IN THE CIRCUIT COURT FOR KNOX COUNTY, TENNESSEE

JOHN A. HUNLEY, Sr., for the use and benefit of )

next of kin, and natural parent of Johnny Albert Hunley, )

Jr., a minor, deceased, )

)

Plaintiff, ) Docket No. 2-264-02

) Wimberly

v. ) Jury Demanded

)

CHILD AND FAMILY TENNESSEE, INC., )

HASLAM CENTER, )

MARK POTTS, individually and in his official capacity )

as an agent, servant, employee and/or officer of )

Haslam Center, KATHRYN O'DAY, individually )

and in her official capacity as agent, servant, )

employee and/or officer of Child and Family )

Tennessee, and JOHN DOE 1 through 4, inclusive, )

)

Defendants. )

MOTION TO AMEND JUDGMENT PURSUANT TO

TENN. R. CIV. P. RULE 59.04

Comes the Plaintiff, by and through counsel, and moves this court, pursuant to Tenn. R. Civ. P. Rule 59.04, for an Order amending the court's final judgement and order of dismissal entered on Feb. 11, 2003, mailed by opposing counsel on Feb. 18, 2003. And as to the reasons therefor, would show this Honorable Court as follows:

1. This court committed reversible judicial error by granting a summary judgment motion concerning Plaintiff's standing to bring this suit, even though numerous material facts were contested and disputed by Plaintiff. The court was under an obligation to view the facts in a light most favorable to the party opposing the summary judgment motion, and the court was obligated to accept the factual allegations of Plaintiff as correct for purposes of the summary judgment hearing.

2. The Plaintiff denies all allegations made by the Defendants and by Renee Hunley that the Knox County Juvenile Court's order of June 11, 2001, was valid or comported with the requirement of substantive and procedural due process and thus was deserving of full faith and credit. John Hunley never abandoned his son, Jo Hunley. This issue goes to the heart of the dispute between the parties, and therefore the Defendants are not entitled to summary judgment on any matter arising out of that dispute. As is well-settled law, motions for summary judgment cannot be used as substitutes for a trial of disputed factual issues. Jones v. Home Indemnity Ins. Co., 651 S.W.2d 213, 214 (Tenn. 1983). Specifically, the Tennessee Supreme Court has held that any dispute over material facts or even an uncertainty as to whether there are disputed material facts will render granting a summary judgment improper. Executone of Memphis, Inc. v. Garner, 650 S.W.2d 734, 736 (Tenn. 1983); Evco Corp. v. Ross, 528 S.W.2d 20, 25 (Tenn. 1975). Even if the basic facts are not in dispute, Tennessee courts have held that granting a summary judgment is not proper when the parties disagree about the inferences to be drawn from the facts. Prescott v. Adams, 627 S.W.2d 134, 138-39 (Tenn.App. 1981). Plaintiff's pleadings establish that there is a genuine dispute over the material facts and the inferences that are permissible to be drawn from those facts.

3. Specifically, the Plaintiff hereby alleges the truth of the following facts, which collectively would likely cause an appellate court to reverse this court's order dismissing the Plaintiff's cause of action, and that appellate court would reinstate his cause of action in its entirety:

• The Tennessee Dept. of Children Services (DCS) engaged in an orchestrated campaign to deny John Hunley his due process and civil rights with respect to custody, contact, and visitation with his son, Jo Hunley.
• Plaintiff John Hunley contends that he was not present at the Juvenile Court hearing of October 1999, directly contradicting the exhibits presented by Renee Hunley and the defendants in their motions to dismiss. In particular, the Knox County Juvenile Court entered several orders pertaining to a hearing held in Oct. 1999. In some orders, Plaintiff John Hunley Sr. is listed as being present; in other orders "Johnny Albert Hunley" is listed as present - but that person could have been the decedent Johnny Albert "Jo" Hunley.
• According to Plaintiff, his former employer is prepared to testify under oath that Plaintiff was at work in Chicago, IL, on the day the defendants allege that he was present and attended a hearing in Knox County Juvenile Court. Plaintiff has other witnesses who can verify he was in Chicago at work on the day of the Juvenile Court's October 1999 hearing.
• Plaintiff informed one or more DCS caseworkers that he had to work in Chicago on Oct. 7, 1999, and therefore could not attend the hearing then scheduled for October 7, 1999. Instead of continuing the hearing date by one month, a custom normally and routinely accorded to counsel, the DCS caseworkers concealed Plaintiff's notice of his absence and proceeded with the hearing. John Hunley was entitled to the same respect and deference shown to counsel in postponing a hearing if he had a legitimate and reasonable excuse for why he could not attend.
• John Hunley was not represented by counsel in hearings before the Knox County Juvenile Court.
• The notice of the hearing was sent to John Hunley at an improper address of 258 Heiskell Street. John Hunley was not living at that address in September 1999. A cursory and reasonable effort by DCS would have enabled them to send the notice to John Hunley's correct address. A simple phone call placed to Ron Hunley, the Plaintiff's father, would have advised DCS of Plaintiff's then current address.
• John Hunley advised DCS that they could always reach him through his father, Ronald P. Hunley, Sr., who has been at the same address and with the same phone number in Knox County for some fifteen years. DCS contumaciously refused to send notice to John Hunley care of his father, because DCS embarked on an orchestrated campaign to shut off all communication with the paternal grandparents of Jo Hunley - refusing to answer letters, faxes, or return phone messages from the Hunley grandparents. The absence of any contact or communication with his paternal grandparents and father meant that Jo Hunley had no concerned relative he could call and alert that he was being physically and mentally abused at Haslam Center. Renee Hunley is quoted in the local newspaper as saying she was aware that Jo Hunley was being beaten at Haslam Center, but she just left him there and did nothing to prevent this abuse and ultimate death from occurring.
• DCS and the Knox County Juvenile Court failed to contact Ron and Vickie Hunley concerning court dates related to Jo Hunley, after Jo was taken into DCS custody in July 1999 - even though Ron and Vickie Hunley had been vested with both legal and physical custody of Jo Hunley in the period immediately prior to his being taken into custody. Thus Ron and Vickie Hunley could not alert John Hunley about court hearings involving Jo Hunley, because the entire paternal side of the family was intentionally kept uninformed by the tortious interference of DCS.
• Caseworkers from DCS repeatedly alleged under oath in affidavits before the Juvenile Court that services had been provided to John Hunley. In fact, no services - none whatsoever - were provided to John Hunley, and those declarations by DCS amount to fraudulent misrepresentations. DCS did not attempt to put John Hunley in public housing, assist him to obtain a GED diploma, assist him with obtaining a driver's license or car insurance, assist him to find work, or provide any other economic assistance.
• John Hunley was never informed of his rights under the DCS permanency plan for Jo Hunley.
• In pleadings before the Knox County Juvenile Court, Renee Hunley's counsel filed an Exhibit 7 that purports to show John Hunley's signature on a "Notice of Rights" form. That form is completely unfilled out. Facially, it appears DCS coerced John Hunley to sign a document that DCS would fill in later. John Hunley disputes the validity of his signature on that form and alleges that it is a FORGERY.
• DCS caseworkers engaged in highly unscrupulous and unethical and illegal conduct by threatening John Hunley that if he did not sign certain documents they showed him, he would never see his son, Jo Hunley, again. Despite these outrageous attempts at extortion by DCS, John Hunley recalls that he did not sign any form related to a permanency plan for Jo Hunley, not in Aug. 1999 and not ever. For purposes of considering the summary judgment motion, the court should assume that John Hunley's signature was indeed forged by DCS staff.
• Ronald P. Hunley is the father of Plaintiff John Hunley. Ronald P. Hunley believes and is prepared to testify under oath that the signature shown on the document listed as Exhibit 7 is indeed a forgery of his son's signature. Ronald P. Hunley has known John Hunley for 36 years and has seen his son's handwriting probably more than 1000 times.
• Consequently, John Hunley was never notified of his rights and obligations, as required by law, under the DCS permanency plan for Jo Hunley, or that he could be found in abandonment or have his parental rights terminated.
• The notice for the Knox County Juvenile court hearing held in May 2001, which led to the order finding John Hunley to have abandoned Jo Hunley, did not give John Hunley proper notice that abandonment would be a subject of discussion at that hearing. By notice sent out to participants, the hearing was supposed to be a routine 6-month review of the permanency plan. No attorney was appointed to represent John Hunley at that hearing.
• The Knox County Juvenile Court thus entered findings of abandonment against John Hunley without him receiving actual notice, constructive notice, or even some vague ongoing notice of future hearings. John Hunley was unaware that a hearing had occurred prior to the May 2001 hearing, because notice once again was sent to a wrong address, and DCS and their attorney and the Juvenile Court did not use the address that John Hunley had furnished to them.
• John Hunley is not to blame for the failure to receive notices from DCS and the Juvenile Court; DCS is to blame for the failure to give due process notice due to the DCS orchestrated campaign to deny the Hunley family any contact or information about Jo Hunley until his alleged murder some two years later. (The facts in this case would demonstrate by a preponderance of the evidence that Jo Hunley was murdered, and his death was staged to look like a hanging.)
• Plaintiff disputes the amount of his alleged child support arrearage proffered by the defendants. The arrearage was calculated using erroneous assumptions about John Hunley's ability to earn income, his actual earnings, and the demise of Jo Hunley. Plaintiff is entitled to a retroactive modification of the arrearage total under the applicable Tennessee child support guidelines and regulations. The state has failed to meet its burden to prove that John Hunley's failure to pay more child support was willful, as required by statute, and not due to his impoverished circumstances. John Hunley hereby asserts that his failure to pay more child support was indeed due to his economic plight (9^th grade education, lack of reliable means to get to work, absence of a permanent home, periods of unemployment, etc.).
• Plaintiff John Hunley was involved in a car accident approximately twelve years ago. John Hunley was left unconscious as a result of the car accident. After recovering from the accident in a hospital, John Hunley subsequently determined that this accident affected his ability to understand complicated matters such as tax forms or court proceedings. John Hunley sought professional treatment from a qualified medical doctor for injuries to his brain months after he was released from the hospital. He received and took multiple prescription drug medications to treat the injuries to his head and brain.
• John Hunley lacked the mental capacity, in Aug. 1999, to read and understand complicated documents, such as a 12-page DCS permanency plan. Furthermore, DCS caseworkers were aware of John Hunley's car accident and his hospitalization, because John Hunley informed them of his condition. DCS took advantage of Plaintiff's vulnerable condition by having him execute various unfilled out forms and cloaking the juvenile court process in mystery and ambiguity so John Hunley could not understand what was happening in court.
• John Hunley never abandoned Jo Hunley. In frustration at the hostility directed at him by the DCS - juvenile court system, he might be perceived to have abandoned the juvenile SYSTEM, which ultimately killed his young son. But the truth is that the system abandoned John Hunley, not vice versa.

4. On appeal, the Tenn. Court of Appeals reviews findings of law by the trial court de novo, without any deference of the kind afforded to findings of fact by the trial court.

5. This court committed reversible error in the following findings of law:

• John Hunley could not be held to have abandoned Jo Hunley due to lack of contact with Jo Hunley, because John Hunley was enjoined by order of the Knox County Juvenile Court to refrain from having any contact with Jo Hunley.
• The trial court incorrectly accepted the Juvenile Court's finding of abandonment despite the fact that the Juvenile court had failed to provide John Hunley with notice of the hearing held in May 2001; failed to appoint counsel; and entered finding detrimental to John Hunley's parental rights without him being present or represented by counsel. The trial court should have held the Juvenile Court's hearing failed to comport with due process requirements under the federal constitution, Tennessee Supreme Court Rule 13 § 1(d)(7), and Rule 39 of the Tenn. R. Juv. P.
• The trial court failed to apply the procedures required by Tenn. Code Ann. § 37-2-403(a), subsections (2)(A) and (2)(B)(i) which require that the DCS permanency plan shall include the definition of "abandonment" and the criteria and procedures for termination of parental rights. Subsection (2)(B)(i) also requires the court to explain to the parents on the record the consequences of abandonment. The Juvenile Court failed to adhere to this statutory requirement, and this trial court accepted this abuse of discretion in dismissing the Plaintiff's cause of action.
• The trial court failed to apply Tenn. Code Ann. § 36-1-102, which provides the only statutory definition for abandonment, and nowhere in that statute is failure to comply with a permanency plan listed as grounds for finding a parent has abandoned his child - as stated by the Knox County Juvenile Court in its Order of June 2001. In particular, the trial court failed to comply with the Tennessee legislature's explicit mandate overruling of any judicial definition of abandonment to the contrary; see Tenn. Code Ann. § 36-1-102(1)(G). Instead, the trial court accepted the Knox County Juvenile Court's improper holding that John Hunley abandoned Jo Hunley, using reasoning that directly contradicts Tenn. Code Ann. § 36-1-102(1)(G).
• When the Tennessee legislature amended the wrongful death statute to exclude standing for parents who abandoned their children, the Tennessee legislature meant the rigorous and exacting definition of abandonment found at Tenn. Code Ann. § 36-1-102, not the judicially crafted definition adopted by the Knox County Juvenile Court in its order of June 2001.
• Tenn. Code Ann. §§ 36-1-102(1)(A) defines abandonment as the parent or guardian's willful failure to visit or willful failure to support or make reasonable payments toward the support of the child for a period of four consecutive months immediately preceding the filing of a pleading to terminate parental rights. The trial court gave full faith and credit to the Juvenile Court's finding of abandonment, even though no pleading to terminate John Hunley's parental rights had ever been filed in the Juvenile Court or any other court.
• The trial court erred by refusing to find that a party's failure to pay child support limits that party's right to recover proceeds from a wrongful death action, until after the child support arrearage has been paid. However, the fact that a party has a child support arrearage does not preclude standing to bring a wrongful death suit. Child support arrearage is a matter of post-judgment relief, not a matter of standing to bring a wrongful death suit.
• Tennessee Code Annotated §20-5-106 provides in pertinent part: "The right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by the person's death but shall pass . . . to the person's natural parents or parent or next of kin if at the time of death decedent was in custody of natural parents or parent and had not been legally surrendered or abandoned by them pursuant to any court order removing such person from the custody of such parents or parent ." (emphasis added). The trial court failed to acknowledge that the abandonment part of the Wrongful Death statute could not apply to Plaintiff John Hunley, because Jo Hunley was not in his custody and was not the subject of any court order removing Jo Hunley from his custody at the time Jo Hunley was taken into custody of the DCS (July 1999) or at the time the Juvenile Court entered its abandonment finding (June 2001).
• Tenn. R. Civ. P. Rule 12.01 required the defendants to file an answer or objection to Plaintiff's lawsuit within 30 days of receipt of the summons and complaint. Three of the Defendants did not file their answer until some 49 days after service of process. Plaintiff filed a Motion for Default Judgment with this court. The trial court erred by not hearing Plaintiff's Motion for Default Judgment prior to the Defendants' Motion to Dismiss his lawsuit, when the Defendants filed their Answer more than 30 days after service of process.

WHEREFORE, Plaintiff John Hunley respectfully requests

(1) this Honorable Court to reinstate his cause of action and amend, pursuant to Tenn. R. Civ. P. Rule 59.04, the court's Order of dismissal entered on February 11, 2003;

(2) this Honorable Court rule on this Motion based on the pleadings and without oral arguments; the Plaintiff hereby waives any right to oral argument of this motion; and

(3) in the event this Motion to Amend Judgment is denied, Plaintiff requests the court approve his forthcoming affidavit of indigency so that he may appeal without being required to pay a cost bond on appeal.

Respectfully submitted this 25th day of February, 2003.

_______________________________________ Dr. Michael A. S. Guth, BPR # 019093

Counsel for Plaintiff

116 Oklahoma Ave.

Oak Ridge, TN

37830-8604

Phone: 865-483-8309

Fax: 425-969-2580

E-mail: mike@@michaelguth.com

Certificate of Service

I certify that a copy of this Motion was sent via postage-paid first class mail on Feb. 25, 2003, to counsel for Defendants, Mr. Edward G. White; Hodges, Doughty, and Carson; P.O. Box 869; Knoxville, TN; 37901-0869; Mr. Robert Pryor; Pryor, Flynn, and Priest; P.O. Box 870, Knoxville, TN, 37901; and to attorney John Greene via fax on 2-26-2003.

_______________________________________

Michael A. S. Guth, B.P.R. #019093

Dr. MICHAEL A. S. GUTH Attorney at Law Ph.D. (Economics), J.D. Univ. of Tenn. Licensed in Tennessee since 1998 send e-mail (E-mail is quickest method of contact). Hours: Monday - Friday: 9:30 AM  - 6 PM, Saturday & Sunday 1 PM - 6 PM.   116 Oklahoma Ave.   Oak Ridge, TN   37830-8604   Phone: (865) 483-8309