STATEMENT OF ISSUES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

STATEMENT OF THE CASE

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

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

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

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

Ultimately, this matter was tried from February 23, 2004 through March 2, 2004. Many of the parties’ pending motions were heard on March 22 through March 23, 2004. Closing arguments were presented on April 12, 2004. (T.R. Vol. 10, p. 1436) The Court entered its Memorandum Opinion and Order of Judgment on Petition to Terminate Parental Rights and Petition to Modify Custody on May 12, 2004, granting the petitioners’ request for termination of parental rights and denying the respondents’ request for custody. (T.R. Vol. 11, p. 1507) Respondents filed their Notice of Appeal on May 19, 2004. (T.R. Vol. 11, p. 1511) .

STATEMENT OF FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. Our desire for one.

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

A. We had thought about it.

Q. I’m sorry?

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

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

A. Bad choice of words, maybe.

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

A. We had thought about adoption.

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

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

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

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

The 90-day foster period was scheduled to end on or about May 23, 1999. In the middle of April 1999, the respondents decided to obtain a passport for AMH because they knew the 90-day foster period was about to expire and they wanted to make arrangements to send their daughter to China to live with relatives. (Mr. He, p. 1642). Louise Baker took AMH to Sears at the request of Mr. He in order to have Anna’s picture made for the passport, and, therefore, knew of the Hes’ plan to send AMH back to China. (T.R. Vol. 7, p. 1011, ¶ 78)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q. If you understood that Mr. and Ms. Baker wanted language in the consent order that said that, “We will be able to raise this child until she’s 18 years of age,” would you consider that to be consistent with what Ms. He understood on that day?

A. No.

(Sarah Cloud, p. 1253).

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

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

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

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

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

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

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

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

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

In summary- - you know, I can’t recall the word for word question- - said that because the Hes were unable to financially support the baby at that time, that some family was willing to take care of their baby on their behalf, but because of the legal procedure that necessitate to buy insurance or to administer medication or whatever to the baby by the custodian, Ms. He needs to give the authority to the custodian by signing a document. (Pastor Kenny Yau, p. 1998).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Louise Baker, p. 448).

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

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

Interference By the Bakers With Respondents’ Visitation of AMH

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

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

Jack and Casey came at 3:00. Anna played for a minute with them and then wanted us. The visit was very discouraging to us. They wanted to see if they could come and get Anna and keep her for the day next Sun. I told them No. She is too little to be away from us. Casey was very distraught, crying very loud. They left soon after. Jack kept telling us that they had friend that kept asking about her and a Dr. at Church wanted to see her. We told them she didn't need to see a Dr. and if anyone wanted to see her they could come to our home. We stood strong with this. I think Jack was just trying to please Casey. No words were exchanged. We feel like Jack will try something now. We would like to get visits to every other week. We feel like they would wean away, but the last 2 visits we could see Casey is wanting to come more.

If Jack confronts us with the visit we are going to tell him this is the way its going to be and set rules for him. He is very pushy and overbearing. They are suppose to com[e] Thurs, 8:45 AM because Jerry is going to be out of town. Jack will not come to our home without Jerry being here. (emphasis added).

(Exhibit 6).

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

Q. And isn’t it true that on that entry, you characterize that visit as discouraging because they wanted to see if they could take their daughter out for the day?

A. Absolutely

(Louise Baker, p. 449).

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

Q. Because you were controlling the situation, weren’t you?

A. We were in control of the situation.

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

A. Absolutely not.

(Louise Baker, p. 194).

Louise Baker also testified as follows:

Q. And do you recall saying that, “We stood strong with this”?

A. Well, we did. They weren’t going to take her out of our home.

(Louise Baker, p. 453).

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

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

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

(Louise Baker, p. 458).

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

Q. But your solution to that problem - - rather than give her more time like she was asking for, your solution to the problem was to recommend cutting the visits to every other week. Isn’t that right?

A. That’s correct.

Q. And you actually wrote that in your journal, didn’t you?

A. I sure did.

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

A. I most certainly did.

(Louise Baker, pp. 454-455).

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

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

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

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

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

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

Q. She was not doing it as a friend?

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

Q. Is that your statement under oath?

A. I guess, yes.

(Louise Baker, p. 464).

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

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

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

Q. And as a result - -

A. But we were not good friends.

(Louise Baker, p. 466).

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

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

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

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

A. Yes

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

A. Yes, sir.

Q. Isn’t it true that there is absolutely nothing on that entire page that would tell the reader what that current agreement is? Would you agree with that?

A. Yes.

***

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

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

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

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

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

Q. Yes.

A. Yes, sir.

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

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

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

A. Prior to them filing their motion for custody the first time, I wouldn’t- - we didn’t think that we would have a reason to term- - to submit to terminate their rights. After they had filed the motion, we realized that what they had said wasn’t going to happen. Therefore, we filed.

Q. The petition to terminate parental rights?

A. Yes, sir.

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

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

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

A. I don’t know about rescinded and all that stuff. In my mind, we had a contract, and then they decided they weren’t going to fulfill it.

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

A. Yes.

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

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

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

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

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

Q. Well, you waited more than a year to actually file that petition to terminate parental rights. So why didn’t you file the petition earlier?

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

(Jerry Baker, pp. 874-875).

On June 28, 2000, Kevin W. Weaver, Esq., appeared in Juvenile Court as counsel for the Bakers to oppose the May 3, 2000 petition filed by the Hes. During all pertinent times herein, Kevin Weaver was also the attorney for Mid-South Christian Services, and, in fact, was counsel for Mid-South at the time he counseled Mr. He and the Bakers during the conference of June 2, 1999. (T.R. Vol 7, p. 1038, 1039, ¶’s 184A, 188) On June 28, 2000, the Petition to Modify was denied in the Juvenile Court. (T.R. Vol. 7, 1039, ¶ 190). Jerry Baker was still working for Pinnfund USA on June 28, 2000. (Jerry Baker, p. 836). The order of June 28, 2000 makes no mention of child support.

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

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

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

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

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

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

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

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

A. On that day.

Q. Well, do you say “on that day”?

A. I must have left a few words out.

Q. You just happen to leave that word out?

A. Absolutely.

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

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

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

BRIEF OF APPELLANTS

STATEMENT OF FACTS