IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
October 4, 2006 Session Heard at Nashville
IN RE ADOPTION OF A.M.H.
Appeal by Permission from the Court of Appeals, Western Section
Chancery Court for Shelby County
No. CH-01-1302-III Robert L. Childers, Chancellor by Designation
No. W2004-01225-SC-R11-PT - Filed on January 23, 2007
This case concerns the termination of parental rights. The appellants, who are the parents, seek
reversal of the termination of their parental rights to the care and custody of their daughter, A.M.H.
The trial court predicated the termination on the ground that the parents abandoned A.M.H. by
willfully failing to visit her for four months. First, we hold that the statute of repose under section
36-1-113(q) of the Tennessee Code Annotated does not deprive this Court of jurisdiction to review
the termination of parental rights. Second, because the undisputed evidence shows that there was
animosity between the parties and that the parents were actively pursuing custody of A.M.H. through
legal proceedings during the four-month period immediately preceding the filing of the petition for
termination of parental rights, we hold that the trial court erred in finding a willful failure to visit.
Finally, we conclude that the parents’ consent to transfer custody and guardianship of A.M.H. to the
appellees was not made with knowledge of the consequences of the transfer. Therefore, according
the parents those superior rights to the custody of their child that constitutional law mandates, only
a showing of substantial harm that threatens the child’s welfare may deprive the parents of the care
and custody of A.M.H. Although A.M.H. has now been with the appellees for more than seven
years, six of those years elapsed after the parents’ first unsuccessful legal filing to regain custody.
Evidence that A.M.H. will be harmed from a change in custody because she has lived and bonded
with the Bakers during the pendency of the litigation does not constitute the substantial harm
required to prevent the parents from regaining custody. For the reasons discussed below, the
judgment of the Court of Appeals is reversed, and this case is remanded to the chancery court to be
expeditiously transferred to the Juvenile Court of Shelby County for the entry of an order that
implements a plan to reunite A.M.H. with her natural parents.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed;
Case Remanded
WILLIAM M. BARKER, C.J., delivered the opinion of the court, in which JANICE M. HOLDER ,
CORNELIA A. CLARK , and GARY R. WADE, JJ., and ADOLPHO A. BIRCH , JR., SP.J., joined.
David A. Siegel, Memphis, Tennessee, for the appellant, Shao-Qiang (“Jack”) He.
Richard A. Gordon, Memphis, Tennessee, for the appellant, Qin (“Casey”) Luo.
Larry E. Parrish, Memphis, Tennessee, for the appellees, Jerry L. Baker and Louise K. Baker.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; and Douglas
Earl Dimond, Senior Counsel, Nashville, Tennessee, for the appellee, State of Tennessee.
Christina A. Zawisza, Memphis, Tennessee, for the amici curiae, University of Memphis Child
Advocacy Clinic, Loyola University Childlaw Center, Vanderbilt University Legal Clinic, and
Tennessee Alliance for Legal Services.
Linda L. Holmes, Memphis, Tennessee, for guardian ad litem, Kimbrough Mullins.
OPINION
Facts and Procedural History
The parents of A.M.H. are citizens of China. Prior to the child’s birth, her father,
Shao-Qiang (“Jack”) He, was a tenured college professor in China. He moved to the United States
on a student visa in 1995 to attend Arizona State University. In 1997, he enrolled in an economics
doctorate program at the University of Memphis and was awarded a scholarship and a graduate
assistant position with a stipend. The mother of A.M.H., Qin (“Casey”) Luo, although unmarried,
obtained a visa as the father’s wife. The mother arrived in the United States on June 30, 1998; the
parents did not marry immediately. The mother speaks little English and has used an interpreter
throughout these proceedings.
The mother became pregnant in July of 1998. Soon after, a student at the University of
Memphis filed a complaint with the university alleging that the father had attempted to rape her.
Although the father consistently denied the allegations and was eventually acquitted by a jury, this
charge had severe consequences. Because of the charge, the father was terminated from his graduate
assistant position in October of 1998. With no job or stipend, the parents had very little income and
no health insurance; in late 1998, they decided to meet with a birth-parent counselor at Mid-South
Christian Services (hereinafter “Mid-South”). At the trial of this termination petition, the birth-
parent counselor from Mid-South testified that the parents initially expressed a desire that their
unborn child be adopted by a financially stable family. The father testified that the parents were
seeking social services when they went to Mid-South and did not ask to place their child for
adoption. This is consistent with the testimony of the Mid-South counselor, who testified that she
discussed with the parents placing A.M.H. in foster care through the Tennessee Department of
Children’s Services but advised against this option because of the potential “risks” and “difficulties.”
The Mid-South counselor testified that she told the parents, “once the child went into the care of the
State, the child could be there for a long time” because “there are certain things that have to be in
place before [the Department of Children’s Services] returns the child to the biological parents.” The
father further testified that the parents agreed to consider adoption as an option at the counselor’s
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suggestion. On December 1, 1998, the parents met with a couple interested in adopting a child
through Mid-South.
On January 28, 1999, A.M.H. was born. Shortly after the birth, the mother told the
Mid-South counselor that A.M.H. was not to be placed for adoption. The hospital records verify that
A.M.H. was not to be placed for adoption. Instead, the parents desired help with the care of their
child for six to twelve months while they tried to regain financial stability. Consequently, on
February 24, 1999, when A.M.H. was four weeks old, the parents went to juvenile court and
explained that they could not afford to care for A.M.H. and wanted temporary foster care. Rather
than contacting the Department of Children’s Services, the juvenile court officer telephoned
Mid-South, which agreed to provide three months of foster care for A.M.H. That same day, the
parents entered into an “interim care agreement” with Mid-South that specifically stated that the
agreement did not terminate parental rights. A.M.H. was placed in the foster care home of the
appellees, Jerry L. Baker and Louise K. Baker, the couple now seeking the termination of parental
rights and the adoption of A.M.H. The parents of A.M.H. and the Bakers orally agreed that the
parents could visit A.M.H. once a week. The father of A.M.H. testified to the following:
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.
After placing A.M.H. with the Bakers, the parents visited her regularly in the Bakers’ home,
consistently bringing food and gifts and taking photographs at every visit. On one occasion, the
parents were allowed to take A.M.H. out of the Bakers’ home for the day. The father had obtained
a part-time job with the University of Memphis, and, despite the absence of an order requiring the
parents to provide child support to Mid-South or the Bakers, the parents attempted to give the Bakers
$300 in cash for the care of A.M.H.; the Bakers would not accept the money. In April of 1999, the
father was arrested on the attempted rape charge. Although the father was released the next day, he
was fired from his part-time job with the university, which he had obtained after losing his graduate
assistant position. After the father’s firing, the parents were living on the approximate $400 a month
that the mother earned as a waitress.
Because their financial condition was not improving, the parents decided to send A.M.H. to
China to have relatives care for her temporarily. The father testified that in May of 1999, Mr. Baker
told the father that it was a bad idea to send A.M.H. to China and that the Bakers would keep A.M.H.
until the father graduated from the university. The Bakers testified that the father asked them to
adopt A.M.H., but the mother opposed the adoption. In a meeting at the Bakers’ home, the Bakers
told the father that they were unwilling to keep A.M.H. as long-term foster parents but wanted to
adopt her. According to the Bakers’ testimony, because the parents of A.M.H. would not agree to
an adoption, they entered into an oral agreement after the father of A.M.H. led them in prayer and
the parties discussed the issue. Under the oral agreement, the Bakers would raise A.M.H. until she
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was eighteen, and the parents of A.M.H. would retain their parental rights. The Mid-South counselor
testified that, in a meeting with Mid-South's attorney and the Bakers on May 19, 1999, the father of
A.M.H. stated that the mother and he wanted to continue the custody arrangement but maintain their
parental rights. The Bakers then pursued a legal change of custody.
On June 2, 1999, the father of A.M.H., the Bakers, the Mid-South counselor, and
Mid-South’s attorney met to explain to the father the legal effect of granting the Bakers temporary
custody. According to Mrs. Baker’s testimony, the father was told by the attorney “that this could
go for one year or it could go for 18 years.” Mid-South’s attorney testified that he informed the
parents that by giving up custody, “unless everybody consents to give the custody back . . . anybody
that gives up even temporary custody takes a risk that . . . the court may not give custody back.” He
further testified:
And I’m sure I would have given some hypotheticals about what some of those
reasons [for not returning custody to the parents] might be; you know, that if the
couple that wanted custody back [engaged in] drug use or alcohol use or some kind
of abuse or not having a place for the child to live or not – you know, those sort of
things could prevent you from getting custody back.
On June 4, 1999, Mid-South’s attorney went with the Bakers and the parents of A.M.H. to
the Juvenile Court of Shelby County to obtain a consent order transferring custody of A.M.H. to the
Bakers. A juvenile court officer drafted the “Petition for Custody” and a “Consent Order Awarding
Custody.” The consent order does not mention child support or visitation. A juvenile court
interpreter, the juvenile court officer, and Mid-South’s attorney spoke with the mother privately
before she signed the order; the mother was told that the order would enable the Bakers to obtain
health insurance for A.M.H. The juvenile court officer who drafted the consent order testified that
the mother was very concerned that the arrangement be temporary and that the parents would
continue to have “open visitation” with A.M.H. through the duration of the Bakers’ custody.
Despite the mother’s concerns that the arrangement be temporary, the juvenile court officer
added a guardianship provision to the consent order so that the Bakers could obtain medical
insurance for A.M.H. Mrs. Baker stated that there was no discussion of guardianship during the
meeting between the Bakers and the parents of A.M.H. prior to the execution of the consent order
in juvenile court.
The Bakers testified that as part of the custody agreement, the parents agreed that the Bakers
would raise A.M.H. until she was eighteen years old and that the child would refer to the Bakers as
“mommy” and “daddy.” Contrary to the Bakers’ testimony, the juvenile court officer testified that
the parents were not agreeing that the Bakers could raise A.M.H. until she was eighteen years old.
Indeed, the juvenile court officer testified that the mother “was fairly adamant that at some point she
wanted her child back.” The mother testified as follows: “I was told I can get my daughter back at
any time. I asked him three or four times about that.” Finally, the juvenile court interpreter, Pastor
Kenny Yao, testified that the mother understood the agreement to be temporary and for the purpose
of obtaining medical insurance for A.M.H. An order transferring custody and awarding guardianship
was entered by consent; there was no court hearing on the matter.
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After the consent order was signed on June 4, 1999, Mrs. Baker began keeping notes after
each weekly visit by the parents. Her first entry was on June 5, 1999, when she wrote, “Gained
custody on June 4th, 1999.” She documented the date, the exact time of arrival, and the time of
departure of the parents after every visit. She documented the gifts the parents brought (such as
food, formula, diapers, and books) and the acts of the parents, noting if they were attentive to
A.M.H. or engaged in what she considered misconduct (such as giving the baby “inappropriate”
things like a small necklace). Although the notes written by Mrs. Baker characterize the father as
“pushy” and the mother as emotional, the notes generally portray the parents striving in the face of
fairly adverse conditions to maintain a relationship with their child, familiarize her with their
Chinese culture, and ensure her health and safety.
On September 20, 1999, the University of Memphis suspended the father from taking further
classes for the remainder of the academic year and required him to complete sexual abuse
counseling. Because of the suspension, the father lost his status as a student and was subject to
deportation. A university representative testified that after the suspension ended, the father returned
to school in the fall of 2000 and completed his degree requirements; however, because he owed the
university money, the father had not been awarded his degree at the time of trial.
On October 3, 1999, the parents asked the Bakers if they could take A.M.H. out for the day
on the next Sunday. The Bakers refused, and the mother began crying. Mrs. Baker’s notes for that
visit include the following:
We would like to get visits to every other week. We felt like they would wean away,
but the last 2 visits we could see Casey [the mother] is wanting to come more. If
Jack [the father] 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.
The mother, through an interpreter at the trial, described her impressions during this time period as
follows:
At [the time of the custody hearing, the Bakers] pretend to be really nice. I didn't
know it was a trap, but after I signed the documents, they tear their pretended face
. . . . In the first three months when we went and visit our daughter, they were really
nice to us. . . . When they tricked us to sign the temporary custody order, they
immediately tear their pretend face, and they picked the most inconvenient time for
us [to visit] and they tried to shrink the time [of the visits] as short as they can.
Mrs. Baker testified that she told the parents that A.M.H. could go out with the parents when she was
old enough to make a decision on whether she wanted to go out with the parents or not. The juvenile
court officer testified that during this time period, the parents contacted her several times
complaining about their visitation arrangement and expressing their desire to regain custody of
A.M.H.
In November of 1999, when A.M.H. was ten months old, the father of A.M.H. asked Mr.
Baker to return A.M.H. to the parents’ custody. Mr. Baker responded that he and Mrs. Baker did
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not want to return A.M.H. and told the father not to mention his request to Mrs. Baker because she
was pregnant. Mr. Baker also stated that he would hold the father responsible if Mrs. Baker had a
miscarriage because she was worried about the custody situation. The father testified that he felt
threatened and intimidated. The parents decided to wait for the Bakers’ child to be born before
pursuing the return of their daughter. The relationship between the parties continued to deteriorate;
nevertheless, the parents continued to visit consistently and bring gifts. On February 21, 2000, the
Bakers’ child was born. Also, during this time period, the mother of A.M.H. became pregnant with
her second child, and the father was contacted by immigration officials.
On May 3, 2000, the parents went to the Juvenile Court of Shelby County and signed a
petition alleging a change in circumstances and seeking custody of A.M.H. Mr. Baker contacted the
father and requested a meeting; they met but could not reach an agreement as to custody or
visitation. The Bakers contacted Mid-South’s attorney to represent them at the custody hearing and
to pursue the termination of the parents’ rights to A.M.H. The parents, who were still having
financial difficulties, did not have an attorney at the hearing to regain custody. At the hearing on
June 28, 2000, the Court Appointed Special Advocate submitted a report recommending that the
Bakers retain custody and the parents be allowed supervised visitation twice a week for four hours
each visit. The father told the referee that they planned to send their daughter to China to live with
relatives. After briefly questioning the father, the referee denied the petition. Upon Mid-South’s
attorney’s advice, the Bakers did not file a petition to terminate parental rights at this time.
The parents did not appeal the custody order. However, they continued to visit their daughter
at the Bakers’ home despite the increase in animosity between the parties. During that period, the
father began working in Georgia and could not attend all of the visits with A.M.H. On August 1,
2000, after the mother refused Mrs. Baker’s request that she leave one of these visits by a certain
time, the police were called. After this incident, the father quit his job in Georgia because he feared
their visitation with A.M.H. was in jeopardy. The parents asked the Bakers for a visit with A.M.H.
at a restaurant rather than at the Bakers’ home; the Bakers refused. However, after the mother of
A.M.H. gave birth to her second child on October 28, 2000, the Bakers were very helpful to the
parents of A.M.H., providing transportation and food and facilitating the parents’ care of their baby
boy.
Prior to January 28, 2001, A.M.H.’s second birthday, the parents requested to take their
daughter for a family picture; they invited the Bakers to go with them and made an appointment at
a photography studio. When the parents arrived with their son at the Bakers’ home, they were told
A.M.H. could not go because she was sick. The father testified to the following:
Number one, that was our child – our first daughter's birthday – second birthday.
That was a special day. Number two, according to Chinese culture, on birthday,
family picture together is of much significance – whole family. . . . That was such a
special day for us. We made appointment. If she was sick or if you had a doctor's
appointment, why didn’t you call me and tell me in advance, one day or two days,
so that we made a rescheduled appointment. . . . They knew my phone number. So
I was upset. I said, “Okay, today, we could not accept any more excuse.” That’s
what I said to them. . . . Jerry Baker was so – he was, oh, so upset. He was not very
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happy. . . . I said, “Today, we cannot accept any more excuses. We want the – we
want to take our daughter to the studio for family to get a picture made, period.”
That’s what I said, “Period,” and he noticed that I was very pushy, very insistent, and
he said, “you’ve got to leave here. You’ve got to leave here.” I said, “I won’t – not
today, I won’t leave here. Until we have picture made, I won’t leave here.” And
then he said, “I’m going to call the police.” I said, “Call the police. I won’t leave
here.”
The police were called, and the officer told the parents not to return to the Bakers’ house or they
would be arrested. The Bakers’ answers to interrogatories state that the parents were instructed by
the police “not to return to the home of the Bakers.” The police officer testified at trial that, even
though it was late afternoon when he arrived at the Bakers’ home, he would have told the parents
not to return “that day.” There were no further visits. On June 20, 2001, four months and five days
later, the Bakers filed a petition to terminate parental rights to A.M.H. This four-month lapse in
visitation is the ground upon which the chancery court found abandonment of A.M.H. and
terminated the parents’ rights to their daughter.
Although the parents no longer pursued a relationship with A.M.H. through visits in the
Bakers’ home, they soon contacted the juvenile court and asked for assistance in regaining custody
of A.M.H. On February 15, 2001, eighteen days after their last visit with A.M.H., the parents sent
a letter to the juvenile court and to the media setting forth the history of the case and stating that they
wanted A.M.H. returned so that they could return to China. The father testified that they went to
juvenile court twice between February and April. On April 9, 2001, the parents again went to
juvenile court; the mother was sobbing. The parents told the juvenile court officer that they did not
understand what they were doing when they signed the consent order. The court officer prepared
a petition to regain custody for the parents. The Bakers were notified of the petition on May 4,
2001.1 Mr. Baker telephoned the father, and they met. In the meeting, the father said that he wanted
his daughter to be returned and that she could visit with the Bakers twice a week. Mr. Baker told
the father that he would not agree to returning A.M.H. The father then offered to leave custody with
the Bakers if he and the mother could bring A.M.H. home one day every other week. Ultimately,
no agreement was reached.
In May of 2001, the parents of A.M.H. sent their seven-month-old son to China to live with
relatives because they feared that if the father was convicted of attempted rape, their son would be
taken from them. The parents, both of whom now worked in restaurants, sent the relatives money
every few months for their son’s care. (On December 1, 2003, the son returned from China to live
with the parents.)
On June 6, 2001, the parents appeared in juvenile court for the hearing on their custody
petition. Had the matter been heard that day as scheduled, the four-month period required for
statutory abandonment would not have run. The hearing was rescheduled, however, to accommodate
the Bakers’ attorney; understandably, the parents were very sad and disappointed. The parents
1
The petition to regain custody was not stamped as filed until May 29, 2001.
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appeared for the rescheduled hearing on June 22, 2001. The father testified, “We went there on time
– actually, we went there before eight o’clock, my wife and I. We were very eager. We went there.
We were ready to have the hearing, and we thought we could have our child back that day.”
However, two days previously (which was four months and five days after the parents’ last visit with
A.M.H.), the Bakers had filed a petition for adoption and termination of parental rights in chancery
court. Consequently, rather than hear the modification of the custody petition, the juvenile court
transferred the custody case to chancery court; the father testified, “Of course, my heart was broken.”
The chancery court did not rule on this custody petition until its final order terminating parental
rights.2
The filing of the petition for adoption and termination of parental rights by the Bakers began
chancery court proceedings that would span thirty-two months and generate a technical record
containing eleven volumes of motions, responses, and orders. The procedural history recounted in
this opinion omits much of the actual litigation. The grounds alleged in the original petition seeking
termination of the parents’ rights were the parents’ abandonment of A.M.H. by willfully failing to
visit and the parents’ abandonment of A.M.H. by willfully failing to support the child financially.
The petition was later amended to assert grounds of termination based on the father’s lack of legal
status as a parent, the parents’ mental incompetence, and the persistence of conditions preventing
the child’s reunification with the parents. The parents hired an attorney, and the Bakers continued
to be represented by Mid-South’s attorney until they hired a separate attorney in September of 2001.
A guardian ad litem was appointed; she recommended that the parents not be allowed to visit with
A.M.H. until the adoption proceedings were completed.3 Around October of 2001, the guardian ad
litem contacted Dr. David B. Goldstein, a clinical psychologist, and requested that he perform an
evaluation of A.M.H. Dr. Goldstein testified that the guardian ad litem asked him to evaluate
A.M.H. in order to address “the effects of removing a child from a well-bonded family situation and
the effects of removing a child from their culture and placing them in a different culture.” The court
then appointed Dr. Goldstein to evaluate A.M.H. and the parties.
On January 7, 2002, the parents of A.M.H. married. The father took a DNA test that
established that he was A.M.H.’s father. And during this time, the mother became pregnant with a
third child. On February 7, 2002, upon the guardian ad litem’s motion, the chancery court ordered
the parents to surrender A.M.H.’s passport to the court and, upon the Bakers’ motion, ordered the
parents to pay $15,000 to the court for the guardian ad litem’s fees, the DNA test, and the costs of
the psychological evaluations. The father testified that it was impossible for the parents to pay the
ordered $15,000 in fees, “especially after [the Bakers’ attorney] subpoenaed us and all the local
Chinese restaurants, and my wife lost her job as a waitress.” The parents did not produce the
passport. On February 8, 2002, the court entered an order (drafted by the Bakers’ attorney) to show
cause why the parents should not be found in contempt for refusing to surrender the passport. The
order also appointed the Bakers as A.M.H.’s guardians as defined in section 36-1-102(24) and (25)
2
A third petition for modification of the consent order awarding custody was filed by the parents on September
12, 2003; it was denied by the chancery court on May 12, 2004.
3
Her recommendation was based on the fact that the parents had not seen A.M.H. for six months.
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of the Tennessee Code Annotated and ordered that the parents have no contact with their daughter.
None of the witnesses could explain why the court ordered that the parents have no contact
with their daughter. It may have been intended as a means of forcing the parents to surrender
A.M.H.’s passport; however, it is also possible that the court ordered no contact upon the advice of
the guardian ad litem. The guardian ad litem testified that she did not recommend visitation because
“the status quo was that the child had not seen her biological parents in a number of months, I didn't
believe that throwing the child into something different than the status quo was necessarily in her
best interest.” The guardian ad litem continued to oppose visitation and reunification with the
parents throughout the proceedings. She believed that A.M.H. was attached to the Bakers and
considered them to be her parents, although the guardian ad litem had never seen A.M.H. with her
biological parents. She further stated that she had read a book about Chinese girls being placed in
orphanages and consequently was concerned that the parents wanted to return to China:
From the very beginning of the case, it was very clear to me that [the parents’]
intention was that if the child were returned to them, they wanted to go back to
China. They have never said anything different than that. They have always said
that when this case is over they would like to take her back. . . . I honestly can't tell
the Court today I know to an absolute certainty what kind of life she would have
there. This book that I read caused me some concerns.
The parents ultimately paid the $15,000. On February 20, 2002, the parents filed a motion
for visitation. On February 22, the court ordered the parents incarcerated for failing to surrender
A.M.H.’s passport; the parents surrendered the passport. Although there was a preliminary hearing
on the matter in March 2002, the court did not rule on the motion for visitation, stating that it
assumed there must have been a reason for the no contact order and that it was unable to decide the
issue without more evidence. At the hearing, the court expressed concern about the parents’ interest
in press coverage. The father testified:
You asked me why [we contacted the press]. Because at that time, I knew very
clearly that I could not get justice from [the judge]. I could not get it, and I was in
a desperate situation. All I could turn to for help was the media. I was trying to get
the media's attention in order to help me to get my daughter back.
In July of 2002, Dr. Goldstein submitted a report that found that A.M.H., who by this time
was three years old and had not seen her parents in over a year, considered the Bakers her
psychological parents and concluded that a child who experiences loss in early childhood is at a
greater risk of developing serious psychological disorders. On September 9, 2002, the parents of
A.M.H. had their third child, a daughter.
In February of 2003, the father of A.M.H. was acquitted by a jury of the charges stemming
from the student’s complaint of attempted rape. Several motions were filed during this time period,
and this Court specially designated a chancellor to preside over the case. On September 23, 2003,
the parents were allowed a visit with A.M.H., which was monitored by Dr. Goldstein. The video
of this session, in which the parents see their child for the first time in two-and-a-half years, shows
the love the parents have for their child; understandably, A.M.H. does not react to them as parental
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figures. On September 29, 2003, the parents filed another motion for visitation. On November 7,
2003, the parents filed a renewed motion for visitation. On December 1, 2003, the parents saw their
daughter with the Bakers’ children at a Wal-Mart. The mother said to the children, “That’s my
daughter. Give me my daughter.” The oldest Baker child grabbed A.M.H. and screamed for help;
the police were called. On January 27, 2004, the designated chancellor ruled on the motions for
visitation and ordered that the parents were to have no contact with A.M.H. until after the trial.
On February 23, 2004, almost three years after the parents filed their petition to regain
custody in juvenile court, the trial on the petition to modify the custody order and the petition for
adoption and termination of parental rights began. At the time of trial, because Mr. Baker had lost
his prior job, the Bakers were $374,829 in debt, paid $1,795 per month for rent, were liable for loan
payments on three cars, and had approximately $1,000 in their checking account. Mr. Baker testified
that he currently was earning $110,000 per year. The father of A.M.H. was earning $2,300 per
month as the manager of a restaurant; the mother of A.M.H. was staying at home with their youngest
daughter; and their son was in day care so that he could learn English.
Several psychologists testified at the trial. None of these witnesses opined that harm would
result from continued contact between A.M.H. and her parents or from expanded visitation. Dr.
Goldstein, the court-appointed expert, testified that he did not conduct evaluations of the child or the
parties (even though evaluations were ordered) and that he did not investigate the attachment
between A.M.H. and her parents prior to writing his report. On September 23, 2003, he did monitor
the videotaped session with the parents and A.M.H. Dr. Goldstein testified, “I did assume that there
was very little attachment to the [parents] based upon the information that I had and based also on
my knowledge of psychological development.” Dr. Goldstein did not bring all of his notes to the
trial. He testified that he was unable to say whether visitation should take place and unable to give
any opinion as to custody. Dr. Goldstein limited his opinion to the best interest of the child, and
even as to that topic, he would not render an opinion on whether having no further contact with her
parents would be in A.M.H.’s best interest. The chancery court found Dr. Goldstein to be “highly
qualified, highly respected . . . . Very knowledgeable, honest and a forthright witness.”
At the trial, the parents of A.M.H. introduced evidence from three psychologists and a
Chinese culture expert to refute the inference that the parents intended for the Bakers to raise
A.M.H., to refute the opinion that A.M.H. had no attachment to her parents, and to show that the
parents presented no abnormal psychological traits. The psychological experts offered by the parents
pointed out what they perceived to be flaws in Dr. Goldstein’s process and report. Dr. John Robert
Hutson testified that he had reviewed Dr. Goldstein’s deposition and report and that Dr. Goldstein
did no evaluations of the parties. Dr. Hutson opined that there should be ongoing contact between
the parents and A.M.H. Both Dr. Hutson and another psychologist, Dr. John Victor Ciocca,
reviewed the video of the parents visiting with A.M.H. and found that the child responded favorably
to the parents and the parents acted appropriately. The testimony offered by the parents was critical
of the court’s prevention of visitation with the child and of Dr. Goldstein’s failure to perform certain
evaluations. However, the court found this testimony to be “of little assistance to the court” because
Drs. Hutson and Ciocca had never personally interviewed A.M.H.
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The Chinese culture expert testified to the importance of “family” to the Chinese and the
practice among Chinese students of allowing family members to care for their children temporarily.
The chancery court found that the Chinese expert lacked credibility, despite similar testimony given
by Pastor Kenny Yao, who the court found to be honest and without bias. Pastor Yao, who served
as the mother’s interpreter on several occasions (including in juvenile court when the petition to
transfer temporary custody to the Bakers was drafted) testified as follows: “There is substantial
difference between temporary custody and adoption in the Chinese culture. Adoption is you’re
giving the parental rights of the baby . . . to someone else . . . . But temporary custody is someone
is helping to take care of the baby while you are unable to take care of the baby.” He also testified
that when the consent order was signed by the mother in juvenile court, he understood and translated
the term “temporary custody” to the parents as follows: “[C]ustody means taking care. Temporary
means not permanent.”
Additionally, the parents introduced expert testimony from Dr. Yih-Jia Chang, who spoke
fluent Mandarin Chinese. Dr. Chang performed a psychological evaluation (based on Chinese
norms) on A.M.H.’s parents. She testified that they were both within the normal range. Dr. Chang
testified that the father “may have a tendency to please others,” “tends to go along with society,” has
a tendency to “seldom show dissatisfaction with authority,” and appreciates various forms of artistic
expression. She testified that the mother’s impulse control was within the normal range and that she
had a “high energy level.” Dr. Chang’s report also states that it is a common practice in China for
a child to be placed temporarily in the care of extended family. Dr. Chang testified that she believed
the evaluations were valid because the answers were consistent with her determinations while
meeting with each parent. Dr. Chang testified that the evaluations were valid even though each
parent was left alone in the room to fill out the evaluation questions while she met with the other
parent and even though the answer sheets of both parents were left in the room. The chancery court
ruled that “the underlying facts or data relied upon by Dr. Chang in forming her opinion” regarding
the parents’ mental health “indicate a lack of trustworthiness”; accordingly, the court excluded Dr.
Chang's testimony.
Finally, the parents introduced several witnesses to counter the Bakers’ portrayal of the father
as manipulative and the mother as unreasonable and overly emotional. One of these witnesses, who
had previously adopted two Chinese children through Mid-South and for whom the mother had
worked as a babysitter, testified that the mother was very good with children and a nice person. On
cross-examination, after establishing that this witness thought highly of Mid-South, financially
supported Mid-South through donations, and knew that the Bakers would be a good placement for
a child if they had been approved by Mid-South, the Bakers’ attorney asked for the witness’s opinion
on what the outcome of the case should be. The witness stated:
I believe that [the parents] should have [A.M.H.]. I know it will cause hurt and pain
no matter what happens, and I feel for all concerned, but I do think that [the parents]
deserve to have their child back. . . . [K]nowing [the parents] from their relationship
with my children and myself, I just would find it in the child's best interest to go back
to her birth parents.
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After considering this evidence, the chancery court concluded that the parents are
manipulative and dishonest people who appeared to have no intent to raise A.M.H. but have used
the child from birth for financial gain and to avoid deportation. The chancery court found that the
parents willfully abandoned A.M.H. by failing to visit or provide support for the four months
immediately preceding the filing of the Bakers’ petition to terminate parental rights. The court
concluded that it would be in A.M.H.’s best interest to terminate parental rights and allow her to
remain with the Bakers. The chancery court also concluded that the father was not the legal father
of A.M.H. at the time that the petition to terminate parental rights was filed and terminated his
parental rights under five of the six grounds under section 36-1-113 (g)(9)(A) of the Tennessee Code
Annotated.4 The chancery court rejected all of the other grounds for termination raised by the
Bakers. Further, the chancery court ruled that the petition to modify custody filed in the juvenile
court on May 29, 2001, “is not well taken and should be denied and dismissed.” The petition for
adoption was held in abeyance.
The Court of Appeals reversed the chancery court’s ruling that the parents had abandoned
A.M.H. in willfully failing to support her; it also reversed the chancery court’s ruling that the father
was not the legal parent of A.M.H. when the termination petition was filed. However, the Court of
Appeals affirmed the termination based on the parents’ willful failure to visit their daughter for four
months and held that termination was in the best interest of A.M.H. Judge Holly M. Kirby
4
Subsection 36-1-113(g)(9)(A) provides as follows:
The parental rights of any person who . . . is not the legal parent or guardian of a child or who is
described in § 36-1-117(b) or (c) may also be terminated based upon any one (1) or more of the
following additional grounds:
(I) The person has failed, without good cause or excuse, to pay a reasonable share of prenatal, natal,
and postnatal expenses involving the birth of the child in accordance with the person's financial means
promptly upon the person's receipt of notice of the child's impending birth;
(ii) The person has failed, without good cause or excuse, to make reasonable and consistent payments
for the support of the child in accordance with the child support guidelines promulgated by the
department pursuant to § 36-5-101;
(iii) The person has failed to seek reasonable visitation with the child, and if visitation has been
granted, has failed to visit altogether, or has engaged in only token visitation, as defined in §
36-1-102(1)(C);
(iv) The person has failed to manifest an ability and willingness to assume legal and physical custody
of the child;
(v) Placing custody of the child in the person's legal and physical custody would pose a risk of
substantial harm to the physical or psychological welfare of the child; or
(vi) The person has failed to file a petition to establish paternity of the child within thirty (30) days
after notice of alleged paternity by the child's mother, or as required in § 36-2-318(j), or after making
a claim of paternity pursuant to § 36-1-117(c)(3).
Tenn. Code Ann. § 36-1-113 (2005).
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dissented, stating that she would reverse the termination of the parents’ rights to A.M.H. because the
failure to visit was not willful. The Bakers do not appeal the lower courts’ rulings on the
unsuccessful grounds for termination. Consequently, the sole ground for termination presented in
this Court is abandonment grounded on the parents’ willful failure to visit A.M.H. for a period of
four consecutive months immediately preceding the filing of the petition to terminate parental rights.
Analysis
1. Jurisdiction
The Bakers argue that this appeal should be dismissed under section 36-1-113(q) of the
Tennessee Code Annotated, a statute of repose. The statute provides as follows:
After the entry of the order terminating parental rights, no party to the proceeding,
nor anyone claiming under such party, may later question the validity of the
termination proceeding by reason of any defect or irregularity therein, jurisdictional
or otherwise, but shall be fully bound thereby, except based upon a timely appeal of
the termination order as may be allowed by law; and in no event, for any reason, shall
a termination of parental rights be overturned by any court or collaterally attacked
by any person or entity after one (1) year from the date of the entry of the final order
of termination. This provision is intended as a statute of repose.
Tenn. Code Ann. § 36-1-113 (q) (2005). The Bakers argue that this Court does not have jurisdiction
because the appeal of this matter has not been completed within one year of the entry of the chancery
court’s order terminating parental rights.
The primary rule in construing statutes is to ascertain and give effect to the intention or
purpose of the legislature as expressed in the statute. State ex rel. Rector v. Wilkes, 436 S.W.2d 425,
427 (Tenn. 1968). Unless the statute is ambiguous, legislative intent is determined “from the natural
and ordinary meaning of the statutory language within the context of the entire statute without any
forced or subtle construction that would extend or limit the statute’s meaning.” State v. Flemming,
19 S.W.3d 195, 197 (Tenn. 2000); see also Sallee v. Barrett, 171 S.W.3d 822, 828 (Tenn. 2005);
Austin v. Memphis Publ’g Co., 655 S.W.2d 146, 148-49 (Tenn. 1983). A statute is ambiguous if
the natural and ordinary meaning of the language used may be interpreted to reach contrary results,
“requir[ing] resort elsewhere to ascertain legislative intent.” Austin, 655 S.W.2d at 148; LeTellier
v. LeTellier, 40 S.W.3d 490, 498 (Tenn. 2001). Where the statutory language is not ambiguous,
however, the plain and ordinary meaning of the statute must be given effect. Calaway ex rel.
Calaway v. Schucker, 193 S.W.3d 509, 516 (Tenn. 2005).
Subsection 36-1-113(q) of the Tennessee Code Annotated is not ambiguous. The statute
plainly states that the trial court’s “order” terminating parental rights may not be challenged by a
party to the proceeding “except based upon a timely appeal of the termination order as may be
allowed by law.” Tenn. Code Ann. § 36-1-113(q) (emphasis added). Here, the parents of A.M.H.
timely appealed the order of termination; therefore, they are allowed to question the validity of the
termination proceedings. Subsection 36-1-113(q) further states that a termination order may not be
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overturned or collaterally attacked after one year from the date of the entry of “the final order.” A
judgment does not become final until “all direct appeals have been exhausted including an
application for appeal or for certiorari to the Tennessee or United States supreme court.” Cf. Tenn.
Code Ann. § 39-17-901 (5) (2003). Because the one-year limitation under subsection 36-1-113(q)
does not begin to run until the entry of a final order, we conclude the language used in the statute
does not indicate an intent to affect a parent’s ability to timely pursue a direct appeal.
Moreover, the legislature specifies that the “provision is intended as a statute of repose.” Id.
§ 36-1-113(q). A statute of repose does not limit the time for appellate courts to hear and rule on
a case that has been appealed timely;5 a statute of repose limits the time within which an action may
be filed. Calaway, 193 S.W.3d at 515; Penley v. Honda Motor Co., 31 S.W.3d 181, 184 (Tenn.
2000). Therefore, by designating subsection 36-1-113(q) “a statute of repose,” the legislature
demonstrated an intent that the statute serve as an absolute limit on the time in which a challenge
to a final order of termination may be filed, not a limit on the time for a direct appeal.
2. Standard of Review
Parties seeking to terminate parental rights must prove two elements. First, they have the
burden of proving that there exists a statutory ground for termination. Tenn. Code Ann. §
36-1-113(c)(1) (2005); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Second, they must prove
that termination of parental rights is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2)
(2005); In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). Both of these elements must be
established by clear and convincing evidence. See Tenn. Code Ann. § 36-1-113(c)(1) (2005); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
On appeal, the trial court’s findings of fact are reviewed de novo upon the record
accompanied by a presumption of correctness unless the preponderance of the evidence is otherwise.
Tenn. R. App. P. 13(d); In re F.R.R., 193 S.W.3d at 530. In weighing the preponderance of the
evidence, great weight is afforded to the trial court’s determinations of witness credibility, which
shall not be reversed absent clear and convincing evidence to the contrary. See Jones, 92 S.W.3d
at 838. Questions of law, however, are reviewed de novo with no presumption of correctness.
Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).
3. Termination of Parental Rights
The sole ground for termination presented in this appeal is the parents’ willful abandonment
of A.M.H. by failing to visit her for four months preceding the filing of the termination petition. It
is well established that both the United States and Tennessee Constitutions protect parents’ rights
5
Although the legislature has the power to enact statutes of limitation barring relief on complaints filed beyond
the limitations period, see Maestas v. Sofamor Danek Group, Inc., 33 S.W.3d 805, 809 (Tenn. 2000), it does not have
the authority to enact legislation affecting the courts’ ability to process a timely filed cause of action. Because we find
the statute does not limit judicial review of a timely appeal, we do not need to address whether limiting judicial review
of a timely filed appeal would violate due process or “‘constitute an im permissible encroachment upon the judicial
branch of government.’” See Lynch v. City of Jellico, 205 S.W.3d 384, 393 (Tenn. 2006) (quotations omitted).
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to the custody and care of their children. See Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993)
(“[P]arental rights constitute a fundamental liberty interest.”). Therefore, before a parent’s rights
to a child may be terminated by a court, “there must be a showing that the parent is unfit or that
substantial harm to the child will result if parental rights are not terminated.” In re Swanson, 2
S.W.3d 180, 188 (Tenn. 1999). By statute, the legislature has designated “abandonment” as a valid
ground for the termination of parental rights. Tenn. Code Ann. § 36-1-113(g)(1) (2005). The
applicable definition of “abandonment” is found in section 36-1-102(1) of the Tennessee Code
Annotated, which provides as follows:
(A) “Abandonment” means, for purposes of terminating the parental or guardian
rights of parent(s) or guardian(s) of a child to that child in order to make that child
available for adoption, that:
(I) For a period of four (4) consecutive months immediately preceding the
filing of a proceeding or pleading to terminate the parental rights of the parent(s) or
guardian(s) of the child who is the subject of the petition for termination of parental
rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit
or have willfully failed to support or make reasonable payments toward the support
of the child;
....
(E) For purposes of this subdivision (1), “willfully failed to visit” means the
willful failure, for a period of four (4) consecutive months, to visit or engage in more
than token visitation;
....
(G) “Abandonment” and “abandonment of an infant” do not have any other
definition except that which is set forth in this section, it being the intent of the
general assembly to establish the only grounds for abandonment by statutory
definition. Specifically, it shall not be required that a parent be shown to have
evinced a settled purpose to forego all parental rights and responsibilities in order for
a determination of abandonment to be made. Decisions of any court to the contrary
are hereby legislatively overruled.
Tenn. Code Ann. § 36-1-102(1)(A) (2001). A parent who has abandoned a child by “willfully”
failing to visit is “unfit” under constitutional standards. In re Swanson, 2 S.W.3d at 188. Therefore,
under those circumstances, termination of parental rights is appropriate. See, e.g., In re F.R.R., 193
S.W.3d at 530. Where the failure to visit is not willful, however, a failure to visit a child for four
months does not constitute abandonment. We have held that a parent who attempted to visit and
maintain relations with his child, but was thwarted by the acts of others and circumstances beyond
his control, did not willfully abandon his child. See In re Swanson, 2 S.W.3d at 189.
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Here, we are presented with a situation in which the parents of A.M.H. actively pursued legal
proceedings to regain custody of A.M.H. during the “abandonment” period but failed to visit for a
period of four consecutive months immediately prior to the filing of a petition for termination of
parental rights. As a question of law, the trial court’s ruling that the facts of this case sufficiently
support the termination ground of willful abandonment are reviewed de novo with no presumption
of correctness. Cf. In re Valentine, 79 S.W.3d at 548 (concluding that “[s]ubstantial noncompliance
is a question of law which we review de novo with no presumption of correctness.”). We hold that
the evidence in this case does not support a finding that the parents intentionally abandoned A.M.H..
Disregarding the witnesses that the trial court found to lack credibility, the record clearly
shows the following undisputed facts:
(1) On January 28, 2001, the parents visited A.M.H. in the home of the Bakers;
(2) The parents became upset when they could not take A.M.H. with them to sit for
a family portrait;
(3) The parents refused to leave A.M.H. until a police officer arrived and told them
to leave;
(4) During the subsequent four months and five days prior to the filing of the petition
for termination, the parents pursued help in regaining the custody of their child by
contacting the juvenile court and the local media;
(5) During this time, the parents initiated two juvenile court hearings on a petition to
regain custody of A.M.H.;
(6) The first hearing was thwarted by the Bakers’ request for a continuance; and
(7) The second hearing was thwarted by the Bakers’ initiation of proceedings in
chancery court.
This undisputed evidence does not support a finding that the parents’ failure to visit A.M.H. was
willful. Where, as here, the parents’ visits with their child have resulted in enmity between the
parties and where the parents redirect their efforts at maintaining a parent-child relationship to the
courts the evidence does not support a “willful failure to visit” as a ground for abandonment.6
Therefore, we hold that there has been no willful abandonment and reverse the termination of
6
Citing section 27-1-113 of the Tennessee Code Annotated, the Bakers argue that this Court must find
abandonment because it is bound by the concurrent findings of fact of the trial court and the Court of Appeals. We
conclude, however, that the statute is inapplicable to the dispositive question in this case–whether the parents’ failure
to visit constituted a willful abandonment–because that question is a question of law, not a question of fact.
Because we conclude that there are no grounds for terminating parental rights, it is unnecessary to reach the best
interest of the child analysis. See In re D.L.B., 118 S.W .3d 360, 368 (Tenn. 2003); Tenn. Code Ann. § 36-1-113(c)
(2005).
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parental rights. Accordingly, the Petition for Adoption and Termination of Parental Rights is
dismissed.7
4. Custody
When this Court reverses a lower court’s termination of parental rights in a contest between
parents and non-parents for custody, we usually remand the case to the trial court for the preparation
and implementation of a plan to return custody of the child to the parent. In this case, however, we
must first address the consent order entered by the juvenile court in June of 1999 that transferred the
custody and guardianship of A.M.H. to the Bakers. Unless we conclude that the consent order is
unenforceable, the parents of A.M.H. have no superior rights to the custody of A.M.H. The parents
argue that the consent order is unenforceable and ask that they be granted custody.
In an initial proceeding, natural parents have superior rights in relation to non-parents who
seeking custody under article I, section 8 of the Tennessee Constitution. Blair v. Badenhope, 77
S.W.3d 137, 141 (Tenn. 2002). But “absent extraordinary circumstances,” parents are not entitled
to superior rights when seeking to modify a valid order placing custody with a non-parent “even
when that order resulted from the parent’s voluntary relinquishment of custody to the non-parent.”
Id. at 143. Despite this rule, we have recognized four circumstances in which a natural parent
continues to enjoy a presumption of superior rights to custody:
(1) When no order exists that transfers custody from the natural parent;
(2) When the order transferring custody from the natural parent is accomplished by
fraud or without notice to the parent;
(3) When the order transferring custody from the natural parent is invalid on its face;
and
(4) When the natural parent cedes only temporary and informal custody to the
non-parents.
Id. Recognizing the possibility that in the informal setting of juvenile court unrepresented parents
could enter into a formal order without understanding the actual effect of transferring custody, we
have explained that it is only a parent’s “voluntary transfer of custody to a non-parent, with
knowledge of the consequences of that transfer,” that will defeat a parent’s claim to superior rights
of custody. Id. at 147 (emphasis added).
7
In addition to the question of whether the evidence supports termination under the statute, the parents of
A.M.H. present several constitutional grounds for reversal. Because this case is fully resolved on statutory grounds,
we decline to address these issues. See Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995) (“[U]nder Tennessee law,
courts do not decide constitutional questions unless resolution is absolutely necessary for determination of the case and
the rights of the parties.”).
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The evidence establishes that the parents were misled as to the consequences of a change in
custody and uninformed about the guardianship provision and, therefore, did not enter into the
agreement with knowledge of the consequences of the transfer of custody and guardianship. Even
if we only consider the testimony from witnesses that the chancery court found to be credible, the
evidence shows that the parents were instructed that the transfer of custody was temporary and that
barring inappropriate conduct by the parents, custody would be returned to the parents. Mrs. Baker
testified that, the parents were informed that the custody arrangement “could go for one year or it
could go for eighteen years.” Mid-South’s attorney testified that, he informed the father of A.M.H.
that if the Bakers did not consent to return A.M.H. to the parents’ custody, the court might not return
custody in situations such as where “the couple that wanted custody back [engaged in] drug use or
alcohol use or some kind of abuse or [did] not [have] a place for the child to live.” The juvenile
court officer who drafted the consent order testified that, the mother was told that the custody
transfer would be temporary and that the parents would have “open visitation.” The juvenile court
officer also testified that the mother asked several times for verification that the transfer would be
temporary before she would sign the consent order. The translator for the parties, Pastor Yao,
testified that the mother understood the agreement to be temporary and for the purpose of obtaining
medical insurance for A.M.H.
This evidence overwhelmingly shows that the parents’ voluntary relinquishment of custody
was entered as a temporary measure to provide health insurance for A.M.H. with the full intent that
custody would be returned. Therefore, we hold that the parents of A.M.H. did not voluntarily
transfer custody and guardianship of A.M.H. to the Bakers with knowledge of the consequences and,
therefore, are entitled to superior rights to custody. As we stated in Blair:
Where a natural parent voluntarily relinquishes custody without knowledge of the
effect of that act, then it cannot be said that these rights [to the care and custody of
one’s child] were accorded the protection demanded by the Constitution. As such,
application of the superior rights doctrine in a subsequent modification proceeding
would be justified.
Blair, 77 S.W.3d at 148 n.3. Accordingly, we hereby revoke the parental consent to the change of
custody and guardianship, and consider the competing claims of the parties, giving due deference
to the parents’ superior rights to the care and custody of A.M.H.
Under the superior rights doctrine, “a natural parent may only be deprived of custody of a
child upon a showing of substantial harm to the child.” In re Askew, 993 S.W.2d 1, 4 (Tenn. 1999).
Therefore, the determination of a custodial dispute between a parent and a non-parent rests on a
determination of whether there is substantial harm threatening a child’s welfare if the child returns
to the parents. Only then may a court find a sufficiently compelling justification for the infringement
of the parents’ fundamental right to raise a child as they see fit. See id. at 3.
Here, the only evidence of substantial harm arises from the delay caused by the protracted
litigation and the failure of the court system to protect the parent-child relationship throughout the
proceedings. Evidence that A.M.H. will be harmed from a change in custody because she has lived
and bonded with the Bakers cannot constitute the substantial harm required to prevent the parents
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from regaining custody.8 We have previously rejected the contention that when a child has been in
the custody of a non-parent for a significant period of time, a lesser standard may be applied in
determining whether parental rights may be terminated. In re Swanson, 2 S.W.3d at 188 n.13.
“Such a standard would increase the likelihood for delaying cases in order that the child remain” in
the custody of the non-parent. Id. The same reasoning applies in this situation.
Additionally, we note that the testimony concerning the general conditions in China is not
relevant to a finding of substantial harm. Financial advantage and affluent surroundings simply may
not be a consideration in determining a custody dispute between a parent and a non-parent. See
Hawk, 855 S.W.2d at 582 (“[M]ere improvement in quality of life is not a compelling state interest
and is insufficient to justify invasion of Constitutional rights.”) (internal quotation marks and citation
omitted). The evidence at trial showed that the parents have overcome many obstacles to achieve
financial stability and are ably taking care of their other two children. Given the lack of evidence
of a threat of substantial harm to A.M.H. if she is returned to her parents, we conclude that physical
custody of A.M.H. must be returned to the parents.
Conclusion
Having found that the trial court erred in terminating Shao-Qiang (“Jack”) He’s and Qin
(“Casey”) Luo’s parental rights, we dismiss the Petition for Adoption and Termination of Parental
Rights and reinstate the parental rights of Shao-Qiang (“Jack”) He and Qin (“Casey”) Luo. Further,
we revoke the parental consent to the change in custody and guardianship, vacate the juvenile court
and chancery court orders concerning visitation, and designate the current custody and guardianship
orders as temporary in nature.
The judgment of the Court of Appeals is reversed. As the reinstatement of parental rights
resolves the issues presented by the Bakers in chancery court, we remand this case to the chancery
court for the transfer of jurisdiction over the remaining issues to the Juvenile Court of Shelby County
where the modification of custody hearing originated. We direct the chancery court to complete this
transfer within twelve days of the entry of this judgment. Cf. Tenn. Code Ann. § 36-1-118(e)(4)(A)
(2005). The Juvenile Court of Shelby County is directed to consider, prepare, and implement a plan
to resolve the pending custody matter with a view toward reunification of A.M.H. with her natural
parents, Shao-Qiang (“Jack”) He and Qin (“Casey”) Luo, in a manner that minimizes trauma to the
child.
The attorney ad litem and guardian ad litem are hereby ordered relieved of any further
participation in proceedings concerning A.M.H.
The costs of this appeal are taxed to the appellees, Jerry L. Baker and Louise K. Baker, for
which execution may issue if necessary. The Clerk of this Court is directed to send a copy of this
opinion and judgment to the Juvenile Court of Shelby County.
8
However, we recognize that such evidence may be relevant to the manner of implementing the transition in
custody from the Bakers to the parents and to the possible allowance of visitation with the Bakers.
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___________________________________
WILLIAM M. BARKER, CHIEF JUSTICE
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