Court orders He daughter returned to parents

The Tennessee Supreme Court this morning ruled that Anna Mae He must be returned to her Chinese parents. The girl, who is now 8 years old, was adopted by a Bartlett couple after the biological parents asked them to raise her. The He family later sought to regain custody. The high court ruled today that the Hes did not understand the consequences of their actions when they transferred custody and guardianship of the girl. The court sent the case back to chancery court for transfer to the juvenile court and implementation of a plan to reunite the child with her natural parents. Read the court's opinion. The Knoxville News Sentinel has the story:

http://www.knoxnews.com/kns/state/article/0,1406,KNS_348_5299317,00.html

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

IN RE ADOPTION OF A.M.H.

Court: TSC

Attorneys:

David A. Siegel, Memphis, Tennessee, for the appellant, Shao-Qiang (AJack@) He

Richard A. Gordon, Memphis, Tennessee, for the appellant, Qin (ACasey@) 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

Judge: BARKER

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.

http://www.tba2.org/tba_files/TSC/2007/amh_012307.pdf


SUPREME COURT DISCRETIONARY APPEALS Grants & Denials List

Court: TSC

http://www.tba2.org/tba_files/TSC/2007/certlist_012207.pdf


SHAUN HOOVER v. STATE OF TENNESSEE

Court: TSC

Attorneys:

Gary F. Antrician, District Public Defender, Somerville, Tennessee, for Appellant, Shaun Hoover

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; and Seth P. Kestner, Assistant Attorney General, Tennessee, for Appellee, State of Tennessee

Judge: BARKER

We granted permission to appeal in this habeas corpus case to consider the legality of a sentence imposed pursuant to a plea agreement. The agreed sentence exceeds the maximum available term in the offender Range but does not exceed the maximum punishment authorized for the offense. For the reasons explained herein, we conclude that the plea-bargained sentence is legal. Thus, the judgment of the Court of Criminal Appeals dismissing the petition for writ of habeas corpus is affirmed.

http://www.tba2.org/tba_files/TSC/2007/hoovers_012307.pdf


CHARLES G. SUMMERS v. STATE OF TENNESSEE

Court: TSC

Attorneys:

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Amy L. Tarkington, Deputy Attorney General; Richard H. Dunavant and Renee W. Turner, Assistant Attorneys General, for Appellant, State of Tennessee

Douglas Thompson Bates, III, Centerville, Tennessee, for Appellee, Charles G. Summers

Judge: HOLDER

The petitioner, Charles G. Summers, filed a habeas corpus petition challenging the legality of his concurrent sentence for misdemeanor escape. The trial court summarily dismissed the petition. The Court of Criminal Appeals reversed, concluding that Summers should be afforded the benefit of counsel and an opportunity to prove his allegations to the trial court under McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001). We granted the State's application for permission to appeal. For the reasons stated herein, we overrule McLaney to the extent that it can be interpreted to require the appointment of counsel and a hearing whenever a pro se habeas corpus petition alleges that an agreed sentence is illegal based on facts not apparent from the face of the judgment. We hold that summary dismissal may be proper when, as in this case, the petitioner fails to attach to the habeas corpus petition pertinent documents from the record of the underlying proceedings to support his factual assertions. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the trial court's judgment dismissing the petition for writ of habeas corpus.

http://www.tba2.org/tba_files/TSC/2007/summersc_012307.pdf


PHILLIP CROW v. BATESVILLE CASKET COMPANY, INC. and TRAVELERS INSURANCE CO.

Court: TWCA

Attorneys:

Bryan Essary, Nashville, Tennessee, for the defendants-appellants, Batesville Casket Company, Inc. and Travelers Insurance Company

Mark Stewart, Winchester, Tennessee, for the plaintiff-appellee, Phillip Crow

Judge: WADE

This workers' compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing, findings of fact, and conclusions of law. The trial court awarded the employee benefits based on 17.5 percent permanent partial disability to the whole body for an injury to the left shoulder. On appeal, the employer contends that the award of 17.5 percent should be reduced to 7.5 percent based upon an anatomical impairment rating of 3 percent by the employee's treating physician. After a careful review of the record, we find no error in the trial court's award of 17.5 percent vocational disability. Accordingly, the judgment of the trial court is affirmed.

http://www.tba2.org/tba_files/TSC_WCP/2007/crowp_012307.pdf


STEVEN QUINCY MANCHESTER v. BRIDGESTONE FIRESTONE, INC., ET AL.
Corrected Opinion: judgment order was not included in opinion published on 1/19/2007.


Court: TWCA

Attorneys:

B. Timothy Pirtle, McMinnville, Tennessee, for the Appellants, Bridgestone Firestone, Inc. and Insurance Company of the State of Pennsylvania

Barry H. Medley and Frank D. Farrar, McMinnville, Tennessee, for the Appellee, Steven Q. Manchester

Judge: HARRIS

This worker's compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with Tenn. Code Ann. Section 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court awarded the employee, Steven Quincy Manchester (Manchester), an eighteen percent permanent partial disability award based upon a twelve percent impairment rating. The trial court also determined the employer, Bridgestone Firestone, Inc. (Bridgestone) was not entitled to a credit for a portion of the temporary total benefits it paid to the employee. Bridgestone has appealed, contending the trial court erred in that the impairment rating was not supported by the medical evidence and in not allowing the credit it claimed. We modify the trial court's judgment by reducing the impairment rating to ten percent to conform to the evidence presented, and remand the case to the trial court for determination of permanent partial disability. We affirm the trial court's judgment disallowing a set off for the temporary total benefits paid by Bridgestone.

http://www.tba2.org/tba_files/TSC_WCP/2007/manchesters_corr_012307.pdf


GIL CARTWRIGHT, ET AL. v. HARRY A. PRESLEY, ET AL.

Court: TCA

Attorneys:

John R. Morgan, Chattanooga, Tennessee, for the appellants, Gil Cartwright and G & C Flowers, Inc.

Joseph R. White, Chattanooga, Tennessee, for the appellee, Harry A. Presley dba Presley Restaurant Equipment

Judge: SUSANO

In their complaint, the plaintiffs, Gil Cartwright and G & C Flowers, Inc., alleged that the defendant's negligent assembly and installation of a walk-in cooler damaged their property, including damage to a retail business. The defendant filed a motion for summary judgment, asserting that the suit is barred by T.C.A. Section 28-3-202 (2000), which prescribes a four-year statute of repose on "all actions to recover damages for any deficiency in the . . . construction of an improvement to real property." (Emphasis added). The trial court granted the defendant's motion. The plaintiffs appeal, primarily arguing that the trial court erred in finding that the walk-in cooler constitutes an "improvement to real property," thereby subjecting the plaintiffs' cause of action to the subject period of repose. We affirm.

http://www.tba2.org/tba_files/TCA/2007/cartwrightg_012307.pdf


IN RE THE ADOPTION OF J.K.W.

Court: TCA

Attorneys:

Mattea L. Rolin, Chattanooga, Tennessee, for the appellant, C.J.B.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services

Linda B. Hall, Soddy Daisy, Tennessee, for the appellees, J.W. and W.W.

Judge: SUSANO

The Legislature has specified a number of grounds upon which an individual's parental rights can be terminated. Among those grounds is the following: The parent has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court. T.C.A. Section 36-1-113(g)(6) (2005). Pursuant to this provision, the trial court terminated the parental rights of C.J.B. (Father) to his biological child, J.K.W. (the child). The court also held that there was evidence, of a clear and convincing nature, that termination is in the best interest of the child. At trial, Father challenged, among other things, the constitutionality of T.C.A. Section 36-1-113(g)(6), claiming that the statute was not narrowly tailored to serve a compelling state interest and, therefore, does not pass the constitutional test of strict scrutiny. The trial court found the statute to be constitutional. Father's sole challenge on appeal is directed at this ruling. We conclude that T.C.A. Section 36-1-113(g)(6) is narrowly tailored to serve a compelling state interest. Accordingly, we affirm the trial court's judgment.

http://www.tba2.org/tba_files/TCA/2007/jkw_012307.pdf


LYN S. SUMMERS v. CHRISTOPHER J. RYAN

Court: TCA

Attorneys:

Rebecca E. Byrd and Lauren M. Spitz, Franklin, Tennessee, for the Appellant, Christopher J. Ryan

Carol Ann Barron, Dayton, Tennessee, for the Appellee, Lyn S. Summers

Judge: LEE

In this interlocutory appeal, the issue we address is which trial court -- the Rhea County Family Court, the Williamson County Chancery Court, or the Rhea County Juvenile Court -- has jurisdiction to adjudicate the parties' post-divorce disputes. We hold that pursuant to the prior suit pending doctrine, the tribunal where the first petition was filed, the Rhea County Family Court, has subject matter jurisdiction. We therefore dismiss the later-filed actions in Williamson County Chancery Court and Rhea County Juvenile Court, and vacate the orders entered by those courts.

http://www.tba2.org/tba_files/TCA/2007/summersl_012307.pdf


Filling County Offices

TN Attorney General Opinions

Date: 2007-01-19

Opinion Number: 07-07

http://www.tba2.org/tba_files/AG/2007/ag_07-07.pdf

Interpretation of Fireworks Permit Statutes by the State Fire Marshal

TN Attorney General Opinions

Date: 2007-01-22

Opinion Number: 07-08

http://www.tba2.org/tba_files/AG/2007/ag_07-08.pdf

TODAY'S NEWS

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ABA president in Memphis to support mentoring program
American Bar Association President Karen Mathis was in Memphis today with Gov. Phil Bredesen and Shelby County Mayor A C Wharton, announcing a $3 million program to guide foster kids into adulthood. With a $1.5 million investment from the Day Foundation, the program will receive matching funds from the state and will be administered by the nonprofit agency Youth Villages.
The Commercial Appeal reports on the event
Juvenile court logjam
The Shelby County Commission met yesterday to discuss plans for the juvenile court system, with one commissioner advocating the hiring of consultants to conduct a needs-assessment and another calling for a federal investigation into alleged discriminatory hiring practices and treatment of children. In the end, the commission voted 7-6 to delay action for two weeks.
The Commercial Appeal has the story
County clerk proclaims innocence
Unicoi County's circuit court clerk professed her innocence yesterday as the Tennessee Bureau of Investigation continues to probe auditing problems in her office. While officials would not comment specifically on the problems, the county mayor confirmed that several thousands of dollars are missing or have been misappropriated.
The Johnson City Press has more
New officers at KBA
The Knoxville Bar Association has new officers at its helm. They are: Ruth T. Ellis, president; Adrienne L. Anderson, president-elect; Thomas R. Ramsey III, treasurer; and Samuel C. Doak, secretary. J. Steven Collins is immediate past president.

New leaders begin at MBA
New leadership for the Memphis Bar includes: David M. Cook, president; Amy J. Amundsen, vice president; Art Quinn, treasurer; and Ricky Wilkins, secretary. Barbara Zoccola is the immediate past president.

Juvenile court intervention programs highlighted
An article in the Cleveland Banner today highlights the Bradley County Juvenile Court's numerous intervention programs, which are designed to keep young people out of the court system and prevent repeat offenses. Since 2002, the number of juveniles entering the county system has decreased due to these youth services.
Learn more about these programs
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Read about it in the Knoxville News Sentinel
Votes to go online
House speaker Jimmy Naifeh, D-Covington, and Senate Speaker Ron Ramsey, R-Blountville, both say they plan to provide easier public access to voting records on the General Assembly's web site. Currently, votes are available only through an image file, which cannot be searched. The change would make floor votes easy to search and access by bill number or subject. In addition, Ramsey's plan includes Senate committee votes.
The News Sentinel has more
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Texas attorney reinstated
Alan Dabdoub of Dallas has been reinstated to the practice of law in Tennessee after complying with state requirements for continuing legal education.
View all attorneys suspended and reinstated for 2005 CLE violations
Upcoming
Starr to speak on free speech case at Vanderbilt
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Learn more
Judge Donald, Rep. Tanner to address NAACP
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The Jackson Sun has the story
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