In re Adoption of AMH, No. W2004-01225-COA-R3-PT (TN 11/23/2005)

Decision Date23 November 2005
Docket NumberNo. W2004-01225-COA-R3-PT.,W2004-01225-COA-R3-PT.
PartiesIN RE: ADOPTION OF AMH, A Minor. JERRY L. BAKER and wife, LOUISE K. BAKER v. SHAO-QIANG (JACK) HE and wife, QIN (CASEY) LUO.
CourtSupreme Court of Tennessee

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

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

Larry E. Parrish, Memphis, TN, for Appellees.

Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Senior Counsel, Nashville, TN, In Defense of Challenged Tennessee Statutes.

Christina A. Zawisza, Memphis, TN, for Amicus Curiae: Childlaw Center, Vanderbilt Legal Clinic, Child Advocacy Clinic, Tennessee Alliance for Legal Services.

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

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

Alan E. Highers, J., delivered the opinion of the court, in which David R. Farmer, J., joined, and Holly M. Kirby, J., dissented.

OPINION

ALAN E. HIGHERS, JUDGE.

In this appeal, we are called upon to evaluate the trial court's decision to terminate the parental rights of the biological parents to a minor child. The biological parents are Chinese immigrants who are presently in this country illegally and are subject to deportation proceedings. Shortly after coming to the United States, the biological parents had a daughter. Facing financial difficulties at the time of their daughter's birth, the parents decided to place their daughter in the care of an adoption agency until their financial situation improved. The agency placed the child with foster parents who agreed to care for the child over an initial three month period. At the conclusion of the three month foster care period, the biological parents agreed to the entry of a consent order by the juvenile court transferring custody of the child to the foster parents. The biological parents continued to visit with their daughter at the home of the custodial non-parents approximately once each week for one hour each visit. However, they paid no child support to the custodial non-parents. The biological parents subsequently filed a petition to modify the juvenile court's custody order seeking to regain custody of their daughter, which the court denied. Thereafter, the biological parents continued to visit their daughter with the same frequency as before. On one day in particular, the biological parents asked to take their daughter for a family portrait, and the custodial non-parents refused their request. When the biological parents refused to leave the custodial non-parents' home, the police were called. After speaking with the police, the biological parents left the home and never returned to visit their daughter citing their fear of arrest. A short time after this incident, the biological parents filed a second petition to modify the juvenile court's custody order. In response, the custodial non-parents filed a petition to adopt the child and to terminate the biological parents' parental rights in the chancery court, primarily relying on the ground of abandonment. As a result, the biological parents' petition to modify the custody order was transferred to the chancery court. Following a lengthy and tortured procedural history, the chancery court held a bench trial in the matter and subsequently entered an order terminating the biological parents' parental rights. The biological parents filed a timely appeal to this Court. We affirm in part and reverse in part the decisions of the chancery court in this case. However, in light of our decisions on certain issues presented in this case, we need not remand this case to the chancery court for further proceedings.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. The Hes Enter the United States

Shao-Qiang (Jack) He ("Father") was born on July 18, 1964 in the Peoples Republic of China ("China"). From 1979 to 1985, Father pursued his bachelor's degree at a university in China. Upon completing his bachelor's degree, Father taught at a high school in Hunan, China. From 1986 to 1998, Father worked toward obtaining his master's degree from Hunan University in teaching English as a second language. After he received his master's degree, the Chinese government assigned Father to teach English courses at the University of Nanjing, where he continued to teach as a tenured professor from 1990 until 1995. In March of 1995, Father came to the United States to pursue a master's degree in teaching English as a second language at Arizona State University. Father entered the United States on a student visa, and he received a full scholarship to attend Arizona State University. Father attended Arizona State University from 1995 until 1997, and he returned to the university in 2000 to defend his master's thesis. In August of 1997, Father enrolled at the University of Memphis to pursue a doctorate degree in economics. Father received a full scholarship to attend the University of Memphis, which included a stipend in the amount of $1,050.00 each month for working as a teaching/research assistant for approximately twenty (20) hours each week. Father subsequently abandoned his doctoral degree and changed his course of study to pursue a master's degree in management information systems.

After coming to the United States, Father returned to China in May of 1998 to visit for approximately one month. Qin (Casey) Luo ("Mother" or, collectively with Father, "the Hes" or "Appellants") was born in China on March 21, 1968. Mother and Father never met in person prior to Father's return trip to China, but they did communicate through telephone calls and email for six to seven months prior to their first meeting. During his return trip to China in May of 1998, Mr. He met Mother in person. According to Mother, Father mailed her some material in 1998 instructing her to go to the United States Embassy in China to secure a visa, and he returned to China to assist her with securing the visa. In order to assist Mother in coming to this country, Father submitted a form to the University of Memphis indicating that he and Mother were married.1 Mother and Father indicated on their immigration documents that they were legally married in China. Mother was able to secure a visa as the wife of a student, and she entered the United States in June of 1998. In fact, the Hes were not legally married in China before Mother came to the United States, therefore, Mother has been an illegal alien since she entered the United States. In a subsequent deposition, Father testified that his intent was to get Mother into the country without ever having married her in China.

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

When she entered the United States, Mother could speak very little English. She began working as a waitress in a Chinese restaurant shortly after arriving in this country earning approximately $200 to $300 per month. In July of 1998, Father learned that Mother was pregnant. Between the time Mother entered the United States and October of 1998, the Hes' finances remained stable. On October 11, 1998, Father worked as a computer lab assistant at the University of Memphis. According to Father, another Chinese student approached him and asked for assistance with her studies. Father recounted that the student asked to borrow money, and he refused her request. On October 19, 1998, the student filed a complaint against Father with the campus police department alleging that Father sexually assaulted her. As a result of the compliant being filed, Kathryn Story ("Ms. Story"), the Associate Dean of Judicial and Ethical Programs for the University of Memphis at the time, launched an investigation. During the pendency of the investigation, Ms. Story reported that Mother came to her office toward the end of 1998 and began yelling, calling her a "racist devil." Ms. Story called the campus police, and an ambulance was summoned for Mother. Subsequent to the sexual assault complaint being filed, the University of Memphis decided to terminate Father's graduate assistantship position, resulting in the loss of his $1,050.00 monthly stipend.

After Father lost his stipend, the Hes began to experience financial difficulty. Around Thanksgiving of 1998, the Hes were shopping at a Chinese grocery store in Memphis when they encountered Father's accuser accompanied by two other men. An altercation erupted, and, as a result, Mother lost her balance and fell into a shopping cart. Mother, approximately seven months pregnant at the time, experienced vaginal bleeding and was taken to the hospital. The Hes sought legal counsel to file a lawsuit for the incident in the grocery store, but they never pursued the litigation to a conclusion. As the birth of their child grew nearer, the Hes considered placing the child for adoption. In November or December of 1998, the Hes approached Mid-South Christian Services ("Mid-South"), a licensed child placement agency providing adoption and foster care services, seeking assistance. The Hes met with Dianne Chunn ("Ms. Chunn"), a birth-parent counselor with Mid-South.

As a birth-parent counselor, Ms. Chunn counseled the Hes on their decision to parent their child or place the child for adoption. Ms. Chunn opened a birth-parent file on the Hes on December 1, 1998, which included her notes from conversations with the Hes. In her discussions with the Hes, they represented themselves as a married couple, but Ms. Chunn did not request to see their marriage license. In fact, the Hes completed a "Pregnancy Counseling Status Sheet" representing that they were married even though they were not legally married at the time....

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