January 25, 2007
Case Law Development: Tennessee Court Orders that Daughter Be Returned to Chinese Parents after Seven Years in Custody of Foster Parents
The Tennessee Supreme Court has ruled in the case of Anna Mae He (see Nov. 27, 2005 Family Law Prof post) reversing the termination of the parental rights of the Chinese couple who seven years ago had given their daughter to a couple in Tennessee for foster care. The trial court had predicated the termination on the ground that the parents abandoned A.M.H. by willfully failing to visit her for four months. The Tennessee Supreme Court held that, "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, ...the trial court erred in finding a willful failure to visit..... 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." The Court remanded for determination of a reunification plan.
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