SUMMARY OF ARGUMENT

The Appellate Court reversed the trial court’s finding that the Hes willfully failed to support A.M.H.

On the issue of willful failure to visit, the Appellate Court (Majority) performed several tests for the period of four months preceding the Bakers’ petition to terminate Hes’ parental rights. The Majority held that

1.        The Hes made no attempt to visit. In particular, the Majority found that Hes’ complaints with the Juvenile Court on visitation and subsequent custody petition on April 9, 2001 (two months before the Bakers filed for termination of Hes’ parental rights) was solely for the purpose of remaining in the U.S.

2.        The Hes had no excuse not to visit. The Majority ruled that on January 28, 2001 the police only told the Hes not to come back the Bakers’ home on that day. The Majority also ruled that the Hes were not intimidated by authorities.

3.        Although the Hes did not have the knowledge of the statutory duty to visit A.M.H., such lack of knowledge is “merely ‘a factor in determining willfulness’”. Using a dictionary definition of “factor”, the Majority concluded that a “factor” is not a necessary component.

4.        Although there was a lack of notice, because the Bakers are private individuals, the Fourteenth Amendment does not apply.

5.        It is to the best interest of A.M.H to terminate Hes’ parental rights.

In this brief, Amicus will show the above analysis and conclusions by the Majority erroneous. Amicus will argue that

l        The Baker could not establish a location where the Hes could have possibly visited A.M.H during the four months prior to Baker’s petition to terminate Hes’ parental rights.

l        The Hes knew that having custody of A.M.H. could not avoid deportation when they filed the April 9^th, 2001 petition for custody.

l        Hes’ seeking assistance from the Juvenile Court on visitation and subsequent petition to regain custody were genuine attempts to restore visitation and regain custody of A.M.H.

l        Prior to the Bakers petition to terminate Hes’ parental rights, the Hes followed Bakers’ rules and police instructions without exception.

l        The Bakers’ and the police testimonies that the Hes could return to the Bakers home in the night of January 28, 2001 were not clear and convincing evidence.

l        Knowledge of the Tennessee statutory requirement to visit is a necessary component in determining willful failure to visit.

l        The termination of parental rights is a state action carried out by the judicial branch of the government, the Fourteenth Amendment applies. For abandonment cases, the Court must find by clear and convincing evidence that the parents whose parental rights are to be terminated had full knowledge of the particular Tennessee statute that may lead to termination of their parental rights.

l        The Majority’s read of the dictionary definition of the word “factor” was a misinterpretation.

l        A.M.H’s lack of attachment to the Hes were due to the Bakers’ hindrance of Hes’ attempt to establish a relationship with A.M.H and Courts’ unjust treatment of the Hes. The only way to remedy the situation is to return A.M.H to her parents.