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In re Justin H.

Court of Appeals of Tennessee, Nashville

May 29, 2015

IN RE: JUSTIN H.

Session Date April 8, 2015

Direct Appeal from the Circuit Court for Bedford County No. 12062 Franklin L. Russell, Judge

Jennifer Lynn Thompson, Nashville, Tennessee, for the appellant, Torry Hansen.

Larry Lamont Crain, Brentwood, Tennessee, for the appellees, National Council for Adoption, and World Association for Children and Parents.

Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin, J., and Kenny Armstrong, J., joined.

OPINION

BRANDON O. GIBSON, JUDGE

I. Facts & Procedural History

This is the second appeal in this case. See In re Justin A.H., No. M2013-00292-COA-R3-CV, 2014 WL 3058439 (Tenn. Ct. App. Jun. 7, 2014) perm. app. denied (Tenn. Nov. 19, 2014). As we noted in the first appeal, this case has a "convoluted and complicated" procedural history. Id. at *1. However, the following facts are pertinent to the issues raised in this appeal.

The child at issue in this lawsuit, Justin, was born in Russia in 2002. In 2009, Tennessee resident Torry Hansen sought to adopt Justin through Russian adoption procedures. The World Association for Children and Parents ("WACAP"), based in the State of Washington, was the adoption and placement agency that processed the adoption. As part of the adoption process, WACAP and Ms. Hansen entered into a written placement agreement, in which Ms. Hansen agreed to "remain financially responsible for all costs of care for the child" if he was removed from Ms. Hansen's home, and she agreed to "reimburse WACAP for any and all costs incurred by WACAP for the care of the child after removal from [her] home." In September 2009, Ms. Hansen officially adopted Justin in proceedings before the Primorsky Krai Court of the Russian Federation. By virtue of the adoption, Justin became a United States citizen. Ms. Hansen then returned to the United States with the child to live in Bedford County, Tennessee.

Not long after Ms. Hansen returned to Tennessee with Justin, she began experiencing behavioral difficulties with the child. In April 2010, Ms. Hansen placed the child on a one-way flight back to Russia. On the transnational flight, the child was unaccompanied and had no provisions and no luggage besides a backpack. Ms. Hansen pinned a note to the child's backpack addressed to the Ministry of Education in Moscow. The note described Justin as "mentally unstable" and asserted that Ms. Hansen was "misled by the Russian Orphanage workers and director regarding his mental stability and other issues." For those reasons, Ms. Hansen said, she no longer wanted to parent the child. In the note, Ms. Hansen indicated that she was "returning [the child] to [the Ministry of Education's] guardianship and would like the adoption disannulled [sic]." After the child was delivered to the Ministry of Education, he was placed in a Russian children's home/orphanage.

On May 11, 2010, WACAP, the adoption agency that brokered the adoption, filed this lawsuit against Ms. Hansen in the circuit court of Bedford County, alleging that the child was dependent and neglected and seeking the appointment of a guardian and a guardian ad litem for the purposes of seeking child support. The lawsuit generated widespread media attention, and Ms. Hansen in particular was vilified. On May 19, 2010, shortly after she was served with process in the circuit court lawsuit, Ms. Hansen relocated from Tennessee to an undisclosed location in California.

Because of the dependency and neglect allegation, the circuit court case was transferred to juvenile court by agreement of the parties.[1] The juvenile court ultimately dismissed the case, and the case was appealed to the circuit court for de novo review. On appeal to circuit court, the petition was amended to add the child as a petitioner and to seek child support and damages arising out of the alleged breach of the adoption contract.[2]

Ms. Hansen filed numerous motions in the circuit court but failed to respond to discovery, failed to appear at scheduled depositions, and failed to appear at various hearings. After protracted proceedings, the trial court granted the petitioners' motion for default judgment against Ms. Hansen for failing to file an answer to the petition and failing to cooperate in discovery. The trial court subsequently conducted a hearing on damages, at which Ms. Hansen did not appear. On May 18, 2012, the trial court entered an order awarding damages to WACAP and to Justin as the third-party beneficiary of the written placement agreement between Ms. Hansen and WACAP. The trial court also found that the child, then age ten, would "remain in need of future care, maintenance and support going forward until he reaches the majority age of eighteen, or is re-adopted." Consequently, the trial court held the child to be dependent and neglected and ordered Ms. Hansen to pay $1, 000 per month in ongoing child support, commencing on June 1, 2012. The trial court noted that a bank account had been established on behalf of the minor child by his legal custodian at a certain bank in Russia, and that this account had been designated by the Russian authorities as a depository for any funds recovered on behalf of the child. Ms. Hansen was ordered to remit her child support payments by mailing or delivering a check "to the Clerk of the Circuit Court of Bedford County, Tennessee, together with any applicable Clerk's fee, unless otherwise directed by this Court." Apparently, the clerk would then forward the funds to Russia.

Ms. Hansen appealed to this Court. On appeal, this Court considered three arguments raised by Ms. Hansen regarding the subject matter jurisdiction of the trial court. She claimed that the trial court lacked subject matter jurisdiction to award child support because (1) the petitioners did not have physical custody of the child, (2) the adoption had been nullified by the Russian Federation Supreme Court, and (3) the juvenile court did not have subject matter jurisdiction over a breach of contract claim. 2014 WL 3058439, at *11. Regarding the first argument, the Court of Appeals concluded that Justin was a proper party to the lawsuit and that Mr. Mityaev was the appropriate representative. Id. at *12. As for the second issue, the Court found that Ms. Hansen's argument regarding the annulment was a substantive defense that Ms. Hansen could have pursued in the circuit court if she had chosen to engage in the proceedings; however, it was not a basis for divesting the trial court of subject matter jurisdiction to adjudicate a claim for child support. Id. at *13. Finally, the Court noted that the circuit court had jurisdiction to consider the breach of contract claim. Id. at *13. This Court's opinion was issued on June 7, 2014.

While the appeal was pending, Ms. Hansen ceased paying child support in accordance with the May 2012 order. On February 21, 2013, the petitioners filed a petition for contempt, alleging that Ms. Hansen failed or refused to pay child support for the months of November and December 2012 and January and February 2013, and therefore she owed an arrearage of $4, 000. On February 28, 2013, the trial court entered an order modifying only the manner and method of payment of Ms. Hansen's child support obligation. Commencing on March 1, 2013, Ms. Hansen was directed to mail her child support payments directly to counsel for one of the petitioners rather than to the court clerk's office. Counsel was directed to deposit the funds into his law firm's ...


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