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

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY 16, 2005 Session

IN RE: ADOPTION OF AMH, A Minor

JERRY L. BAKER and wife, LOUISE K. BAKER v.

SHAO-QIANG (JACK) HE and wife, QIN (CASEY) LUO

Direct Appeal from the Chancery Court for Shelby County

No. CH-01-1302-III Robert L. Childers, Chancellor By Designation

No. W2004-01225-COA-R3-PT - Filed November 23, 2005

In this appeal, we are called upon to evaluate the trial court’s decision to terminate the parental rights

of the biological parents to a minor child. The biological parents are Chinese immigrants who are

presently in this country illegally and are subject to deportation proceedings. Shortly after coming

to the United States, the biological parents had a daughter. Facing financial difficulties at the time

of their daughter’s birth, the parents decided to place their daughter in the care of an adoption agency

until their financial situation improved. The agency placed the child with foster parents who agreed

to care for the child over an initial three month period. At the conclusion of the three month foster

care period, the biological parents agreed to the entry of a consent order by the juvenile court

transferring custody of the child to the foster parents. The biological parents continued to visit with

their daughter at the home of the custodial non-parents approximately once each week for one hour

each visit. However, they paid no child support to the custodial non-parents. The biological parents

subsequently filed a petition to modify the juvenile court’s custody order seeking to regain custody

of their daughter, which the court denied. Thereafter, the biological parents continued to visit their

daughter with the same frequency as before. On one day in particular, the biological parents asked

to take their daughter for a family portrait, and the custodial non-parents refused their request. When

the biological parents refused to leave the custodial non-parents’ home, the police were called. After

speaking with the police, the biological parents left the home and never returned to visit their

daughter citing their fear of arrest. A short time after this incident, the biological parents filed a

second petition to modify the juvenile court’s custody order. In response, the custodial non-parents

filed a petition to adopt the child and to terminate the biological parents’ parental rights in the

chancery court, primarily relying on the ground of abandonment. As a result, the biological parents’

petition to modify the custody order was transferred to the chancery court. Following a lengthy and

tortured procedural history, the chancery court held a bench trial in the matter and subsequently

entered an order terminating the biological parents’ parental rights. The biological parents filed a

timely appeal to this Court. We affirm in part and reverse in part the decisions of the chancery court

in this case. However, in light of our decisions on certain issues presented in this case, we need not

remand this case to the chancery court for further proceedings.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed in Part;

Reversed in Part

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., joined, and

HOLLY M. KIRBY , J., dissented.

David A. Siegel, Memphis, TN, for Appellant, Shao-Qiang (Jack) He

Richard A. Gordon, Memphis, TN, for Appellant, Qin (Casey) Luo

Larry E. Parrish, Memphis, TN, for Appellees

Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Senior Counsel, Nashville,

TN, In Defense of Challenged Tennessee Statutes

Christina A. Zawisza, Memphis, TN, for Amicus Curiae: Childlaw Center, Vanderbilt Legal Clinic,

Child Advocacy Clinic, Tennessee Alliance for Legal Services

Scott A. Kramer, Memphis, TN, for Amicus Curiae: Greater Seattle Chapter of the Organization of

Chinese Americans, Inc.

Linda L. Holmes, Memphis, TN, for Guardian Ad Litem, Kimbrough Mullins

OPINION

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A.

The Hes Enter the United States

Shao-Qiang (Jack) He (“Father”) was born on July 18, 1964 in the Peoples Republic of China

(“China”). From 1979 to 1985, Father pursued his bachelor’s degree at a university in China. Upon

completing his bachelor’s degree, Father taught at a high school in Hunan, China. From 1986 to

1998, Father worked toward obtaining his master’s degree from Hunan University in teaching

English as a second language. After he received his master’s degree, the Chinese government

assigned Father to teach English courses at the University of Nanjing, where he continued to teach

as a tenured professor from 1990 until 1995. In March of 1995, Father came to the United States to

pursue a master’s degree in teaching English as a second language at Arizona State University.

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Father entered the United States on a student visa, and he received a full scholarship to attend

Arizona State University. Father attended Arizona State University from 1995 until 1997, and he

returned to the university in 2000 to defend his master’s thesis. In August of 1997, Father enrolled

at the University of Memphis to pursue a doctorate degree in economics. Father received a full

scholarship to attend the University of Memphis, which included a stipend in the amount of

$1,050.00 each month for working as a teaching/research assistant for approximately twenty (20)

hours each week. Father subsequently abandoned his doctoral degree and changed his course of

study to pursue a master’s degree in management information systems.

After coming to the United States, Father returned to China in May of 1998 to visit for

approximately one month. Qin (Casey) Luo (“Mother” or, collectively with Father, “the Hes” or

“Appellants”) was born in China on March 21, 1968. Mother and Father never met in person prior

to Father’s return trip to China, but they did communicate through telephone calls and email for six

to seven months prior to their first meeting. During his return trip to China in May of 1998, Mr. He

met Mother in person. According to Mother, Father mailed her some material in 1998 instructing

her to go to the United States Embassy in China to secure a visa, and he returned to China to assist

her with securing the visa. In order to assist Mother in coming to this country, Father submitted a

form to the University of Memphis indicating that he and Mother were married.1 Mother and Father

indicated on their immigration documents that they were legally married in China. Mother was able

to secure a visa as the wife of a student, and she entered the United States in June of 1998. In fact,

the Hes were not legally married in China before Mother came to the United States, therefore,

Mother has been an illegal alien since she entered the United States. In a subsequent deposition,

Father testified that his intent was to get Mother into the country without ever having married her

in China.

B.

The Birth of A.M.H. and the Hes’ Financial Difficulties

When she entered the United States, Mother could speak very little English. She began

working as a waitress in a Chinese restaurant shortly after arriving in this country earning

approximately $200 to $300 per month. In July of 1998, Father learned that Mother was pregnant.

Between the time Mother entered the United States and October of 1998, the Hes’ finances remained

stable. On October 11, 1998, Father worked as a computer lab assistant at the University of

Memphis. According to Father, another Chinese student approached him and asked for assistance

with her studies. Father recounted that the student asked to borrow money, and he refused her

request. On October 19, 1998, the student filed a complaint against Father with the campus police

department alleging that Father sexually assaulted her. As a result of the compliant being filed,

Kathryn Story (“Ms. Story”), the Associate Dean of Judicial and Ethical Programs for the University

of Memphis at the time, launched an investigation. During the pendency of the investigation, Ms.

1

Father married his first wife in 1990, and they divorced at the end of 1995 or in 1996.

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Story reported that Mother came to her office toward the end of 1998 and began yelling, calling her

a “racist devil.” Ms. Story called the campus police, and an ambulance was summoned for Mother.

Subsequent to the sexual assault complaint being filed, the University of Memphis decided to

terminate Father’s graduate assistantship position, resulting in the loss of his $1,050.00 monthly

stipend.

After Father lost his stipend, the Hes began to experience financial difficulty. Around

Thanksgiving of 1998, the Hes were shopping at a Chinese grocery store in Memphis when they

encountered Father’s accuser accompanied by two other men. An altercation erupted, and, as a

result, Mother lost her balance and fell into a shopping cart. Mother, approximately seven months

pregnant at the time, experienced vaginal bleeding and was taken to the hospital. The Hes sought

legal counsel to file a lawsuit for the incident in the grocery store, but they never pursued the

litigation to a conclusion. As the birth of their child grew nearer, the Hes considered placing the

child for adoption. In November or December of 1998, the Hes approached Mid-South Christian

Services (“Mid-South”), a licensed child placement agency providing adoption and foster care

services, seeking assistance. The Hes met with Dianne Chunn (“Ms. Chunn”), a birth-parent

counselor with Mid-South.

As a birth-parent counselor, Ms. Chunn counseled the Hes on their decision to parent their

child or place the child for adoption. Ms. Chunn opened a birth-parent file on the Hes on December

1, 1998, which included her notes from conversations with the Hes. In her discussions with the Hes,

they represented themselves as a married couple, but Ms. Chunn did not request to see their marriage

license. In fact, the Hes completed a “Pregnancy Counseling Status Sheet” representing that they

were married even though they were not legally married at the time. Ms. Chunn stated that, in one

of their conversations, Father expressed concerns about whether he was the biological father of the

unborn child. Father subsequently denied making any statements to Ms. Chunn questioning his

paternity of the child.

According to Ms. Chunn, the Hes initially expressed their desire to place their unborn child

for adoption. When subsequently recounting her discussions with the Hes, Ms. Chunn stated that

they expressed their desire to find a family that was financially stable. To that end, Ms. Chunn

scheduled a meeting between the Hes and a prospective adoptive family on December 1, 1998. Ms.

Chunn’s notes from January 1, 1999, reflected that Mother felt “cheated” because the prospective

family “was not wealthy, as was their request.” Her notes also indicated that Father stated that they

felt that the adoptive family should be “taking care of them; visiting, bringing nutritious food, etc.”

According to Father, he and Mother never wanted to place their unborn child for adoption. He

asserted that they simply listened to Ms. Chunn’s advice and considered it, but Ms. Chunn pushed

for adoption to fill a quota and make money for her agency.

On January 28, 1999, Mother gave birth to a daughter, A.M.H. A.M.H. remained in the

hospital for several days while Mother returned home. The hospital “OB Admission Assessment

Record” dated January 28, 1999 indicated that A.M.H. was not to be placed for adoption. Shortly

after Mother gave birth to A.M.H., she conveyed to Ms. Chunn that she did not want to place A.M.H.

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for adoption. Ms. Chunn met with Mother and Father at their home to discuss different options.

According to Ms. Chunn, Father still believed that adoption was the best course of action, while

Mother disagreed. On February 22, 1999, Father called Ms. Chunn to report that they were still

considering adoption. The following day, Ms. Chunn met with the Hes at their apartment. During

their conversation, Father stated that adoption was the best plan for A.M.H., but their alternative

course of action was long-term foster care. Father estimated that they would need between six

months to one year of long-term foster care for A.M.H. to allow them to reestablish themselves

financially. Father told Ms. Chunn that they would go to the juvenile court to inquire about long-

term care.

On February 24, 1999, the Hes went to juvenile court and spoke to Sarah Cloud (“Ms.

Cloud”), a probation counselor at the time, to explain their inability to care financially for A.M.H.

Ms. Cloud called Ms. Chunn that same day to inquire about the situation. Ms. Chunn informed Ms.

Cloud that the Hes initially wanted to place A.M.H. for adoption, but they subsequently changed

their minds and wanted to place her in foster care. As a result of this call, Ms. Chunn agreed to

provide the Hes with three months of foster care for A.M.H. through Mid-South. While Mid-South

normally did not provide foster care beyond one month, Ms. Chunn agreed to provide three months

of foster care for A.M.H. to allow the Hes to improve their financial situation. On February 24,

1999, the Hes entered into an “Interim Care Agreement and Consent Form” with Mid-South which

provided, in relevant part, as follows:

FINANCIAL ARRANGEMENTS

I understand that 90 days of interim care will be provided my child at

no charge to me. If, after 90 days, I have not reached a decision of

adoption for my child, I agree to pay MID-SOUTH $________ per

day for this care, beginning (review needs at that time), plus any

medical expenses incurred on my child’s behalf. Interim care can

continue at the discretion of MID-SOUTH when there is a case plan

which justifies it.

....

CUSTODY

I understand that this Agreement does not terminate my parental

rights, privileges and obligations to my child. By signing this

Agreement, I designate MID-SOUTH, its agents and officers, such

rights, privileges and obligations which are necessary for my child’s

well-being from the date of admission until I sign a release requesting

termination of care by MID-SOUTH and receive my child from MID-

SOUTH, or until such time as I sign a legal surrender of my parental

rights, privileges and obligations before a Chancery Court Judge,

thereby placing said child with MID-SOUTH for permanent adoptive

planning.

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My parental rights to this child can only be terminated by due process

of law appropriately prescribed by the State of Tennessee.

When Mid-South agreed to perform foster-care, they turned to the next foster family on their list

which happened to be Jerry Baker (“Mr. Baker”) and Louise Baker (“Mrs. Baker” or, collectively

with Mr. Baker, “the Bakers” or “Appellees”).

C.

The Hes’ Relationship with the Bakers

In 1989, Mrs. Baker underwent a tubal ligation while pregnant with the Bakers’ third child.

In approximately 1998, the Bakers decided that they wanted another child, and Mrs. Baker

underwent a tubal reversal. The Bakers considered adopting a child, but they wanted to try to have

a child of their own first. The Bakers previously submitted a “Foster Home Application” to Mid-

South in 1997. In response to the question “Why are you interested in providing a foster home?” on

the application, the Bakers responded by stating, in relevant part, that they “were first interested in

adoption of a newborn, but thought we would try foster care of newborns for a couple of years.”

According to Mrs. Baker, they were considering adoption, and serving as foster parents allowed them

to decide if adoption was something they wanted to pursue. After submitting their application, the

Bakers began serving as foster parents for Mid-South. The Bakers served as foster parents for

approximately ten different children, and they never considered adopting any of the children placed

with them by Mid-South. The extent of their foster care was usually limited to ten days, with the

longest period being six weeks, in order to allow Mid-South to finalize the adoption paperwork.

At Mid-South’s request, the Bakers began providing foster care for A.M.H. (who was

approximately three weeks old at the time) on February 24, 1999, for the agreed upon three month

period while the Hes decided whether they wanted to pursue adoption. According to Mrs. Baker,

she was still attempting to get pregnant, and they did not expect to keep A.M.H. beyond the agreed

upon three month foster care period. The Bakers stated that they fully intended to end their

involvement at the end of the three month period; either A.M.H. would be returned to the Hes or the

Hes would place her with an adoptive family of their choosing.

According to Ms. Chunn, Mid-South customarily allowed the birth parents to visit their child

once a week while the child was in foster care, however, she did not participate in any visitation

agreement between the Hes and the Bakers. The Bakers and the Hes apparently reached an oral

agreement whereby the Hes could visit A.M.H. once a week during the three month foster care

period. Pursuant to this agreement, the Hes came to the Bakers’ home approximately once a week

to visit A.M.H., and they stayed for about an hour each time they visited. Ms. Chunn documented

the March 1998 visits by the Hes in her notes. On March 8, 1999, Ms. Chunn went with the Hes to

visit A.M.H. at the Bakers’ home, and she noted that Mother was excited to see A.M.H. Father told

Ms. Chunn that Mother was “moving more toward adoption,” and Mother would “readily agree” to

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an adoption if the adoptive family would allow them weekly visits until Mother became pregnant

again. Father informed Ms. Chunn of a Chinese superstition which characterized A.M.H. as less

than an ideal child due to her difficult birth. During a visit on March 15, 1999, Ms. Chunn noted that

the Hes were excited to see A.M.H., but Mother continued to be hesitant about adoption. On March

30, 1999, Ms. Chunn documented a phone conversation with Father wherein he stated that, while

Mother seemed comfortable with adoption, she “wants to maintain guardianship of the child so she

can continue in the U.S.”

According to Mother, the initial three month foster care period went well, and Mrs. Baker

took good care of A.M.H. and taught Mother how to care for her as well. At some point during the

three month foster care period, the Hes attempted to pay the Bakers $300, presumably for caring for

A.M.H. According to Mrs. Baker, they refused to accept the money because they were paid $6 per

day through Mid-South, and their agreement with Mid-South prevented them from accepting money

from the foster parents. Mid-South did not have a specific set of rules preventing foster parents from

accepting money from the biological parents, and Mid-South did not instruct the biological parents

to pay the foster parents. However, it was Mid-South’s practice to reimburse the foster parents for

caring for a child.

In mid-April of 1999, the Hes decided that they wanted to apply for a passport for A.M.H.

so they could send her to China at the end of the three month foster care period. Father informed the

Bakers of their intentions, and he requested their assistance in having A.M.H.’s passport photo taken.

Mrs. Baker complied and took A.M.H. to have a passport photo taken, and A.M.H. subsequently

received her passport. The Hes attempted to locate someone they could trust to take A.M.H. back

to China at the end of three month foster care period, but they were unable to find a suitable person.

Father stated that they could not leave to go to China because, without a green card, they would be

unable to return. According to the Hes, the Bakers attempted to persuade them to keep A.M.H. in

the United States by stating that they could visit her more frequently if she remained in this country.

Toward the end of April of 1999, Father was arrested and charged with sexual assault for the incident

at the University of Memphis in October of 1998.2 At the time of his arrest, Father worked part-

2

Father was never convicted of the criminal charges leveled against him. The record is not entirely clear as

to whether the charges were dismissed or whether Father was acquitted following a jury trial. Stephanie Johnson (“Ms.

Johnson”), the assistant district attorney general involved in the criminal case, subsequently stated that the Father’s case

was set for trial on or around December of 2001. At a hearing during that period, Ms. Johnson learned that Mother had

threatened the victim in the case, and she brought this to the attention of the trial judge. The trial judge admonished

Mother about communicating with the victim in the case.

In February of 2003, M s. Johnson attended a motions hearing in preparation for Father’s trial. During that

hearing, Ms. Johnson learned that Mother had improperly communicated with the jury outside the courtroom. Once

again, the trial judge admonished her about this conduct as well. Ms. Johnson subsequently learned that a tape of

Father’s preliminary hearing was unintelligible. As a result, the indictments against Father were dismissed, and the case

was returned to the lower court for a new preliminary hearing. In the lower court, Father produced a copy of the tape

from the original preliminary hearing, but it was decided to continue with a new preliminary hearing. As the case

progressed to trial for the second time, Mr. He did not show up for an afternoon hearing after the trial judge instructed

him to do so. The trial judge subsequently issued a warrant for Mr. He’s arrest. In any event, Mr. He was never

(continued...)

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time at the University of Memphis in a dormitory earning approximately $200 per month, and

Mother continued to work part-time as a waitress. After his arrest, the university fired Father from

his job at the dormitory.

On May 8, 1999, the Hes sent Mrs. Baker a Mother’s Day card inside which they wrote the

following:

Dear Louise:

Happy Mothers Day!

You have offered endless love to many children. You are the real

Mom of [A.M.H.]. Our thanks to you is beyond expression.

/s/ Jack & Casey

5/8/99

While she acknowledged that they sent the card, Mother asserted that she did not intend for the card

to mean that she wanted to give up her daughter.

Their inability to secure a suitable person to take A.M.H. back to China at the end of the three

month foster care period prompted the Hes to decide to allow A.M.H. to remain with the Bakers.

In addition, the Hes were still not able to financially care for A.M.H. at the end of the three month

foster care period. According to Mrs. Baker, Father came to them toward the end of the three month

foster care period and asked them to adopt A.M.H., but Mother opposed an adoption. On May 19,

1999, Ms. Chunn met with Father to discuss the Hes’ future plans for A.M.H. Father stated that they

would like to maintain their parental rights, but they wanted to continue the custody arrangement

with the Bakers. Ms. Chunn felt that such an arrangement was unrealistic, and she discussed the

possible adverse effects long-term foster care could have on A.M.H. after she bonded with the

Bakers. Thereafter, Father returned to the Bakers’ home to discuss a custody arrangement. The

Bakers informed Father that they would not be willing to retain custody of A.M.H. on the basis

suggested by Father. According to the Bakers, they entered into an oral agreement with Father

whereby the parties agreed that the Bakers would raise A.M.H. until she turned eighteen, and the Hes

would retain their parental rights so they could remain in the United States.

On May 24, 1999, Father and Mrs. Baker called Ms. Chunn to inform her that the Bakers

were willing to accept temporary custody of A.M.H. Ms. Chunn understood that the parties were

in agreement that the Bakers would care for A.M.H. until she reached eighteen years of age. After

speaking with Father and Mrs. Baker, Ms. Chunn contacted attorney Kevin Weaver (“Mr. Weaver”).

Mr. Weaver previously advised Mid-South on adoption and parental termination matters, and he

commonly met with families at the request of Mid-South. Ms. Chunn asked Mr. Weaver to meet

2

(...continued)

convicted of the criminal charges brought against him stemming from the October 1998 incident.

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with the Bakers and the Hes to discuss the legal implications of the custody arrangement and some

of the risks involved.

On June 2, 1999, Father, the Bakers, and Ms. Chunn met Mr. Weaver at his office to discuss

the custody arrangement. Father informed Mother of the meeting, but Mother did not attend the

meeting because she had to work. According to Mr. Weaver, Ms. Chunn, and the Bakers, Father

called Mother from the meeting to inquire if they should proceed in her absence. Father

subsequently denied that he called Mother from the meeting to make this inquiry. Mr. Weaver, Ms.

Chunn, and the Bakers all stated that, after Father concluded his telephone conversation with Mother,

he stated that he and Mother were ready to proceed with the agreement, and they should continue

with the meeting.

Mr. Weaver did not consider himself to be representing either party at the meeting, and he

explained to the parties at the outset of the meeting that he was not there to represent either party.

Mr. Weaver explained how the parties could obtain a consent order for temporary custody, and he

told Father that he and Mother would need to obtain a court order to regain custody in the future if

everyone was not in agreement to a change of custody. Father subsequently confirmed that Mr.

Weaver did indeed tell him that, once they signed a consent order giving the Bakers custody of

A.M.H., they would have to go before a court to obtain a change in custody. Mr. Weaver recalled

Father asking questions during the meeting, but he did not recall any specific questions. Mr. Weaver

did not advise Father that he and Mother could lose their parental rights if they failed to visit A.M.H.

or failed to pay child support for A.M.H. for four consecutive months, and no one advised Father to

have an attorney present at this meeting. At the conclusion of the meeting, Mr. Weaver felt that

everyone understood the process and was satisfied with their decision. According to Mrs. Baker,

Father stated that he would inform Mother of what transpired at the meeting and would let them

know of their decision. Father subsequently stated that he did not understand the concepts of

adoption and custody, and he understood that they were entering the temporary agreement so A.M.H.

could be covered under the Bakers’ health insurance. Father stated that he spoke to Mother after the

agreement and informed her that they would need to sign something to allow A.M.H. to be placed

on the Bakers’ health insurance.

Mr. Weaver subsequently sent a bill to Mid-South in the amount of $100.00 for his services

at the meeting. Ms. Chunn’s records indicate that Mid-South forwarded the bill to the Bakers for

payment. Ms. Chunn asked the Bakers to reimburse Mid-South for the cost of the meeting because

she felt the Hes were not financially able to do so. The Bakers apparently paid the bill for Mr.

Weaver’s services at the June 2, 1999 meeting.

On June 3, 1999, Ms. Chunn asked Pastor Kenny Yau (“Pastor Yau”) to accompany her to

the Hes’ apartment to speak with Mother. Father was not present at this meeting. On the way to the

Hes’ apartment, Ms. Chunn indicated that she felt Mother did not completely understand the agreed

upon custody arrangement the parties were about to enter into. Ms. Chunn told Pastor Yau that she

wanted to ensure that Mother understood the process and was not being forced into anything. She

asked Pastor Yau to attend the meeting and translate so Mother could better understand the

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agreement. Pastor Yau stated that, at the conclusion of the meeting, Mother indicated that she

understood the process. Later that day, Father called the Bakers to inform them that they wanted to

go ahead with the consent order transferring custody of A.M.H. to the Bakers.

D.

The Juvenile Court Order Transferring Custody of A.M.H. to the Bakers

On June 4, 1999, the Hes, the Bakers, and Ms. Chunn met at Mid-South’s office. From there,

they proceeded to the Shelby County Juvenile Court in the Bakers’ van. Mr. Weaver did not

accompany the parties to juvenile court, and neither party had an attorney present at the meeting in

juvenile court. According to Father, Ms. Chunn told the Hes to go to juvenile court, but he did not

know why. Since Mother was not present at the meeting with Mr. Weaver, the Bakers requested that

Pastor Yau attend the meeting to interpret so that they could ensure that Mother fully understood

what was transpiring.

Ms. Cloud met with the parties at juvenile court, and she noted that Mother was “very

concerned” that the arrangement would be temporary and not permanent. Ms. Cloud drafted a

“Petition for Custody” which provided that the Hes were unable financially to care for A.M.H. at the

time, and the Hes were requesting that custody of A.M.H. be transferred to the Bakers. Ms. Cloud

also drafted a “Consent Order Awarding Custody” which provided, in relevant part, as follows:

This cause was before the Court on a sworn petition, and it being

evident to the Court by the signatures of the parties that they do place

themselves before this Honorable Court and acknowledge its

jurisdiction and admit the following:

1. That [the Hes] have been fully advised of their legal rights

and that a hearing before the Court is hereby expressly

waived.

2. That all parties agree that it is in the best interest of the

child(ren) for custody and guardianship of the person of said

child3 to be awarded to Jerry and Louise Baker, non relatives.

3. That [the Hes] are aware that on this agreement is based the

Order of this Court, and that failure to comply herewith,

without just cause, places them in contempt of Court and

subjects them to such action as the Court deems proper within

its jurisdiction.

3

Ms. Cloud typed the language “and guardianship of the person of said child” into the document which appears

to be a standardized form used by the juvenile court. According to Ms. Cloud, the Bakers did not request the inclusion

of the guardianship language, but she inserted the language based upon what she had been told by the parties.

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Having considered the admissions and agreement of the parties, it is

the judgment of the Court that a change of custody is in the best

interest of the said child(ren).

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED

that custody and guardianship of the person4 of said child(ren) be and

is hereby awarded to Jerry and Louise Baker, non-relatives with

authority to make appropriate plans for the care and supervision of

said child(ren).

Before the Hes signed the order, Ms. Cloud, Ms. Chunn, and Pastor Yau took Mother into a separate

room to talk privately about the consent order.

According to Ms. Cloud, Mother asked if the arrangement she was agreeing to was a

temporary arrangement. Pastor Yau stated that he was shown the consent order, but he did not read

it to Mother word for word. Instead, he read the document himself then translated its contents to

Mother. He conveyed to Mother that, since they were financially unable to care for A.M.H., another

family would care for her. Furthermore, since they needed health insurance for A.M.H., Mother

needed to sign the document to give the Bakers legal authority. According to Mother, Pastor Yau

told her that the custody arrangement was only temporary, and she could have A.M.H. returned to

her at any time. Pastor Yau felt that he adequately conveyed the order’s import to Mother, and

Mother never indicated that she did not understand the document and never asked him to repeat

anything. Ms. Cloud and Ms. Chunn both described Mother as emotional during their meeting,

stating that she was tearful when she signed the order. However, Ms. Chunn and Ms. Cloud both

felt that Mother understood the order, which they described as a document providing that the Hes

would retain their parental rights, but they would be transferring legal custody of A.M.H. to the

Bakers. Ms. Cloud explained that she did not schedule a hearing before the juvenile court judge that

day because everyone was in agreement. She stated that it was her standard practice to ensure that

the biological parents understood that they would have to go before the juvenile court judge if they

did not agree to the order. According to Ms. Cloud, had she thought that the Hes were not sincerely

consenting to the order, she would have set the case for a hearing before the juvenile court. On the

day that the Hes signed the consent order giving the Bakers custody of A.M.H., the Hes also signed

a form provided by Mid-South which effectively removed A.M.H. from Mid-South’s care and ended

Mid-South’s involvement up to that point.

Ms. Cloud stated that no one asked about visitation during the meeting, and the order did not

contain any provisions for visitation. The order also did not make provisions for any child support

to be paid by the Hes. Pastor Yau stated that he did not recall any discussion during the meeting

regarding the law of abandonment, specifically child support or visitation. Ms. Cloud stated,

however, that the Bakers told the Hes that they could visit A.M.H. According to Father, the Bakers

assured them that they could continue to visit A.M.H. once every week. Regarding child support,

4

Ms. Cloud typed the language “and guardianship of the person” into the document at this point as well.

-11-

the Bakers never told the Hes not to pay child support, but they did not expect the Hes to pay child

support since the parties agreed that the Bakers were to raise A.M.H. until she turned eighteen. In

fact, the parties agreed that A.M.H. should begin to refer to the Bakers as “mommy” and “daddy”

and refer to the Hes as “Jack” and “Casey.” During subsequent visits, Father would refer to himself

as “Uncle Jack.”

After June 4, 1999, the Hes continued to visit A.M.H. at the Baker’s home approximately

once a week for one hour each visit. On June 5, 1999, the day after the parties signed the consent

order, Mrs. Baker began keeping a journal of the Hes’ visits to their home. According to Mrs. Baker,

the purpose of the journal was to document “everything” that occurred when the Hes visited their

home. The Hes were not aware that Mrs. Baker was keeping a journal of their visits, however,

Father subsequently acknowledged that he did not dispute the journal’s accuracy. The Bakers

encouraged the Hes to interact with A.M.H. during their visits, and Mrs. Baker would show Mother

how to feed, change diapers, and generally care for A.M.H. About two weeks after the parties signed

the consent order, the Bakers learned that Mrs. Baker was pregnant with the Bakers’ fourth child.

Between June 4, 1999, and October of 1999, the He’s visits with A.M.H. continued to go

well as evidenced by Mrs. Baker’s journal. During their June visits, the Hes brought A.M.H. jars

of baby food, formula, juice, diapers and two books. In August of 1999, the Bakers told the Hes that

they were expecting another child. During a visit on August 28, 1999, Mother kept giving A.M.H.

a gold chain and glass chime to play with. Mrs. Baker warned Mother that A.M.H. could cut herself

or get choked, and Mrs. Baker wrote in her journal that the Hes “have no concept on what babies can

do or not do.” During a visit on September 11, 1999, the Hes expressed excitement over the fact that

A.M.H. would have a sibling to grow up with. Mrs. Baker noted in her journal that Mother gave

A.M.H. one of her rings to play with, and Mrs. Baker reiterated her concern about A.M.H. putting

things in her mouth. On September 30, 1999, Mother brought A.M.H. porridge, and the Bakers

allowed A.M.H. to have a few bites.

On September 15, 1999, the University of Memphis Social Discipline Committee conducted

a hearing on the sexual assault complaint filed against Father. At the conclusion of the hearing, the

committee unanimously found Father guilty of violating certain provisions of the Code of Student

Conduct. On September 20, 1999, the committee notified Father by letter that he was suspended

from the university for the remainder of the 1999 to 2000 term until the Summer of 2000 term, that

he would be placed on trespass status, that he must complete sexual abuse counseling, and that he

could not receive his degree during the term of his suspension.5 As a result of his suspension, Father

became an illegal alien subject to deportation proceedings.

On October 3, 1999, Mrs. Baker made an entry in her journal expressing concern over the

Hes’ request to take A.M.H. out of the Bakers’ home during a visit, stating:

5

According to M s. Story, Father completed his degree requirements at the university, but he was unable to

obtain his degree due to the suspension. Apparently, the university subsequently awarded Father his degree.

-12-

Jack and Casey came at 3:00. [A.M.H.] played for a minute

with them and then wanted us. The visit was very discouraging to us.

They wanted to see if they could come and get [A.M.H.] and keep her

for the day next Sunday. I told them No. She is too little to be away

from us. Casey was very distraught, crying very loud. They left soon

after. Jack kept telling us that they had friends that kept asking about

her and a doctor at church wanted to see her. We told them she didn’t

need to see a doctor and if anyone wanted to see her they could come

to our home. We stood strong with this. I think Jack was just trying

to please Casey. No words were exchanged. We feel like Jack will

try something now. We would like to get visits to every other week.

We feel like they would wean away, but the last 2 visits we could see

Casey is wanting to come more.

If Jack confronts us with the visit we are going to tell him this

is the way its going to be and set rules for him. He is very pushy and

overbearing. They are suppose [sic] to com [sic] Thurs, 8:45 AM

because Jerry is going to be out of town. Jack will not come to our

home without Jerry being here.

Mrs. Baker subsequently stated that they were not going to allow the Hes to take A.M.H. out of their

home, and, after the October 3, 1999, visit, they decided to move visitation to every other week.

According to Mother, she wanted to see A.M.H. more often, but the Bakers began to change

visitation times or make their visits more difficult. However, Mrs. Baker’s journal indicated that the

Hes occasionally missed visits, rescheduled visits, or the Bakers would miss church to accommodate

the Hes’ visits on Sundays. Father subsequently stated that their visits with A.M.H. continued to go

well, and they experienced no problems with visitation during this period.

On November 14, 1999, Father called the Bakers to tell them he was bringing a friend from

church, Elizabeth Marshall (“Ms. Marshall”), to visit A.M.H. Ms. Marshall previously adopted two

Chinese children, and she hired Mother when she was pregnant with A.M.H. to babysit for her. Ms.

Marshall was aware that the Bakers were caring for A.M.H., but the Hes did not tell her the specifics

of their arrangement with the Bakers. Father asked the Bakers to pretend that they were A.M.H.’s

foster parents, not her custodial parents. In fact, Father told Ms. Marshall that the Bakers were

A.M.H.’s temporary foster parents. During the visit, Ms. Marshall inquired as to how the Bakers

could give up A.M.H. after caring for her for so long, and she referred to A.M.H. as A.M. Marshall.

Mrs. Baker got the impression that the Hes had spoken to Ms. Marshall about adopting A.M.H. Ms.

Marshall subsequently stated that she had no intention of adopting A.M.H.

At some point in November of 1999, Mother asked Father to approach the Bakers and request

that they return custody of A.M.H. to them. Pursuant to Mother’s request, Father approached Mr.

Baker about their regaining custody of A.M.H. According to Father, Mr. Baker stated that they did

not want to return A.M.H. to the Hes, and Mr. Baker asked him not to mention it again because Mrs.

Baker was pregnant, and he did not want to cause a miscarriage. After this conversation, the Hes

-13-

stated that they no longer felt comfortable with the Bakers, and their relationship began to

deteriorate. The Bakers invited the Hes to come to their home on December 22, 1999 to see what

A.M.H. received for Christmas. The Hes brought gifts for everyone but A.M.H. On January 28,

2000, the Bakers invited the Hes to their home to celebrate A.M.H.’s birthday. The Hes brought

food for everyone and they had birthday cake. The Hes brought A.M.H. a Sesame Street suitcase

as a gift. On February 15, 2000, the Hes visited A.M.H. and brought some fish which had bones in

it. Mrs. Baker decided not to feed it to A.M.H. On February 21, 2000, Mrs. Baker gave birth to a

daughter, Aimee. During a visit on February 28, 2000, the Hes stated that they were pleased that

A.M.H. had a new sister. Around this time, Mother became pregnant with the Hes’ second child.

On April 26, 2000, the Hes visited the Bakers’ home, and Father asked if he could bring a

friend from Ohio to visit A.M.H. According to Mrs. Baker’s journal entry for that date, Mr. Baker

asked Father if he told his friend the truth about A.M.H., and Father said he did not because he was

worried about being criticized for telling the truth. Father wondered aloud if he should tell his friend

that A.M.H. was “temporary,” or if he should tell his friend the whole truth about A.M.H. being

“permanent.” They encouraged Father to tell his friend the truth about the situation, and the Bakers

invited the Hes’ friend to dinner.

E.

The Hes’ Decision to Petition the Juvenile Court for a Change in Custody

According to Ms. Cloud, the Hes came to juvenile court or called her on the telephone

several times after the original agreed upon custody order was entered to complain about their

visitation with A.M.H. and to express their desire to regain custody of A.M.H. However, Ms. Cloud

could not remember the exact dates of these conversations. On May 3, 2000, the Hes signed a

petition seeking to modify the June 4, 1999 consent order awarding custody of A.M.H. to the Bakers

alleging that a change in circumstances warranted a change in custody. Father subsequently

acknowledged that he had been contacted by immigration officials prior to filing the May 2000

petition. According to the Hes, as of the date they filed the petition they were financially able to care

for A.M.H. Mrs. Baker’s journal entry for May 3, 2000, indicates that the Hes did not apprise the

Bakers of their intentions during the visit, and, in fact, the Hes and the Bakers discussed the kinds

of lessons they wanted A.M.H. to learn growing up. Ms. Cloud subsequently called Ms. Chunn to

inform her that the Hes had filed a petition in the juvenile court to regain custody of A.M.H. In turn,

Ms. Chunn called Mrs. Baker on May 4, 2000, to alert her of the fact that a petition had been filed.

Mrs. Baker called Mr. Baker to inform him of the news. According to her journal entry for

May 4, 2000, the Bakers were “floored” by this news. Mr. Baker called Father that afternoon to

arrange a meeting to discuss the Hes’ decision to file the petition, and Mr. Baker met Father at the

clubhouse of the Hes’ apartment complex. During their meeting, Mr. Baker asked Father why they

filed the petition. Father responded by stating that Mother insisted on filing the petition to regain

custody of A.M.H., but he wanted A.M.H. to remain with the Bakers. Father told Mr. Baker that the

-14-

Hes planned to “ship” A.M.H. back to China. Father acknowledged the parties’ prior oral agreement

(that the Bakers would raise A.M.H. until she turned eighteen), but he stated that they needed to

discuss changes to the agreement. As Father began talking about the proposed changes, Mr. Baker

started writing down what Father proposed. When Mr. Baker indicated that the Bakers would not

agree to changing their prior agreement, Father grabbed the paper from Mr. Baker and began writing.

The discussion between the two men resulted in the following three options being presented by

Father:

The below options were discussed by Jerry Baker and Jack He.

/s/ Jerry Baker

/s/ Jack He 5/4/00

OPTION # 1

That the Bakers and the He’s [sic] agree to give [A.M.H.]

back to the Hes without disputing custody in court. The Hes agree

that in the event the Hes must leave the United States for China they

will let the Bakers adopt [A.M.H.] forever.

* The Bakers must agree not to cause the Hes to leave the

United States by reporting to the U.S. Government.

OPTION # 2

The Hes agree to stay in Memphis as long as they stay in

United States. The Hes will allow the Bakers to have [A.M.H.] for

a visit no less than two days per week. * Option 1 and 2 go together.

OPTION # 3

The Bakers and the Hes agree to continue their current

agreement with one supplement: the Hes may take [A.M.H.] back

home one day every other week. Such agreement will continue for 18

years. The Hes agree to leave [A.M.H.’s] passport to the care of the

Bakers.

Mr. Baker wrote the first two options as Father spoke, and Father wrote the third option. Father and

Mr. Baker were unable to reach any agreement that day, and the matter remained unresolved.

After the Hes filed their petition to modify the original custody order, the Hes continued to

visit A.M.H. at the Bakers’ home with the same regularity. On May 7, 2000, the Hes came to the

Bakers’ home with their friends from Ohio. When Mrs. Baker was alone in the kitchen, Father

approached her and stated that “it was going to be alright, that he was going to persuade Casey not

to do this.” At some point in May of 2000, the Bakers contacted Mr. Weaver.

-15-

The Hes’ May 2000 petition to modify custody was filed in the juvenile court on June 19,

2000. On June 28, 2000, the juvenile court referee held a hearing on the Hes’ petition.6 Mr. Weaver

attended the hearing on behalf of the Bakers. The Hes did not hire a lawyer to represent them at the

hearing, and no translator was present. Prior to the hearing, the juvenile court appointed a Court

Appointed Special Advocate (“CASA”) to investigate the Hes’ petition to modify custody and

determine if they were presently able to provide for A.M.H. The CASA provided the referee with

a copy of his report on the date of the hearing, which provided, in relevant part as follows:

CONCERNS AND EVALUATIONS

Mrs. Luo does not speak English. Therefore, Mr. He translated for

her during this CASA’s visit. Presently, both parents stated they want

[A.M.H.] back home with them, as they are now able to financially

care and provide for her. This CASA believes that [A.M.H.’s]

parents love her very much. However, Mr. He and Mrs. Luo do not

seem to understand the serious nature of this matter. For instance,

neither parent appears to understand why they have to go to court to

regain custody of [A.M.H.]. They do not understand why they have

to prove anything. This CASA believes the fact that the mother and

the father are not able to speak English is relative to their lack of

issues surrounding custody of their child.

....

Qin (Casey) Luo is four months pregnant with her second child. This

CASA is concerned about the added responsibility that a new baby

would bring to Mr. He and Mrs. Luo. Presently, the couple lives in

a two-bedroom apartment with an adult female roommate named

Ping. Ping was not present during this CASA’s home visit. The

couple plans for both [A.M.H.] and the new baby to share their

existing bedroom with them.

This CASA is concerned that Mr. He and Mrs. Luo want custody of

[A.M.H.] reinstated for the purpose of citizenship. The Bakers stated

that they were very shocked when [A.M.H.’s] parents filed for

custody without first discussing it with them. They stated that they

believe Mr. He and Mrs. Luo want custody of [A.M.H.] reinstated in

order to become citizens and stay in the United States. Mr. Baker

stated that Mr. He would do anything to remain in this country.

6

The record on appeal does not include a transcript of the June 28, 2000 hearing in the juvenile court.

-16-

This CASA is concerned about the possibility that Mr. He and Mrs.

Luo might send [A.M.H.] back to China if custody is reinstated. Mr.

He informed Mr. Baker that they might send [A.M.H.] back to China

to live with relatives if Mr. He and Mrs. Luo regain custody. The

Bakers believe that this would be traumatic to the child since

[A.M.H.] thinks of the Bakers as her parents.

The CASA recommended that the Bakers retain custody of A.M.H. and that the juvenile court grant

the Hes supervised visitation with A.M.H. twice a week for four hours each day.

According to the parties, the juvenile court referee primarily spoke to Father during the

hearing about the Hes’ plans for A.M.H. The referee asked Father about the Hes’ finances, his

pending criminal matter, and their plans for A.M.H. if they regained custody. Father told the referee

that they were presently financially able to care for A.M.H., and, if they were awarded custody, they

planned to send A.M.H. to China and send $25 to $35 a month to support her. At the conclusion of

the hearing, the referee entered “Findings and Recommendations of Referee” denying the Hes’

petition to modify the previous June 4, 1999 custody order, and the juvenile court confirmed those

findings that same day. The Hes did not appeal this ruling, and they continued to visit A.M.H. at the

Bakers’ home once a week occasionally bringing food and other items for A.M.H.

Shortly after the hearing, Father went to Macon, Georgia to work for approximately two

months, and Mother remained in Memphis. During this period of time, Mother continued to visit

A.M.H. at the Bakers’ home. Of particular significance is a visit Mother made to the Bakers’ home

on August 1, 2000 to visit A.M.H. The Bakers had previously spoken to Mother and asked her to

come at 10:00 a.m. because Mrs. Baker had to leave at 11:00 to meet Mr. Baker for lunch. Mother

arrived at 10:45 a.m, and at 12:15 p.m. Mrs. Baker informed Mother she needed to leave to meet Mr.

Baker. Mother picked A.M.H. up and refused to leave, stating that Mrs. Baker should call the police.

Mother began yelling and screaming at Mrs. Baker, referring to the Bakers as “bad people, demons.”

Mrs. Baker called Mr. Baker and informed him of the situation, and she asked him to return home.

Mr. Baker called Father in Macon, Georgia and informed him of the situation, and Father advised

Mr. Baker to call the police. According to the Bakers, Father apologized for Mother’s behavior.

After the police arrived, Mother agreed to leave. The Bakers informed Father that Mother would not

be allowed back in their home unless he accompanied her. As a result of the incident, Father quit

his job in Macon, Georgia and returned to Memphis.

The Hes continued to visit A.M.H. approximately once each week in September and October

of 2000. On October 23, 2000, the Hes visited A.M.H. and brought her pears, chips, watermelon

seeds, and some Chinese books. According to Mrs. Baker’s journal, the Hes spoke Chinese the

whole time, and they were “determined to get [A.M.H.] to call them Mama & Papa.” On October

28, 2000, Mother gave birth to a son, Andy. One of Andy’s ears was only partially developed at

birth. After Mother gave birth to Andy, Father called Mrs. Baker to ask if she would pick up Mother

and Andy from the hospital, which Mrs. Baker agreed to do. At Father’s request, Mrs. Baker also

delivered a document for the Hes to a social services office. Mrs. Baker visited the Hes’ home

-17-

throughout the month of November 2000 to bring them food, items for Andy, and helped teach

Mother how to care for the newborn. She also took Mother shopping for Andy, and she drove

Mother to see Andy’s pediatrician. The Hes also called Mrs. Baker occasionally to inquire about

how to care for the baby. Toward the end of November, the Bakers helped the Hes when their

automobile needed repairs, and they drove Mother on her errands. According to the Hes, their

financial situation began to improve after Andy was born, and they were able to hire a full-time

Chinese babysitter to care for Andy.

On December 4, 2000, Mrs. Baker drove Father to work, and she took Mother and Andy to

see Andy’s ear specialist. On December 15, 2000, Mrs. Baker took Mother and Andy to another

doctor’s appointment, and she took Andy to have his passport photo made. Mrs. Baker subsequently

took Andy to a doctor’s appointment without Mother at the request of the Hes. On December 22,

2000, the Bakers invited the Hes to their home for Christmas, and the Hes visited A.M.H. the

following day. The Hes did not bring A.M.H. any gifts, stating they did not have time to shop. The

Bakers gave the Hes a vacuum cleaner and gave Andy clothes.

In January of 2001, the Hes visited A.M.H. at the Bakers’ home four times. On January 1,

2001, friends of the Hes drove them and Andy to visit A.M.H. Shortly after arriving, Father said he

had to leave, and he asked the Bakers to drive Mother and Andy back home, which they agreed to

do. On January 13, 2001, the Hes visited A.M.H. and brought her three pears and some Chinese jell-

O. On January 20, 2001, Father called the Bakers and wanted to come visit, but the Bakers informed

him that it was an inconvenient time because Mrs. Baker was having a baby shower. They

rescheduled the visit for January 22, 2001. On their way to the Bakers’ home on January 22, 2001,

Father called to ask if Mother could visit A.M.H. on her birthday, January 28, 2001, and the Bakers

agreed. When the Hes arrived at the Bakers’ home, they introduced a female accompanying them

as Mother’s sister. When Mrs. Baker inquired further because of her understanding that Mother only

had a brother, Father stated that the female was actually Mother’s cousin. Mrs. Baker noted in her

journal that Mother appeared to be upset. She also noted in her journal that A.M.H. was sick, and

she made an appointment for her to see the doctor.

On January 28, 2001, the Hes arrived at the Bakers’ home to visit A.M.H. for what turned

out to be their final visit. According to the Hes, they called the Bakers about a week prior to the visit

to inform the Bakers that they wanted to take A.M.H. to have a family portrait made, and the Bakers

agreed to their request. According to Mrs. Baker’s journal, they had no prior knowledge of this

request. When the Hes stated their intentions, the Bakers told them that A.M.H. was sick and could

not leave the house. Records subsequently introduced in this matter indicate that the Bakers were

in contact with A.M.H.’s doctor during this period regarding A.M.H.’s high fever, cough, and

congestion. The Hes became more insistent and demanded to take their daughter to have a family

portrait made. When the Bakers refused, Father instructed them to call the police, which the Bakers

did. Two sheriff’s deputies arrived at the Bakers’ residence and spoke to the Hes and the Bakers.

Deputy John Astor (“Deputy Astor”) subsequently stated that he found the Hes to be “irate,” and they

were outside the Bakers’ home yelling and screaming. Deputy Astor spoke to Father and advised

him to speak to an attorney. According to Deputy Astor, he instructed the Hes to refrain from

-18-

returning to the Bakers’ home that day. Mother subsequently stated that, based on Father’s

translation, she understood Deputy Astor’s statement to mean that they could never return to the

Bakers’ home or they would be arrested. Mr. Baker stated that he memorialized the events of

January 28, 2001 in Mrs. Baker’s journal shortly after the incident because Mrs. Baker was too upset

to write.

After the January 28, 2001 incident, the Hes never returned to the Bakers’ home to visit

A.M.H. According to Father, they did not return or call because they were afraid of being arrested,

and they were also concerned about possible deportation and his pending criminal charges. Mrs.

Baker stated that, after the incident, she called the Exchange Club to arrange for any future visits to

be conducted there. However, the Bakers did not call and inform the Hes that future visits would

be conducted through the Exchange Club. In fact, Mrs. Baker subsequently admitted that the Bakers

did nothing after the January 28, 2001 incident to promote a relationship between A.M.H. and the

Hes. The Bakers did not hear from the Hes again until April 2, 2001. On that day, Mother called

and left a message on the Bakers’ answering machine instructing the Bakers to come to their home

and “get [their] baby bed, we are moving, thank you, bye bye.”7 Mother subsequently stated that

they also sent postcards to A.M.H. in April or May of 2001, but they were returned.

In February of 2001, the Hes contacted the juvenile court asking for assistance in regaining

custody of A.M.H. from the Bakers. On February 15, 2001, Father faxed a letter dated February 1,

2001, to the juvenile court setting forth a brief history of the case, the incident on January 28, 2001,

and the Hes’ desire to “take our child back and go back to China.” Father also sent a copy of the

letter to the media. On April 9, 2001, the Hes went to juvenile court where they met with Candice

Brown (“Ms. Brown”), a probation counselor. Ms. Brown described Mother’s behavior that day as

“hysterical,” and she appeared to be genuinely upset about regaining custody of her daughter. Ms.

Brown recounted that the Hes told her that they did not understand the American system, and they

did not understand what they were doing when they signed the original consent order giving the

Bakers custody of A.M.H. Ms. Brown explained to the Hes that, since the Bakers were not there to

agree to a change of custody, they would need to file a petition and go before a judge to ask for a

modification of the custody arrangement. Ms. Brown prepared a petition on April 9, 2001, wherein

the Hes stated that they were presently able to care for A.M.H. Only Mother signed the petition. Ms.

Brown subsequently stated that Father was present that day, but she was new to the position and only

had Mother sign the petition. The Hes’ petition to modify the custody arrangement was filed in the

juvenile court on May 29, 2001, and the petition was set for a hearing in June of 2001. Father

subsequently admitted that, as with the previous petition they filed in May of 2000, the Hes were

contacted by immigration officials around the time they filed the May 2001 petition, but he could

not remember the exact dates of those calls. Father stated that they received the calls from

immigration officials between March and May of 2001.

7

During a subsequent deposition, Father testified that he too called and left a message with the Bakers asking

about visitation. He also stated that he mailed A.M.H. a card after January 28, 2001, but he did not receive a response.

Father offered no such testimony at trial, and the trial court made no mention of this fact in its order apparently due to

the trial court’s findings regarding Father’s credibility.

-19-

At some point in May of 2001, the Hes sent their son Andy, who was seven months old at

the time, to China to live with Mother’s relatives. They paid their babysitter, a Chinese immigrant,

to take Andy to China. According to the Hes, they sent Andy to China because they feared he could

be taken from them if Father was ultimately convicted of the criminal charges pending against him.

They also hoped that Mother’s father, a “traditional medicine doctor,” could treat Andy’s ear. While

Andy was in China, the Hes sent approximately $1,000.00 each month to her family.

F.

The Bakers’ Petition to Terminate the Hes’ Parental Rights

After the Hes filed their petition to modify the original custody order in juvenile court in May

of 2001, the Bakers once again met with Mr. Weaver. Mr. Weaver recommended that the Bakers

file a petition to terminate the Hes’ parental rights to A.M.H. to stop the juvenile court proceedings.

When the Hes appeared in juvenile court on June 6, 2001 for the hearing on their petition, the

juvenile court rescheduled the hearing until June 22, 2001 because Mr. Weaver was unable to attend.

Two days before the scheduled June 22, 2001 hearing, the Bakers filed a “Petition for Adoption and

Termination of Parental Rights” in the Chancery Court of Shelby County. The Bakers’ petition,

which Mr. Weaver filed on their behalf, stated that the Hes abandoned A.M.H. by willfully failing

to visit her and willfully failing to support her. The Hes were subsequently informed of the petition

and the necessity to transfer the case to the chancery court. Soon thereafter, the Hes secured the

services of attorney Dennis J. Sossaman (“Mr. Sossaman”) to represent them in the matter. The case

was initially assigned to Chancellor D.J. Alissandratos.

On June 27, 2001, the chancery court appointed Mid-South as next friend to conduct an

investigation into the merits of the Bakers’ adoption petition. Ms. Chunn conducted the

investigation on behalf of Mid-South and opened an “adoptive family file.” Ms. Chunn subsequently

filed her report outlining the history between the Hes and the Bakers, and she concluded that A.M.H.

“is continuing to thrive in the Baker home.” On July 24, 2001, the chancery court, pursuant to the

agreement of the parties, entered an order appointing attorney Kimbrough B. Mullins (“Ms.

Mullins”) to serve as the guardian ad litem for A.M.H. The order also provided that the parties

agreed to waive any hearsay objections to any statements contained in Ms. Mullins’ reports, and they

stipulated that Ms. Mullins would be deemed an expert regarding any subsequent opinions she may

form in the case. On September 24, 2001, the Bakers filed a notice with the chancery court that they

were substituting attorney Larry E. Parrish (“Mr. Parrish”) as counsel to replace Mr. Weaver.

On October 10, 2001, Ms. Mullins filed her first interim report with the chancery court. In

preparing her report, Ms. Mullins conducted interviews with the Hes, assisted by Pastor Yau

translating; the Bakers; Ms. Chunn; and Ms. Cloud. Ms. Mullins indicated in her report that Ms.

Chunn informed her that, prior to the birth of A.M.H., Father questioned his paternity of A.M.H.,

and Ms. Mullins’ report noted that Father confirmed this assertion. Based on her interviews with

Father, Ms. Mullins noted that Father was in favor of her suggestion that he undergo a DNA test to

-20-

establish paternity. Accordingly, she included in her report a recommendation that Father undergo

a DNA test to establish whether he was the biological father of A.M.H. Father subsequently denied

telling Ms. Chunn he questioned paternity of A.M.H., and he denied telling Ms. Mullins he wanted

a DNA test. Ms. Mullins also recommended that the parties undergo psychological testing. She

recommended that the court appoint a child psychologist to evaluate A.M.H. for the psychological

impact removing her from the Bakers would have and the effect of losing her cultural heritage if the

Hes’ parental rights were ultimately terminated. Ms. Mullins recommended Dr. David Goldstein

(“Dr. Goldstein”), a licensed clinical psychologist, to perform this role. According to Ms. Mullins,

the chancery court entered a consent order in October of 2001 appointing Dr. Goldstein to evaluate

A.M.H.8 Dr. Goldstein focused his evaluation on three issues: (1) the psychological status of

A.M.H., (2) the effect removing A.M.H. from the Bakers would have on the child, and (3) the effect

severing A.M.H.’s relationship with the Hes would have on the child.9

In October of 2001, Father filled out a credit application to purchase a new Mazda vehicle.

In the section of the application requesting the name and address of a closest living relative, Father

inserted the names “Jack Johnson” and “Jeff He”indicating they were his cousins. Father

subsequently admitted that these were fictitious names he occasionally used to refer to himself.

According to Father, the salesperson pressured him into buying the vehicle and encouraged him to

use the fictitious names. The application reflects that the Hes made a $1,500.00 down payment on

the vehicle which cost approximately $18,000.00, and they financed the rest by making payments

of approximately $300.00 per month beginning in November of 2001.

On January 7, 2002, the Hes were legally married in Memphis, Shelby County, Tennessee.

Around that time, Father took a DNA test which established that he was indeed the biological father

of A.M.H. Shortly thereafter, he filed a “Voluntary Acknowledgment of Paternity.” Mother became

pregnant with the Hes third child around this time as well.

On January 23, 2002, the Bakers filed a motion requesting that the chancery court order the

Hes to pay Ms. Mullins’ fees, deposit a sum with the court sufficient to pay for future costs

associated with psychological evaluations, expert testimony, and DNA testing. In support of their

motion, the Bakers relied on the following testimony from Father’s deposition, wherein he stated:

8

In a subsequent report filed in September of 2003, Ms. Mullins indicated that the chancery court did in fact

appoint Dr. Goldstein to perform a psychological evaluation of A.M.H. The record does not contain an order to that

effect, and we find no transcript of any hearing discussing such an order in the record on appeal. In any event, the parties

do not dispute that the trial court appointed to Dr. Goldstein to conduct the evaluation.

9

Dr. Goldstein never evaluated the Hes or the Bakers in this case. W hen he was initially contacted by Ms.

Mullins, Dr. Goldstein would not agree to conduct an evaluation of the adults because he felt that, due to the cultural

issues involved and the costs associated with performing such a complex evaluation, he wanted to gather a neutral team

of professionals to conduct the evaluation. According to M s. M ullins, counsel for both parties objected to her request

to evaluate the Bakers and the Hes citing the costs associated with such an evaluation, therefore, the chancellor decided

to defer a decision on an evaluation of the parties.

-21-

Q. Is you [sic] your understanding that you have the

responsibility to pay at least initially half of the cost for Ms.

Mullins service as guardian ad litem?

A. I do not understand it.

Q. Okay. Are you prepare [sic] to pay half of her fees when they

are due?

A. Let me put it this way, money is nothing compared with the

human being.

Q. Okay.

A. Compared with having our daughter back. Money is nothing

if in the money is justified, if the expense.

Q. Well, if the Court ordered you to pay stay [sic] $3,000 toward

the guardian ad litem’s fee, are you able and willing to make

that payment?

A. I’m able, but I’m not necessarily willing.

Q. So it may be that you would have the money, but just because

the Court told you to pay it, you wouldn’t necessarily pay it,

right?

A. I will wait and see. I cannot make decisions right now. I will

wait and see.

Q. But you do reserve to yourself the right to make a judgment

about whether you will or will not follow the order?

A. I will consult a few other people before I make my decision.

....

Q. Okay. Now, when you say that you are able, do you mean

you have the money in the bank?

A. I have part of the money in the bank, but, you know, as a

Chinese, Chinese tradition is different from American

tradition. I can borrow money very easily from my friends,

my relatives.

Q. All right?

A. Yes.

Q. How much money do you have in the bank?

A. Right now I have $2,500 and 60-something most recent

information.

....

Q. Now, you say you can borrow money from friends and

relatives; is that correct?

A. Yes.

-22-

Q. Okay. Give me the names of the friends for whom you would

borrow money if you needed to borrow money?

A. Most of them in China. I can give it to you.

Q. Please.

A. My relatives such as my wife’s brother . . . .

Q. Okay.

A. Her brother is a very successful young man. Younger brother.

....

Q. And how much capacity would he have to lend you money, if

you needed money from him?

A. I think he can easily loan us one million.

Q. One million?

A. Yes. One million.

Q. Okay. All right. You are talking about dollars?

A. Yes.

Q. Okay. And who else?

A. And then that’s for my wife’s brother, younger brother. And

then for from my relatives, my sister just now mentioned, she

is an attorney. She can loan me about $10,000. U.S. Dollars.

Q. Okay. And who else?

A. And some of my previous co-workers the Chong Qing

University . . . .

Q. Okay. And he’s at —

A. He is an architect.

Q. Architect?

A. Yes.

Q. And how much do you think you could borrow from him if

you needed?

A. $10,000.

Q. Okay. Anybody else?

A. I think that’s sufficient to see through this case.

Q. And you think you would need to do anything to borrow the

money from the other than just ask them and tell them how

much you need?

A. I would tell them and if — I know — I know they will. They

will be very happy to do so. I know that. Because we are

fighting for our daughter back.

Father also mentioned that he could secure the funds within a month and that he could receive these

loans interest free. Mother subsequently testified that Mr. Sossaman, their attorney at the time of

Father’s deposition, instructed Father to testify at his deposition that they had more money than they

-23-

actually did. However, Father subsequently testified that Mr. Sossaman did not ask him to

misrepresent their income. Although he admitted to lying about their income during his deposition,

Father asserted that Mr. Parrish trapped him into saying how much money they could acquire.

On February 7, 2002, the chancellor conducted a hearing on the Bakers’ motion. At the

hearing, Ms. Mullins requested that the chancery court take custody of A.M.H.’s passport. The Hes

informed the chancellor that the passport was at their apartment, and the chancellor ordered the Hes

to surrender the passport to the court by 4:00 p.m. that day. The chancellor also appointed an

attorney ad litem to represent Ms. Mullins.10 Regarding the Bakers’ motion, the chancellor ordered

the Hes to deposit $10,000 with the chancery court to cover future guardian ad litem fees, to pay for

the DNA test, and to deposit $5,000 to cover the projected costs associated with psychologically

evaluating the parties and A.M.H.

The Hes did not comply with the chancellor’s ruling by tendering A.M.H.’s passport to the

court on February 7, 2002. When subsequently questioned about his communication with a reporter

after the hearing, Father provided the following testimony:

Q. And do you recall [the reporter] asking you whether you were

going to produce the passport or not produce the passport?

A. About the passport, I think I told her that we did not want to

give the passport. That’s what I said.

Q. Okay, are you denying that you said to her, “Which would

make a better story for you”?

A. I could not remember exactly what I said, but the point is that

I did not want to give the passport. That’s my point.

Q. Did you say to her words that, “I may do either one. Which

one will make the best story for you?”

....

Q. Are you denying that you said that?

A. I do not deny it. I could not remember that. That’s what I

said.

Father went on to testify that there was a sixty percent chance he made the statement versus a forty

percent chance that he did not make the statement. According to Father, he “was trying to get the

media’s attention in order to help me to get my daughter back.” On February 8, 2002, the chancellor

entered an “Order to Show Cause” reflecting that the court received a call from the guardian ad

10

On February 12, 2002, the chancellor entered an order nunc pro tunc to February 7, 2002 addressing the oral

orders entered at the February 7, 2002, hearing. The court entered an order on April 2, 2004, nunc pro tunc to February

2, 2002, appointing attorney Linda L. Holmes as the attorney ad litem for M s. Mullins.

-24-

litem, counsel for the Hes, and counsel for the Bakers on February 7, 2002, at approximately 4:00

p.m. informing the court that the Hes did not intend to comply with the chancellor’s order.

The chancellor entered another order on February 8, 2002, appointing the Bakers guardians

of A.M.H., and the chancellor ordered that the Hes have no contact with A.M.H. until the court

entered an order directing otherwise. The order indicated that the chancellor based his decision on

the entire record, including the recommendation of the guardian ad litem. The Certificate of Service

on the order indicated that it was presented to Mr. Sossaman, counsel for the Hes, and Ms. Mullins,

the guardian ad litem for review. However, Mr. Parrish, counsel for the Bakers, was the only

attorney who signed the order indicating his approval. The Bakers never requested such an order,

and the record on appeal contains no transcript of any hearing addressing the need for such an order.

In fact, Mr. Parrish subsequently testified at trial that, as everyone was preparing to leave the hearing

on February 7, 2002, the chancellor instructed him to draft the order. According to Mr. Parrish, the

chancellor instructed him to forgo having the other attorneys sign the order. Mr. Parrish stated that

Mr. Sossaman was no longer the Hes’ attorney at the time, and he admitted that he did not show the

order to Mr. Sossaman prior to presenting it to the chancellor for his approval. Mr. Parrish was the

only lawyer present in the courtroom when the chancellor read the order and signed it.

It was not until February 14, 2002 that Mr. Sossaman filed his “Motion to Withdraw” with

the chancery court citing a conflict of interest. That same day, the chancellor conducted a hearing

on the previous “Show Cause Order” and Mr. Sossaman’s “Motion to Withdraw” as counsel for the

Hes. Mr. Sossaman informed the court that a conflict had developed between the Hes regarding the

manner in which the case should proceed after the February 7, 2002 hearing. The chancellor

required Mr. Sossaman to remain as counsel for Father during the hearing, and Mother chose to

represent herself. During the hearing, Mother informed the chancellor that she would not comply

with the court’s previous order to surrender the passport. Father testified that, after the previous

hearing, he tried to get the passport from Mother, who had control of the document, but she refused

to tell him where she put it. At the conclusion of the hearing, the chancellor determined that Father

was not a credible witness, that both Mother and Father had control of the passport, and that Father

was “a willful, knowing, perjurer on these points.” The chancellor ordered the Hes to surrender the

passport by 9:00 a.m. the following morning or face incarceration.11 That same day, the chancery

court entered an order permitting Mr. Sossaman to withdraw from representing the Hes in this

matter. On February 15, 2002, attorney David A. Siegel (“Mr. Siegel”) filed a notice with the

chancery court indicating that he would be taking over representation of the Hes in the matter.

11

The chancellor had previously instructed the Hes to produce proof of their marriage in China and proof of

their Tennessee marriage. At the hearing on February 14, 2002, the chancellor found that the Hes never married in

China. On February 15, 2002, the chancellor ordered the Hes to produce a copy of their Tennessee marriage license.

This order was the subject of a separate contempt proceeding.

The court also entered a subsequent show cause order requiring the Hes to appear and explain why they failed

to pay the $15,000.00 the court previously ordered them to pay. The Hes subsequently complied with the court’s order

and entered a notice of their payment of $15,000.00 to the court.

-25-

On February 20, 2002, the Hes filed a motion requesting that the chancellor order immediate

visitation with A.M.H. and vacate its previous order directing them to refrain from contacting their

daughter. On February 22, 2002, the chancellor entered an order nunc pro tunc to February 14, 2002,

finding the Hes in civil contempt for refusing to surrender A.M.H.’s passport, and the court ordered

them incarcerated until such time as they purged themselves of the contempt by producing the

passport. The Hes subsequently complied by delivering the passport to the court.

On March 7, 2002, the chancellor conducted a hearing on the Hes’ petition requesting

visitation. Regarding the chancellor’s prior order directing no contact between the Hes and A.M.H.,

the following exchange occurred:

THE COURT: Why did I issue a no contact order?

MR. PARRISH: The guardian ad litem asked you to.

The Hes were here with counsel at the time

and didn’t object.

THE COURT: Let me say this, I need to have an

evidentiary hearing so I can see whether or not

I need to reverse myself, stick with what I

have done, whatever it is, because I don’t

remember why I did it. It sounds more

logical, which is — because it’s not like me to

sit and go, I’m looking at an overcast day, I

think I will deny, think I will deny you

visitation. I usually do things for a reason.

People might disagree, but I am a person who

reasons through things.

MR. SIEGEL: I realize that.

THE COURT: Obviously what happened was the

guardian ad litem made a recommendation the

other side remained silent on and didn’t offer

proof, and I went on ahead, and I went on,

said my job is to be decisive, not just ride the

fence being indecisive.

So, I made a decision, one side said, I

would like for you to decide this way, which

is to deny visitation, and the other side was

heard for whatever short time it was or long

time it was or whatever, then I made a

decision. Now, having done that, I’m more

than happy to revisit it, but if I’m going to

revisit it now, I’m going to need to hear from

the guardian ad litem, and witnesses, anybody

-26-

they want to call, because the law is not

absolute on this.

As previously mentioned, the record on appeal does not contain any motion by the Bakers or Ms.

Mullins asking for a ruling on visitation or a no contact order, and the record does not contain a

transcript of any evidentiary hearing addressing the entry of the order. According to Mr. Parrish’s

subsequent testimony at trial, no prior hearing was ever conducted on this issue. In fact, Ms.

Mullins’ interim report filed on October 10, 2001 only contained a recommendation that any

visitation between the Hes and A.M.H. be supervised. Ms. Mullins subsequently stated that there

was no pending motion on this issue, but she believed the chancery court had enough evidence

before it to justify the order. In any event, the trial court declined to consider the Hes’ motion on

the day of the hearing.

On March 8, 2002, the Bakers filed a motion to amend their petition to allege that Father was

not the legal parent of A.M.H. but only her biological father with no basis to allege he had parental

rights to A.M.H. The chancery court subsequently granted the Bakers’ motion to amend their

petition. Thereafter, the parties filed numerous motions with the trial court. On April 22, 2002, the

Bakers filed a motion for default judgment. On April 25, 2002, the Hes filed a motion for summary

judgment arguing that the record, as a matter of law, failed to establish that the Hes abandoned

A.M.H. On May 1, 2002, the Bakers filed a motion for partial summary judgment alleging Father

had no parental rights to A.M.H., but they subsequently withdrew the motion.

In July of 2002, Dr. Goldstein filed his report with the chancery court. Dr. Goldstein

concluded that A.M.H. was thriving with the Bakers, and she viewed the Bakers as her

“psychological parents.” After acknowledging that he could not predict how a specific individual

would respond to an interruption in attachment, he concluded that, based on his research, a child who

experiences loss in early childhood is at a greater risk of developing serious psychological disorders

in the future. He opined that, if A.M.H. were removed from the Bakers, she would experience

separation anxiety and possibly develop a depressive disorder. While he found the research

involving transcultural adoptions to be sparse, he concluded that such adoptions do not appear to

have any significant differences from normal adoptions. Dr. Goldstein subsequently admitted that,

as of the date he filed his report, he had not investigated the attachment between A.M.H. and the

Hes. However, he opined that A.M.H. would have very little attachment to the Hes based on his

observation of her interactions with the Bakers and the fact that the Hes had only visited her

approximately eighty times for one hour each time. On August 30, 2002, the chancellor entered a

consent order releasing Dr. Goldstein’s preliminary report to the attorneys, and the court limited their

disclosure of the report to the attorneys, the parties, any other experts to be utilized by the parties.

On September 9, 2002, Mother gave birth to the Hes third child, Avita. On November 8,

2002, the Hes filed a notice with the Tennessee Attorney General of their intent to challenge the

constitutionality of certain Tennessee statutes, specifically certain provisions contained in section

36-1-102 and section 36-1-113 of the Tennessee Code. Thereafter, Assistant Attorney General

Douglas E. Dimond (“Mr. Dimond”) entered an appearance in the chancery court to defend the

-27-

constitutionality of the statutes. On June 23, 2003, the Hes filed a motion requesting a jury trial, and

a motion to bifurcate the proceedings into a separate determination of the grounds justifying

termination and a decision on the best interest analysis.

On September 4, 2003, the chancery court conducted a hearing on the Hes’ motion contesting

the constitutionality of certain Tennessee statutes. On September 10, 2003, attorney Richard A.

Gordon (“Mr. Gordon”) entered a notice of appearance as co-counsel for the Hes. That same day,

the Hes filed a motion asking the chancellor to set aside its prior order appointing Mid-South and

Ms. Chunn as next friend to investigate the Bakers’ adoption petition. On September 12, 2003, the

Bakers filed a motion in limine requesting a ruling that any parental rights Father may have as to

A.M.H. are subject to termination pursuant to section 36-1-113(g)(9) of the Tennessee Code. The

Bakers also filed a motion asking the chancery court to consolidate the Bakers’ petition to terminate

the Hes’ parental rights with Mother’s petition filed in the juvenile court on May 29, 2001, asking

the juvenile court to modify the June 4, 1999 custody order. That same day, the Hes filed a motion,

pursuant to Rule 60.02 of the Tennessee Rules of Civil Procedure, asking the chancery court to set

aside the consent order issued in juvenile court on June 4, 1999. On September 15, 2003, the Hes

filed a motion for default judgment against the Bakers on Mother’s May 19, 2001 petition filed in

juvenile court requesting a modification of the custody order.

On September 23, 2003, Dr. Goldstein conducted a videotaped “attachment session” with

A.M.H., the Hes, and the Bakers. The video recording of the incident is included in the record on

appeal. Dr. Goldstein met with the parties prior to the meeting to explain the purpose of the meeting

and the parameters of permissible conduct at the meeting, which included keeping the contents of

the meeting confidential. According to Dr. Goldstein, the video demonstrated the high level of

attachment A.M.H. has to the Bakers. The Hes brought food items and gifts to the meeting which,

according to Dr. Goldstein, they used to encourage A.M.H. to interact with them. Dr. Goldstein did

not attribute A.M.H.’s willingness to approach the Hes to retrieve an item to mean she still had a

level of attachment to the Hes. Dr. Goldstein stated that, the day after the session, he observed a

news interview with the Hes wherein the Hes stated that A.M.H. thought they abandoned her.

On September 24, 2003, Ms. Mullins filed another report wherein she opined that the Hes

abandoned A.M.H. by failing to visit and failing to support her. Ms. Mullins cited A.M.H.’s level

of attachment to the Bakers and concluded that she should remain in the Bakers’ custody. On

September 25, 2003, the Hes filed an amended motion to set aside the consent order awarding

custody of A.M.H. to the Bakers entered in June of 1999. That same day, the Hes filed a motion

asking the chancery court to set aside its previous order appointing the Bakers the guardians of

A.M.H. On September 26, 2003, the chancery court entered an order denying the Hes’ motion

challenging the constitutionality of certain provisions in section 36-1-102 and section 36-1-113 of

the Tennessee Code. On September 29, 2003, the Hes filed a motion requesting immediate visitation

with A.M.H.

On October 2, 2003, the Hes filed a motion pursuant to section 36-1-119(d) of the Tennessee

Code requesting that the trial court dismiss the Bakers’ petition for adoption because the adoption

-28-

proceeding had been pending beyond the statutorily allowed period. On October 23, 2003, Ms.

Mullins filed an addendum to her previous report filed on September 24, 2003.

On November 5, 2003, the Bakers filed a motion in limine requesting that the chancery court

issue a ruling on the meaning of the word “willfully” as used in section 36-1-102(1)(A)(i) of the

Tennessee Code. On November 6, 2003, Chancellor Alissandratos received a letter from attorney

Chad A. Massey notifying him that the Hes filed a complaint with the Tennessee Court of the

Judiciary alleging judicial misconduct. On November 7, 2003, the Hes filed a renewed motion for

emergency visitation with the trial court. On November 14, 2003, Mr. Gordon filed a notice with

the chancery court of his intention to withdraw from representing Father and solely represent Mother.

That same day, Mr. Siegel notified the chancery court of his intention to withdraw from representing

Mother and solely represent Father. Also on November 14, 2003, Chancellor Alissandratos

convened a hearing wherein he informed the parties that, due to an ethical complaint filed by the Hes

and “to avoid even the appearance of impropriety,” he would recuse himself from the case. Shortly

thereafter, the Chief Justice of the Tennessee Supreme Court entered an order assigning Robert L.

Childers of the Shelby County Circuit Court to hear the case by interchange.

On December 1, 2003, the Hes’ second child, Andy, returned to the United States. After

picking up Andy at the airport, the Hes proceeded to Wal-Mart where they encountered Hope Baker,

the Bakers’ older daughter, A.M.H., Aimee, and another child Mrs. Baker was babysitting. Mrs.

Baker was in another part of the store shopping, and Hope was watching over the other children.

Upon seeing A.M.H., Mother approached A.M.H., touched the child, and said loudly, “That’s my

daughter. Give me my daughter.” Hope grabbed A.M.H. and began screaming for help. A Wal-

Mart manager heard the scream for help and approached the group. Father subsequently approached

the group and told another manager who arrived at the scene that the Hes wanted to take A.M.H. and

leave. One of the Wal-Mart managers called the police to deal with the situation.

On January 22, 2004, Judge Childers convened a hearing to ascertain the status of the case

and any pending motions, and he inquired about moving the case to trial as soon as possible. At a

hearing on January 27, 2004, the Hes made an oral motion requesting a visit with A.M.H. the

following day, her birthday. At the conclusion of the hearing, the trial court orally ordered that the

Hes were to have no contact with A.M.H. until after a trial in the matter. On January 28, 2004, the

trial court entered separate orders, all nunc pro tunc to September 4, 2003, denying the Hes’ motion

for summary judgment, denying their motion to bifurcate the proceedings, and denying their motion

for a jury trial.

On February 6, 2004, the trial court entered an order addressing the Hes’ previous request

for visitation on A.M.H.’s birthday and denied any future contact between the Hes and A.M.H. until

the completion of the trial in this matter, effectively denying the Hes’ previous motions requesting

visitation. On February 23, 2004, the trial court entered a “Joint Pretrial Order” setting forth the

disputed and undisputed facts in the case. On February 27, 2004, the trial court, recognizing that

no order had been entered allowing Mr. Weaver to withdraw as counsel for the Bakers, entered an

order nunc pro tunc to September 30, 2001 permitting Mr. Weaver to withdraw from the case.

-29-

G.

The Trial

The trial on the Bakers’ petition for adoption and termination of the Hes’ parental rights to

A.M.H. and the Hes’ petition to modify the June 4, 1999 custody order got underway on February

23, 2004 and continued until March 2, 2004. During that time, the trial court frequently held court

well into the night and heard testimony from twenty-eight (28) witnesses and admitted seventy-nine

(79) trial exhibits into evidence.

In addition to the aforementioned facts, the Hes testified that they never intended to place

A.M.H. for adoption or permanently relinquish custody of A.M.H. to the Bakers. The Hes took the

position that the Bakers intended to adopt A.M.H. from the very beginning of the parties’

relationship. Father testified that Chancellor Alissandratos, Ms. Mullins, Dr. Goldstein, and Mr.

Parrish engaged in a conspiracy against the Hes.

The Hes presented their own experts at trial to refute the testimony of Dr. Goldstein. Dr.

John F. Cooper (“Dr. Cooper”), a professor of international studies at Rhodes College, testified

regarding the manner in which Chinese citizens view children and the family. He testified that the

extended family plays a pivotal role in Chinese culture, and it is not uncommon for students to ask

family members to care for their children while they pursue a higher education. According to Dr.

Cooper, the child is returned to the biological parents at their request. He testified that China does

not have a legal concept comparable to the Tennessee statutes governing termination of parental

rights. Dr. Cooper acknowledged his familiarity with the “one-child” rule in China, and noted that

the Chinese government will typically require the mother to get an abortion upon becoming pregnant

a second time. He also stated that the Chinese government may impose fines on the biological

parents who have extra children, but these fines are only imposed on children born in China. Under

cross-examination, Dr. Cooper admitted that it is possible that fines could be imposed on a parent

who had children in another country and returned to China with more than one child, but he stated

that doing so is not the general policy. Counsel for the Bakers also questioned Dr. Cooper on cross-

examination concerning an opinion issued by a federal bankruptcy court finding him to be an

untruthful witness and imposing sanctions against him and the attorney representing him in the

matter.

Dr. John Hutson (“Dr. Hutson”), a psychologist, reviewed Dr. Goldstein’s report and records,

and he testified that Dr. Goldstein did not perform his duties appropriately in this matter. Upon

reviewing the video of the “attachment session” conducted by Dr. Goldstein on September 23, 2003,

Dr. Hutson concluded that the video revealed that Mrs. Baker was “controlling” A.M.H. and

“holding onto her.” According to Dr. Hutson, there was “a great deal of comfort” between A.M.H.

and the Hes. However, Dr. Hutson subsequently admitted that, after reviewing the video in court

once more, he did not see Mrs. Baker “clasping” the child during the meeting. He also admitted that

-30-

he could not form an opinion as to A.M.H.’s attachment to either the Hes or the Bakers based on the

video.

Dr. John V. Ciocca (“Dr. Ciocca”), another psychologist, reviewed the video of the

“attachment session” and concluded that A.M.H. responded “very favorably” to the Hes, and the

“connection between the biological parents and this child had survived.” He opined that A.M.H.

had a positive reaction to the Hes which signified that a prior connection survived despite their

prolonged absence from her life. Dr. Yih-Jia Chang (“Dr. Chang”), a clinical psychologist practicing

in California, performed psychological evaluations on the Hes in September of 2003. According to

her test results, the Hes did not present any abnormal psychological traits. Regarding the testing

procedures used to evaluate the Hes, Dr. Chang stated that the Hes were rotated during the test to

conduct personal interviews. While admitting that this is not the best way to administer the tests,

Dr. Chang stated that it was the best method given the circumstances.

Dr. Goldstein testified that Father filed a complaint with the ethics committee during the

pendency of these proceedings to complain of the manner in which he fulfilled his duties to the court.

Prior to giving his testimony in the case, Dr. Goldstein stated that Father approached him in the

hallway of the courthouse and informed him that he did not intend to pursue the complaint. In

response to the Hes’ experts, Dr. Goldstein testified that what Dr. Hutson characterized as

“controlling behavior” he viewed as “healthy attachment behavior” between a mother and her child.

His view of the “attachment session” was that the Hes used food and gifts to encourage A.M.H. to

interact with them, but he did not view A.M.H.’s willingness to approach them as evidence of an

attachment to the Hes. He noted that, during the session, the Bakers encouraged A.M.H. to interact

with the Hes, but he opined that A.M.H. did not have the attachment to the Hes that she did to the

Bakers. According to Ms. Mullins, A.M.H. viewed the Hes as “special friends.”

In March of 2004, after the evidence had been presented to the trial court, the parties began

to file various motions asking the court to exclude or strike the testimony of various experts and

witnesses. On March 22, 2004, Ms. Mullins filed a motion asking the trial court to allow her to

reopen the proof and present evidence regarding the issuance of the guardianship and no-contact

order. In her affidavit attached to the motion, Ms. Mullins stated that, after reviewing Mr. Parrish’s

testimony at trial regarding the issuance of the no-contact order and his notes from the event, she

determined that Mr. Parrish’s recollection of the events as testified to at trial was incorrect.

According to Ms. Mullins, when she learned from the Hes’ attorney at the time that they were not

going to deliver A.M.H.’s passport to the court as ordered, she asked Chancellor Alissandratos to

issue the order to protect the child from being removed to China during the pendency of the

proceedings. Mr. Parrish subsequently filed a response to Ms. Mullins’ motion stating that his

recollection of the events surrounding the issuance of the order now conformed to that of Ms.

Mullins.

On March 29, 2004, the trial court entered an order granting the Bakers’ motion to

consolidate their petition to terminate the parental rights of the Hes with Mother’s petition to modify

the June 4, 1999 custody order entered by the juvenile court. That same day, the trial court entered

-31-

a consent order admitting Ms. Mullins’ affidavit and Mr. Parrish’s notes from the conference call

with Chancellor Alissandratos into evidence.

On April 5, 2004, Mr. Dimond filed, on behalf of the Attorney General, a motion to intervene

in the proceedings to defend the constitutionality of any statutes which may be placed at issue. On

April 6, 2004, the trial court entered several orders addressing the parties’ pending motions: the court

denied the parties’ motions to exclude certain testimony from the record; the trial court entered an

order denying the Hes’ motion filed on September 10, 2003, to set aside the order appointing Mid-

South next friend to conduct an investigation into the adoption petition; the trial court entered an

order denying the Hes’ motion for default judgment on their petition to modify the June 4, 1999

order entered by the juvenile court; the trial court denied the Hes’ motion to set aside the June 4,

1999 consent order; the trial court denied the Hes’ motion to set aside the order appointing the

Bakers guardians of A.M.H.; and the trial court denied the Hes’ motion to dismiss the Bakers’

adoption petition filed on October 2, 2003. These orders effectively dealt with all of the pending

motions filed by the parties in this case.

H.

The Trial Court’s Judgment

On May 12, 2004, the trial court entered its seventy-two (72) page memorandum opinion

granting the Bakers’ petition to terminate the Hes’ parental rights to A.M.H. and denying Mother’s

petition to modify the custody order entered on June 4, 1999 by the juvenile court, stating:

Specifically, this Court finds that (1) the Hes willfully abandoned

AMH for a period exceeding four (4) months, (2) the Hes provided

no support for a period exceeding four (4) months, (3) the Hes only

sought custody of AMH to prevent the Hes’ deportation, and (4) it

would be in AMH’s best interest to terminate the Hes’ parental rights

and to remain with the Bakers. The Court will hold the Bakers’

Petition For Adoption in abeyance until the Court’s decision on the

Petition to Terminate Parental Rights and the Petition to Modify

Custody is final.

Throughout the order, the trial court set forth its extensive findings of fact, conclusions of law, and

credibility determinations.

Regarding the credibility of the Bakers and the Hes, the trial court’s order provides, in

relevant part, as follows:

I. GENERALLY SIGNIFICANT FACTS

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....

20. Mr. He questioned whether he was the biological father of

AMH and requested that the guardian ad litem arrange blood

testing for Mr. He, Mrs. He, and AMH to determine paternity

of AMH.

21. Mr. He filed an acknowledgment of paternity on March 15,

2002.

....

29. All parties, including Mr. and Mrs. He, knowingly and

voluntarily signed the June 4, 1999, Consent Order Awarding

Custody, without being induced by any fraud or undue

influence.

....

II. LITIGANT CREDIBILITY

The Court has carefully scrutinized the testimony of the Hes

and the Bakers. Because they have an interest in the outcome of the

case, the reliability of their testimony has been viewed in relation to

other evidence and the entire record in this cause, for corroboration

and/or inconsistency and the Court has weighed their testimony

accordingly.

The Court observed Mr. Baker testify for approximately three

(3) hours of live testimony at trial. Mrs. Baker testified for

approximately five (5) hours of live testimony at trial. Mrs. He

testified for approximately ten (10) hours of live testimony at trial.

Mr. He testified for approximately seven (7) hours of live testimony

at trial. The Court also observed Mr. He testify for approximately six

(6) hours, by a video-tape deposition that was admitted as Trial

Exhibit 20.

The Court was physically present with the Bakers and the Hes

in the courtroom for over ninety-one (91) hours of trial testimony,

over fifteen (15) hours of arguments on motions after the conclusion

of proof, and six (6) hours of closing arguments. The Court observed

each of them throughout the trial proceedings and interacted, through

counsel, with them as the trial proceeded to conclusion. The Court

makes the following findings of fact regarding credibility of the

witnesses:

32. Mr. Baker impressed the Court as a man who has a great deal

of love, care, and concern for children in general, but who has

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an enormous amount of love, care, and concern for his own

natural born children and for AMH. He testified in an honest,

straightforward, sincere manner. Mr. Baker impressed the

Court with his sincerity and the concern he expressed for

AMH’s welfare and safety. Mr. Baker has demonstrated

concern for and a willingness to help others who are in need,

including the Hes. As one example, Mr. Baker helped Mr. He

when Mr. He’s vehicle was in the shop for repairs.

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

witness. She too has demonstrated that she has a great deal of

love, care, and concern for children in general, but she also

has an enormous amount of love, care, and concern for her

own natural born children and for AMH. Mrs. Baker also

impressed the Court with her care and concern for AMH’s

welfare and safety. Mrs. Baker has demonstrated concern for

and a willingness to help others who are in need, including

the Hes. For example, she took Mrs. He to obtain social

services and to apply for TennCare insurance coverage for the

Hes’ second child, Andy, who was born in October 2000. She

took Mrs. He and Andy home from the hospital after Andy’s

birth. She loaned the Hes a baby bed for Andy. She went to

the Hes’ apartment to show Mrs. He how to feed, burp, bathe,

and change Andy’s diapers. She took Andy to the doctor’s

office because Mr. He was too busy, and she took Andy to

other appointments because Mr. He was too busy.

34. Both of the Bakers demonstrated their concern and care, and

lack of any animosity toward the Hes, by foregoing their

church and other regular activities to accommodate the Hes’

visits with AMH. The Bakers also served the Hes dinner on

several of their visits, and allowed the Hes to bring friends

with them to the Bakers’ home for visits, serving the friends

dinner as well . . . .

35. Mr. He is highly educated, both in the Peoples Republic of

China and in the United States, and exhibits a high level of

intelligence. He has demonstrated that he also has a high

level of knowledge of the culture in the United States, that he

is familiar with the justice system in Shelby County,

Tennessee, and that he is proficient in his knowledge and use

of the English language. . . . He has an aggressive personality

and shows no propensity to be deterred or intimidated. He is

a thoughtful and deliberate person who exhibits a proclivity

to calculate, plan, and carefully predetermine his action and

behaviors. At all times relevant to this case, Mr. He has

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demonstrated the ability to access knowledgeable advisors in

any area in which he needs assistance, to scrutinize the advice

given, and, if dissatisfied with the advice, reject the advice

and seek out other advisors.

36. Since 1998, Mr. He has repeatedly engaged in a pattern of

conduct marked by deceitfulness and dishonesty, without

remorse, repentance, or conscience, and has shown a

propensity to justify all means, including perjury, for what

Mr. He deems to be justifiable ends.

37. Mr. He admitted that he lied about his income, under oath, in

his December 21, 2001, deposition and that he said things he

knew were not the truth . . . . The Court has previously found

that Mr. He committed perjury while under oath in Court

hearings and pleadings filed in this cause.

38. The Court reaffirms and incorporates herein by reference the

findings made by the Court relative to the perjury of Mr. He

in testimony given before the Court on February 14, 2002, as

memorialized in the February 22, 2002, order entitled

“Judgment On Order To Show Cause Pertaining To Passport”

and the order entitled “Judgment On Order To Show Cause

Pertaining To Documentation Of Marriage In The Republic

Of China.”

....

40. Mr. He made material false statements on a loan application,

dated October 18, 2001, relative to his employment, his

income, his status as a student, and his personal references for

the purpose of securing a loan for the purchase of a new

vehicle.

....

42. Mrs. He is an impetuous person not subject to being

intimidated or deterred in achieving whatever she sets as her

goal. The evidence shows that she is calculating, almost

theatrical, in her actions. The evidence further shows that she

is dishonest and manipulative, and has a history of acting in

an unstable manner when it serves her own self-interest. For

example, during cross-examination, Mrs. He would begin

sobbing when asked difficult questions. However, Mrs. He

would immediately regain her composure when asked

subsequent questions. It appears to the Court that Mrs. He’s

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courtroom hysterics were calculated by Mrs. He in an effort

to avoid answering the difficult cross-examination questions.

43. Though Mrs. He speaks sufficient English to carry on her

daily affairs in the United States, she is not as proficient as

Mr. He in knowledge or use of the English language and,

unlike Mr. He, sometimes needs assistance with translation in

technical and extraordinary use of the English language. She

has confidence in Mr. He, prefers Mr. He as her translator,

has no desire to part company with Mr. He for any reason and

intends to cooperate fully with Mr. He to remain together with

him as a family and believes Mr. He has never failed to keep

her fully and honestly informed about the legal matters

involving AMH.

44. Although Mrs. He does not speak the English language

fluently, she appears to speak and understand English better

than she professes. For example, Mrs. He spoke English

during some of the Hes’ visits with AMH at the Bakers’ home

and when Mrs. He took the Hes’ other children for medical

treatment . . . . During the trial, in response to a question from

attorney Linda Holmes, Mrs. He responded to the question by

speaking English, before the interpreter had begun

interpreting Ms. Holmes’ question to Mrs. He. Mrs. He said,

“Mr. Parrish filed legal motion,” then she stopped speaking

English and began responding to the question in Chinese.

....

48. Mrs. He only seems to be interested in regaining custody of

AMH when deportation seems imminent. This fact is

evidenced by Mrs. He filing the two (2) petitions to modify

custody in close proximity to receiving calls from the United

States Immigration & Naturalization Service (“INS”),

regarding Mr. and Mrs. Hes’ immigration status.

49. From the totality of the credible proof at trial, both Mr. and

Mrs. He have shown themselves to be persons who do not

consider themselves to be bound by the rule of law. Mr. and

Mrs. He have demonstrated that they will do and say anything

in order to achieve their desired goals.

The trial court also made credibility determinations regarding the other witnesses at trial. As

for the expert witnesses, the trial court determined that Dr. Cooper’s testimony was “totally lacking

in credibility,” citing the court’s agreement with the bankruptcy court’s findings regarding his

credibility in that matter. Moreover, the trial court concluded that “Dr. Cooper is not an expert in

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Chinese adoption law, nor is he an expert on termination of parental rights.” The trial court

determined that the underlying facts or data relied upon by Dr. Chang in forming her opinions were

untrustworthy as to Mother, and the court gave no weight to her findings as to Father because of her

reliance on his answers to her questions. As for Dr. Hutson, the trial court found his testimony to

be of little assistance because he did not personally evaluate A.M.H., and he only viewed the

videotape of the “assessment session” in reaching his opinions. The court found Dr. Ciocca’s

testimony to be of little value given his testimony that he could not offer an opinion as to A.M.H.’s

level of attachment to the Bakers or the Hes after viewing the videotape. Finally, the trial court

determined that Dr. Goldstein was “a very knowledgeable, honest and forthright witness.”

Regarding the other witnesses at trial, the trial court determined each to be a credible witness.

Specifically, the trial court found Mr. Weaver, Ms. Mullins, Ms. Chunn, Ms. Cloud, and Pastor Yau

to be credible witnesses.

In light of these credibility determinations, the trial court addressed the merits of the parties’

petitions. Beginning with the due process claims, the trial court made the following relevant

findings:

63. Both before and after June 4, 1999, the Hes engaged the

services of at least two attorneys in Memphis . . . to advise

and represent the Hes in civil litigation arising from physical

injuries Mrs. He allegedly sustained in November of 1998.

The Hes also spoke to another attorney that Ms. Chunn

referred them to . . . about civil litigation. Neither of the Hes

ever mentioned to any of these three attorneys the need for

representation or advice regarding placing or retaining

custody of AMH.

64. Both before and after June 4, 1999, Mr. He engaged the

services of at least three attorneys to advise him and represent

him in defense of the criminal charges brought by the State .

. . Neither of the Hes ever mentioned to any of these attorneys

the need for representation or advice relative to AMH’s

custody. In fact, the Hes never told these three attorneys

about the existence of AMH.

....

67. On June 2, 1999, attorney Kevin Weaver met with Mr. He

and the Bakers and fully advised Mr. He and the Bakers of the

legal ramifications of filing a petition for custody and of

signing a consent order awarding custody of AMH. Mrs. He,

after being fully advised of the meeting and of the purpose of

the meeting by Mr. He, waived her right to be present at the

meeting and told Mr. He to tell the others at the meeting that

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she was ready to proceed. Mr. Weaver answered all of Mr.

He’s and the Bakers’ questions during the meeting. Mr. He

later advised Mrs. He of the information that Mr. Weaver

imparted at the meeting.

68. On June 3, 1999, Ms. Chunn and Mr. Kenny Yao, an

experienced interpreter in English and Mandarin Chinese, met

with Mrs. He, alone, in the Hes’ apartment . . . . Mrs. He

indicated that she understood everything that Ms. Chunn had

told her through Mr. Yao.

69. On June 4, 1999, Ms. Sarah Cloud, with the assistance of a

qualified interpreter, privately met with Mrs. He, without Mr.

He, and fully explained the legal ramifications of both the

Petition for Custody and the Consent Order Awarding

Custody, both of which Mrs. He later voluntarily signed.

70. . . . . Although the Hes had consulted with attorneys in the

past regarding other legal matters, the Hes never inquired at

Juvenile Court about getting an attorney to provide the Hes

legal advice concerning the original transfer of custody of

AMH.

71. A few months after the Hes signed the June 4, 1999, Consent

Order Awarding Custody, the Hes went to Juvenile Court and

spoke with Ms. Cloud about getting assistance to file a

petition to regain custody of AMH . . . . Ms. Cloud advised

the Hes that they should hire an attorney for legal advice and

representation, and Ms. Cloud recommended the services of

the Memphis Area Legal Services, if the Hes could not afford

to hire an attorney.

Accordingly, the trial court concluded that there was no conspiracy to deprive the Hes of their right

to due process regarding the custody of A.M.H., and the Hes did not suffer a deprivation of their

constitutional rights during the course of transferring custody of A.M.H. to the Bakers.

Next, the trial court made findings regarding the Bakers’ petition to terminate the Hes’

parental rights. The Bakers filed their petition on June 20, 2001, four (4) months and twenty (20)

days after the incident at the Bakers’ home on January 28, 2001 which, consequentially, was the last

time the Hes visited with AMH prior to the petition being filed. Regarding the Bakers’ allegation

that the Hes abandoned AMH by failing to support her, the trial court concluded that, between

January 28, 2001 and June 20, 2001, the Hes had the ability to pay child support for AMH. The trial

court found their ability to provide child support to be evidenced by their May 2001 petition to

modify custody wherein they stated as much; the fact that they sent $1,000 to China to provide

support for their son Andy; the Hes purchased a new computer shortly after sending their son to

China; the Hes took vacations to various American cities between June 4, 1999 and June 20, 2001;

and their ability to pay $625 monthly rent during the relevant time period. Although there was no

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court order requiring the Hes to pay child support, the trial court concluded that the Hes knew they

had an obligation to support AMH. The court found that the Bakers’ refusal to accept monetary

compensation from the Hes did not relieve the Hes of their obligation to support AMH because the

Bakers could not accept money pursuant to their agreement with Mid-South, and they did not expect

the Hes to provide support because they agreed to raise AMH until she turned eighteen. As for the

items the Hes brought to AMH during their visits, the trial court determined the items to be “of

insubstantial economic value and amounted to token support.” The trial court deemed such token

support to be “consistent with the Hes’ intent to absolve themselves of all parental responsibilities

to AMH.”

Next, the trial court examined the Bakers’ allegation that the Hes abandoned AMH by failing

to visit her during the four months preceding the petition to terminate the Hes’ parental rights. The

court noted the following relevant facts: the Hes did not visit AMH between January 28, 2001 and

June 20, 2001; the trial court found the Hes’ reasons for not returning to the Bakers’ home after

January 28, 2001 to visit AMH to be lacking in credibility; while the Bakers were willing to allow

the Hes to visit, the Hes never called and requested any visitation with AMH after January 28, 2001;

although Mother called the Bakers’ home on April 2, 2001, her telephone call did not ask for

visitation; and immigration officials contacted Father in March, April, or May of 2001, around the

time the Hes filed the April 2001 petition to modify the custody order.

Based on the aforementioned facts, the trial court concluded that the Hes abandoned AMH

by willfully failing to visit and willfully failing to support her during the four months prior to the

Bakers’ filing their petition to terminate the Hes’ parental rights. The trial court then engaged in a

lengthy analysis of the best interest factors and concluded that terminating the Hes’ parental rights

was in the best interest of A.M.H. Thereafter, the Hes filed a timely notice of appeal to this Court

seeking appellate review of the trial court’s rulings in this case.

II.

ISSUES PRESENTED

The Appellants have presented sixteen issues to this Court setting forth numerous alleged

errors by the trial court. The Appellees have joined the Appellants by raising numerous issues of

their own which, upon review, merely constitute counter-arguments to the issues put forth by the

Appellants. We have chosen to restate the issues raised by the Appellants on appeal as follows:

1. Whether the trial court erred in denying several pre-trial motions filed by the Appellants,

specifically:

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(A) Did the trial court err in denying the Appellants’ motion, pursuant to Rule 60.02

of the Tennessee Rules of Civil Procedure, to set aside the June 4, 1999 consent

custody order entered by the juvenile court;

(B) Did the trial court err in denying the Appellants’ motion to dismiss the Appellees’

petition for adoption;

(C) Did the trial court err in denying the Appellants’ motion to bifurcate the

proceedings below;

2. Whether sections 36-1-102 and 36-1-113 of the Tennessee Code violate the Fifth and

Fourteenth Amendments to the United States Constitution because they fail to require that

natural parents receive prior actual notice of certain information related to the termination

of parental rights in the context of a private custody agreement;

3. Should the aforementioned statutes be deemed constitutional, whether the trial court erred

in failing to apply the notice provisions found in section 37-2-403 of the Tennessee Code

when the child at issue was placed in the foster care of an agency;

4. Whether the trial court erred in failing to apply the “superior parental rights doctrine” to

Mother’s petition to modify the custody June 4, 1999 custody order entered by the

juvenile court, thereby rendering a decision on the termination of Mother’s parental rights

moot;

5. Whether the trial court erred in applying the statutory grounds for terminating a biological

parent’s parental rights and in finding the existence of clear and convincing evidence to

support such grounds, specifically:

(A) Did the trial court err in its application and interpretation of Tennessee law

governing the “settled purpose doctrine”;

(B) Did the trial court err by finding that the Appellants’ willfully abandoned their

daughter by willfully failing to visit and willfully failing to support her for the

requisite statutory period; and

(C) Did the trial court err in finding that Father was not the “legal parent” of the child

when the Appellees’ filed their petition to terminate his parental rights;

6. Whether the trial court erred in finding that termination of the Appellants’ parental rights

is in the best interest of the child in this case.

The Appellees have raised, as we perceive them, two independent issues for our review:

7. Whether the trial court erred in consolidating Mother’s petition to modify the June 4,

1999 consent custody order with the Appellees’ petition to adopt the child and to

terminate the Appellants’ parental rights; and

8. Whether the trial court erred in finding that the “persistent conditions” ground for

termination did not apply in the instant case because the ground requires the removal of

the child by a state agency.

In addition to the arguments raised by the parties on appeal, we are presented with the

additional arguments of amici curiae arguing various issues in favor of the Hes on appeal.

Specifically, the Childlaw Center of the Loyola University Chicago School of Law, Vanderbilt

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School of Law Legal Clinic, The University of Memphis School of Law Child Advocacy Clinic, and

the Tennessee Alliance for Legal Services (hereinafter collectively referred to as “Amici”) have

submitted a combined brief and were permitted to present oral argument to this Court. Their brief

primarily addresses the bifurcation issue, the persistent conditions issue, and the standard to be

applied to a determination of abandonment. We have also been presented with a brief filed by the

Greater Seattle Chapter of the Organization of Chinese Americans, Inc., (hereinafter referred to as

“Greater Seattle”) addressing social science information specific to the cultural issues present in this

appeal. The Embassy of the People’s Republic of China (hereinafter referred to as the “Chinese

Embassy”) has also submitted a letter to this Court expressing its position regarding the “one-child

policy” in effect in China.

In reaching a decision on the various issues presented in this case, we have reviewed all of

the briefs and materials filed in this Court, the voluminous record created by the trial in this matter,

and the arguments of counsel presented at oral argument. Upon doing so, we affirm in part and

reverse in part the trial court’s decisions in this case.

III.

STANDARD OF REVIEW

“A biological parent’s interest in the care, custody, and control of his or her child is among

the oldest of the judicially recognized fundamental liberty interests.” Ray v. Ray, 83 S.W.3d 726,

731 (Tenn. Ct. App. 2001) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)). This fundamental

right is protected not only by the Due Process Clause of the Fourteenth Amendment, Santosky v.

Kramer, 455 U.S. 745, 753 (1982); Stanley v. Illinois, 405 U.S. 645, 651 (1972), but also by Article

I, section 8 of the Tennessee Constitution as well, Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn.

2002); Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993). However, the right to the care, custody,

and control of one’s children is not absolute, and “[i]t continues without interruption only as long

as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or

termination.” In re S.M., 149 S.W.3d 632, 638–39 (Tenn. Ct. App. 2004) (citations omitted); see

also In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000).

“The grounds for terminating parental rights in Tennessee are defined by statute.” Jones v.

Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); see also Tenn. Code Ann. § 36-1-113(g) (2003).

“Termination of a person’s rights as a parent is a grave and final decision, irrevocably altering the

lives of the parent and child involved and ‘severing forever all legal rights and obligations’ of the

parent.” Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (citing Tenn. Code Ann. § 36-1-

113(l)(1) (2003)). Because of the gravity of the consequences associated with terminating a

biological parent’s parental rights to a child, the individuals or entities seeking to terminate the

parental rights of the biological parents must prove the existence of the statutory grounds for

termination by clear and convincing evidence. In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.

1988) (citing Santosky, 455 U.S. at 769–70); see also Tenn. Code Ann. § 36-1-113(c)(1) (2003); In

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re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (noting that clear and convincing evidence as to any

one of the statutorily enumerated grounds will justify the termination of a biological parent’s parental

rights to a minor child); In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). The statute also

requires that parties seeking to terminate a biological parent’s parental rights demonstrate that doing

so is in the best interest of the child. See Tenn. Code Ann. § 36-1-113(c)(2) (2003); In re S.M., 149

S.W.3d at 639.

The heightened clear and convincing standard of proof applicable to these cases serves to

prevent the unwarranted termination of the biological parents’ parental rights in their minor children.

In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). “The ‘clear and convincing evidence’

standard defies precise definition.” Means, 130 S.W.3d at 54. This Court has formulated the

following explanation of the standard when reviewing cases of this nature:

This court recently attempted to describe the clear and

convincing evidence standard, explaining that[:]

[A]lthough it does not require as much certainty as the

“beyond a reasonable doubt” standard, the “clear and

convincing evidence” standard is more exacting than

the “preponderance of the evidence” standard.

O'Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn.

App. 1995); Brandon v. Wright, 838 S.W.2d 532, 536

(Tenn. App. 1992). In order to be clear and

convincing, evidence must eliminate any serious or

substantial doubt about the correctness of the

conclusions to be drawn from the evidence. Hodges

v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.

1992); O'Daniel v. Messier, 905 S.W.2d at 188. Such

evidence should produce in the fact- finder’s mind a

firm belief or conviction as to the truth of the

allegations sought to be established. O'Daniel v.

Messier, 905 S.W.2d at 188; Wiltcher v. Bradley, 708

S.W.2d 407, 411 (Tenn. App. 1985). In contrast to

the preponderance of the evidence standard, clear and

convincing evidence should demonstrate that the truth

of the facts asserted is “highly probable” as opposed

to merely “more probable” than not. Lettner v.

Plummer, 559 S.W.2d 785, 787 (Tenn. 1977);

Goldsmith v. Roberts, 622 S.W.2d 438, 441 (Tenn.

App. 1981); Brandon v. Wright, 838 S.W.2d at 536.

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In re C.W.W., 37 S.W.3d 467, 473–74 (Tenn. Ct. App. 2000) (quoting In re M.C.G., No.

01A01-9809-JV-00461, 1999 Tenn. App. LEXIS 327, at *6 (Tenn. Ct. App. May 26, 1999) (no

perm. app. filed)); see also Means, 130 S.W.3d at 54–55.

“Because of the gravity of their consequences, proceedings to terminate parental rights

require individualized decision making.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)

(citing In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999)). To that end, the trial court is required to

“enter an order which makes specific findings of fact and conclusions of law within thirty (30) days

of the conclusion of the hearing.” Tenn. Code Ann. § 36-1-113(k) (2003). These findings facilitate

appellate review12 of parental termination cases, and in the absence of such findings, we must vacate

the judgment and remand the case to the trial court for the entry of findings of fact and conclusions

of law in compliance with the statute. See White v. Moody, No. M2004-01295-COA-R3-PT, 2004

Tenn. App. LEXIS 890, at *11–14 (Tenn. Ct. App. Dec. 30, 2004) (perm. app. denied, 2005 Tenn.

LEXIS 265 (Mar. 21, 2005)); In re M.J.B., 140 S.W.3d at 654; In re Adoption of Muir, No.

M2002-02963-COA-R3-CV, 2003 Tenn. App. LEXIS 831, at *8–10 (Tenn. Ct. App. Nov. 25, 2003)

(no perm. app. filed).

Based on the aforementioned principles of law, this Court has formulated the following

standard of review to govern appellate review of parental termination cases:

Because of the heightened burden of proof required by Tenn. Code

Ann. § 36-1-113(c)(1), we must adapt Tenn. R. App. P. 13(d)’s

customary standard of review for cases of this sort. First, we must

review the trial court’s specific findings of fact de novo in accordance

with Tenn. R. App. P. 13(d). Thus, each of the trial court’s specific

factual findings will be presumed to be correct unless the evidence

preponderates otherwise. Second, we must determine whether the

12

W e are cognizant of the following statutory duty placed upon this Court by the legislature regarding appellate

review of parental termination cases:

In all cases which are appealed from the decision of a trial court, the appellate court

shall, consistent with its rules, expedite the contested termination of parental rights

or adoption case by entering such scheduling orders as are necessary to ensure that

the case is not delayed, and such case shall be given priority over all other civil

litigation in reaching a determination on the status of the adoption, other than child

protective services cases arising under title 37, chapter 1, parts 1, 4 and 6.

Tenn. Code Ann. § 36-1-124(b) (2003). On M ay 12, 2005, Mr. Parrish, counsel for the Bakers, filed the “Appellees’

Motion to Dismiss Appeal” with this Court arguing that the Hes’ appeal should be dismissed pursuant to the statute of

repose codified at section 36-1-113(q) of the Tennessee Code. Mr. Parrish asserted that, since one year had elapsed since

the trial court issued its order in this case, this Court no longer possessed subject matter jurisdiction to entertain the

appeal. On May 17, 2005, this Court issued an Order denying the Bakers’ motion. W e concluded that the legislature

did not intend for section 36-1-113(q) to divest the appellate courts of this state of subject matter jurisdiction to evaluate

a parental termination order that was timely filed in the appellate court.

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facts, either as found by the trial court or as supported by the

preponderance of the evidence, clearly and convincingly establish the

elements required to terminate a biological parent’s parental rights.

Jones v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at

548-49; In re Adoption of Muir, 2003 Tenn. App. LEXIS 831, 2003

WL 22794524, at *2; In re Z.J.S., 2003 Tenn. App. LEXIS 415, No.

M2002-02235-COA-R3-JV, 2003 WL 21266854, at *10 (Tenn. Ct.

App. June 3, 2003) (No Tenn. R. App. P. 11 application filed); Ray

v. Ray, 83 S.W.3d at 733; In re L.S.W., 2001 Tenn. App. LEXIS 659,

No. M2000-01935-COA-R3-JV, 2001 WL 1013079, at *5 (Tenn. Ct.

App. Sept. 6, 2001), perm. app. denied (Tenn. Dec. 27, 2001).

In re M.J.B., 140 S.W.3d at 654. Moreover, we are mindful that cases of this nature often hinge on

the testimony of the witnesses at trial and, in turn, the trial court’s findings regarding the credibility

of those witnesses. Accordingly, we are bound by the following additional principle of law:

Unlike appellate courts, trial courts are able to observe witnesses as

they testify and to assess their demeanor, which best situates trial

judges to evaluate witness credibility. See State v. Pruett, 788

S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 836 S.W.2d

563, 566 (Tenn. Ct. App. 1991). Thus, trial courts are in the most

favorable position to resolve factual disputes hinging on credibility

determinations. See Tenn-Tex Properties v. Brownell-Electro, Inc.,

778 S.W.2d 423, 425-26 (Tenn. 1989); Mitchell v. Archibald, 971

S.W.2d 25, 29 (Tenn. Ct. App. 1998). Accordingly, appellate courts

will not re-evaluate a trial judge’s assessment of witness credibility

absent clear and convincing evidence to the contrary. See Humphrey

v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn. 1987);

Bingham v. Dyersburg Fabrics. Co., Inc., 567 S.W.2d 169, 170

(Tenn. 1978).

Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999); see also Jones v. Garrett, 92

S.W.3d 835, 838 (Tenn. 2002); In re C.T.S., 156 S.W.3d 18, 22 (Tenn. Ct. App. 2004).

IV.

DISCUSSION

The crux of this appeal is whether the trial court erred in finding that the Bakers proved, by

clear and convincing evidence, that the Hes abandoned A.M.H. by willfully failing to visit and

willfully failing to support her for the four months immediately preceding the filing of the Bakers’

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petition to terminate the Hes’ parental rights. However, before we are able to reach the issues related

to the trial court’s findings in that regard, we must address other issues presented by the parties.

A.

Order Consolidating the Bakers’ Petition with Mothers’ Petition to Modify Custody

On May 29, 2001, Mother filed her petition in the juvenile court requesting a modification

of the June 4, 1999 consent custody order. On June 20, 2001, the Bakers filed their “Petition for

Adoption and Termination of Parental Rights” in the chancery court. This effectively vested the

chancery court with “exclusive jurisdiction of all matters pertaining to the child . . . except for

allegations of delinquency, unruliness or truancy of the child pursuant to title 37.” Tenn. Code Ann.

§ 36-1-116(f) (2003); see also State v. R.S., No. M2002-00919-COA-R3-CV, 2003 Tenn. App.

LEXIS 657, at *65 (Tenn. Ct. App. Sept. 11, 2003) (no perm. app. filed). (“The exclusive

jurisdiction of juvenile court is superseded when a petition for termination of parental rights is filed

in another court with concurrent jurisdiction to make that determination.”). On September 13, 2003,

the Bakers filed a motion asking the chancery court to consolidate, for joint trial, their petition to

terminate the Hes’ parental rights with Mother’s petition to modify the June 4, 1999 consent order

entered by the juvenile court. On March 29, 2004, after the parties finished presenting evidence in

this case, the chancery court entered an order granting the Bakers’ motion to consolidate.

Strangely enough, the Bakers now ask this Court to determine whether the trial court erred

in granting their motion at trial. Rule 6(a)(1) and (a)(3) of the Rules of the Court of Appeals of

Tennessee provides that written argument by a party shall contain a statement indicating the

erroneous action by the trial court and how the party was prejudiced by such error. The section of

the Appellees’ brief addressing this issue fails to assert any basis for finding error on the part of the

trial court in granting their motion. Instead, the Appellees devote their entire argument in this

section of the brief to issues unrelated to the question they ask this Court to decide. Accordingly,

we find this issue to be wholly without merit.

B.

Propriety of the Chancery Court’s Rulings on Certain Pre-Trial Motions Filed by the Hes

On appeal, the Hes take issue with the chancery court’s rulings on various matters prior to

the trial in this matter. In turn, we will address the merits of these issues collectively in this

section of the Opinion.

1.

Motions to Set Aside the June 4, 1999 Consent Custody Order Pursuant to Rule 60.02

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On appeal, the Hes argue that the chancery court erred in denying their motions to set aside

the juvenile court’s June 4, 1999 consent order awarding custody of A.M.H. to the Bakers. On

September 12, 2003, the Hes filed a motion with the trial court asking the chancery court to set aside,

pursuant to Tenn. R. Civ. P. 60.02,13 the June 4, 1999 consent order. In this motion, the Hes

conceded that the June 4, 1999 order provides that the Hes “have been fully advised of their legal

rights and that a hearing before the Court is hereby expressly waived.” However, they argued that,

in reality, they were not fully advised of their legal rights prior to signing the order. They point to

the following facts to support this assertion: Mother did not receive legal advice prior to signing the

order; Mr. Weaver met with Father on June 2, 1999, but he did not meet with Mother prior to the

date they signed the order; on the day they went to juvenile court to sign the order, Ms. Chunn, Ms.

Cloud, and Pastor Yau, all unlicensed attorneys, attempted to advise Mother of the document’s

meaning, but they did not read it to her; and the juvenile court did not conduct a hearing to ensure

that the Hes understood what they had been told up to that point or to explain the purpose and effect

of the order. According to the Hes, these facts establish that they were not fully advised of their

rights and did not expressly waive their right to a hearing as the order states, therefore, the consent

order should be deemed void ab initio. On September 25, 2003, the Hes filed an amended motion

wherein they argued that, in addition to the arguments contained in the aforementioned motion, the

consent order should be vacated because the juvenile court failed to comply with sections 34-2-101,

34-2-103, 34-2-104, and 32-2-105 of the Tennessee Code. These arguments were aimed at

addressing the “guardianship of the person” language which Ms. Cloud testified she inserted into the

order based on her understanding of the facts.

On April 7, 2004, the chancery court entered an order denying the Hes’ first motion

concluding, in relevant part, as follows:

The Consent Order Awarding Custody, signed by both

Respondents, entered in Juvenile Court on June 4, 1999, states that

the parties were fully advised of their legal rights. The Court finds

that Mr. He was fully advised of his legal rights by Attorney Weaver.

The Court also finds that Mrs. He voluntarily waived her right to

receive legal advice by not attending the meeting, by telling Mr. He

that she was ready to proceed, and by relying on Mr. He to

communicate Attorney Weaver’s explanation of the parties’ rights to

her. Thus, the Consent Order Awarding Custody entered on June 4,

13

The Hes relied on the following provisions of the rule in support of their motion:

On motion and upon such terms as are just, the court may relieve a party or the

party’s legal representative from a final judgment, order or proceeding for the

following reasons: . . . (3) the judgment is void; . . . or (5) any other reason

justifying relief from the operation of the judgment. The motion shall be made

within a reasonable time . . . .

Tenn. R. Civ. P. 60.02 (2004).

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1999, is not facially defective, nor is it void ab initio or voidable

pursuant to Rule 60.02(3) and (5) of the Tennessee Rules of Civil

Procedure.

....

The Consent Order Awarding Custody was entered by the

Juvenile Court on June 4, 1999. There was no motion filed to set

aside the Consent Order. The Respondents filed their first Petition to

Modify the custody order in Juvenile Court on May 3, 2000, and

Respondents made no request in that Petition to set aside the Consent

Custody Order. The Juvenile Court denied the May 3, 2000, Petition

to Modify on June 28, 2000. No appeal was taken by Respondents to

the Order Denying the Petition to Modify. The Respondents filed a

second Petition to Modify the Consent Custody Order in Juvenile

Court on April 9, 2001. Again, the Respondents made no request to

set aside the Consent Custody Order. The Petitioners herein, the

Bakers, then filed their Petition for Adoption and Termination of

Parental Rights on June 20, 2001, and the matter was transferred to

this court. Respondents filed an answer and an amended answer to

the Petition for Adoption and Termination of Parental Rights and

neither the answer nor the amended answer contained a request to set

aside the June 4, 1999, Consent Custody Order pursuant to Rule

60.02. Then the Respondents filed the instant motion on September

12, 2003, approximately four years and three months after the entry

of the June 4, 1999 Consent Order Awarding Custody. T.R.C.P.

60.02 requires that this type of motion be made within a reasonable

time. The Court finds that this motion was not filed within a

reasonable time. Furthermore, the Court finds that Respondents’

Motion Pursuant to Rule 60.02 to Set Aside Consent Order Awarding

Custody Entered June 4, 1999, is barred by res judicata, collateral

estoppel and the doctrine of laches.

On May 12, 2004, the chancery court entered another order addressing the Hes’ amended petition,

wherein the chancery court denied the Hes’ amended motion and concluded that the juvenile court

complied with the applicable statutes when entering the order.

Rule 60.02 is “designed to strike a proper balance between the competing principles of

finality and justice.” Jerkins v. McKinney, 533 S.W.2d 275, 280 (Tenn. 1976). “The relief provided

under Rule 60.02 is an exceptional remedy,” Nails v. Aetna Ins. Co., 834 S.W.2d 289, 294 (Tenn.

1992) (citing Toney v. Mueller Co., 810 S.W.2d 145, 146 (Tenn. 1991)), “the purpose of which ‘is

to alleviate the effect of an oppressive or onerous final judgment,’” Black v. Black, 166 S.W.3d 699,

703 (Tenn. 2005) (quoting Killion v. Dep’t of Human Services, 845 S.W.2d 212, 213 (Tenn. 1992)).

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“Rule 60.02 acts as an escape valve from possible inequity that might otherwise arise from the

unrelenting imposition of the principle of finality embedded in our procedural rules.” Thompson

v. Firemen’s Fund Ins. Co., 798 S.W.2d 235, 238 (Tenn. 1990). However, due to the importance

of finality in cases, “the ‘escape valve’ should not be easily opened.” Banks v. Dement Constr. Co.,

Inc., 817 S.W.2d 16, 18 (Tenn. 1991)( quoting Toney v. Mueller, 810 S.W.2d 145, 146 (Tenn.

1991)).

“To set aside a judgment under rule 60.02 the burden is upon the movant to prove that he is

entitled to relief, and there must be proof of the basis on which relief is sought.” Id; see also Henry

v. Goins, 104 S.W.3d 475, 482 (Tenn. 2003). When reviewing a trial court’s decision to grant or

deny relief pursuant to Rule 60.02, we employ the following standard of review:

[W]e give great deference to the trial court. See Underwood v. Zurich

Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993). Consequently, we will not

set aside the trial court’s ruling unless the trial court has abused its

discretion. See id. An abuse of discretion is found only when a trial

court has “‘applied an incorrect legal standard, or reached a decision

which is against logic or reasoning that caused an injustice to the

party complaining.’” State v. Stevens, 78 S.W.3d 817, 832 (Tenn.

2002) (quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

The abuse of discretion standard does not permit an appellate court

to merely substitute its judgment for that of the trial court. See

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

Henry, 104 S.W.3d at 479; see also Banks, 817 S.W.2d at 18.

The Hes go to great efforts to explain their lack of notice and lack of adequate counsel prior

to signing the order at issue. However, we are cognizant of the fact that these issues were a matter

of contention at trial. Both parties presented testimony addressing the issue of whether the Hes

understood the purpose and effect of the June 4, 1999 consent order awarding custody of A.M.H. to

the Bakers. Based on the testimony offered at trial, the chancery court held that the Hes were

adequately informed of the order’s purpose and effect, and the Hes either had adequate counsel or

had an opportunity to seek counsel regarding this issue. We give these credibility determinations

great weight on appeal, and we find no clear and convincing evidence in the record to justify

reaching a different conclusion regarding such testimony. See Wells v. Tenn. Bd. of Regents, 9

S.W.3d 779, 783 (Tenn. 1999).

Of the most significance to our analysis of this issue is the realization that Rule 60.02

requires that the motion “shall be made within a reasonable time.” Tenn. R. Civ. P. 60.02 (2004).

What constitutes a reasonable time is a question of fact, and not a question of law. See Thompson,

798 S.W.2d at 238; Rogers v. Estate of Russell, 50 S.W.3d 441, 445 (Tenn. Ct. App. 2001). On

appeal, the Hes fail to offer any justification for why they waited in excess of four years to file their

Rule 60.02 motion. Any argument that they did not understand the need to file the motion or did not

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have adequate representation to advise them to file such a motion must fail. As the trial court noted

in its order, the Hes had access to legal representation (as evidenced by the various attorneys

representing them in their civil and criminal matters) both before and after the June 4, 1999 custody

order was entered. Even after the June 4, 1999 order had been entered, Ms. Cloud instructed the Hes

during a subsequent visit to juvenile court to hire a lawyer or seek counsel through legal services,

which they chose not to do. Moreover, after the Bakers filed their petition to terminate the Hes’

parental rights on June 20, 2001, the Hes’ attorney, Mr. Sossaman, filed an answer on their behalf

shortly thereafter. Despite having a lawyer dedicated solely to addressing the Bakers’ petition at this

stage in the litigation, the Hes waited until September 12, 2003, over one year after the Bakers filed

their petition, to file their Rule 60.02 motion in this case. Accordingly, we find that the Hes did not

file their Rule 60.02 motion within a reasonable time as required by the rule, and we affirm the trial

court’s ruling on this issue.

2.

Order Denying Hes’ Motion to Dismiss Bakers’ Petition for Adoption

The Hes filed a motion with the trial court on October 2, 2003, asking the court to enter an

order dismissing the Bakers’ adoption petition. In support of their petition, the Hes relied on section

36-1-119(d) of the Tennessee Code, which provides as follows:

If no appeal has been taken from any order of the court, the court

must complete or dismiss the adoption proceeding by entering a final

order within two (2) years of the filing of the petition, unless the

petitioner shows good cause why such final order should not be

entered.

Tenn. Code Ann. § 36-1-119(d) (2003) (emphasis added). The Bakers filed their petition to adopt

A.M.H. and terminate the Hes’ parental rights to A.M.H. on June 20, 2001. As of June 20, 2003,

their petition had been pending for two years. The Hes argue that the Bakers failed to request an

extension of time under Rule 6.02 of the Tennessee Rules of Civil Procedure, which provides:

When by statute . . . an act is required or allowed to be done at or

within a specified time, the court for cause shown may, at any time in

its discretion, (1) with or without motion or notice order the period

enlarged if request thereof is made before the expiration of the period

originally prescribed or as extended by a previous order, or (2) upon

motion made after the expiration of the specified period permit the act

to be done, where the failure to act was the result of excusable

neglect . . . .

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Tenn. R. Civ. P. 6.02 (2004) (emphasis added). The Hes argued at trial, and again on appeal, that,

since the Bakers did not file a request for an extension of time under Rule 6.02, they cannot show

“good cause” for extending the two year period and that they cannot establish that their failure to file

such request constitutes “excusable neglect.” Accordingly, the Hes urged the trial court, and now

this Court, to find that the Bakers’ adoption petition must be dismissed pursuant to the statute. On

April 6, 2004, the trial court entered an order denying the Hes’ motion noting that the court had

before it a petition for adoption coupled with a petition to terminate the Hes’ parental rights.

Prospective adoptive parents have standing to petition a court to terminate the parental rights

of the biological parents, and they may include in their petition for adoption a request that the

parental rights of the biological parents be terminated. See Tenn. Code Ann. § 36-1-113(b) (2003).

Thus, the chancery court properly had before it an adoption p

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