Robert Childers ruling on terminating Chinese couple's parental rights

[Sha Ri Kou]

IN THE CHANCERY COURT OF TENNESSEE
FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS

IN RE ADOPTION OF:
AMH, a Minor,

JERRY L. B and wife,
LOUISE K. B,

Petitioners,
No. CH-01-1302-3

v.

SHJH and
QCH,

Respondents.

MEMORANDUM OPINION and ORDER OF JUDGMENT
ON PETITION TO TERMINATE PARENTAL RIGHTS
and PETITION TO MODIFY CUSTODY

This cause came on to be heard for trial on February 23, 2004, upon a
Petition for Adoption

and To Terminate Parental Rights, filed by Jerry L. B and wife, Louise
K. B ("the Bs"), Petitioners, on June 20, 2001, and also upon a
Petition to Modify the June 4, 1999, Consent Order Awarding Custody,
filed by QL (H), Petitioner, in the Juvenile Court of Memphis and
Shelby County, Tennessee, on May 29, 2001. After a careful review of
the testimony of each of the witnesses, the trial exhibits, relevant
statutory provisions and case law, arguments of the respective counsel
for the parties and the guardian ad litem, and the entire record in
this cause, the Court hereby grants the Petition to Terminate Parental
Rights, filed by the Bs, and terminates the parental rights of SH(J) H
and QCH ("The Hs"). The Court also denies the Petition to Modify
Custody, filed by QL (He). Specifically, this Court finds that (1)
The Hs willfully abandoned AMH for a period exceeding four (4) months,
(2) The Hs provided no support for a period exceeding four (4) months,
(3) The Hs only sought custody of AMH to prevent The Hs' deportation,
and (4) it would be in AMH's best interest to terminate The Hs'
parental rights and to remain with the Bs. The Court will hold the
Bs' 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.
The Petition to Modify was transferred to this Court pursuant to
Tennessee Code Annotated § 36-1-116(f)(1). The Court heard testimony
from twenty-eight (28) witnesses, from February 23, 2004, until March
2, 2004. The following witnesses testified during the trial: Julie
Mize, Michael Lowry, Brandy Hope B, Nancy Diane Thorn, Qin (Casey) Luo
(He), Rebecca Smith, Louise B, Jerry Leonard B, Jr., Dr. Yih-Jia
Chang, Diane Chunn Brower, Kevin Weaver, Sarah Cloud, Candace Brown,
Elizabeth McCord Marshall, William Webb, Dr. John Copper, SH(J) He,
Kenny Yao, Dr. John Robert Hutson, Dr. John Victor Ciocca, John Astor,
Larry Parrish, Catherine Claymon, John D. Walt, Kathryn E. Story,
Kimbrough Mullins, guardian ad litem, Stephanie Johnson, and Dr. David
Bruce Goldstein. The Court heard arguments of counsel for the parties
regarding several pending motions on March 22-23, 2004, and heard
closing arguments of counsel for the parties on April 12, 2004. The
Court has made a careful review of the testimony of each of the
witnesses, the seventy-nine (79) trial exhibits, relevant statutory
provisions, and case law. The Court carefully observed the demeanor
of each of the witnesses who testified. The Court has also reviewed
the pleadings and the entire record in this cause.

Tennessee Code Annotated § 36-1-113(k) requires the Court to enter an
order which makes specific findings of fact and conclusions of law.
Termination of parental rights requires clear and convincing proof of
one of the statutory grounds for termination and a finding that
termination is in the best interest of the child. Clear and
convincing evidence eliminates serious doubt[1] and produces a firm
belief or conviction as to the truth of the allegations.[2] The Court
is mindful of the great deference that must be given to the
constitutionally protected rights of biological parents. Parents,
including parents of children born out of wedlock, have a fundamental
liberty interest in the care and custody of their child under both the
United States and the Tennessee Constitutions. The right to rear
one's child is so firmly rooted in our culture that the United States
Supreme Court has held it to be a fundamental liberty interest
protected by the Fourteenth Amendment of the United States
Constitution.[3]
The Tennessee Adoption Law is set out in Tennessee Code Annotated §
36-1-101 et seq. The primary purpose of the adoption law is to
provide means and procedures for the adoption of children that
recognize and effectuate, to the greatest extent possible, the rights
and interests of persons affected by adoption, especially those of the
adopted persons, which are specifically protected by the United States
and the Tennessee Constitutions. To those ends the adoption law seeks
to ensure, to the greatest extent possible, among other things, that:

(1) Children are removed from the homes of their parents or guardians
only when that becomes the only alternative which is consistent with
the best interest of the child.

(2) Children are placed only with those persons who have been
determined to be capable of providing proper care and a loving home
for an adopted child.

(3) The rights of children to be raised in loving homes which are
capable of providing proper care for adopted children and that the
best interests of children in the adoptive process are protected.

(4) The adoptive process protects the rights of all persons who are
affected by that process and who should be entitled to notice of the
proceedings for the adoption of a child.

The secondary purpose of the adoption law is, among other things, to
protect biological parents and guardians of children from decisions
concerning relinquishment of their parental or guardian's rights to
their children or wards which might be made as a result of undue
influence or fraud.
Based on the witnesses' testimony, the trial exhibits, the arguments
of the attorneys for the respective parties and the guardian ad litem,
the relevant statutory and case law, and the entire record in this
cause, the Court makes the following specific Findings of Fact and
Conclusions of Law:
I. GENERALLY SIGNIFICANT FACTS
_ Mr. B was born September 29, 1958, in Memphis,
Tennessee.
_ Mrs. B was born July 24, 1961, in North Carolina.
_ Mr. and Mrs. B have been married to each other
and living together since July 12, 1982.
_ Mr. and Mrs. B have four (4) natural born
children: two are college age, one is a teenager and one is age four.

_ Mr. and Mrs. B have continuously been resident
citizens of Shelby County, Tennessee, since February 27, 1993.
_ Mr. B was employed by Pinnfund USA, as a mortgage
banker, from approximately 1996 to 2001, and earned approximately
$435,000.00 during the last year he was employed by Pinnfund. Mr. B
is a high school graduate and attended college.
_ Since leaving his employment at Pinnfund, Mr. B
has earned an annual income ranging from approximately $80,000 to
$125,000. His earning capacity has been adversely affected by having
to locate new employment, since Pinnfund closed; by having to start
over and work his way up through the ranks with a new employer; and by
his inability to work at an employment that involves travel because of
his concerns and involvement with this cause.
_ Mrs. B has been a housewife and mother during the
Bs' marriage and earns a small amount of income by doing babysitting
in the Bs' home. Mrs. B has a high school education.
_ Mr. H was born July 18, 1964, in the Peoples
Republic of China and has been a citizen of that country since that
time.
_ Mr. H first entered the United States from China
on a student visa in March 1995, and has continuously resided in the
United States since that date, except for a trip to the Peoples
Republic of China in May 1998, returning in June 1998.

_ Mr. H received a Masters degree in teaching
English as a second language from Hunan University in the Peoples
Republic of China in 1988. He taught English at Nanjing University in
the Peoples Republic of China from 1988 until 1995 when he came to the
United States to further his education. He has been qualified to
teach English as a second language to persons who do not speak English
since entering the United States in March 1995. He pursued a Masters
degree in English as a second language at Arizona State University
from 1995 to 1997. He finished his course work for the Masters
degree, but he did not have the opportunity to defend his thesis and
obtain his degree because he came to the University of Memphis in
August 1997. He enrolled at the University of Memphis in August 1997
to pursue a Doctor of Philosophy degree in economics. He did not
finish his course work for his Ph.D in economics because he switched
his course of study to obtain a Masters degree in Management
Information Systems at the University of Memphis. He finished his
course for his Masters degree in Management Information Systems in
1998, but he did not receive his degree.
_ Mrs. H was born on March 21, 1968, in the
People's Republic of China and has been a citizen of that country
since that time. She entered the United States on June 28, 1998, and
she has resided in the United States since that date.
_ Mrs. H does not speak or understand English
proficiently and was provided qualified translators of her choice
throughout the proceedings in this cause. At times during the trial
Mr. H acted as Mrs. H's translator, by agreement of Mrs. H. Mrs. H
remained aware of what transpired during the trial from those
translators.
_ On June 28, 1998, Mrs. H was allowed entry into
the United States on a F-2 visa, as the wife of a student on a F-1
student visa. Because she and Mr. H falsely represented to the United
States Government that they were married to each other in the Peoples
Republic of China, she has been in this country illegally.

_ Since September 1999, both Mr. and Mrs. H have
had no legal right to remain in the United States and have been
subject to deportation from the United States to the Peoples Republic
of China.
_ Although both of The Hs have been employed and
have earned income while in the United States, neither of The Hs can
earn income legally while remaining in the United States because of
their immigration status as illegal aliens.
_ Mr. H was arrested for sexual assault on April
27, 1999.
_ Mr. H was acquitted of the sexual assault charge
in February 2003.
_ AMH was born out of wedlock on January 28, 1999,
and AMH's birth parents are SH(J) He and Qin (Casey) Luo.
_ Mr. H questioned whether he was the biological
father of AMH and requested that the guardian ad litem arrange blood
testing for Mr. H, Mrs. H, and AMH to determine paternity of AMH.
_ Mr. H filed an acknowledgment of paternity on
March 15, 2002.
_ SHHe and QL were legally married in Memphis,
Shelby County, Tennessee, on January 7, 2002.
_ By virtue of being born in the United States, AMH
is a citizen of the United States.
_ AMH has resided in Shelby County, Tennessee,
since AMH's birth on January 28, 1999.
_ AMH is a normal, healthy five-year-old child.

_ The Bs have had legal custody and guardianship of
the person of AMH continuously since June 4, 1999. On June 4, 1999,
The Hs filed a petition to transfer custody of AMH to the Bs and
signed a Consent Order Awarding Custody, which was entered by the
Juvenile Court of Memphis and Shelby County, Tennessee.
_ The Consent Order Awarding Custody mandated the
Bs to be the legal custodians and guardians of the person of AMH and
entitled the Bs, as a matter of right, to the physical custody of AMH,
the right to determine the nature of the care and treatment of AMH,
including ordinary medical care, and the right and duty to provide for
AMH's care, protection, training, and education, and AMH's physical,
mental, and moral welfare.
_ Since June 4, 1999, the Bs have undertaken and
performed their duties and responsibilities as AMH's legal custodians
and guardians.
_ All parties, including Mr. and Mrs. H, knowingly
and voluntarily signed the June 4, 1999, Consent Order Awarding
Custody, without being induced by any fraud or undue influence.
_ Attorney Kimbrough Mullins was appointed to act
as guardian ad litem for AMH, by consent of both the Bs and The Hs, by
order dated July 24, 2001.
_ The Hs, the Bs, and the guardian ad litem
participated, by agreement, in mediation through the Christian
Conciliation Service of the Second Presbyterian Church in 2002, but
the mediation did not result in a resolution of this matter.

II. LITIGANT CREDIBILITY
The Court has carefully scrutinized the testimony of The Hs and the
Bs. 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. B testify for approximately three (3) hours of
live testimony at
trial. Mrs. B testified for approximately five (5) hours of live
testimony at trial. Mrs. H testified
for approximately ten (10) hours of live testimony at trial. Mr. H
testified for approximately seven
(7) hours of live testimony at trial. The Court also observed Mr. H
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 Bs and The Hs in the
courtroom for over
ninety-one (91) hours of trial testimony, over fifteen (15) hours of
arguments on motions after the
conclusion of the 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:
_ Mr. B impressed the Court as a man who has a
great deal of love, care, and concern for children in general, but who
has 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. B impressed the Court with his
sincerity and the concern he expressed for AMH's welfare and safety.
Mr. B has demonstrated concern for and a willingness to help others
who are in need, including The Hs. As one example, Mr. B helped Mr.
H when Mr. Hs' vehicle was in the shop for repairs.

_ Mrs. B 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. B also impressed the Court with her care
and concern for AMH's welfare and safety. Mrs. B has demonstrated
concern for and a willingness to help others who are in need,
including The Hs. For example, she took Mrs. H to obtain social
services and to apply for TennCare insurance coverage for The Hs'
second child, Andy, who was born in October 2000. She took Mrs. H
and Andy home from the hospital after Andy's birth. She loaned The Hs
a baby bed for Andy. She went to The Hs' apartment to show Mrs. H how
to feed, burp, bathe, and change Andy's diapers. She took Andy to
the doctor's office because Mr. H was too busy, and she took Andy to
other appointments because Mrs. H was too busy.
_ Both of the Bs demonstrated their concern and
care, and lack of any animosity toward The Hs, by foregoing their
church and other regular activities to accommodate The Hs' visits with
AMH. The Bs also served The Hs dinner on several of their visits, and
allowed The Hs to bring friends with them to the Bs' home for visits,
serving the friends dinner as well. On one occasion, the Bs gave Mr.
H a birthday card and a gift certificate to a restaurant for his
birthday.

_ Mr. H 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 is
proficient in computer skills, including the ability to access the
Internet and to use website technology to garner resources and seek
assistance from experts. 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. H has 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.
_ Since 1998, Mr. H 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. H deems to be
justifiable ends.
_ Mr. H admitted that he lied about his income,
under oath, in his December 20, 2001, deposition and that he said
things that he knew were not the truth. During his deposition, Mr. H
also knowingly and willfully gave false testimony with respect to
material facts concerning his and Mrs. H's assets. The Court has
previously found that Mr. H committed perjury while under oath in
Court hearings and pleadings filed in this cause.
_ The Court reaffirms and incorporates herein by
reference the findings made by the Court relative to the perjury of
Mr. H 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."
_ The evidence also shows that Mr. H tried to
procure an F-2 visa, in 1997, for another Chinese woman, who Mr. H
claimed was his wife. Mr. H later admitted that this woman was not
his wife and that he had committed a fraud on the University of
Memphis.

_ Mr. H 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.
_ Mr. H first entered the United States on a F-1
Student visa which allowed him to be employed and earn income.
However, after he was suspended by the University of Memphis on
September 20, 1999, and his student visa was revoked, Mr. H was not
legally permitted to be employed and earn income in the United States.
Nevertheless, Mr. H has been employed and earned income in the United
States, since September 20, 1999, and has failed to report his income
to the Internal Revenue Service, thus defrauding the United States
government.
_ Mrs. H 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. H would begin sobbing when asked difficult
questions. However, Mrs. H would immediately regain her composure
when asked subsequent questions. It appears to the Court that Mrs.
H's courtroom hysterics were calculated by Mrs. H in an effort to
avoid answering the difficult cross-examination questions.

_ Though Mrs. H speaks sufficient English to carry
on her daily affairs in the United States, she is not as proficient as
Mr. H in knowledge or use of the English language and, unlike Mr. H,
sometimes needs assistance with translation in technical or
extraordinary use of the English language. She has confidence in Mr.
H, prefers Mr. H as her translator, has no desire to part company with
Mr. H for any reason and intends to cooperate fully with Mr. H to
remain together with him as a family and believes Mr. H has never
failed to keep her fully and honestly informed about the legal matters
involving AMH.
_ Although Mrs. H does not speak the English
language fluently, she appears to speak and understand English better
than she professes. For example, Mrs. H spoke English during some of
The Hs' visits with AMH at the Bs' home and when Mrs. H took The Hs'
other children for medical treatment. She also spoke English during
the incident when she was holding a sign outside of the Bs' home, and
the Bs' neighbor, Rebecca Smith, asked Mrs. H to move her car, and she
spoke English during the December 2003, incident at the Wal-Mart
store. During the trial, in response to a question from attorney
Linda Holmes, Mrs. H responded to the question by speaking in English,
before the interpreter had begun interpreting Ms. Holmes' question to
Mrs. H. Mrs. H said, "Mr. Parrish filed legal motion," then she
stopped speaking English and began responding to the question in
Chinese.
_ Mrs. H admitted signing a document in the Peoples
Republic of China that falsely stated that she and Mr. H were married
for the purpose of obtaining a visa allowing her to come to the United
States.
_ Although The Hs were not married at the time,
Mrs. H entered the United States illegally, in 1998, on a F-2 visa, as
the wife of a person in the United States on a student visa, despite
the fact that she indicated that she was single, not married, on AMH's
birth certificate.

_ Because of her status as an illegal alien, Mrs. H
was not legally permitted to be employed and earn income.
Nevertheless, Mrs. H has been employed and earned income in the United
States throughout most of her stay, but has failed to report her
income to the Internal Revenue Service, thus defrauding the United
States government.
_ Mrs. H only seems to be interested in regaining
custody of AMH when deportation seems imminent. This fact is
evidenced by Mrs. H 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. Hs'
immigration status.
_ From the totality of the credible proof at trial,
both Mr. and Mrs. H have shown themselves to be persons who do not
consider themselves to be bound by the rule of law. Mr. and Mrs. H
have demonstrated that they will do and say anything in order to
achieve their desired goals.

III. CREDIBILITY OF OTHER WITNESSES

_ Dr. John Copper testified for The Hs during the
trial as an expert in Chinese culture, to explain The Hs' conduct.
Dr. Copper testified that in China telling a falsehood about family
matters would be bad, but telling a falsehood to the government would
not be as bad. The Court finds Dr. Copper's testimony to be totally
lacking in credibility. The Court agrees with the findings of the
United States Bankruptcy Court for the Western District of Tennessee,
in its October 31, 2003, Memorandum Opinion, which was entered into
evidence as Trial Exhibit 26, that Dr. Copper's testimony is
unbelievable, and totally lacking in credibility. The Court further
finds that Dr. Copper is not an expert in Chinese adoption law, nor is
he an expert on termination of parental rights.
_ Dr. Yih-Jia Chang testified as an expert witness
on behalf of both Mr. and Mrs. H. The Court has previously ruled that
the underlying facts or data relied upon by Dr. Chang in forming her
opinion regarding Mrs. H's mental health indicate a lack of
trustworthiness, and excluded Dr. Chang's testimony as to Mrs. H.
_ Dr. Chang testified, as to Mr. H, that she based
her opinion about Mr. H's mental health on her clinical evaluation,
mental status examination, and the MMPI test results. Dr. Chang
testified that her clinical evaluation and mental status examination
of Mr. H were based on questions she asked of, and responses given by,
Mr. H. The Court finds the credibility of Mr. H to be seriously
lacking; therefore, the opinions given by Dr. Chang, based on Mr. H's
credibility, are entitled to no weight.

_ David B. Goldstein, Ph.D. ("Dr. Goldstein"), was
appointed by the Court to serve as the court-appointed expert to
advise the Court concerning the psychological evaluation of AMH. Dr.
Goldstein was appointed by the Court upon the recommendation of the
guardian ad litem and with the consent of the Bs and The Hs.
Initially, Dr. Goldstein was requested to conduct a psychological
evaluation of AMH; however, the Court later, on February 12, 2002,
expanded the evaluation to include the Bs and The Hs, to the extent
that Dr. Goldstein deemed necessary to prepare the psychological
report concerning AMH. Dr. Goldstein ultimately determined that he
could not conduct an evaluation of the Bs and The Hs because Dr.
Goldstein was concerned that his evaluating AMH, the Bs, and The Hs
might present a conflict of interest, since he was not conducting
strictly a custody evaluation, but an evaluation dealing with the
possible termination of parental rights. Dr. Goldstein was also
concerned that he was not qualified to conduct an examination of The
Hs because of the language barrier.
_ Dr. Goldstein served the Court and provided the
Court with his opinion, without any interest in the outcome of the
cause and without representing the interests of either The Hs or the
Bs. Dr. Goldstein provided the Court with the benefit of his
expertise regarding AMH's psychological well-being, and the possible
affects on AMH of remaining with the Bs and having contact with The Hs
ended, or placing AMH with The Hs, and having contact with the Bs
ended.
_ The Court finds Dr. Goldstein to be a highly
qualified, highly respected, experienced psychologist, who has been
practicing in the Memphis, Shelby County, Tennessee, area for many
years. The majority of Dr. Goldstein's training has been in the area
of child psychology. Dr. Goldstein was diligent and thorough in his
examination and evaluation of AMH and AMH's attachment with the Bs,
and with his evaluation of AMH's reaction to AMH's visit with The Hs
in Dr. Goldstein's office, on September 23, 2003. Dr. Goldstein
evaluated AMH over a period of several months. Dr. Goldstein has shown
no bias or prejudice in the performance of his duties or in his
testimony , but gave the Court his honest opinion, based on his
clinical evaluation of AMH, his research, and his years of experience.
The Court found Dr. Goldstein to be a very knowledgeable, honest and
forthright witness.

_ Dr. John Robert Hutson is a highly qualified,
highly respected, experienced psychologist, who has practiced in the
Memphis, Shelby County, Tennessee, area for many years. Dr. Hutson
never personally interviewed or evaluated AMH, so his testimony was
limited to that which he observed on the videotaped session with the
Bs, The Hs, and AMH in Dr. Goldstein's office on September 23, 2003,
and his experience as a psychologist. Dr. Hutson's testimony was of
little assistance to the Court.
_ Dr. John Victor Ciocca is a highly qualified,
highly respected, experienced psychologist, who has practiced in the
Memphis, Shelby County, Tennessee, area for many years. Dr. Ciocca
never personally interviewed or evaluated AMH, so his testimony was
limited to that which he observed on the videotaped session with the
Bs, The Hs, and AMH in Dr. Goldstein's office on September 23, 2003,
and his experience as a psychologist. Dr. Ciocca had no opinion as to
the level of AMH's psychological attachment to the Bs or The Hs. Dr.
Ciocca's testimony was of little assistance to the Court.
_ The guardian ad litem, Ms. Kimbrough Mullins, is
a skilled attorney who has served the courts in Shelby County,
Tennessee, as a guardian ad litem for the past fifteen (15) years.
Ms. Mullins has served the Court, and represented and advocated AMH's
best interests, to the best of her ability, in an exemplary manner,
under very difficult circumstances. Ms. Mullins, in her fiduciary
capacity to AMH and to the Court, has acted in good faith, has shown
no bias or prejudice in the performance of her duties, but has
steadfastly and diligently advocated for what Ms. Mullins considers to
be in AMH's best interest, regardless of the consequences, based
solely upon the information she gathered during her investigation.
The Court found her to be an honest and forthright witness.

_ Kevin Weaver has been an attorney practicing in
Memphis, Shelby County, Tennessee, for nineteen (19) years. For the
last eleven (11) years he has practiced primarily adoption law. His
practice consists of approximately 75 to 80% adoption cases. During
2003, Mr. Weaver finalized over one hundred (100) adoption cases. He
has lectured and taught adoption law to other attorneys. The court
finds that Mr. Weaver is an expert in the area of adoption law. The
Court finds that Mr. Weaver was a credible witness.
_ Julie Mize, Michael Lowry, Nancy Diane Thorn,
Rebecca Smith, Diane Chunn Brower, Sarah Cloud, Candace Brown, Kenny
Yao, John Astor, John D. Walt, Kathryn E. Story, and Stephanie
Johnson, all testified during the trial of this cause. Each of these
witnesses testified honestly and without bias. The Court finds each of
these witnesses' testimony to be credible.

IV. DUE PROCESS CLAIMS
_ Both before and after June 4, 1999, The Hs had an
ongoing relationship with John Walt, an experienced attorney
practicing for many years in Memphis. Mr. Walt advised and interacted
with Mr. H, as an outreach ministry without pay, to assist Mr. H with
legal issues associated with sexual assault charges being pressed by
the University of Memphis and by the State of Tennessee. Mr. Walt
advised Mr. H that the outcome of said charges would be determinative
of Mr. H's status as a student at the University of Memphis and his
status as a legal alien in the United States. Mr. Walt met with Mr. H
on five (5) or more occasions to advise Mr. H on the charges made by
the University of Memphis and also to assist Mr. H in obtaining an
attorney to represent Mr. H on the criminal charges brought by the
State.

_ Although Mr. Walt was available to advise Mr. H
about AMH's custody, Mr. H never made any mention of AMH to Mr. Walt,
nor of the difficulties The Hs were having regarding custody of AMH.
_ Both before and after June 4, 1999, The Hs
engaged the services of at least two attorneys in Memphis, Ms. Dell
Stiner and another un-named attorney, to advise and represent The Hs
in civil litigation arising from physical injuries Mrs. H allegedly
sustained in November 1998. The Hs also spoke to another attorney
that Ms. Chunn referred them to, Mr. Parke Morris, about the civil
litigation. Neither of The Hs ever mentioned to any of these three
attorneys the need for representation or advice regarding placing or
regaining custody of AMH.
_ Both before and after June 4, 1999, Mr. H engaged
the services of at least three attorneys to advise him and represent
him in defense of the criminal charges brought by the State: Mr. AC
Wharton, Mr. Stephen Sauer, and Mr. James Hodges, Jr. Mrs. H
accompanied Mr. H on many occasions when Mr. H met with these
attorneys. Neither of The Hs ever mentioned to any of these attorneys
any need for representation or advice relative to AMH's custody. In
fact, The Hs never even told these three attorneys about the existence
of AMH.

_ Mrs. H testified that she sent her younger son,
Andy, to the Peoples Republic of China because Mr. Hs' criminal
attorney, AC Wharton, told Mrs. H that "they" would take The Hs' son
and put him up for adoption if Mr. H did not agree to accept the
guilty plea offer on Mr. H's criminal charge. Neither of The Hs ever
mentioned to Attorney Wharton that they also had an older child (AMH),
or that they were having difficulty regaining custody of AMH.
_ Although Mr. and Mrs. H had numerous
opportunities, neither of them ever sought the advice of any of the
above-mentioned attorneys, never discussed the issue of The Hs giving
up custody or of regaining custody of AMH, and never mentioned to any
of these attorneys that The Hs had a child.
_ On June 2, 1999, attorney Kevin Weaver met with
Mr. H and the Bs and fully advised Mr. H and the Bs of the legal
ramifications of filing a petition for custody and of signing a
consent order awarding custody of AMH. Mrs. H, after being fully
advised of the meeting and of the purpose of the meeting by Mr. H,
waived her right to be present at the meeting and told Mr. H to tell
the others at the meeting that she was ready to proceed. Mr. Weaver
answered all of Mr. H's and the Bs' questions during the meeting. Mr.
H later advised Mrs. H of the information that Mr. Weaver imparted at
the meeting.
_ On June 3, 1999, Ms. Chunn and Mr. Kenny Yao, an
experienced interpreter in English and Mandarin Chinese, met with Mrs.
H, alone, in The Hs' apartment. Ms. Chunn wanted to make certain that
Mrs. H understood what she would be doing if Mrs. H signed a consent
custody order, and whether Mrs. H was one hundred percent willing for
a transfer of custody of AMH from The Hs to the Bs. Ms. Chunn
explained to Mrs. H the things that Kevin Weaver had said to Ms.
Chunn, the Bs, and Mr. H, the day before in the meeting in Mr.
Weaver's office. Mrs. H indicated that she understood everything that
Ms. Chunn had told her through Mr. Yao. Mrs. H asked no questions of
Ms. Chunn, through Mr. Yao.

_ On June 4, 1999, Ms. Sarah Cloud, with the
assistance of a qualified interpreter, privately met with Mrs. H,
without Mr. H, and fully explained the legal ramifications of both the
Petition For Custody and the Consent Order Awarding Custody, both of
which Mrs. H later voluntarily signed.
_ The Hs were familiar with the Juvenile Court for
Memphis and Shelby County, Tennessee, before June 4, 1999, because
they had sought the services of the Juvenile Court on or about
February 23, 1999, when they spoke to Ms. Sarah Cloud about long-term
foster care through the State of Tennessee Department of Childrens
Services. Although The Hs had consulted with attorneys in the past
regarding other legal matters, The Hs never inquired at Juvenile Court
about getting an attorney to provide The Hs legal advice concerning
the original transfer of custody of AMH.
_ A few months after The Hs signed the June 4,
1999, Consent Order Awarding Custody, The Hs went to the Juvenile
Court and spoke with Ms. Cloud about getting assistance to file a
petition to regain custody of AMH. Ms. Cloud directed The Hs to the
appropriate Juvenile Court office to speak to a counselor, who would
assist The Hs with filing a petition to modify custody and with
putting the petition on the court docket for a hearing. Ms. Cloud
advised The Hs 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 Hs could not afford to hire an attorney.

_ Both Mr. and Mrs. H had many opportunities to
obtain legal advice, and did receive legal advice from attorney Kevin
Weaver, about their decision to petition the Juvenile Court to place
custody of AMH with the Bs, before The Hs signed the petition and
consent order.
_ There was no law, rule, regulation, fraud,
duress, undue influence, or trickery which caused The Hs, at the
outset, to petition the Juvenile Court to give legal custody of AMH to
the Bs.
_ The evidence establishes that there was no
conspiracy to deprive The Hs of their right to due process or to the
custody of AMH.
_ Ms. Sarah Cloud, Ms. Diane Chunn, Mid-South
Christian Services ("Mid-South"), Mr. Kenny Yao, Mr. Kevin Weaver, Ms.
Kimbrough Mullins, Ms. Linda Holmes, Dr. David Goldstein, Ms. Kathryn
Story, and Mr. Larry Parrish played no part, individually or in
concert or conspiracy with any other persons, to encourage,
discourage, or facilitate, at any time: (1) the denial of either of
The Hs' legal rights or entitlements; (2) The Hs' filing of a Petition
for Custody in Juvenile Court on June 4, 1999, seeking to place AMH's
custody with the Bs; (3) The Hs' signing the June 4, 1999, Consent
Order Awarding Custody of AMH to the Bs; or (4) the Bs' decision to
file a petition to adopt AMH and to terminate The Hs' parental rights.
_ The first time the Bs considered the idea of
adopting AMH was in May 1999, when The Hs suggested to the Bs that The
Hs wanted the Bs to adopt and raise AMH.
_ The Bs did not consider the idea of adopting AMH
again until attorney Kevin Weaver explained to the Bs that they had a
right to file a petition to adopt AMH and to terminate The Hs'
parental rights, after The Hs signed the first Petition to Modify
custody in Juvenile Court on May 3, 2000.

_ The Bs did not decide to file a petition to adopt
and terminate parental rights until after being served with The Hs'
second Petition to Modify custody, filed in Juvenile Court on May 29,
2001. The Bs sought legal advice of Mr. Weaver and then decided to
file a petition to adopt AMH and terminate The Hs' parental rights.
_ The Bs' decision to file a petition to adopt and
to terminate The Hs' parental rights was made exclusively by the Bs,
alone, and was not made in concert or conspiracy with any other person
or persons.

V. ABANDONMENT FACTORS
A. Chronology of Events
_ The Hs initiated the first contact with Mid-South
Christian Services ("Mid-South") through a referral from one of The
Hs' church members. Dianne Chunn ( "Ms. Chunn") first met with The Hs
while acting in her capacity as a birth-parent counselor for Mid-South
on or about November 1, 1998. The Hs told Ms. Chunn that Mrs. H was
pregnant and they wanted to place the unborn child for adoption. As a
result of the first meeting with Ms. Chunn, The Hs completed a
"pregnancy counseling status sheet" providing Mid-South basic
information about The Hs, including that Mr. and Mrs. H were husband
and wife.

_ On or about December 1, 1998, Mid-South formally
opened a "birth-parent file" relating to The Hs and the adoption. As
a birth-parent counselor for The Hs, Ms. Chunn's responsibilities were
to provide ongoing counseling to the birth parents so The Hs could
work through the pros and cons of adoption. As a part of her
counseling, Ms. Chunn let The Hs review several profiles of
prospective adoptive parents. The Hs selected a prospective adoptive
couple and, pursuant to The Hs' request, Ms. Chunn arranged a meeting
with The Hs and that couple to discuss the possibility of adopting
AMH.
_ On January 9, 1999, Ms. Chunn met with Mr. H at
the hospital because Mrs. H had been hospitalized for vaginal
bleeding, allegedly caused by an assault on Mrs. H. Mr. H told Ms.
Chunn that Mrs. H felt "cheated" because the prospective adoptive
family that The Hs met with on December 1, 1998, were not wealthy, as
was The Hs' request. Mr. H told Ms. Chunn that The Hs felt that the
prospective adoptive family should be "taking care of them" during the
birth process, that is, the family should be visiting The Hs and
bringing nutritious food and other things for The Hs. The Hs did not
go through with the adoption to the family they had first selected to
adopt AMH because Mrs. H thought that family was not wealthy enough
and was too young.
_ On January 19, 1999, Mr. H asked Ms. Chunn to
write a letter to the University of Memphis to advise university
officials that The Hs were not prepared financially or emotionally to
be parents at that time.

_ After AMH's birth on January 28, 1999, AMH
experienced respiratory distress, which required AMH to remain in the
hospital's neonatal intensive care unit for eleven days. After AMH's
birth, Mrs. H changed her mind about giving AMH up for adoption, even
though The Hs had already selected parents to adopt AMH and accepted
gifts from them. Mrs. H informed Ms. Chunn of her decision. After
AMH was discharged from the hospital on or about February 8, 1999, The
Hs took AMH home to their apartment. Approximately two (2) days
later, Ms. Chunn visited with The Hs and AMH in their apartment. The
Hs explained to Ms. Chunn that they were having severe financial
difficulties, and Ms. Chunn and The Hs discussed the possible need for
the services of the Tennessee Department of Childrens Services (DCS)
to provide long-term foster care. Ms. Chunn explained to The Hs that
Mid-South was unable to provide long-term foster care for AMH.
_ , ; On February 10, 1999, Ms. Chunn met again with
The Hs and AMH in their apartment. Mr. H told Ms. Chunn that he had
to borrow money for The Hs' living expenses for the coming month, and
was unsure where money for their future living expenses would come
from. Mrs. H felt that The Hs would get additional money for future
expenses from the lawsuit that The Hs were planning to file for
personal injuries she sustained from the alleged assault on her.
_ On February 22, 1999, Mr. H called Ms. Chunn and
told her that The Hs were still considering placing AMH for adoption.
Ms. Chunn met with The Hs on February 23, 1999, and discussed adoption
and long-term foster care.

_ On February 23, 1999, The Hs went to the Juvenile
Court with AMH and talked with Ms. Sarah Cloud about placing AMH in
long-term foster care with DCS. The Hs told Ms. Cloud that they had
been talking with Ms. Chunn at Mid-South about their inability to take
care of AMH. Ms. Cloud then called Ms. Chunn, who told Ms. Cloud that
The Hs initially wanted to place AMH for adoption, but changed their
minds and now wanted to place AMH in foster care. Ms. Chunn told Ms.
Cloud that Mid-South could not provide long-term foster care for AMH,
and that The Hs would have to go to DCS if The Hs needed long-term
foster care for AMH. After her conversation with Ms. Chunn, Ms. Cloud
suggested that The Hs consider placing AMH in shorter-term foster care
to give The Hs an opportunity to decide whether they would be able to
take care of AMH in the future or whether they would want to place AMH
for adoption. Ms. Cloud suggested that The Hs return to Ms. Chunn to
determine if Mid-South could provide interim foster care for AMH,
while The Hs decided what they wanted to do with AMH.
_ On February 24, 1999, The Hs delivered AMH to
Mid-South and signed an agreement requesting that Mid-South take AMH
into foster care for ninety (90) days.
_ The Bs, who were the next family on the Mid-South
foster care list, were asked by Mid-South to serve as foster parents
of AMH for ninety (90) days, from February 24, 1999, through May 23,
1999, in order to give The Hs time to decide either to place AMH for
adoption or to undertake the responsibility to support and care for
AMH. Ms. Chunn and The Hs went to the Bs' home with AMH on February
24, 1999. Ms. Chunn introduced The Hs to the Bs, and The Hs and Ms.
Chunn gave physical custody of AMH to the Bs, pursuant to the foster
care agreement.
_ Mid-South has had a relationship with the Bs
since 1997. The Bs were on Mid-South's list of persons who are
qualified and willing to serve as foster parents to children in
Mid-South's custody, who are awaiting adoption. The Bs began keeping
foster children for Mid-South in 1997. The Bs usually kept a foster
child for seven to ten days, while the adoption of that child was
being processed. The Bs agreed to an extended foster care period for
AMH because the Bs had always accepted the children that Mid-South
offered, and because The Hs needed a three (3) month period of time to
decide whether they wanted to keep AMH or to give AMH up for adoption.

_ The Bs were not under consideration as
prospective adoptive parents for AMH on February 24, 1999, as The Hs
had previously selected another prospective adoptive family. Prior to
February 24, 1999, the Bs had made a deliberate decision that they had
no interest in adopting any children, and in furtherance of that
decision, Mrs. B had surgery in August 1998, to reverse an earlier
tubal ligation, in order to make it possible for the Bs to give birth
to another child of their own.
_ AMH has been in the Bs' physical custody since
February 24, 1999, when AMH was twenty-seven (27) days old.
_ The Hs made their decision concerning the care,
custody, and control of AMH. No one forced The Hs to relinquish care,
custody, and control of AMH to Mid-South Christian Services, or to the
Bs. The Hs voluntarily exercised their fundamental right as parents
to transfer custody of AMH to the Bs.
_ During the ninety-day foster care period,
February 24, 1999, to May 23, 1999, The Hs visited in the Bs' home for
approximately one (1) hour each week, a total of approximately twelve
(12) hours during the first three months of AMH's life. During this
period, neither the Bs nor Mid-South placed any restrictions on the
frequency or duration of The Hs' visits in the Bs' home. The Hs never
requested to visit AMH more frequently or for longer periods during
the ninety-day foster care period. During the ninety-day foster care
period, The Hs were free to terminate the foster care agreement with
Mid-South and to regain full legal and physical custody of AMH.

_ On March 8, 1999, The Hs visited with AMH in the
Bs' home with Ms. Chunn present. Mr. H told Ms. Chunn that Mrs. H
would readily agree to adoption if the adoptive couple would allow
weekly visits until Mrs. H became pregnant with another child. Mr. H
also told Ms. Chunn that, according to Chinese superstition, AMH was
less than an ideal child because of AMH's difficult birth. On March
30, 1999, Mr. H spoke with Ms. Chunn again about the possibility of
adoption; he told Ms. Chunn that Mrs. H was comfortable with adoption,
but Mrs. H wanted to maintain parental rights of AMH so she could
remain in the United States.
_ In mid-April 1999, The Hs applied for a passport
for AMH. The passport was issued May 1, 1999. The Hs looked for
someone with a green card to take AMH to China at the end of the
ninety-day foster care period, but they were unable to find a suitable
person, so The Hs decided on the Bs to take care of AMH.
_ The Bs knew that The Hs intended to secure a
passport for AMH in April 1999, because The Hs had requested the Bs to
provide a photograph of AMH and The Hs told the Bs that they were
going to have a passport made for AMH.
_ In May 1999, the Bs did not know that The Hs were
illegal aliens.
_ On May 19, 1999, four (4) days before the end of
the ninety-day foster care agreement, Ms. Chunn met with Mr. H to
discuss future options for AMH's care. Mr. H indicated to Ms. Chunn
that The Hs wanted to maintain parental rights, but allow the Bs to
keep and raise AMH. On May 20, 1999, Ms. Chunn called Mr. H and told
him that the Bs were unwilling to agree to temporary custody with The
Hs retaining parental rights to AMH. On May 21, 1999, Mr. H called
Ms. Chunn and told her that The Hs had decided to take AMH back into
their care.
_ The Bs did not suggest to The Hs that the Bs had
any interest in adopting AMH until shortly before the May 23, 1999,
expiration of the ninety-day foster care period, when The Hs
approached the Bs with a request that the Bs adopt AMH.

_ On or about May 23, 1999, The Hs met with the Bs
in the Bs' home. Mr. H told the Bs that The Hs had decided that the
Bs were the family that The Hs wanted to adopt AMH. However, Mr. H
told the Bs that Mrs. H wanted to retain parental rights so AMH would
retain the He surname. Mr. H explained to the Bs that Mrs. H wanted
AMH to retain the He surname because Mrs. H wanted to stay in the
United States and she thought that if AMH kept the He surname it would
help The Hs remain in America. The Bs told Mr. H that they were
unwilling to keep AMH on that basis.
_ Mr. H then told the Bs that The Hs would take AMH
back from the Bs because The Hs wanted to give AMH to an attorney, in
exchange for the attorney helping The Hs with Mrs. H's civil lawsuit,
involving the alleged personal injuries she received while pregnant
with AMH. Mrs. B told Mr. H that he could go to jail for doing that.
Mr. B then suggested The Hs go into another room and talk. The Hs
went into another room, returned in a few moments, apologized to the
Bs, and told the Bs that Mrs. H really wanted to win her lawsuit, but
they did not have the money to hire an attorney. Mr. H then told the
Bs that both Mr. and Mrs. H wanted the Bs to take and raise AMH. The
Bs then agreed to custody, rather than adoption with The Hs still
retaining their parental rights, because the Bs were afraid of what
might happen to AMH if they did not agree to take custody of, and
raise, AMH. The Bs told The Hs that they would agree to custody only
on the condition that it be sanctioned by a court order and The Hs
agreed. The Hs and the Bs then entered into an oral agreement that
the Bs would have custody of, and would care for and raise AMH, until
AMH's eighteenth birthday.

_ On May 24, 1999, Mr. H and Mrs. B called Ms.
Chunn and told her that the Bs and Hes had talked and the Bs were now
willing to accept temporary custody of AMH. Ms. Chunn got the
impression from her conversation with Mr. H and Mrs. B that The Hs and
the Bs had agreed that the Bs would raise AMH.
_ The Bs and The Hs asked Ms. Chunn for advice as
to whether and how a court order could be obtained to sanction their
arrangement.
_ Ms. Chunn suggested that The Hs and the Bs meet
with an attorney to discuss the pros and cons of a custody agreement.
Ms. Chunn gave no advice to either The Hs or the Bs regarding whether
The Hs or the Bs should have separate attorneys to advise each of them
concerning the legal implications of the Bs' agreeing to assume the
custody and care of AMH, without The Hs surrendering their parental
rights.
_ After the May 24, 1999, conversation with Mrs. B
and Mr. H, Ms. Chunn arranged a meeting with attorney Kevin Weaver on
June 2, 1999, to explain the legal implications of transferring
custody from The Hs to the Bs. Mr. Weaver had previously advised
Mid-South, as well as several other adoption agencies, on various
legal matters, from time to time. Mr. Weaver was not acting as the
attorney for Mid-South at the June 2, 1999, meeting, but was
conducting the meeting as a favor to Mid-South. Mr. Weaver was not
acting as the attorney for either the Bs or The Hs at this meeting.
Mr. Weaver had not met either the Bs or The Hs before the June 2,
1999, meeting, nor did he meet separately with either the Bs or Mr. H
prior to the June 2, 1999, meeting.

_ Both the Bs and The Hs were scheduled to meet
with Mr. Weaver on June 2, 1999. However, at the last minute, Mrs. H
was unable to attend this meeting because of her work schedule. Mr.
Weaver asked Mr. H if he wanted to postpone the meeting so Mrs. H
could be present. Before the meeting began, Mr. H telephoned Mrs. H
and explained to her that everyone was present and ready for the
meeting and they were waiting on her to begin the meeting. Mrs. H
told Mr. H that she was ready for the meeting to go forward and that
they could proceed with the meeting without her. Mr. H told Mr.
Weaver, Ms. Chunn, and the Bs that he had spoken with Mrs. H and that
she was ready to go forward, that they could proceed with the meeting
without Mrs. H, and that Mr. H would explain everything to Mrs. H
later.
_ Mr. Weaver then conducted the meeting and
outlined to the Bs and Mr. H what it meant to transfer custody and the
risks and dynamics of temporary custody issues. Ms. Chunn was present
throughout the meeting. Mr. Weaver explained that The Hs would be
giving up certain parental rights, but not necessarily all parental
rights. Mr. Weaver explained that the Bs would be the ones with the
ability to make the everyday decisions for AMH, i.e. school,
healthcare, etc., but that The Hs would not be giving up their other
parental rights.
_ Mr. Weaver told the Bs and Mr. H that temporary
custody meant someone taking care of and being responsible for someone
else's child, and having all the legal responsibilities to provide for
the child.

_ Mr. Weaver also explained to Mr. H the risk that
if a temporary custody order was entered, a court would have to decide
if there was a contest about The Hs regaining custody of AMH. Mr.
Weaver explained that anyone who gives up even temporary custody takes
the risk that they may not get custody back. Mr. Weaver also
explained that a court would look at whether there was a change of
circumstances, and what was in the child's best interest in deciding
whether to allow a change in custody.
_ Mr. H asked questions during the meeting about
whether The Hs could see AMH and how often they could see AMH. Mr.
Weaver fully answered all of Mr. H's questions.
_ On June 3, 1999, Ms. Chunn and Mr. Kenny Yao, an
experienced interpreter in English and Mandarin Chinese, met with Mrs.
H, alone, in The Hs' apartment. Ms. Chunn wanted to make certain that
Mrs. H understood what she would be doing if Mrs. H signed a consent
custody order, and whether Mrs. H was one hundred percent willing for
a transfer of custody of AMH from The Hs to the Bs. Ms. Chunn
explained to Mrs. H the things that Kevin Weaver had said to Ms.
Chunn, the Bs, and Mr. H, the day before in the meeting in Mr.
Weaver's office. Mrs. H indicated that she understood everything that
Ms. Chunn had told her through Mr. Yao. Mrs. H asked no questions of
Ms. Chunn, through Mr. Yao.
_ On the evening of June 3, 1999, Mr. H called the
Bs and told them that Mr. and Mrs. H would agree to sign a consent
order allowing the Bs to have custody of AMH.
_ On June 4, 1999, The Hs, the Bs, and Ms. Chunn
met at Mid-South's office. The Hs rode with the Bs and Ms. Chunn in
the Bs' van to the Juvenile Court of Memphis and Shelby County,
Tennessee.
_ Before The Hs signed the June 4, 1999 petition to
change custody, Mid-South, through Ms. Chunn, signed the appropriate
documents relinquishing all physical and legal custody of AMH that
Mid-South had, by virtue of the ninety-day foster care agreement.

_ The Hs, the Bs, and Ms. Chunn met with Ms. Sarah
Cloud, a probation counselor and Foster Care Review Board coordinator
for the Juvenile Court. Mr. Kenny Yao was also present for the
meeting. Mr. Yao has been an official court translator for
twenty-five years and is fluent in both Mandarin Chinese and English.
Mrs. H speaks Mandarin Chinese and some English.
_ The Bs and Ms. Chunn had requested an interpreter
for Mrs. H to make certain that Mrs. H understood the proceedings and
what she was agreeing to. The Bs were concerned about Mrs. H changing
her mind because she had changed her mind several times before. They
were also concerned that Mrs. H might later claim that she did not
understand what she was signing.
_ Ms. Cloud explained the Petition for Custody to
The Hs. She explained the significance of the oath and The Hs'
signature, under oath, on the Petition for Custody. The Hs signed the
Petition for Custody, which stated, "that the parents are unable to
financially care and provide for said child at this time," in front of
Ms. Cloud.

_ Before The Hs signed the Consent Order Awarding
Custody, Ms. Cloud met privately in a conference room with Mrs. H, Ms.
Chunn, and Mr. Yao, without Mr. H being present, to explain to Mrs. H
the meaning of the Consent Order Awarding Custody. Ms. Cloud related
everything necessary to the interpreter, Mr. Yao, to explain to Mrs. H
the meaning of the Consent Order Awarding Custody. Mr. Yao explained
the Consent Order in the way he thought best for Mrs. H to understand
it. He did not read the document to her word for word. Mr. Yao felt
that he sufficiently explained the meaning of the document to Mrs. H.
Mrs. H said that she understood what Ms. Cloud had said during this
meeting, and she made no statements to Ms. Cloud, Mr. Yao, or Ms.
Chunn that she did not understand everything that Mr. Yao told her.
Mrs. H did ask if this would be temporary custody, and she said the
word "temporary" in English.
_ During the private conference with Ms. Cloud, Mr.
Yao, and Ms. Chunn, Mrs. H was tearful, emotional, and frequently
crying. Mrs. Chunn, who has many years of experience as a birth and
adoption counselor, testified that it is not uncommon for birth
mothers to be upset and tearful when signing documents affecting the
mother's custody or parental rights. Ms. Chunn further testified that
being tearful, emotional, or upset is not an indication that the birth
mother does not understand what she is doing.
_ After the private conference with Mrs. H, Ms.
Cloud talked to both Mr. and Mrs. H and told The Hs that if the Bs
later refused to return custody of AMH to them, that The Hs would have
to go to court and let a judge decide whether The Hs could have
custody of AMH returned to them. Mrs. H emphasized that she did not
intend to place AMH for adoption, but intended to place custody of AMH
with the Bs, reserving her right to return to Juvenile Court to
petition the court for return of custody to The Hs, if she made such a
choice in the future.
_ Ms. Cloud had a routine manner of handling
petitions for custody, and she has handled hundreds of those cases.
If anyone disagreed, or expressed any doubts about the understanding
of, or willingness to sign, a consent order awarding custody, it was
Ms. Cloud's practice to set petitions for custody for a hearing before
the Juvenile Court Judge or a Referee. Ms. Cloud had no doubt that
both Mr. and Mrs. H understood the Consent Order Awarding Custody, and
signed it freely and voluntarily.

_ The Hs, the Bs, Ms. Cloud, Mr. Yao, and Ms. Chunn
were present in the conference room when Mr. and Mrs. H signed the
June 4, 1999, Consent Order Awarding Custody. Neither The Hs nor the
Bs asked any questions when all of the parties signed the Consent
Order Awarding Custody.
_ Ms. Cloud would not have allowed any of the
parties to sign the consent order if either Mr. or Mrs. H, or Mr. and
Mrs. B were not in agreement regarding custody of AMH. Ms. Cloud
would not have allowed any of the parties to sign the consent order if
she felt that anyone was being forced to sign the Order, or if she
felt that anyone did not understand the Order.
_ Neither Mr. nor Mrs. H requested an interpreter
for themselves or for each other. However, the Bs requested an
interpreter for Mrs. H to ensure her understanding of the document
before she signed it. Neither The Hs nor the Bs requested to have an
attorney present in Juvenile Court on June 4, 1999, before the parties
signed the Consent Order Awarding Custody of AMH to the Bs.
_ The evidence establishes that both The Hs and the
Bs understood the June 4, 1999, Consent Order Awarding Custody before
they signed it.
_ The evidence establishes that Mr. and Mrs. H
understood that if the Bs did not agree to relinquish custody of AMH,
the only way for The Hs to regain custody of AMH would be for The Hs
to petition a court to regain custody, and the court would then
determine whether The Hs would be allowed to regain custody of AMH
based on a change in circumstances.

_ The evidence establishes that both Mr. and Mrs. H
understood, before they signed the June 4, 1999, Consent Order
Awarding Custody, that if they filed a subsequent petition to regain
custody of AMH, there would be no guarantee or assurance that a court
would allow The Hs to regain custody of AMH.
_ There is no credible evidence to support The Hs'
contention that on June 4, 1999, The Hs understood that all The Hs had
to do to regain custody of AMH in the future was to petition a court
and custody of AMH would be returned automatically to The Hs.
_ The Hs and Ms. Chunn rode back to Mid-South's
office in the Bs' van. The Hs, the Bs, and Ms. Chunn had normal,
pleasant conversations on the ride back to Mid-South. Mrs. H was no
longer crying or upset.
_ After the entry of the Consent Order Awarding
Custody on June 4, 1999, The Hs wanted AMH to call Mr. and Mrs. B
"mommy" and "daddy," and wanted AMH to call Mr. and Mrs. H "Jack" and
"Casey." Sometimes Mr. H would refer to himself, when speaking to
AMH, as "Uncle Jack." AMH has always referred to The Hs as "Jack"
and "Casey," since AMH was old enough to talk.
_ Mrs. B began keeping a journal of "Visits from
Jack and Casey" on June 5, 1999. She kept this journal because
Attorney Kevin Weaver had advised the Bs and Mr. H, at the June 2,
1999, meeting, that the consent custody arrangement could go on for
one (1) year or for eighteen (18) years. Because of the uncertainty
of the length of time of the custody arrangement, and because of the
Bs' fear of what would happen to AMH if The Hs obtained custody of
AMH, Mrs. B wanted to keep a record of the visits.

_ On July 25, 1999, Mr. H called Mrs. B and asked
Mrs. B to go to a television station with AMH and The Hs to talk about
The Hs' civil lawsuit for Mrs. H's personal injuries from the alleged
assault. Mr. H wanted to try to establish that AMH received personal
injuries, in utero, from the assault.
_ On November 14, 1999, Mr. H called Mrs. B and
told her that The Hs were bringing a friend, Elizabeth Marshall, with
them to visit AMH the next day. Mr. H asked the Bs to pretend that
they were foster parents of AMH, not custodial parents, during this
visit. Ms. Marshall asked Mrs. B how long the Bs had been foster
parents and how she could give AMH up after fostering AMH for so long.
Mrs. B told Ms. Marshall that the Bs had no intention of giving up
AMH. During the visit, Ms. Marshall kept referring to AMH as "(AMH)
Marshall." At a minimum, the implication is that there had been
discussions between The Hs and Ms. Marshall about adopting AMH. After
the visit, Mrs. B asked The Hs why they had brought Ms. Marshall to
visit AMH. Mrs. H became agitated, said that Mrs. B was rude to Ms.
Marshall, and Mrs. H refused to answer the question.

_ In August 1999, the Bs told The Hs that Mrs. B
was pregnant and she was due to deliver in February 2000. On the
September 11, 1999, visit, The Hs expressed how excited they were that
AMH would have a new sibling to grow up with. On the September 19,
1999, visit, Mrs. H commented that she was happy that AMH would have a
sibling to go to school with. On October 15, 1999, The Hs asked the
Bs to promise that they would always send AMH to Christian schools.
On October 31, 1999, the Bs told The Hs that the Bs would like to have
photographs of The Hs while The Hs were young to be able to share with
AMH when AMH grew up.
_ On December 22, 1999, The Hs brought gifts for
the Bs and all of their children, but did not bring a gift for AMH.
_ On February 28, 2000, after the birth of the Bs'
youngest child, Mrs. H told the Bs that she was pleased that AMH had a
new sibling, near AMH's age.
_ On May 3, 2000, The Hs talked to the Bs about the
kind of lessons The Hs wanted AMH to have, and The Hs inquired of the
Bs about the kind of college the Bs planned to send AMH.
_ On May 3, 2000, The Hs signed a Petition to
Modify the June 4, 1999, Juvenile Court Consent Order Awarding
Custody. That petition was filed in the Juvenile Court on June 19,
2000. The Hs did not discuss with the Bs The Hs' intention to pursue
the petition to modify custody before The Hs went to Juvenile Court to
begin the procedure.
_ Mr. H received a telephone call from the INS,
regarding Mr. and Mrs. Hs' immigration status, around the same time
The Hs signed the May 2000 Petition to Modify in Juvenile Court. Due
to the close proximity of the call from the INS and the filing of the
petition, the evidence shows that The Hs wanted to retain some
parental rights only for the purpose of remaining in the United
States.

_ , On May 4, 2000, Ms. Chunn called Mrs. B to
inform her that The Hs had signed a petition to modify custody in
Juvenile Court . Mr. B called Mr. H to arrange a meeting between the
two of them. That same day, Mr. B met with Mr. H near the clubhouse
at The Hs' apartment complex. Mr. B asked Mr. H why The Hs had signed
the Petition to Modify in Juvenile Court. Mr. H told Mr. B that it
was not Mr. H, but Mrs. H, who insisted on filing the Petition to
Modify. Mr. B reminded Mr. H that The Hs had requested and agreed
that the Bs would raise AMH until age eighteen. Mr. H acknowledged
that there was such an agreement, but that he and Mr. B needed to
discuss making changes to that agreement. Mr. H told Mr. B that The
Hs were going to ship AMH to China, but that he did not want to do
that because the death rate for children of AMH's gender was fifty
(50%) percent in the Peoples Republic of China. Mr. H stated that he
did not want that to happen to AMH, but that he wanted AMH to stay
with the Bs. Mr. B got upset and started crying. Mr. B told Mr. H
that Mr. B would do everything physically and financially he could do
to prevent The Hs from sending AMH to the Peoples Republic of China.
Mr. B then agreed to discuss making changes to their original
agreement with Mr. H.
_ Mr. H discussed three possible changes to the
original agreement with Mr. B. Mr. H wrote the first two options in
his handwriting on a piece of paper, and he then dictated the third
option, which Mr. B wrote on the same piece of paper. The three
options were:
Option number one: The Bs agree to give AMH back to The Hs without
disputing custody in Court. The Hs agree that, in the event The Hs
have to leave for China, they will let Bs adopt AMH forever. The Bs
agree that they will not do anything to cause The Hs to leave the
United States, by reporting The Hs to the United States government.

Option number two: The Hs agree to stay in Memphis as long as they
stay in the United States. The Hs will allow the Bs to visit AMH in
the Bs' home no less than twice a week.

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

_ On May 7, 2000, The Hs brought two people, Barney
and Rosemary Binion, with them to the Bs' home to visit AMH. During
the visit, The Hs wanted AMH to call the Binions "mawmaw and pawpaw,"
or something to that effect. Sometime during the visit, Mrs. B was in
the kitchen when Mr. H came into the kitchen and told her that
"everything is going to be alright." Later, Mr. H patted Mrs. B on
the back and told her "don't worry, I will talk Casey into letting AMH
stay."
_ On May 27, 2000, Mr. H kept making remarks about
AMH and the Bs' youngest daughter growing up together.
_ On June 28, 2000, a hearing was conducted on The
Hs' first Petition to Modify custody in the Juvenile Court before
Referee Claudia Haltom. Prior to the hearing, a Court Appointed
Special Advocate ("CASA") conducted an investigation relative to the
allegations contained in the May 3, 2000, petition, and provided a
report of the investigation to Referee Haltom.
The Bs hired Kevin Weaver to represent them at this hearing. Mr.
Weaver appeared with the Bs to oppose the Petition to Modify custody.
_ Referee Haltom asked Mr. H how The Hs planned to
take care of AMH if they regained custody. Mr. H responded that The
Hs planned to send AMH to the Peoples Republic of China and The Hs
would send $25.00 per month to China for AMH's support.
_ At the conclusion of the hearing, Referee Haltom
entered an order in Juvenile Court on June 28, 2000, denying the
Petition to Modify custody.

_ On September 11, 2000, Mr. H asked Mrs. B if she
could show Mrs. H how to take care of The Hs' new baby, which was due
in October 2000.
_ On December 23, 2000, The Hs visited AMH in the
Bs' home, but they brought no gift for AMH.
_ On January 28, 2001, AMH's second birthday, The
Hs came to the Bs' home to visit AMH and requested of the Bs that The
Hs be allowed to take AMH with them to have a family portrait made.
The Bs refused The Hs' request because AMH had been ill for several
days prior to January 28, 2001. The Hs then became upset and angry,
started raising their voices, and Mrs. H started screaming and crying.
AMH then became upset and the Bs asked The Hs to leave the Bs' home.
The Hs refused to leave. Mr. H became very pushy and told Mr. B to
call the police. Mr. H told the Bs, "I won't leave here." The Bs
then called the police to have The Hs removed from the Bs' home.
_ Shelby County Sheriff's Deputies Astor, Mills,
Blankenship, and Dugard came to the Bs' home in response to the
January 28, 2001, disturbance call. When the Deputies arrived at the
Bs' home, Mr. and Mrs. B were calm and Mr. and Mrs. H were very irate
and agitated. The Hs continued to be upset and agitated while the
deputies conducted their investigation of the incident. During the
investigation, The Hs were outside the Bs' home yelling, screaming,
and causing a disturbance.

_ Deputy John Astor could have arrested Mrs. H on
January 28, 2001, because she was causing a disturbance outside the
Bs' home. Neither Mr. nor Mrs. B asked Deputy Astor to arrest Mr. or
Mrs. H during the January 28, 2001, incident. After spending
approximately forty-five minutes to one hour at the Bs' home on
January 28, 2001, Deputy Astor told The Hs to leave the Bs' home and
not to come back again that day. The reason Deputy Astor told The Hs
not to come back to the Bs' home that day was because he wanted to
neutralize the situation and because he did not want Mrs. H to be
arrested. Deputy Astor advised The Hs that their disagreement with
the Bs was a civil matter, and he advised The Hs to seek legal advice
from an attorney about the matter.
_ Both Mr. and Mrs. H testified that they did not
return to the Bs' home to visit AMH after the January 28, 2001,
incident because they were afraid that they would be arrested by the
police. However, the Court finds this testimony lacking in
credibility, since there have been numerous instances when the police
were called due to Mrs. H's inappropriate behavior:
a. In November 1998, Mrs. H went to the office of Kathryn E.
Story, Assistant Dean of Students for Social and Ethical Conduct at
the University of Memphis. Mrs. H had previously met Ms. Story when
Ms. Story went with The Hs to inspect the building where Mr. H said he
had been with the Chinese student, who had made the sexual assault
allegations against Mr. H. Mrs. H had returned to Ms. Story's office,
apparently upset with Ms. Story. Mrs. H was very upset and called Ms.
Story a racist devil. Ms. Story directed Mrs. H to go to a conference
room to try to calm Mrs. H. While she was in the conference room,
Mrs. H put her head back, held her breath, with mucous coming from her
nose and spittle coming from her mouth. Ms. Story was very concerned
about Mrs. H's condition. Ms. Story called a psychologist to come to
try to calm Mrs. H down. Mrs. H continued to be very upset, holding
her breath, gasping, and making a loud disturbance. The psychologist
was unable to calm Mrs. H down. Ms. Story unsuccessfully tried to
reach Mr. H by telephone. Ms. Story then told her secretary to call
the University of Memphis campus police. The campus police arrived
and got Mrs. H to leave the conference room and go into an adjoining
room. Ms. Story then attempted to resume conducting business with
students, however, she could not hear because Mrs. H was still causing
a disturbance in the adjoining room. Ms. Story then told her
secretary to call for an ambulance for Mrs. H. The ambulance arrived
and took Mrs. H away.

b. On another occasion, August 1, 2000, while Mrs. H was
visiting with AMH in the Bs' home, when Mrs. B told Mrs. H that Mrs. B
had to leave for an appointment, Mrs. H became very angry and started
screaming at Mrs. B that Mrs. H would not leave. Mrs. H began
screaming that the Bs were "bad people, demons" and that Mrs. H was
going to take AMH and leave. Mrs. H told Mrs. B to call 911 and the
police, if Mrs. B wanted Mrs. H to leave. Mrs. H was holding AMH in
her arms and AMH was upset and crying loudly. Mrs. B then telephoned
Mr. B, who, in turn, telephoned Mr. H, who was working in Macon,
Georgia at the time. Mr. B asked Mr. H what the Bs should do about
Mrs. H. Mr. B asked Mr. H to call Mrs. H to try to calm her. After
Mr. B arrived at the Bs' home, Mr. B again called Mr. H to ask Mr. H
if he had talked to Mrs. H. Mr. H responded that he had talked to
Mrs. H, but she refused to leave, so the Bs should call the police.
Mrs. B then called the police, who came to the Bs' home. The police
advised Mrs. H to leave the Bs' home and Mrs. H complied and left.
The entire incident lasted approximately two hours. Mrs. H returned
periodically to the Bs' home after the August 1, 2000, disturbance, to
exercise visitation with AMH, the same as she had done before the
August 1, 2000, disturbance, until the January 28, 2001, disturbance.

c. On another occasion, sometime after the January 28, 2001,
disturbance, Rebecca Smith, a neighbor of the Bs, saw Mrs. H standing
beside her car in front of the Bs' home, holding a sign. Ms. Smith
approached Mrs. H and asked Mrs. H to move her car because Ms. Smith
was afraid for Mrs. H's safety. Mrs. H refused to move her car so Ms.
Smith went inside her home and called the police. Police officers
arrived at the Bs' home and spoke to Mrs. H, and, after that
conversation, Mrs. H moved her car, but remained at the Bs' home with
her sign, and the police officers left.

_ Mr. H received a second telephone call from the
INS regarding The Hs' current immigration status in the United States
sometime in March, April, or May, 2001, around the same time that Mrs.
H filed a second Petition to Modify custody in the Juvenile Court.
Again, due to the close proximity of the call from the INS and the
filing of the petition, the evidence shows that Mrs. H wanted to
retain some parental rights for the sole purpose of avoiding
deportation.

_ On April 9, 2001, Mrs. H signed the second
Petition to Modify the Juvenile Court Consent Order Awarding Custody,
which was filed in the Juvenile Court on May 29, 2001.
_ The Bs filed the Petition For Adoption and
Termination of Parental Rights on June 20, 2001, four (4) months and
twenty (20) days after the incident in the Bs' home on January 28,
2001.
B. Willful Failure to Support
_ The Hs had the ability to pay child support
payments for AMH from January 28, 2001, to June 20, 2001.
_ The Hs swore, under oath, in the Petition to
Modify custody that they signed on May 3, 2000, that "circumstances
had changed" and that The Hs were "fully willing and able to properly
care and provide for AMH," yet they willfully failed to provide
support for AMH after May 3, 2000.
_ Mrs. H swore under oath on April 9, 2001, in the
Petition to Modify custody, that The Hs were "able to provide care,
support and proper supervision for AMH," yet, again, they willfully
failed to provide support for AMH before and after April 9, 2001.
_ Even though there was no child support order in
place, The Hs knew they had an obligation to provide child support for
AMH from January 28, 2001, to June 20, 2001, as evidenced by
statements made to Referee Haltom at Juvenile Court and the fact that
they provided support for their son, Andy.
_ The Hs paid no support for AMH from January 28,
2001, to June 20, 2001.

_ During the June 28, 2000, hearing before Referee
Haltom at the Juvenile Court, Mr. H told Referee Haltom that The Hs
would send $25.00 per month to China for AMH's support, if The Hs
regained custody of AMH.
_ The Hs paid someone to take their younger son,
Andy, to the Peoples Republic of China during the month of May 2001.
The Hs began sending $1,000.00 per month to China to support their
son, Andy, sometime during May 2001.
_ Sometime after sending her son, Andy, to China,
Mrs. H purchased a new computer.
_ The Hs took vacation trips to New Orleans,
Atlanta, Arizona, Ohio, and California, between June 4, 1999 and June
20, 2001. The Hs also took trips for other purposes to Atlanta and
Washington, D.C., during the same time period.
_ The Hs lived in an apartment and paid monthly
rental payments of $625.00 during the period from January 28, 2001, to
June 20, 2001.
_ The Hs used their economic resources to
accumulate and purchase non-necessary possessions and to take multiple
vacations for pleasure and several trips for other purposes, all
consistent with The Hs' agreement with the Bs that the Bs would raise
AMH until age eighteen, and evincing The Hs' intention to forego all
parental obligations and responsibilities for AMH.
C. Hes' Child Support

_ During the foster care period, February 24, 1999,
to May 23, 1999, The Hs put a sum of money, approximately $300.00, on
the Bs' couch during a visit. Mrs. H told the Bs that The Hs would
give the Bs more money for AMH's support as soon as they were
financially able. Mrs. B told The Hs that the Bs could not take the
money. The Bs were not allowed to accept money for foster children in
their care, except for the $6.00 per day that Mid-South paid the Bs
under the foster care agreement with Mid-South.
_ On June 4, 1999, when The Hs signed the Juvenile
Court Consent Order Awarding Custody, there was no mention of child
support.
_ Because of the agreement with The Hs that the Bs
were to rear AMH to age eighteen, the Bs did not expect The Hs to make
payments to support AMH, and the Bs never asked The Hs to pay child
support for AMH, after the June 4, 1999, Consent Order Awarding
Custody was entered.
_ By signing the June 4, 1999, Consent Order
Awarding Custody, The Hs intended to absolve themselves of all
parental obligations to provide support, or any other care for needs
of AMH during the AMH's minority.
_ During The Hs' approximate eighty (80) visits
with AMH, between June 4, 1999, to January 28, 2001, they occasionally
brought items for AMH. The items The Hs brought to AMH were
children's books, food items (pears, apricots, watermelon seeds,
Jello, baby food, porridge, and a whole, bone-in fish), articles of
used clothing, a stuffed animal, a box of diapers, an inexpensive
necklace, and a small Sesame Street suitcase. All of these items
were of insubstantial economic value and amounted to token support.
_ The Hs provision of only token support for AMH
from June 4, 1999 to January 28, 2001, was consistent with The Hs'
intent to absolve themselves of all parental responsibilities to AMH.

D. Willful Failure to Visit
_ The Hs did not attempt to otherwise call, write,
or make any other attempt to contact the Bs about visiting AMH, or to
inquire about AMH's well-being from January 29, 2001, to June 20,
2001.
_ The Hs willfully failed to visit AMH from January
29, 2001, to June 20, 2001.
_ The Hs testified that they did not visit AMH
after January 28, 2001, because they feared for their personal safety
if they returned to the Bs home for a visit. The Court finds The Hs
testimony to be lacking in credibility.
_ After January 28, 2001, The Hs willfully made the
decision not to visit AMH.
_ Between January 28, 2001, and June 20, 2001, The
Hs never visited AMH and never made a request to the Bs to visit AMH.
_ The Hs right to visit AMH was never restricted by
any court until February 8, 2002, when this Court entered an order
prohibiting The Hs from attempting "to have any contact, direct or
indirect, in person, or otherwise, with AMH," until further order of
the Court. The Court entered the February 8, 2002, "no-contact"
order because, on February 7, 2002, the Court had ordered The Hs to
deliver AMH's passport to the Clerk & Master by 4:00 P.M. that day.
At 4:00 P.M. on February 7, 2002, The Hs' counsel telephoned the Court
and advised the Court that The Hs had no intention of complying with
the Court's order, and the Court then entered the "no-contact" order
the next day.
_ The Bs were willing to allow The Hs to have
visits with AMH after the January 28, 2001, disturbance in the Bs'
home, but The Hs never contacted the Bs and requested any visitation
with AMH.

_ Immediately after the January 28, 2001,
disturbance, the Bs decided that all future visits by The Hs would
have to be arranged at a location other than the Bs' home because of
the August 1, 2000, and January 28, 2001, disturbances.
_ Immediately after January 28, 2001, in
furtherance of the necessity to arrange future visitations at a site
other than the Bs' home, Mrs. B telephoned the Exchange Club Family
Center to inquire about its ability to provide visitation services and
facilities for any future visits with AMH by The Hs.
_ The Bs were willing to allow The Hs to have
visits with AMH, through the facilities of the Exchange Club Family
Center, even after Mrs. H signed her second Petition to Modify
custody.
_ The only contact The Hs made with the Bs after
January 28, 2001, occurred on April 2, 2001. On that date, Mrs. H
called the Bs' home and left the following message on the Bs'
telephone answering machine: "Come to my home and get your baby bed,
we are moving, thank you, bye bye."
_ The Bs did not respond to Mrs. H's April 2, 2001,
telephone call because Mrs. H did not say anything about AMH or about
wanting to visit AMH. The Bs did not go to The Hs apartment after
Mrs. H's April 2, 2001, telephone call.
_ The INS contacted Mr. H about The Hs' immigration
status in March, April, or May, 2001.

_ Mrs. H signed a second Petition to Modify the
Consent Order Awarding Custody on April 9, 2001, that was subsequently
filed in Juvenile Court on May 29, 2001. The Court notes that Mrs. H
did not request visitation with AMH when she filed the petition to
modify custody. It is well-settled that a parent may always petition
to have visitation reinstated upon a showing of changed
circumstances.[4] Mrs. Hs' willful failure to seek reinstatement of
visitation with AMH demonstrates that her goal in filing the Petition
to Modify to regain custody was for the sole purpose of remaining in
the United States and avoiding deportation. Mrs. Hs' failure to ask
the Court to reinstate visitation with AMH, when she could have easily
done so, evinces Mrs. Hs' willful abandonment of AMH.[5]
_ The Bs filed the Petition For Adoption and to
Terminate Parental Rights in this Court on June 20, 2001, and on June
22, 2001, the Juvenile Court for Memphis and Shelby County, Tennessee
deferred to this Court's jurisdiction pursuant to Tennessee Code
Annotated
§ 36-1-116(f)(2), and Mrs. H's May 29, 2001, Petition to Modify was
transferred to, and assumed by, this Court.
E. Hes' Visitation from June 4, 1999 to January 28, 2001
_ The Hs visitation and contact with AMH has been
subject to the Bs' discretion since the June 4, 1999, Consent Order
Awarding Custody of AMH to the Bs.
_ The Bs did not obstruct, inhibit, discourage, or
otherwise interfere with any reasonable desire on the part of either
Mr. or Mrs. H to visit AMH.

_ Between June 4, 1999, and January 28, 2001,
either Mr. or Mrs. H, or both, visited AMH in the Bs' home,
approximately eighty (80) times. The Hs visited AMH, on average,
approximately once per week. There were some occasions when The Hs
would go two weeks or longer between visits with AMH. The average
time of each visit was approximately one (1) hour, with the shortest
visit lasting approximately thirty (30) minutes and the longest visit
lasting approximately two (2) hours. The approximately eighty (80)
hours of time that The Hs have visited with AMH, from June 5, 1999, to
January 28, 2001, amount to a total of less than four (4) days of
AMH's life.
_ The visitation by either Mr. H or Mrs. H, or
both, from June 4, 1999, to January 28, 2001, was insignificant,
token visitation.
_ Mr. or Mrs. H, or both, missed several scheduled
visits with AMH and sometimes did not call the Bs to notify them that
they would be unable to appear for the visits.
_ Mr. or Mrs. H, or both, were sometimes late for
scheduled visits with AMH, without notifying the Bs that The Hs would
be late.
_ The Bs allowed The Hs to make up missed visits
with AMH, even when The Hs had failed to call the Bs to advise them
that The Hs would not appear for a scheduled visit.
_ , The Bs would sometimes schedule visits with AMH
for The Hs at times that were not convenient for the Bs' schedule.
_ Mr. H interacted very little with AMH during the
visits. In fact, he spent most of his time during the visits talking
to Mr. B.
_ Although Mr. Weaver explained to the Bs their
right to file a petition to adopt and to terminate parental rights in
May 2000, the Bs decided against filing such a petition. The Bs did
not discontinue, or attempt to discontinue, The Hs' visitation while
The Hs' Petition to Modify custody, signed on May 3, 2000, and filed
in Juvenile Court on June 19, 2000, was pending. The Hs visits with
AMH in the Bs' home also continued uninterrupted, even after The Hs'
Petition to Modify custody was dismissed by the Juvenile Court on June
28, 2000.

_ During the months of July and August 2000, Mr. H
visited AMH in the Bs' home only two (2) times because he was
temporarily working in the Atlanta, Georgia, area. The Bs offered Mr.
H the opportunity to visit AMH during this period of time, when he
would periodically return to Memphis, but Mr. H told the Bs that he
was too busy to schedule a visit with AMH.
_ The Bs put reasonable restrictions on The Hs'
visits after the August 1, 2000, disturbance, when Mrs. H refused to
leave the Bs' home until the police came and ordered Mrs. H to leave.
F. Child Support Payments and Attempted Visitation After June 20,
2001
_ The Hs started sending the Bs checks for AMH's
support in August or September 2003. The Bs have not cashed any of
those checks.
_ The Hs first attempted to visit AMH after the
June 20, 2001, Petition for Adoption and to Terminate Parental Rights,
by filing a Motion for Immediate Visitation with this Court on
February 20, 2002.
_ The Hs' attempts to pay support and to visit
after June 20, 2001, were attempts to repent from, or rectify The Hs'
willful failure to support or to visit AMH for four (4) consecutive
months before the filing of the Petition to Terminate Parental Rights.

VI. SETTLED PURPOSE TO FOREGO ALL PARENTAL RIGHTS

_ Although the "settled purpose doctrine" was
repealed legislatively in 1996 and no longer has any force or effect
as law in Tennessee, a review of the evidence in this cause
establishes that the actions of The Hs evince a settled purpose to
forego all parental rights and responsibilities.
_ From June 4, 1999, through June 20, 2001, The Hs'
visits with AMH were so sporadic, and of such short duration, that it
evinced a desire to forego their parental responsibilities to AMH, and
it was in conformity with The Hs' agreement that the Bs would raise
AMH until age eighteen.
_ From June 4, 1999, through June 20, 2001, the
frequency and duration of The Hs visits with AMH evinced their
intention to have only enough contact with AMH to serve The Hs' stated
objective to avoid deportation.
_ On or about the times that The Hs filed a
petition to modify custody, Mr. H had been contacted by the INS
regarding The Hs' illegal alien status.
_ The United States Immigration officials have
suspended The Hs' deportation proceedings until this cause is
concluded.
_ The Hs failure to provide more than token support
for AMH from June 4, 1999 through January 28, 2001, evinced The Hs'
intent to relegate all responsibility for AMH's care and support to
the Bs, consistent with The Hs' agreement that the Bs would raise AMH
to age eighteen (18).

VII. BEST INTEREST FACTORS

_ Dr. David Goldstein performed a psychological
evaluation of AMH over a period of seven months, from January 21,
2002, to July 2, 2002. After reviewing Dr. Goldstein's report, his
trial testimony, and the entire record in this cause, the Court finds,
due to AMH's highly organized manner, AMH is not good at adaptability
and is easily upset by changes. Permanently removing AMH from AMH's
present environment may cause lasting harm from the loss of AMH's
psychological parents, the Bs. AMH has a powerful parent-child bond
with the Bs, which was developed during the first three (3) years of
AMH's life, which is considered a critical period for the building of
such attachments. Because of this strong bond, if AMH is separated
from the Bs, AMH may experience intense separation anxiety or a grief
reaction akin to depression. This reaction may disrupt AMH's
emotional, educational, and social development. The long-term risks
of removing AMH from the Bs' home include increased vulnerabilities to
anxiety, mood disorders in adolescence and adulthood, reduced stress
tolerances, and disturbances in future intimate relationships. These
risks would not dissipate even if The Hs were able to provide a stable
home for AMH after AMH's removal from the Bs' home.
_ AMH's transcultural placement with the Bs also
has risks, including AMH's possible questioning of AMHs' identity,
origins, and the motives of AMH's biological parents. Another risk
that is inherent in any adoption is the risk that the adopted child
will develop feelings of abandonment as the child grows older, if the
parental rights of the biological parents are terminated. Such risks
can be mitigated so long as the Bs are sensitive and responsive to
issues surrounding racial, cultural, and biological identity, and to
issues related to any feelings of abandonment AMH may at some point
develop. The Bs have demonstrated a sensitivity and responsiveness to
such issues.

_ Dr. John Hutson testified that the Bs are the
psychological parents of AMH, and that removal of AMH from the Bs
would terminate AMH's relationship with AMH's psychological parents,
which would be traumatic for AMH. Dr. Hutson testified that The Hs
are not AMH's psychological parents. Dr. Hutson testified that there
would be a breaking off of a parental relationship if The Hs told AMH
to call the Bs "mommy" and "daddy", and The Hs "Jack" and "Casey."
_ Separating AMH from the Bs would cause serious
and enduring emotional and/or psychological harm to AMH.
_ AMH has been continuously nurtured, loved, cared
for, provided for, educated and reared by the Bs, since AMH was
twenty-seven (27) days old, with every need being met to ensure AMH's
proper upbringing.
_ AMH has been in good health and has thrived while
in the Bs' care.
_ Since February 23, 1999, AMH has been lovingly
accepted by Mr. and Mrs. B, the four natural born children of the Bs,
the maternal and paternal grandparents, aunts, uncles, and cousins of
the Bs' natural born children, without distinction, the same as if AMH
had been a natural born child of the Bs.
_ AMH is in a strongly bonded, deep-seated, healthy
relationship with the B family and extended family.

_ AMH does not have a strongly bonded relationship
with Mr. and Mrs. H. The Hs had physical custody of AMH from February
8, 1999, to February 24, 1999, when The Hs gave custody to Mid-South,
a total of sixteen (16) days out of AMH's five years. Beginning with
the ninety-day foster care period, Mrs. H relinquished her parental
responsibility of caring for and nurturing AMH to Mrs. B. Mrs. H also
relinquished her parental responsibility of providing for, educating,
and rearing AMH to the Bs. During AMH's first few months of life,
when Mrs. H would visit with AMH and hold AMH in her arms, Mrs. H
would give AMH back to Mrs. B each time AMH started to cry. During
the first few years of AMH's life, Mr. H had very little contact at
all with AMH. Mr. H would spend most of his time during The Hs'
visits with AMH talking to Mr. B about other things. Mr. H
relinquished his parental responsibility of caring for and nurturing
AMH to the Bs.
_ As AMH grew older, The Hs would use food to
entice AMH to come to The Hs during their visits in the Bs home.
_ A videotape of the September 23, 2003, session in
Dr. Goldstein's office shows that AMH would continuously cling to Mrs.
B when The Hs would attempt to get AMH to come to The Hs. The Bs
tried to encourage AMH to have interaction with The Hs, but AMH was
very reluctant to approach The Hs. The Hs then used food to entice
AMH to come to The Hs, but AMH would immediately return and cling to
Mrs. B after AMH took the food from The Hs. After the Bs left the
room, AMH sat between The Hs on a sofa for a few moments before the
session concluded. On the ride home from this session, Mrs. B
reported that AMH did not want to return to Dr. Goldstein's office
again, even though AMH had not voiced any reluctance to go to Dr.
Goldstein's office before September 23, 2003.
_ AMH has a disproportionately stronger attachment
to the Bs than to The Hs because of prolonged inattention by The Hs to
AMH.
_ The Bs have performed all parental duties and
responsibilities in relation to, and for, AMH, to AMH's benefit,
faithfully and without exception, since February 23, 1999.

_ Since February 23, 1999, AMH has been in a
well-integrated, safe, stable home provided by the Bs.
_ In contrast, The Hs have not exhibited that they
would be able to provide the same safe and stable home, as evidenced
by, among other things, the lack of cleanliness of The Hs' apartment.
For example, the Bs gave The Hs a desk and a microwave cart. When Mr.
B took these items to The Hs' apartment, he saw beer cans everywhere,
a filthy kitchen, bones everywhere from food, and there was a foul
smell in the apartment.
_ The Bs are insuring that AMH is being properly
educated and introduced to peers outside the Bs' home under
circumstances that are healthy and that contribute to AMH's
well-adjusted development.
_ The Bs have not taught AMH anything negative
about The Hs, but have nurtured a positive attitude in AMH toward The
Hs and, to the extent consistent with AMH's well-being, have permitted
contact with AMH by The Hs.
_ The Bs have demonstrated the ability to properly
rear children through their care of AMH and their other natural born
children.
_ AMH has flourished while in the Bs' care. AMH's
gross and fine motor skills are advanced relative to children her age.
AMH is a curious, particular, and careful child, who has a fastidious
manner. AMH thrives on organization and routine. AMH likes people
and enjoys playing with friends, including AMH's Sunday School class
and an organized group of Chinese friends.

_ The Bs have acknowledged AMH's needs to be aware
of AMH's Chinese heritage, and they have striven to educate AMH about
that heritage. AMH is aware that AMH is Chinese, however, AMH
identifies AMH as a member of the B family.
_ AMH shares a room in the Bs' home with the Bs'
four-year-old biological child, and the two have a very close, almost
inseparable, sibling relationship. AMH also has a close relationship
with the other three B children.
_ The effect of a change of AMH's caretakers from
the Bs to The Hs is likely to have a harmful impact on AMH's emotional
and psychological condition.
_ During the first five (5) years of AMH's life,
AMH has developed a strong psychological and emotional attachment to
the Bs. Any harm to AMH from a transcultural placement or from
terminating any further contact with The Hs, is substantially
outweighed by the likely harm to AMH due to removal from caretakers
with whom AMH has such a strong psychological and emotional
attachment.
_ In contrast to the Bs, The Hs have continually
placed their needs and desires above those of AMH. Although The Hs
have had financial means they have, at best, paid only token support.
They have utilized their resources on themselves and allowed for the
Bs to provide for the care of their biological child. They have made
both value and life-style choices that are inconsistent with caring,
concerned, loving parents. It is obvious to the Court that The Hs
want AMH when it is both beneficial and convenient for them, but not
when it imposes any degree of hardship or inconvenience to them.
_ There is no credible proof in the record to
determine the employment prospects or the living conditions that The
Hs would have in the Peoples Republic of China.

_ There is a "one-child-per-family" policy in the
Peoples Republic of China. Families with more than one child are
subject to financial penalties and/or the loss of government services
and benefits, including medical care and educational benefits.
_ If The Hs return to the Peoples Republic of China
to live, they will be outside the jurisdiction of this Court.
_ Mr. H fears returning AMH to the Peoples Republic
of China because the death rate for children of AMH's gender is fifty
(50%) percent in that country.
_ The evidence shows Mr. H to be a person of
questionable character. By his own admission, he is dishonest. The
evidence shows that he has acted in a manipulative manner, and that he
has little hesitation to violate societal rules, regulations, laws, or
court orders if he disagrees with them. Mr. H has demonstrated a
pattern of conducting his affairs and his life by an
end-justifies-the-means philosophy, and that Mr. H, alone, decides
what ends justify what means. The evidence further shows that Mr. H
has acted in an unstable manner in the past, and as a person whose
future conduct, in relation to AMH, cannot be predicted.
_ The evidence shows Mrs. H to be a person of
questionable character and unstable. The evidence shows that she is
dishonest and manipulative, and that she has little hesitation to
violate societal rules, regulations, laws, or court orders if she
disagrees with them. Mrs. H has a history of acting in an unstable
manner, as a person whose future conduct in relation to AMH is
unpredictable, and that she has acted in a manner that facilitates and
cooperates with Mr. H in his erratic, manipulative, and dishonest
behavior.

_ Mrs. H has demonstrated a pattern of engaging in
irrational and bizarre behaviors. Either she is unable to control
her irrational and erratic behavior, or she is able to control her
behavior and she deliberately chooses to engage in such behavior for
the purpose of manipulating others and getting her own way.
_ During the August 1, 2000, disturbance, Mrs. H
was on the telephone with Mr. H, screaming at Mr. H that the Bs were
"bad people, demons." Mrs. B called Mr. H later that evening to ask
how Mrs. H was doing. Mr. H told Mrs. B that Mrs. H was fine, but
that she had been very depressed, and that he felt Mrs. H might try to
commit suicide.
_ On December 10, 2001, Mrs. H threatened the
alleged victim of Mr. H's assault in Criminal Court, and Judge
Blackett admonished Mrs. H for her conduct.
_ In a hearing before the Court in February 2002,
after the Court ordered Mrs. H to deliver AMH's passport to the Court,
Mrs. H refused the order, held her hands over her head, and said,
"take me to jail, take me to jail."
_ On or about December 1, 2003, Mr. and Mrs. H
approached AMH at a Wal-Mart store, in direct violation of the Court's
order prohibiting contact between The Hs and AMH. Mrs. H assaulted
the Bs' teenage daughter, Hope, in an attempt to forcibly take AMH
from the care and custody of the Bs' teenage daughter and leave the
Wal-Mart premises.
_ While Mrs. H was attempting forcibly to take AMH
from the Bs' daughter, Mr. H falsely represented to a Wal-Mart
supervisor that the Bs' daughter had forcibly taken AMH from The Hs,
and that Mrs. H was merely attempting to regain custody of AMH from
the Bs' daughter.

_ The Hs have demonstrated a pattern of falsely
accusing persons who fail to act according to The Hs' requests,
demands, or desires. The Hs have shown a propensity to falsely accuse
others of bias, prejudice, unethical conduct, or intentionally lying
when others do not do what The Hs want them to do, say what The Hs
want them to say, or when others say or do things that The Hs disagree
with. The Hs also have shown a propensity to falsely accuse persons
who oppose The Hs, or disagree with them in any way, of being part of
a conspiracy to harm The Hs.
_ The Hs have falsely accused Ms. Mullins, Dr.
Goldstein, Ms. Cloud, Ms. Chunn, Mid-South Christian Services, Kathryn
Story, the Bs, and counsel for the Bs of having been involved in a
conspiracy against The Hs to deprive them of regaining custody of AMH.
_ The questionable character and personality of
both Mr. and Mrs. H poses a threat to AMH's well-being if AMH's
custody is returned to The Hs.
_ When asked by Jeni DiPrizio, a television
reporter, on February 7, 2002, whether Mr. and Mrs. H intended to
deliver AMH's passport to the Clerk and Master, as ordered by the
Court, Mr. H asked Ms. DiPrizio whether turning the passport in, or
not, would make the best news story. This statement by Mr. H is one
example of Mr. H's willingness to use any means, including
manipulative publicity, to accomplish his goals, even when ordered by
a court to refrain from doing so, rather than to act in AMH's best
interests, by obeying court orders and pursuing his claims through the
legal system.

VIII. CONCLUSIONS OF LAW
Although the Fourteenth Amendment of the United States Constitution,
and Article One,
Section Eight of the Tennessee Constitution grant biological parents
constitutional rights which

must be guarded and protected, the same constitutional provisions
grant minor children
constitutional rights which must be guarded and protected. Tennessee
Code Annotated
§ 36-1-101(d) also recognizes the rights of minor children:
In all cases, when the best interests of the child and those of the
adults are in
conflict, such conflict shall always be resolved to favor the rights
and the best
interests of the child, which interests are hereby recognized as
constitutionally
protected and, to that end, this part shall be liberally construed.

A minor child has the right to be reared by parents who
are not unfit, that is, parents who do
not abandon the child by willfully failing to support or visit the
child. A minor child of tender years
has the right not to be removed from guardians with whom the minor
child has developed a strong
psychological and emotional attachment, when removal would cause
substantial harm to the child.
A minor child also has the right not to be removed from guardians who
have provided a safe,
stable, healthy, loving environment for the child for such a length of
time that removal would cause
substantial harm to the child. The Court must attempt to balance the
constitutional rights of both
the parents and the child when these rights are in conflict with each
other.
The Due Process Clause of the Fourteenth Amendment to the U.S.
Constitution provides
that no State shall "deprive any person of life, liberty, or property
without due process of law."
More than 75 years ago the U.S. Supreme Court held that the "liberty"
protected by the Due
Process Clause includes the right of parents to "establish a home,
bring up children, and to control
the education of their own."[6] "The Due Process Clause of the
Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care,
custody and control of their
children."[7]

While this Court recognizes this significant parental liberty
interest, this interest is not
without limit. Parents' rights with respect to their children have
never been regarded as absolute,
but rather are limited by the existence of an actual, developed
relationship with a child, and are tied
to the presence or absence of some embodiment of family.[8] These
limitations have arisen, not
simply out of the definition of parenthood itself, but because of,
among other reasons, the child's
own interest in preserving relationships that serve the child's
welfare and protection.[9] Minor
children, as well as adults, are protected by the U.S. Constitution
and possess constitutional
rights.[10]
The United States Supreme Court, on numerous occasions, has
acknowledged that
children have constitutionally protected rights and liberties in many
circumstances.[11] To suggest
otherwise would be to suggest that, when it comes to parental rights,
children are "so much
chattel".[12] "The constitutional protection against arbitrary state
interference with parental rights
should not be extended to prevent the States from protecting children
against the arbitrary
exercise of parental authority that is not in fact motivated by an
interest in the welfare of the child."[13]
This is not to suggest that a child's liberty interest in maintaining
contact with a particular
individual is to be treated invariably as on a par with that child's
parents' contrary interests.

Substantive due process case law requires the Court to acknowledge the
strong legal presumption
that parents will act in their child's best interest.[14] Absent a
finding that the parents are unfit, such
as when the parents willfully abandon the child, the law presumes that
parental rights should not be
terminated.[15] Notwithstanding this strong legal presumption, it is
the opinion of this Court
that there may be circumstances in which a child has a stronger
interest at stake than merely the
protection from harm caused by the termination of parental rights.
This Court must consider the
impact on AMH of arbitrary parental decisions that neither serve nor
are motivated by AMH's best
interest.
A. General Conclusions of Law
_ The Court concludes that it has subject matter
and personal jurisdiction to adjudicate the issue of whether Mr. and
Mrs. Hs' parental rights should be terminated.
_ The Court concludes that it has subject matter
and personal jurisdiction to adjudicate the issue of whether the June
4, 1999, Juvenile Court Consent Order Awarding Custody of AMH should
be modified.
_ The Court concludes, by clear and convincing
evidence, that the June 4, 1999, Consent Order Awarding Custody,
entered by the Juvenile Court of Memphis and Shelby County, Tennessee,
is a valid order of a court of competent jurisdiction and has the
force and effect of appointing the Bs as legal custodians and
guardians of AMH.

_ The Court concludes, by clear and convincing
evidence, that the June 4, 1999, Consent Order Awarding Custody,
entered by the Juvenile Court of Memphis and Shelby County, Tennessee,
is not facially invalid or defective.
_ The Court concludes that The Hs and the Bs
knowingly and voluntarily signed the June 4, 1999, Consent Order
Awarding Custody in the Juvenile Court of Memphis and Shelby, County,
Tennessee.
_ The Court concludes, by clear and convincing
evidence, that by virtue of the June 4, 1999, Consent Order Awarding
Custody, the Bs were appointed, and have remained, the legal
custodians and guardians of AMH.
_ The Court concludes, by clear and convincing
evidence, that Mr. and Mrs. H waived any right to modify, amend, set
aside, or dismiss the June 4, 1999, Consent Order Awarding Custody and
making the Bs AMH's guardians by:
(1) by failing to timely file an appeal of said order;

(2) by filing the May 3, 2000, Petition to Modify custody in the
Juvenile Court, without challenging the validity of the Consent Order
Awarding Custody;

(3) by failing to timely file an appeal of the denial of the May 3,
2000, Petition to Modify custody; and

(4) by filing the May 29, 2001, Petition to Modify custody without
challenging the validity of the Consent Order Awarding Custody.

_ The Court concludes that Mr. Weaver explained to
the Bs and Mr. H that custody means the actual physical care of the
child and includes the right and responsibility to provide for the
physical, moral and emotional well-being of the child. The Court
concludes that Mr. Weaver explained the legal ramifications involved
with modifying a temporary custody order, and that there existed a
possibility that custody of AMH might not be returned to The Hs. The
Court concludes that Mr. H was made fully aware of the legal
consequences of agreeing to give the Bs temporary custody of AMH and
the legal requirements of regaining custody later.
_ The Court concludes that Mrs. H waived any right
she may have had to be advised by an attorney before she filed the
Petition for Custody and signed the Consent Order Awarding Custody in
the Juvenile Court for Memphis and Shelby County, Tennessee, by
relying on Mr. H to explain the things that attorney Kevin Weaver had
told Mr. H at the June 2, 1999, meeting.
_ The Court concludes that neither Mr. or Mrs. H
were deprived of their constitutional right of due process.

_ Ordinarily court orders involving the custody of
minor children are subject to modification, at any time, based upon a
material change in circumstances. However, in this cause, The Hs filed
a Motion Pursuant to T.R.C.P. Rule 60.02 to Set Aside Consent Order
Awarding Custody Entered June 4, 1999. In that motion The Hs
requested this Court to set aside or dismiss the June 4, 1999, Consent
Order Awarding Custody on the ground that the Consent Order is void.
The Hs claim that the Consent Order is void because Mrs. H was not
fully advised of her legal rights before she signed the Consent Order.
The Court concludes that The Hs are barred by the doctrines of res
judicata, collateral estoppel, and laches from seeking to set aside or
dismiss the June 4, 1999, Consent Order Awarding Custody and making
the Bs' AMH's guardians. Res judicata is the rule that a final
judgment rendered on the merits by a court of competent jurisdiction
is conclusive as to the rights of the parties and their privies, and,
as to them, constitutes an absolute bar to a subsequent action
involving the same claim, demand or cause of action.[16] Collateral
estoppel is the rule that when an issue of ultimate fact has been
determined by a valid judgment, that issue cannot be again litigated
between the same parties in future litigation.[17] The doctrine of
laches is based upon the maxim that equity aids the vigilant and not
those who slumber on their rights. Laches is the neglect for an
unreasonable and unexplained length of time under circumstances
permitting diligence, to do what in law, should have been done.[18]
_ The Court concludes that there is no legal
distinction between legal custody and guardianship for the purposes of
deciding the issues in this cause. The Consent Order Awarding Custody
entered by the Juvenile Court on June 4, 1999, awarded the custody and
"guardianship of the person" of AMH to the Bs. Tennessee Code
Annotated § 37-1-102 defines custody as, "the control of actual
physical care of the child and includes the right and responsibility
to provide for the physical, mental, moral and emotional well-being of
the child." This statute also provides that "custody" relates to
those rights and responsibilities that are exercised by the parents.

_ Regarding the definition of "guardian," Tennessee
Code Annotated § 37-1-102 provides that, "‘Guardian' means, for
purposes of adoptions and terminations of parental rights, the meaning
set forth in (Tennessee Code Annotated) § 36-1-102, and for all other
purposes (emphasis added), the meaning set forth in (Tennessee Code
Annotated) § 34-1-101." Tennessee Code Annotated § 34-1-101 defines
guardian as, "a person or persons appointed by the court to provide
partial or full supervision, protection and assistance or the person
or property or both of a minor." While this matter is now before the
Court on a Petition For Adoption and to Terminate Parental Rights, at
the time of entry of the Consent Order Awarding Custody in Juvenile
Court, it only involved custody, and not adoption or termination of
parental rights.
_ The Court concludes that all proceedings
concerning AMH's custody, pending in Juvenile Court on June 20, 2001,
were transferred to this Court to be adjudicated pursuant to Tennessee
Code Annotated § 36-1-116(f)(1).
_ The Court concludes that in order to terminate
the parental rights of either Mr. or Mrs. H, the ground for
termination must be a ground set forth in Tennessee Code Annotated §
36-1-113 and must be established by clear and convincing evidence as
to each such ground.
_ The Court concludes that the Court must also
determine by clear and convincing evidence whether termination of The
Hs' parental rights is in AMH's best interest.
_ The Court concludes that Tennessee law does not
permit parents to repent from, or rectify, an act or omission that,
before the date the petition to terminate parental rights was filed,
constituted a ground for termination.[19]
_ The Court concludes that the parents of a minor
child cannot be excused from willfully failing to make child support
payments by entering into a private agreement with other persons who
agree to, and who in fact, financially support the said minor child.

_ The Court concludes that Mr. and Mrs. H had a
duty to support AMH pursuant to Tennessee Code Annotated § 34-1-102.
B. Conclusions of Law on Parental Termination Grounds
_ Tennessee Code Annotated § 36-1-113(g)(1): The
Court concludes, by clear and convincing evidence, that Mr. H
knowingly and willfully abandoned AMH, by knowingly and willfully
failing to provide any child support for AMH and by knowingly and
willfully failing to visit AMH for four (4) consecutive months
immediately preceding the filing of the June 20, 2001, Petition to
Adopt and to Terminate Parental Rights.
_ Tennessee Code Annotated § 36-1-113(g)(1): The
Court concludes, by clear and convincing evidence, that Mrs. H
knowingly and willfully abandoned AMH, by knowingly and willfully
failing to provide any child support for AMH and by knowingly and
willfully failing to visit AMH for four (4) consecutive months
immediately preceding the filing of the June 20, 2001, Petition to
Adopt and to Terminate Parental Rights.
_ The Court concludes that The Hs' willful failure
to support AMH is not excused because there was no court order
requiring support,[20] nor because the Bs did not request support for
AMH from The Hs.[21]
_ Tennessee Code Annotated § 36-1-113(g)(9(A)(ii),
(iii), (iv), (v), and (vi): The Court concludes, by clear and
convincing evidence that, at the time of the filing of the Petition to
Terminate Parental Rights, SH(J) He, was not the legal parent or
guardian of AMH. The Court further concludes, by clear and convincing
evidence, that SH(J) He's parental rights should by terminated
because:

(1) Mr. H has failed, without good cause or excuse, to make reasonable
and consistent payments for the support of AMH in accordance with his
ability to pay;

(2) Mr. H has engaged in only token visitation with AMH;

(3) Mr. H has failed to manifest an ability and willingness to assume
legal and physical custody of AMH; and

(4) Placing custody of AMH in Mr. H's legal and physical custody would
pose a risk of substantial harm to the physical or psychological
welfare of the child.
_ Tennessee Code Annotated Tennessee Code Annotated
§ 36-1-113(g)(8)(B)(i) and (ii): The Court concludes that the evidence
fails to establish, by clear and convincing evidence, that Mrs. H's
mental condition is presently so impaired and is likely to remain so
that it is unlikely that Mrs. H will be able to assume or resume the
care of and responsibility for AMH in the near future.
_ Tennessee Code Annotated § 36-1-113(g)(8)(B)(i)
and(ii): The Court concludes that the evidence fails to establish, by
clear and convincing evidence, that Mr. H's mental condition is
presently so impaired and is likely to remain so that it is unlikely
that Mr. H will be able to assume or resume the care of and
responsibility for AMH in the near future.
_ Tennessee Code Annotated § 36-1-113(g)(3)(A)(i),
(ii) and (iii): The Court concludes that the provisions of this
section of the statute are inapplicable to this cause because AMH was
not removed from Mr. H's custody by State action, rather Mr. H
voluntarily relinquished custody and guardianship of AMH through a
consent order awarding custody.

_ Tennessee Code Annotated § 36-1-113(g)(3)(A)(i),
(ii) and (iii): The Court concludes that the provisions of this
section of the statute are inapplicable to this cause because AMH was
not removed from Mrs. H's custody by State action, rather Mrs. H
voluntarily relinquished custody and guardianship of AMH through a
consent order awarding custody.
C. Conclusions of Law on AMH's Best Interests
_ The Court concludes, by clear and convincing
evidence, that AMH is a minor child of tender years, who has developed
a strong psychological and emotional attachment to the Bs, and that
removal of AMH from the Bs would cause substantial harm to AMH.
_ The Court concludes, by clear and convincing
evidence, that the Bs have provided AMH a safe, stable, healthy,
loving environment for such a length of time that removal of AMH from
that environment would cause substantial harm to AMH.
_ The Court concludes, by clear and convincing
evidence, that continuation of any parent-child relationship between
AMH and either Mr. or Mrs. H greatly diminishes AMH's chances of early
integration into a safe, stable, and permanent home.
_ The Court concludes that the risks inherent in
removing AMH from AMH's present circumstances substantially outweigh
any risks posed by transcultural placement and loss of contact with
AMH's biological parents, The Hs.
_ The Court concludes, by clear and convincing
evidence, that there is parental misconduct or inability to parent by
The Hs.
_ The Court concludes, by clear and convincing
evidence, that both Mr. and Mrs. H are unfit parents, based on
abandonment of AMH by both Mr. and Mrs. H.
_ The Court concludes, by clear and convincing
evidence, that it is in AMH's best interest to terminate the parental
rights of both Mr. and Mrs. H.

_ Applying the factors in Tennessee Code Annotated
§ 36-1-113(i)(1-9) for determining whether termination of parental
rights is in the best interest of the minor child, the Court
concludes, by clear and convincing evidence, that termination of The
Hs' parental rights is in the best interest of AMH because:
(1) The Hs have failed to make such an adjustment of circumstance,
conduct, and conditions as to make it safe and in AMH's best interest
to be in The Hs' home;

(2) The Hs have failed to maintain regular, meaningful visitation and
contact with AMH;

(3) The Hs have failed to establish a meaningful relationship with AMH
due to The Hs neglect and inattentiveness;

(4) the effect of a change of caretakers and physical environment will
have a negative and detrimental impact on AMH's emotional and
psychological well-being;

(5) the physical environment of The Hs' home is unhealthy and unsafe;

(6) Mrs. Hs' emotional instability would be detrimental to AMH; and

(7) The Hs' have failed to provide anything more than token support
for AMH, despite The Hs' ability to pay such support.

Based on all of the foregoing findings of fact and conclusions of law
the Court finds that the
petition to terminate the parental rights of SH(J) He and Qin (Casey)
Luo (He) is well
taken and should be granted.
The Court finds that the petition to modify custody filed by QL (He)
in the Juvenile
Court for Memphis and Shelby County, Tennessee on May 29, 2001, is not
well taken and should
be denied and dismissed.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the Petition to
Terminate
Parental Rights be, and the same is hereby, GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the parental rights
of
SHHe and QL (He) be, and the same are hereby, TERMINATED.

IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the Petition to
Modify
custody be, and the same is hereby, DENIED and DISMISSED.
The Court finds that there is no just reason for delaying the entry of
this judgment. This
judgment is made a final judgment, pursuant to T.R.C.P. Rule 54.02.
The Court will hold the
Petition For Adoption in abeyance until the Court's decision on the
Petition to Terminate Parental
Rights and the Petition to Modify are final.


_______________________________________


Chancellor by Designation



_______________________________________
Date




CERTIFICATE OF SERVICE

This is to certify that the foregoing FINDINGS OF FACT
AND CONCLUSIONS OF LAW was served upon counsel for the parties by
placing a true and exact copy in the United States mail, postage
prepaid, addressed to: Larry Parrish, Attorney at Law, (address),
David A. Siegel, Attorney at Law, 5100 Poplar Avenue, Suite 2500,
Memphis, Tennessee 38137, Richard A. Gordon, Attorney at Law, 264
Barry Road, Memphis, Tennessee 38117, Kimbrough Mullins, Attorney at
Law, 50 North Front Street, Suite 1075 Memphis, Tennessee 38103,and
Linda Holmes, Attorney at Law, 142 N. Third Street., 3rd Floor,
Memphis, Tennessee 38103, on this the 12th day of May, 2004.
____________________________________
Deputy Clerk

[1]Hodges v. S. C. Toof Co., 833 S.W.2d 896 (Tenn. 1992).
[2]O'Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995); Wiltcher
v. Bradley, 708 S.W.2d 407 (Tenn. Ct. App. 1985), perm. app. denied,
(March 3, 1986).
[3]U.S. Const., Am. 14, § 5; TN Const., Art. 1, § 8; Hawk v. Hawk,
855 S.W.2d 573, 579 (Tenn. 1993), citing Meyer v. Nebraska, 262 U.S.
390, 399 (1923); Dawn Coppock, Coppock on Tennessee Adoption Law,
(Matthew Bender, 2003), at 46.
[4]White v. White, 2000 Tenn. App. LEXIS 259 (April 26, 2000).
[5]Dawn Coppock, Coppock on Tennessee Adoption Law, (Matthew Bender,
2003), at 35.
[6]Meyer, supra, at 399, 401.
[7]Troxel v. Granville, 530 U.S. 57, 66 (2000).
[8]Troxel, supra, at 88.
[9]Id., citing Santosky v. Kramer, 455 U.S. 745, 760 (1982).
[10]Id., at 88-89, citing Planned Parenthood of Central Mo. v.
Danforth, 428 U.S. 52, 74 (1976).
[11]Id., see Parham v. J.R., 442 U.S. 584, 600 (1979) (liberty
interest in avoiding involuntary confinement); Planned Parenthood of
Central Mo. v. Danforth, 428 U.S. 52, 74 (1976) ("Constitutional
rights do not mature and come into being magically only when one
attains the state-defined age of majority"); Tinker v. Des Moines
Independent Community School Dist., 393 U.S. 503, 506-507 (1969)
(First Amendment right to political speech); and In Re Gault, 387 U.S.
1, 13 (1967) (due process rights in criminal proceedings).
[12]Id., at 89.
[13]Id.
[14]Id., at 89-90.
[15]See Tenn. Code Ann. § 36-1-113
[16]Black's Law Dictionary (West, 1983), at 678.
[17]Id., at 136.
[18]Id., at 453.
[19]Tenn. Code Ann. § 36-1-102(1)(F) In Re D.L.B., 2002 Tenn. App.
LEXIS 575 (August 6, 2002).
[20]State v. Mainer, 1997 Tenn. App. LEXIS 755 (October 31, 1997),
perm. app. denied, (October 31, 1997).
[21]Bryant v. Bryant, 1999 Tenn. App. LEXIS 72 (February 1, 1999); In
Re Satterwhite, 2001 Tenn. App. LEXIS 257

[Drydem]

shar...@yahoo.com (Sha Ri Kou) wrote in message news:<9f851e1.04052...@posting.google.com>...

> IN THE CHANCERY COURT OF TENNESSEE
> FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS
>
> IN RE ADOPTION OF: AMH, a Minor,
>

> JERRY L. B and wife,LOUISE K. B,

> Petitioners, No. CH-01-1302-3
>
> v.
> SHJH and QCH,
> Respondents.
>
> MEMORANDUM OPINION and ORDER OF JUDGMENT
> ON PETITION TO TERMINATE PARENTAL RIGHTS
> and PETITION TO MODIFY CUSTODY

....

> III. CREDIBILITY OF OTHER WITNESSES

....
wrt to Ms Mullins the judge lavishes his praise and says...

> _ The guardian ad litem, Ms. Kimbrough Mullins, is
> a skilled attorney who has served the courts in Shelby County,
> Tennessee, as a guardian ad litem for the past fifteen (15) years.
> Ms. Mullins has served the Court, and represented and advocated AMH's
> best interests, to the best of her ability, in an exemplary manner,
> under very difficult circumstances. Ms. Mullins, in her fiduciary
> capacity to AMH and to the Court, has acted in good faith, has shown
> no bias or prejudice in the performance of her duties, but has
> steadfastly and diligently advocated for what Ms. Mullins considers to
> be in AMH's best interest, regardless of the consequences, based
> solely upon the information she gathered during her investigation.
> The Court found her to be an honest and forthright witness.

Initially I ignore this story when I first read about it.
However it came up again when offense was taken wrt to
Ms. Mullins' negative assertion about chinese culture....

Guardian Kim Mullins also testified Monday that she believes
the girl, Anna Mae, would face gender discrimination if her
birth parents are allowed to take her to China.
...
Mullins said a book titled "The Lost Daughters of China" [1]
helped convince her that Anna Mae would face gender discrimination
in China. The book details the historical and cultural
prejudices against women in China and the issue of abandoned
baby girls there. [2]

> There is no credible proof in the record to determine
> the employment prospects or the living conditions that The
> Hs would have in the Peoples Republic of China.

Actually, China's economy growing much faster than
the USA's economy the Hes might have better employment
opportunities in China than in the USA. Never before
have I heard that the U.S. government requires that
a foriegn national/alien's parental rights to be
contingent upon the employment prospects in their
home country.

>
> There is a "one-child-per-family" policy in the Peoples
> Republic of China. Families with more than one child are
> subject to financial penalties and/or the loss of
> government services and benefits, including medical care
> and educational benefits.

> If The Hs return to the Peoples Republic of China
> to live, they will be outside the jurisdiction of this Court.

> Mr. H fears returning AMH to the Peoples Republic
> of China because the death rate for children of AMH's gender
> is fifty (50%) percent in that country.

Note that the book "The Lost Daughters of China" is
critical of China's one-child-per-family policy and
apparently Ms Mullin's testimony has convinced Childers
that this PRC policy would adversely effect AMH
if she were to return to China if or when her biological
parents are deported from the USA back to China.

[1] Karin Evans, Anchee Min(Preface)
The Lost Daughters of China: Abandoned Girls,Their
Journey to America, and the Search for a Missing Past"
J.P. Tarcher. Sept 27 2001. IsBN 1585421170
http://www.enotes.com/lost-daughters
http://www.amazon.com/exec/obidos/ASIN/1585421170/qid=1085448251/sr=2-1/ref=sr_2_1/103-9027754-4886237#product-details

[2]
Court-appointed guardian in custody case says Chinese girl
should stay with American couple
WOODY BAIRD, Associated Press. Tuesday, March 2, 2004
http://www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2004/03/02/national0942EST0547.DTL