition that the contract was ※under the table.§  It was designed to accomplish for the Bakers that which they could not accomplish legally:  the adoption of AMH.

9.  Because Mr. He*s status as ※legal parent§ was conclusively established prior to trial, the trial court erred in terminating the parental rights of Mr. He under Tennessee Code Annotated ∫ 36-1-113(g)(9)(A)(ii), (iii), (iv), (v) and (vi).

The trial court ruled that Mr. He was not a legal parent or guardian of AMH at the time of the filing of the Petition to Terminate Parental Rights, and therefore, concluded that Mr. He*s parental rights should be terminated pursuant to Tenn. Code Ann. ∫ 36-1-113(g)(9)(A)(ii), (iii), (iv), (v) and (vi).  (Vol. 11, T.R., p. 1503, ¶ 272).  However, it is undisputed that Mr. He established his status as legal parent of AMH on March 15, 2002, when he executed a voluntary acknowledgment of paternity.  (Vol. 6, T.R., p. 805)  The acknowledgment of paternity was entered into evidence at trial without objection. (Vol. 45, R. 5-6; Exhibit 28).

Tenn. Code Ann. ∫ 36-1-113(g)(9) does not apply to legal parents.  T.C.A. ∫ 36-1-102 (28)(D) defines ※Legal Parent§ as a man#who has  signed, pursuant to ∫∫ 24-7-113, 68-3-203(g), 68-3-302 and 68-3-305(b), ※an unrevoked and sworn acknowledgement of paternity under the provisions of Tennessee Law#§

T.C.A. ∫ 24-7-113 provides that the voluntary acknowledgment of paternity

shall be conclusive (unless rescinded) of that father*s paternity without further order of the court.  T.C.A. ∫ 24-7-113 (b)(2) provides that the acknowledgment of paternity is

entitled to full faith and credit in any judicial or administrative proceeding in this state.

T.C.A. ∫ 24-7-113(b)(3) provides that ※no judicial or administrative proceedings are required nor shall any such proceedings be permitted to ratify an unchallenged acknowledgement of paternity in order to create the conclusive status of the acknowledgement of paternity.§ (Emphasis Added) 

T.C.A. ∫ 24-7-113(c) provides for the rescission of a voluntary acknowledgment of paternity.  Rescission, if it is to occur, must be accomplished within sixty (60) days following completion of the acknowledgement.  It is undisputed that the voluntary acknowledgment of paternity has not been rescinded.  (Vol. 8, T.R., p. 1050, ¶ 266A).

Because Mr. He was adjudicated the legal parent of the child before the proceeding which resulted in the termination of his parental rights, Tenn. Code Ann. ∫ 36-1-113(g)(9) is inapplicable.  See Jones v. Garrett, 92 S.W. 3d 835 (Tenn. 2002). 

Although this statute was amended on June 3, 2003 to allow for the termination of parental rights if the person was not the legal parent ※at the time of the filing of the petition,§ such fact is irrelevant because this action was already pending at the time of the amendment, and the amendment may not be applied retrospectively against substantive rights such as Mr. He*s status as legal parent.  Roberts v. Knoxville Transit Lines, 259 S.W.2d 883, 886 (Tenn. Ct. App. 1953).  Any doubts regarding the retrospective application of the June 3, 2003 statutory amendment were resolved in a recent decision by a unanimous Supreme Court.  See In Re D.A.H., 142 S.W.3d 267 (Tenn. 2004).

9A.  Whether the trial court erred in finding that termination of parental rights is in the best interest of AMH.[14]

                        A.  There is no clear and convincing evidence to support the court*s conclusion of law that there is ※parental misconduct or inability to parent by the Hes.

                        B.  There is no clear and convincing evidence to support the court*s conclusion of law that both Mr. and Mrs. He are unfit parents.

                        C.  There is no clear and convincing evidence to support the court*s conclusion of law that ※the Hes have failed to make such an adjustment of circumstance, conduct, and conditions as to make it safe and in AMH*s best interest to be in the Hes* home.§

                        D.  There is no clear and convincing evidence to support the court*s conclusion of law that ※the Hes have failed to maintain regular, meaningful visitation and contact with AMH.

                        E.  There is no clear and convincing evidence to support the court*s conclusion of law that ※the Hes have failed to establish a meaningful relationship with AMH due to the Hes* neglect and inattentiveness.

                        F.  There is no clear and convincing evidence to support the court*s conclusion of law that 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.

                        G.  There is no clear and convincing evidence to support the court*s conclusion of law that the physical environment of the Hes* home is unhealthy and unsafe.

                        H.  There is no clear and convincing evidence to support the court*s conclusion of law that ※Mrs. Hes* emotional instability would be detrimental to AMH.

                        I.  Because the Hes were deprived of their due process and equal protection right to receive notice that their failure to provide anything more than token support could be subsequently used to terminate their parental rights, the trial court erred in considering failure to support as a basis for concluding that termination of parental rights is in the best interest of AMH.

10.  Whether trial court erred by not applying the doctrine of superior parental rights so as to award custody to the respondents, thereby rendering moot the Bakers* pending petition to terminate parental rights.

            Perhaps no case has changed the complexion of custody law more in recent years than the Tennessee Supreme Court decision of Blair v. Badenhope, 77 S.W.3d 137 (Tenn. 2002).  Prior to Blair, the only legal standard in custody disputes between parents and non-parents was ※substantial harm;§ i.e., in an initial custody dispute between parents and non-parents, a natural parent may only be deprived of custody of a child upon a showing of substantial harm to the child.  In re Askew, 993 S.W.2d 1 (Tenn. 1999).   This is also known as the ※doctrine of superior parental rights.§  Thus, biological parents enjoyed superior parental rights in custody disputes against non-relatives unless the non-relatives could prove substantial harm. 

Prior to Blair, it was widely believed that the substantial harm test and/or the doctrine of superior parental rights enunciated in Askew, also applied in modification proceedings where custody had already been lost or relinquished and the biological parent was attempting to regain custody.  When Blair was decided on May 3, 2002, the Tennessee Supreme Court created an exception to Askew*s doctrine of superior parental rights.  However, the Supreme Court did not overrule Askew.  Indeed, as will be shown below, Askew*s doctrine of superior parental rights is alive and well in Tennessee with respect to modification proceedings where custody is already in the hands of a non-relative and the biological parent seeks the return of the child.

            In Blair, the Supreme Court simply held that in a modification proceeding between a parent and a non-parent, the doctrine of superior parental rights is not available to the natural parent if a ※valid order of custody§ is the subject of the modification proceeding, even in those cases where the order resulted from the parent*s ※voluntary consent§ to give custody to the non-parent.  In effect, Blair simply restated the traditional view that, under those circumstances, a natural parent seeking to modify a custody order granting custody to a non-parent must show that a material change in circumstances has occurred which makes a change in custody in the child*s best interests.

            What is most important about Blair, however, is not its restatement of the traditional ※changed circumstances§ rule, but rather its creation of very specific exceptions to the ※changed circumstances§ rule, the applicability of which would allow the natural parent to invoke the doctrine of superior parental rights, thereby shifting the burden to the non-parent to prove substantial harm.  The applicability of any single exception, automatically invokes the doctrine of superior parental rights as enunciated in Askew.

            Blair enumerated four (4) exceptions to the traditional changed circumstances rule in order to trigger Askew*s doctrine of superior parental rights:

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; (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.

 

            In Blair, none of the above exceptions were found to exist and thus the doctrine of superior parental rights was held inapplicable.  In the instant case, three (3) out of the four (4) exceptions are applicable.  The order transferring custody from the Hes to the Bakers was accomplished by fraud and without notice to Mrs. He;[15] the order transferring custody from the Hes to the Bakers is invalid on its face;[16] and the Hes ceded only temporary and informal custody to the Bakers.[17]

Exception Number Two:  When the Order Transferring Custody from the Natural Parent is Accomplished by Fraud or Without Notice to the Parent

The Consent Order Awarding Custody states, in pertinent part, that the parties ※have been fully advised of their legal rights and that a hearing before the Court is hereby expressly waived.§  (emphasis added).  Respondents would show that, in reality, they were not fully advised of their legal rights, and further, that one of the respondents, Mrs. He, received absolutely no legal advice at all, although she was given ※advice§ by persons not legally licensed to practice law in the State of Tennessee.

Specifically, the respondents would show that Diane Chunn, acting in her capacity as birth parent counselor and fiduciary to the respondents, and during the course and scope of her employment for Mid-South Christian Services, arranged for Mid-South*s, attorney, Kevin Weaver, to render legal advice to the respondents and the Bakers concerning the implications of signing over temporary custody to the Bakers. (Diane Chunn, 953-954).

A meeting then took place at the office of Attorney Kevin Weaver on June 2, 1999, only two (2) days prior to the purported transfer of custody to the Bakers.  In attendance at this meeting, were the Bakers, Diane Chunn and Mr. He.  Mrs. He was not present at this meeting.

Respondents would further show that, even though Mrs. He had received no legal advice from any duly licensed attorney, the transfer of custody was scheduled for June 4, 1999 at the Juvenile Court of Memphis and Shelby County, Tennessee.  Present at the Juvenile Court on that day were the Bakers, Diane Chunn, Sarah Cloud, the respondents and an interpreter. 

During the conference of June 4, 1999, and for the first time ever, Mrs. He received ※legal advice§ about temporary custody from both Diane Chunn and Sarah Cloud, both of whom, on information and belief, were not duly licensed and practicing attorneys in the state of Tennessee or in any other state.  The proof also revealed that the interpreter, Kenny Yau, did not read the consent order, word for word, to the respondent, Mrs. He. (Pastor Yau, p. 1997, 2008)

Respondents allege that because Mrs. He received ※legal advice§ from persons unauthorized to render such advice, she, in effect, received no legal advice at all.  Accordingly, the Consent Order Awarding Custody entered on June 4, 1999, and which recites that the parties ※have been fully advised of their legal rights,§ is wholly untrue.  Respondents would further show that in reliance on the unauthorized legal advice Mrs. He received during the Juvenile Court conference of June 4, 1999, Mrs. He signed the Order Awarding Custody.

Respondents would further show that because Mrs. He received advice from persons unauthorized to give such advice, and because the June 2, 1999 conference took place in Mrs. He absence, Mrs. He did not, in effect, ※consent§ to the transfer of custody to the Bakers on June 4, 1999; nor could she have knowingly and intelligently ※waived§ a hearing before the Court as is stated in the Consent Order Awarding Custody. 

The Consent Order Awarding Custody states that ※a hearing before the court is hereby expressly waived.§ (emphasis added).  Black*s Law Dictionary, Fifth Edition, defines ※express waiver§ as ※the voluntary, intentional relinquishment of a known right.  It cannot be reasonably argued that Mrs. He voluntarily relinquished a known right when she received what amounts to no legal advice at all, or in the alternative, legal advice from persons unauthorized to render such advice. 

Accordingly, Mrs. He cannot be said to have ※expressly waived§ a hearing before the Court as is indicated in the Consent Order Awarding Custody. Because the Consent Order Awarding Custody is clearly predicated on facts which are wholly untrue, it is impossible for her to have received meaningful notice of the order at issue.  Consequently, these facts clearly fall within the above exception outlined in Blair such that the doctrine of superior parental applies to the Hes.

It should be emphasized that before fundamental parental rights can be waived by the natural parent, Blair requires that the transfer of custody to the non-parent be made ※with knowledge of the consequences of that transfer.§  Given the facts as indicated above, and as will be seen below, one cannot conclude that the respondents had knowledge of the consequences of the transfer.  It is submitted that if they had such knowledge, the transfer would not have occurred.  Instead, the respondents would likely have sought some other means of securing temporary assistance for AMH.   

Exception Number Three: When the Order

Transferring Custody From the Natural Parent is Invalid on its Face

The ※Petition for Custody§ filed in the Juvenile Court on June 4, 1999, fails to comply with the minimum requirements mandated by Tennessee Code Annotated ∫34-2-101, ∫34-2-103 and ∫34-2-104 and ∫34-2-105 . 

Petitions for the appointment of a guardian of the person are permitted to be filed in the juvenile court:

∫ 34-2-101. Appointments; jurisdiction and venue

(a) Actions for the appointment of only a guardian of the person may be brought in the juvenile court in the county in which there is venue. Actions for the appointment of a guardian of the person or property or both may be brought in a court exercising probate jurisdiction or any other court of record in the county in which there is venue.

(b) An action for the appointment of a guardian may be brought in the county of residence of the minor, the county of residence of the minor's parents or, if the minor's parents are living apart, the county of residence of the custodial parent.
1992 Pub.Acts, c. 794, ∫ 34.

 

However, the following statute requires that the court make a determination as to what is in the best interest of the minor, and further, to consider specified persons in the order listed below:

∫ 34-2-103. Priorities and preferences; appointments

Subject to the court's determination of what is in the best interests of the minor, the court shall consider the following persons in the order listed for appointment of the guardian:

(1) The parent or parents of the minor;

(2) The person or persons designated by the parent or parents in a will or other written document;

(3) Adult siblings of the minor;

(4) Closest relative or relatives of the minor; and

(5) Other person or persons.

1992 Pub.Acts, c. 794, ∫ 36. (emphasis added)

 

            Because the court conducted no open-court hearing or examination of the parties, and because the parties did not properly waive their right to an open-court hearing, motion, there was no means by which the court could have procedurally considered the best interests of the minor and the additional persons that might have qualified for the appointment of a guardian.  Thus, both the ※Petition for Custody§ and the ※Consent Order Awarding Custody§ are facially defective and, therefore, fall squarely within the third exception outlined in Blair.

The following section requires that the name and address of the proposed guardian appear on the petition.  In addition, the proposed guardian must sign a statement acknowledging his or her awareness of the petition and willingness to serve.  Finally, the petition must set forth an explanation of the reason for the appointment of a guardian.

 

∫ 34-2-104. Petitions for appointment

The petition for the appointment of a guardian, which shall be sworn, should contain the following:

(1) The name, date of birth, residence and mailing address of the minor;

(2) The name, age, residence and mailing address and relationship of the petitioner;

(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;

(4) The name, mailing address and relationship of the closest relative(s) of the minor and the name and mailing address of the present custodian of the minor who should be notified of the proceedings. If the respondent has no then living parent or sibling, the petition shall so state and more remote relatives are not to be listed;

(5) An explanation of the reason for seeking appointment of a guardian; and

(6) If the petition requests the guardian manage the property of the respondent, the petition also shall contain:
(A) If the financial information about the minor is known to the petitioner:
(i) A list of the property of the minor together with the approximate fair market value of each item. The petitioner shall state whether the property listed is all of the minor's property;
(ii) A list of the source, amount and frequency of each item of income, pension, social security benefit or other revenue received by the minor;
(iii) A list of the usual monthly expenses of the minor. The petitioner shall include an explanation of how these expenditures were met prior to the filing of the petition; and
(iv) A description of the proposed plan for the management of the minor's property if a guardian is appointed; or
(B) If the financial information about the minor is unknown to the petitioner, a request that the court enter an order authorizing the petitioner to investigate the respondent's property.
1992 Pub.Acts, c. 794, ∫ 37. Amended by 2003 Pub.Acts, c. 35, ∫ 1, eff. July 1, 2003.  (emphasis added).

            Although the proposed custodian appears on the petition at issue, there is no mention of the proposed guardian.  Moreover, the petition does not contain the required statement from the proposed guardian (because, in reality, there is no proposed guardian) that he or she is aware of the petition and has a willingness to serve.  Finally, the petition contains absolutely no explanation of the reason for seeking appointment of a guardian.  The only explanation offered at all deals solely with the issue of custody, and not guardianship.

The following section of the guardianship statute requires the court to do two things which were not accomplished in the instant case. First, the court must determine that a guardian is needed.  Second, once the court determines that a guardian is needed, it shall enter an order which shall contain, as applicable to the instant case, any other authority or direction as the court determines is appropriate to properly care for the person of the minor: 

∫ 34-2-105. Orders of court

If the court determines a guardian is needed, the court shall enter an order which shall:

(1) Name the guardian or guardians;

(2) If the guardian is to manage the property of the minor, then:
(A) Set the amount of the guardian's bond unless waived as authorized in ∫ 34-1-105;
(B) Set forth the nature and frequency of each approved expenditure and prohibit the guardian from making other expenditures without court approval;
(C) Set forth the approved management of the minor's property; and
(D) Prohibit the sale of any property except as permitted by ∫ 34-1-116 without court approval or as permitted in the property management plan approved by such order; and

(3) State any other authority or direction as the court determines is appropriate to properly care for the person and property of the minor.
1992 Pub.Acts, c. 794, ∫ 38  (emphasis added).

 

Because no open-court hearing or examination of the parties occurred in the case at bar, the court could not possibly have made the determination that a guardian was even needed; nor could the court have made any determination as to what would be appropriate to properly care for the person of the minor.  This is underscored by the fact that, in the instant case, the court failed to ※state any other authority or direction as the court determines is appropriate to properly care for the person#of the minor.§   Thus, the ※Consent Order Awarding Custody§ fails, on its face, to meet even the minimum requirements of Tennessee law and is, therefore, null, void and of no legal effect.  Again, the third exception articulated in Blair is clearly applicable.

Respondents would further show that the ※Petition for Custody§ specifically requests that the court make inquiry into the allegations:

Premise considered, petitioner prays that the Court make inquiry into the allegations herein set forth and make such orders as the Court may deem proper and in the best interest of said child(ren). (emphasis added).

 

            The best evidence that the respondents failed to knowingly waive their right to an open-court examination is found in their own petition wherein they specifically requested that the ※Court make inquiry.§  The ※Consent Order Awarding Custody§ was entered on the same date.  It would be anomalous and illogical to conclude that the respondents would specifically request a court inquiry and then waive it on the same day, particularly since no judge was available to even consider the waiver.  Thus, if the judge did not consider the waiver, who made the determination that the respondents voluntarily and intentionally relinquished a known right?  There were no lawyers present that day.

Exception Number Four:  When the Natural Parent Cedes Only Temporary and Informal Custody to the Non-Parents

Perhaps even more important than the Blair decision, is a case that was subsequently decided on February 11, 2003 by the Middle Section Court of Appeals.  The case is Means v. Ashby, 130 S.W.3d 48 (Tenn. Ct. App., 2003), and its importance stems from the analysis undertaken by the appellate court when it determined that although the order transferring custody appeared valid on its face, it was apparent from the testimony of the attorney that drafted the order that the ※primary purpose§ of the order was to allow the minor child to be covered by insurance. 

The term ※primary purpose§ cannot be over-emphasized, and, in fact, is a critical phrase in providing guidance to the trial court as to how it should determine whether the Hes ceded only temporary custody to the Bakers.  Thus, if the ※primary purpose§ of the order was to cede only temporary custody, then the trial court*s decision has essentially been made as a matter of law: i.e., the order must be found to have ceded only temporary custody.

            In Means, the Court of Appeals determined that enough questions had been raised by the attorney*s testimony regarding the intent of the order that the trial court*s decision to grant custody to the non-parent was vacated and remanded for an analysis of whether the fourth exception in Blair should be applicable.  Means is important because it not only allows the court to investigate the underlying intent of the order, it requires such an analysis.  In undertaking this analysis, the Court may consider the testimony of the person that drafted the order.  In Means, that person was an attorney.  In the instant case, that person was Sarah Cloud from juvenile court.

                        The testimony of Sarah Cloud is clear, and thus far, unrefuted. At no time during the June 4, 1999 meeting at Juvenile Court did either of the respondents ever indicate they wanted someone to take care of their child on a permanent basis or until she became an adult. (Sarah Cloud, p. 1210, 1253).  The respondents did indicate to Sarah Cloud that they were interested in having someone take care of their child only on a temporary basis.  (Sarah Cloud, p. 1252-1253). Specifically, Sarah Cloud recalls that Mrs. He was ※very concerned that it was not a permanent situation.  She did not want it to be a permanent situation.§  She made that very clear to Ms. Cloud. (Sarah Cloud, pp. 1210-1211).

                        According to Sarah Cloud, Mrs. He was ※fairly adamant that at some point she wanted her child back.§  (Sarah Cloud, p. 1263).  Sarah Cloud also understood that the Bakers wanted a temporary arrangement.  (Sarah Cloud, p. 1252-1253).

Perhaps the best evidence of the intent of the custody order is the plain language in the petition for custody that ultimately gave rise to order. The only reason cited by the respondents for wanting to change custody to the petitioners was that they were ※ unable to financially care and provide for said child at this time." (emphasis added)  This phrase plainly appears on the petition for custody.

            The phrase ※the parents are unable to financially care and provide for said at this time§ as typed on the June 4, 1999 petition for custody is not part of the preprinted language on the Juvenile Court form used by the respondents to file the petition; but rather, said language is ※fill-in-the blank§ because every family*s case is unique and, therefore, ※unique language should go into it pertaining to what their situation is.§  (Sarah Cloud, pp. 1213-1214; emphasis added).  According to Sarah Cloud, who believes she was the one that probably typed the June 4, 1999 petition, the phrase ※at this time§ indicated to her that ※the Hes felt like they had a temporary financial setback and they were at this time unable to provide for the child financially.  (Sarah Cloud, p. 1214).

            Considering the totality of this evidence, it is clear that the order of June 4, 1999 transferring custody was intended to cede only temporary custody to the Bakers until such time as the Hes were financially able to care for their child.  Anything other than that, was clearly not in the contemplation of the parties. 

Blair v. Badenhope contains the following ※catch-all§ exception, thereby making Blair inapplicable to the instant case:  the parent*s voluntary transfer of custody to a non-parent, ※with knowledge of the consequences of that transfer,§ effectively operates as a waiver of superior parental rights.

The operative language for purposes of the instant case is ※with knowledge of the consequences of that transfer.§  See Blair v. Badenhope, 77 S.W.3d at 147-148 (Tenn. 2002).  In footnote 3, the Blair Court emphasizes the importance of having knowledge of the consequences of that transfer:

FN3.  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 these rights were accorded the protection demanded by the 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 Blair in this case.  Id. at 148.  (emphasis added).

 

            In the instant case, there is no evidence that the parties understood the technical definition of ※temporary,§ in the same manner that a lawyer would understand that term.  In fact, there are probably many domestic relations lawyers that would be unable to discern any meaningful distinction between a permanent custody order and a temporary custody order.  Many of these lawyers would say there is really no such thing as a ※permanent custody order;§ i.e., that by definition all custody orders are ※temporary§ in the sense that they are subject to modification at any time during the minority of the child.  Still others would say that a permanent order of custody is, in effect, an adoption and can thus be accomplished only by a properly executed surrender.   

            The average layperson, when confronted with the word ※temporary§ would undoubtedly conclude that it meant for a short period of time.  In fact, the uncontradicted testimony at trial, clearly shows how the process was being explained to Mrs. He, as follows:

            Pastor Kenny Yau, the interpreter during the June 4, 1999 proceeding in Juvenile Court, testified that he was asked to interpret the documents for Mrs. He so she understood what the document was and why she had to sign it.  (Pastor Kenny Yau, p. 2008).

            Pastor Yau was never asked to read the documents word for word in Chinese to Mrs. He, even though it would have been possible for him to do so.  (Pastor Kenny Yau, pp. 1997, 2008).

            According to Pastor Yau, ※guardianship§ was explained as being the willingness of the Bakers to ※temporarily take care of the baby.§ (Pastor Kenny Yau, p. 1994).

            Because of the need for medical care for the baby, the ※guardians or the custodians§ need to have medical insurance for the baby.  (Pastor Kenny Yau, p. 1995).

            On June 4, 1999, Pastor Yau explained the following (not word for word) to Mrs. He:

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 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.  (Pastor Kenny Yau, p. 10).

 

            Pastor Yau explained to Mrs. He the meaning of the word ※temporary§ as ※someone was willing to look after or take care of the well-being of the baby for a period of time.§  (Pastor Kenny Yau, p. 1995).

            Although Pastor Yau agreed during cross examination that technically the duration of ※temporary§ lasts until the period is over (meaning it might be one day, one minute or 50 years), the word was used in a very specific way on June 4, 1999.  Specifically, as used on June 4, 1999, the word ※temporary§ was assumed to be ※only for a short period of time.§  (Pastor Kenny Yau, pp. 2017, 2020; emphasis added).

            When Pastor Yau was asked whether he was merely assuming that the word ※temporary§ meant a short period of time on June 4, 1999, he replied ※no.§  (Pastor Kenny Yau, p. 2018).

So when you say it was assumed to be a short period of time, that is something that you just gleaned from the totality of the circumstances.  Is that correct?

 

No.  I was born and raised and grew up in the Chinese community.  So I know the language of the Chinese, and I*ve been learning English for the past 30 years.  The word ※temporary§ could not be meant indefinite.  Temporary 每 to the best of my understanding of the English word, temporary means it is a short period or - - it is indefinite, but it is a short period of indefinite time#.

(Pastor Kenny Yau, p. 2020; emphasis added).

            There are two or three or four different ways to say the English word ※temporary.§  (Pastor Kenny Yau, p. 2018).

            Pastor Yau made no explanation to Mrs. He as to what it would take for her to get the child back.  (Pastor Kenny Yau, p. 1995).

            During cross examination, Pastor Yau was asked whether he recalled explaining that if either party, the Bakers or the Hes, in the future wish to change what was being done and the other party objected, they would have to go to the judge and let the judge decide.  Pastor Yau responded as follows:  ※The possible complication, like if a party or either party, you know, disagree or disagree, was not mentioned during that day - - during that time.§  (Pastor Kenny Yau, p. 2017; emphasis added).

Diane Chunn*s note of the June 4, 1999 meeting at Juvenile Court, mentions the word ※temporary§ three times.  (Diane Chunn, p. 1110).

            There is simply no evidence that the Hes properly understood ※temporary§ in the same manner a lawyer would understand that term.  Even though attorney Kevin Weaver gave legal advice to Mr. He two days before the purported transfer of custody, there is no evidence that Mr. He understood the legal niceties of ※temporary§ as that term is typically understood by lawyers.  Even more remote is the possibility that Mr. He would somehow be in a position to successfully explain such a complex legal term to Mrs. He who was visibly absent from the meeting of June 2, 1999.

            Thus, when Mrs. He was ultimately present on June 4, 1999, she received information from Pastor Yau clearly assuring her that the transaction was merely for a short period of time and for a limited purpose. Any doubts she might have had regarding the legal significance of signing the custody papers, whether those doubts were the result of Mr. He*s explanation, his inadequate explanation or his non-explanation at all, were clearly quelled by virtue of the information she was receiving from Pastor Yau and Sarah Cloud on June 4, 1999.

            We have already discussed what Pastor Yau conveyed to Mrs. He on June 4, 1999.  However, where did Pastor Yau get his information with which to convey to Mrs. He?  This information came from Sarah Cloud.  Consider Sarah*s Cloud*s understanding of what was about to occur on June 4, 1999:

At no time during the June 4, 1999 meeting at Juvenile Court did either of the respondents ever indicate that they wanted someone to take care of their child on a permanent basis.  (Sarah Cloud, p. 1210).

                        When Sarah Cloud was asked whether the Hes ever indicated whether they were interested in a temporary or permanent arrangement, Ms. Cloud responded, ※temporary.§ (Sarah Cloud, p. 1210).

                        Specifically, Sarah Cloud recalls that Mrs. He was ※very concerned that it was not a permanent situation.  She did not want it to be a permanent situation.§  She made that very clear to Ms. Cloud. (Sarah Cloud, pp. 1210-1211).

                        According to Sarah Cloud, Mrs. He was ※fairly adamant that at some point she wanted her child back.§  (Sarah Cloud, p. 1263).

            Sarah Cloud also understood that the Bakers wanted a temporary arrangement.  (Sarah Cloud, p. 1252-1253).

            With respect to the Bakers* contention that they had agreed to raise AMH until she was 18 years of age, Sarah Cloud testified as follows:

R.         If you understood that Mr. and Ms. 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.

                        (Sarah Cloud, p. 1253).

            The phrase ※the parents are unable to financially care and provide for said at this time§ as typed on the June 4, 1999 petition for custody is not part of the preprinted language on the Juvenile Court form used by the respondents to file the petition; but rather, said language is ※fill-in-the blank§ because every family*s case is unique and, therefore, ※unique language should go into it pertaining to what their situation is.§  (Sarah Cloud, pp. 1213-1214; emphasis added).

            According to Sarah Cloud, who believes she was the one that probably typed the June 4, 1999 petition, the phrase ※at this time§ indicated to her that ※the Hes felt like they had a temporary financial setback and they were at this time unable to provide for the child financially.  (Sarah Cloud, p. 1214).

            Thus, for purposes of this most important footnote in Blair, of paramount importance is not the legal definition of ※temporary§ as technically defined by legal scholars; instead, the Court must ascertain how that term was reasonably understood by the Hes prior to signing the custody order.  Only then can the Court determine whether and to what extent the Hes had ※knowledge of the consequences of the transfer§ as required by Blair.  Clearly, if the Hes did not properly understand what was meant by the term ※temporary,§ then they most assuredly had no ※knowledge of the consequences of the transfer.§  If they had no knowledge of the consequences of the transfer, then Blair preserves the Hes* rights to custody under the doctrine of superior parental rights in the absence of a finding of unfitness or substantial harm to the child. 

Even if the Court wishes to discount the testimony of the Hes as self-serving on the issue of what they understood just prior to signing the custody order, the Court cannot ignore the clear testimony of Pastor Yau and Sarah Cloud.  They were both disinterested, credible witnesses with no self-serving motives.  They explained exactly what they understood about the transaction of June 4, 1999.  To find that the Hes had full ※knowledge of the consequences of the transfer,§ would be to disregard the compelling and unambiguous testimony of Pastor Yau and Sarah Cloud.

Finally, it is no accident that Blair specifically references a previous Supreme Court decision decided in 1995, Bond v. McKenzie (In re Adoption of Female Child), 896 S.W.2d 546 (Tenn. 1995), and does not overrule Bond.  (Copy attached, Tab 5)  Given Blair*s clear requirement of having ※knowledge of the consequences of the transfer§ before one can effectively waive superior parental rights, Bond is of even greater efficacy now than prior to Blair.  In effect, Blair is a reaffirmation of Bond.

Bond is virtually indistinguishable from the instant case.  In that case, the biological mother, believing that she could not take proper care of her child, asked another couple ※to assume temporarily the responsibility of caring for the child."  Subsequently, the mother entered into an agreed order transferring custody to the couple, not fully understanding that she was surrendering full custody.  When the mother realized her mistake three days later, she filed a petition seeking to regain custody. 

The trial court awarded custody to the biological mother conditioned upon her receiving appropriate training in parenting and psychological counseling.  The Court of Appeals reversed the custody award, finding that the child*s best interest would be served by her remaining in the custody of the adoptive couple. 

The Supreme Court of Tennessee reversed the Court of Appeals, holding that the Court of Appeals applied the wrong legal standard when they utilized a ※best interest§ analysis.  As later clarified by Blair, the Supreme Court*s decision in Bond to rely on the doctrine of superior parental rights was clearly predicated on the fact that the mother did not fully understand the consequences of the transfer.  The mother was operating under the mistaken belief that the purpose of the custody petition was to authorize medical care and she was unaware that the adoptive couple was seeking full, legal custody; i.e., something of a permanent nature.

In applying the doctrine of superior parental rights to a valid custody order misunderstood by the mother agreeing to the transfer, the Supreme Court stated the following:

Therefore, in 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.  Id. at 548.

 

As a result of this ruling, the case was remanded to the trial court for entry of an order that would ※unconditionally§ transfer custody to the mother.  The Supreme Court further instructed the trial court to ※determine and monitor an expeditious schedule for transferring physical custody of the child to the mother and require the cooperation of all parties.§  Id. at 548

11.  Whether the trial court erred in denying Respondents* Motion and Amended Motion Pursuant to Rule 60.02 to Set Aside Consent Order Awarding Custody Entered June 4, 1999.

            On September 12, 2003, the respondents filed a motion under Rule 60.02(3) and (5) to set aside the Consent Order Awarding Custody entered on June 4, 1999.  (T.R. Vol. 5, p. 595)  On September 25, 2003, the respondents filed an Amended Motion Pursuant to Rule 60.02 to Set Aside Consent Order Awarding Custody Entered June 4, 1999.  (Vol.      6, p. 791). The trial court denied both motions on April 7, 2004 and May 12, 2004, respectively.  (T.R. Vol. 10, p. 1408, 1432)

Given the 70-page limitation for argument, Respondents rely on their arguments submitted previously on pages 185 through 205 of their brief, including all arguments raised in the motions, as a basis justifying relief under Rule 60.02.

12. Whether the trial court erred in issuing a no-contact order prohibiting the respondents from having direct or indirect contact with AMH.

            On February 8, 2002, the Court entered an Order Appointing Petitioners Guardians of AMH which contained the following finding:

FURTHER ORDERED AJDUDGED AND DECREED that Shaio-Qiang (Jack) He and Qin (Casey) Luo shall neither have nor attempt to have any contact, direct or indirect, in person or otherwise, with the ward, Anna Mae He, unless, except and until after this Court enters and files an order mandating otherwise. It is

 

FURTHER ORDERED ADJUDGED AND DECREED that Jerry L. Baker and Louise K. Baker, as co-guardians of the ward, Anna Mae He, shall protect the ward, Anna Mae He, from any contact with Shao-Qiang (Jack) He and Qin (Casey) Luo, and shall report to this Court, immediately, any attempt by Shaio-Qiang (Jack) He and Qin (Casey) Luo to make contact, direct or indirect, in person or otherwise, with the ward, Anna Mae He.

                        (Emphasis added).

            At the trial of this cause, the court made the following finding of fact with respect to this order: 

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.

 

            The Court*s finding here is based exclusively on evidence adduced pursuant to a Motion to Reopen proof that was filed on March 22, 2004, a full 20 days after all trial testimony had been supposedly concluded. (T.R. 1166)  However, during the trial, the following testimony had been elicited weeks earlier:

At trial, the Guardian ad litem was unable to explain during cross-examination how the no-contact order was entered. (Ms. Mullins, pp. 2566, L. 24; 2567, L. 1-24; 2568, L. 1-24; 2569, L. 1-24; 2570; L. 1-24; 2571, L. 1-9)

The following exchange then occurred at trial:

 

  1. All I*m asking you is just to respond to my question.  Did you do anything at all to corroborate or conduct any investigation to determine why the no contact order was issued, since we now you don*t know why it was issued, my next question is, what did you do to investigate as the guardian ad litem for this child why a no contact order would be issued?

 

  1. I really don*t know the answer. Sorry.

(Ms. Mullins, p. 2573, L. 7-14)

 

Also at trial, counsel for the Petitioners took the stand and testified as follows regarding the no-contact order:

So the hearing ended on February 7th, and the court reporter has winding up and everybody was winding up and headed out of court, and Chancellor Alissandratos had stood up and started to leave the bench.  And I can tell you exactly where I was standing in chancery court, and he turned around to me and he said, draft me an order on making this Court the guardian. He didn*t ask me what I thought about that or anything else.  He just told me that, and he said, I want no contact until I order otherwise.  Bring me an order tomorrow.  He didn*t want this included in any of the other orders.  I was taking instructions only.

 

I went back to my office.  I sat down and drafted the order.  He told me the provision in the adoption statute that makes me the guardian.  He couldn*t cite the statute, nor could I at that time, but I went and looked it up.  I drafted as faithfully as I knew how what he told me to do.  I appeared in court.  He told me not to take the time to get the other attorney*s signature because there wasn*t another attorney.  You were not involved.  Ms. Holmes was not involved at the time, neither Mr. He nor Ms. Luo had an attorney at the time.  So, that is why he told me to do it, and he told me to do a certificate of service.§ (Mr. Parrish, p. 2834, L. 17-24; 2835, L. 1-24; 2836, L. 1-8)

 

In reality, Mr. Sossaman*s Motion to Withdraw as attorney for the respondents was not heard until February 14, 2002.  (T.R. 229).  The no-contact order had been entered six days earlier on February 8, 2002. (T.R. 214).

Under either version, it is clear that the no-contact order was issued without an evidentiary hearing involving the respondents themselves.  The trial court found that the no-contact order was issued because Mrs. He was refusing to deliver the passport.  However, this does not explain why the no-contact order contained a provision prohibiting even ※indirect§ contact if risk of flight was the court*s only concern.  It also fails to address why the phrase ※or otherwise§ was ordered. 

13.  Whether the trial court erred in denying Respondents* Motion to Set Aside and Vacate Chancery Court*s Order Appointing Petitioners Guardians of AMH.

Because of the page limitations, Respondents would respectfully refer this Court to the arguments raised in their Motion to Set Aside and Vacate Chancery Court*s Order Appointing Petitioner Guardians of AMH, filed on September 25, 2003.  (T.R. Vol. 6, p. 801-804).  The trial court denied this motion on April 6, 2003. (T.R. Vol. 10, p. 1403).  Respondents would also add that no motion was ever filed or docketed requesting the appointment.  This order is the same order in which the no-contact order was issued, and would have been entered under the same circumstances.

14.  Whether the trial court erred in denying Respondents* Motion to Set Aside Order of Reference and Appointment of Next Friend.

Because of the page limitations, Respondents would respectfully refer this Court to the arguments raised in their Motion to Set Aside Order of Reference and Appointment of Next Friend, filed on September 10, 2003.  (T.R. Vol. 4, p. 602).  The trial court denied this motion on April 6, 2003. (T.R. Vol. 10, p. 1396).

15.  Whether the trial court erred in denying Respondents* Motion for Entry of Final Order Dismissing Adoption Pursuant to Tennessee Code Annotated ∫36-1-119(d) and Rule 6.02 of The Tennessee Rules of Civil Procedure.

Because of the page limitations, Respondents would respectfully refer this Court to the arguments raised in their Motion for Entry of Final Order Dismissing Adoption Pursuant to Tennessee Code Annotated ∫ 36-1-119(d) and Rule 6.02 of the Tennessee Rules of Civil Procedure.  (T.R., Vol. 6, p. 847-850).  The trial court denied this motion on April 6, 2004. (T.R., Vol. 10, p. 1405-1407).

16.  Whether the trial court erred in denying Respondents* Motion to Bifurcate.

On June 23, 2003, the respondents filed a motion entitled ※Respondents' Motion To Bifurcate Ground-Based Issues and Best Interest Issues or, In The Alternative, Motion In Limine to Exclude Best Interest Testimony Unless and Until Grounds For Termination of Parental Rights are Specifically Found to Exist by Clear and Convincing Evidence.§  (Vol. 4, T.R. 508).  On September 4, 2003, the Court heard the motion, and on January 28, 2004, it entered an order, effective nunc pro tunc to September 4, 2003, denying the motion. (Vol. 7, T.R. 928-929).

A fair reading of Tenn. Code Ann. ∫ 36-1-113(c) establishes that the trier of fact must first determine by clear and convincing evidence that the respondents were guilty of willful abandonment before it can inquire whether termination of parental rights is in the best interest of the child.  This implies that a separate, evidentiary hearing should be held exclusively on the grounds issue.  If, and only if, grounds for termination have been established, the Court should then proceed to conduct a another hearing on the sole issue of whether termination is in the best interest of the child.  The Court of Appeals recognized this in K.S.O.H. v. J.W.B., Jr., 2001 WL 1173302 (Tenn. App.), wherein it stated the following:

Before the court may inquire as to whether termination of parental rights is in the best interest of the child, the court must first determine that the grounds for termination have been established by clear and convincing evidence.

 

            The importance of segregating a best interest analysis from an analysis of whether grounds for termination exist, cannot be over-emphasized.  The United States Supreme Court has recognized that an elevated standard of proof in a parental rights termination proceeding alleviates "the possible risk that a fact finder might decide to [deprive] an individual based solely on a few isolated instances of unusual conduct [or] ... idiosyncratic behavior,"  Addington v. Texas, 441 U.S., at 427, 99 S.Ct., at 1810.  This same reasoning applies with equal efficacy insofar as the bifurcation issue is concerned; for in both instances, the stated goal is to ensure, as matter of constitutional law, that the termination analysis is not unduly contaminated. 

Perhaps the best example of this contamination is reflected in the trial court*s finding when it held that ※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.§ (Vol. 11, T.R. 1505, ¶ 282; emphasis added).  Abandonment and unfitness are two distinct concepts, yet the trial court uses the terms as if they are indistinguishable, each from the other.  If the abandonment statute truly requires a two-pronged approach to termination, then unfitness must, by definition, be separate and distinct from abandonment.  In fact, applying the trial court*s reasoning, a finding of abandonment would automatically result in a finding of unfitness in literally every termination case, thereby eliminating any reason to move to step two for an inquiry as to whether termination is in the best interest of the child.  This is clearly not what our legislature intended.

Legal Standing to Terminate Parental Rights

            The Bakers have legal standing to terminate parental rights only so long as they remain ※prospective adoptive parents.§   Tenn. Code Ann. ∫ 36-1-113(b), as it existed at the time of the filing of the instant case, specifically defines those persons who may bring such a petition:

The prospective adoptive parent(s) of the child, any licensed child-placing agency having custody of the child, the child's guardian ad litem, a court appointed special advocate (CASA) agency, or the department shall have standing to file a petition pursuant to this part or pursuant to title 37 to terminate parental or guardianship rights of a person alleged to be a parent or guardian of such child. The prospective adoptive parents shall have standing to request termination of parental or guardianship rights in the adoption petition filed by them pursuant to this part.

 

Conversely, if the Bakers* lose their status as prospective adoptive parents, the Court loses all subject matter jurisdiction to terminate parental rights.  See Osborn v. Marr, 127 S.W.3d 737 (Tenn. 2004).  For instance, if the Court determines that only one parent should lose parental rights but not the other, then the Bakers thereby lose all ability to adopt AMH; i.e., they no longer qualify as ※prospective adoptive parents.§  Having lost their status as prospective adoptive parents, the Bakers thereby lose whatever standing they previously had to terminate parental rights.  Without standing to terminate parental rights, the Court loses all subject matter jurisdiction, and the proceedings must be dismissed as a matter of law.


CONCLUSION

            For the foregoing reasons, Respondents respectfully request that the trial court*s decision terminating their parental rights be reversed, that they be granted custody of AMH and/or parenting time, and that an appropriate transition plan be implemented.

 

                                                                                    Respectfully submitted,

 

 

 

                                                                                    ______________________________

                                                                                    David A. Siegel, # 11870                                                                                                         Attorney for Mr. He

                                                                                    5100 Poplar Avenue, Suite 2500                                                                                              Memphis, Tennessee 38137    

                                                                                    (901) 462-3352

 

 

 

______________________________

                                                                                    Richard A. Gordon, # 12321

                                                                                    Attorney for Mrs. He

                                                                                    264 Barry Road

                                                                                    Memphis, Tennessee 38117                

                                                                                    (901) 681-0707

   

CERTIFICATE OF SERVICE

I certify that I have forwarded a copy of the foregoing to Mr. Larry E. Parrish, Attorney for the Petitioners, 6075 Poplar Avenue # 420, Memphis, Tennessee 38119, Ms. Linda Holmes, Attorney ad Litem, 142 North Third Street, 3rd Floor, Memphis, Tennessee 38103 and Mr. Douglas Dimond, Attorney General and Reporter, 425 5th Avenue North, Nashville, Tennessee 37243-0485, via United States Mail, postage prepaid, this ________ day of ____________, 2004.                                   

 

                                                                                   

                                                                                    ______________________________

David A. Siegel


APPENDIX OF UNPUBLISHED OPINIONS



[1]  It is reasonable to infer that the Bakers probably thought the tubal reversal had failed and that Louise Baker*s chances of getting pregnant at this late date, particularly given her age, were remote.  It is also reasonable to infer that the Bakers were starting to view adoption as a viable option once again.

 

[2]  It is interesting to note that the Bakers wasted little time in filing their Petition for Adoption and to Terminate Parental Rights.  They signed their petition exactly 4 months and 15 days after the respondents were escorted from the Baker*s home by the police.  Five (5) days later, the petition was filed in the Chancery Court, effectively suspending all juvenile court proceedings.

 

[3] The Hes did, in fact, seek the return of their daughter about a year after they transferred custody to the Bakers.  Their first Petition to Modify Custody was filed on May 3, 2000.

 

[4] For a more detailed discussion of the various statutory changes in the definitions of ※abandonment§ see In re Swanson, 2. S.W. 3d 180 (Tenn. 1999).

 

[5] Note that the trial court used the word ※responsibilities§ in ¶ 204, T.R. Vol.. 10, p. 1487.  The 1996 legislative revision to the adoption code also used the word ※responsibilities§ when it attempted to abrogate the settled purpose doctrine.  However, the Tennessee cases applying this doctrine have used the word ※claims§ rather than ※responsibilities.§  The Hes filed two ※claims* in Juvenile Court.  The last ※claim§ was filed squarely in the midst of the four months next preceding the filing of the Petition for Adoption and to Terminate Parental Rights.

 

[6] Black*s Law Dictionary defines ※claim§ as § 1. The aggregate of operative facts giving rise to a right enforceable by a court#  2. The assertion of an existing right; 3. A demand for money, property, or a legal remedy to which one asserts a right; esp., the part of a complaint in a civil action specifying what relief the plaintiff asks for.  Black's Law Dictionary (8th ed. 2004) (Emphasis added).

 

[7]  DCS had been awarded protective custody of the children on April 17, 1998, and would thus have been entitled to receive child support from father from and after that date.

 

[8]  U.S. Const. Amend. XIV, ∫ 1; Tenn. Const. Art. I, ∫ 8;  Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993); Ray v. Ray, 83 S.W. 3d at 731.

 

[9]  In the instant case, Respondent Mrs. He has a limited command of English, a limitation of which  the Bakers were quite aware. Louise Baker stated:  "You could only really speak basic to her."  (Dep. of Louise Baker, p. 250, L. 3-4)

 

[10]  In re Knott, 197 S.W.1097 (Tenn. 1917); O*Daniel v. Messier, 905 S.W.2d 182,186 (Tenn. App. 1995); In re Adoption of Dearing, 572 S.W.2d 929, 932 (Tenn. App. 1978).

 

[11] The trial court actually mentions this meeting in two different portions of its Memorandum Opinion (See ¶*s 68 and 112, Vol. 10, p. 1455, 1467) and obviously relied heavily on this finding to support its ruling that Mrs. He was fully aware of her rights and was afforded due process.

 

[12] Mid-South Christian Services is a ※licensed child placing agency,§ according to the director of that facility.  (Diane Chunn, p. 935, line 14).

 

[13]  It is suggested that if there is to be a remedy at all, the more appropriate and foreseeable remedy would be the assessment of retroactive child support rather than the termination of parental rights.

 

[14] Due to the 70-page space limitation for argument, please refer to the comparison chart set forth in the Statement of Facts section for a detailed comparison of the best interest findings in relation the countervailing evidence adduced from independent witnesses found credible by the trial court.  

 

[15]  The interpreter, Kenny Yau, never read the consent order to Mrs. He word for word.

 

[16]   These issues have also been raised in Respondents* Rule 60 motion and Amended Rule 60 motion heretofore filed in this cause.  However, it is submitted that the court*s analysis of the Blair exceptions does not depend on the existence of a filed Rule 60 motion since no such motions appear to have been filed in Blair; nor were they filed in the subsequent October 6, 2003 decision of Means v. Ashby, 2003 WL 22289941 (Tenn. Ct. App. October 6, 2003).

 

[17]  It is undisputed that the plain language of the juvenile court petition stated that the Hes were financially unable to provide for AMH ※at this time.§