Groups appeal custody decision

Judge gave rights of Chinese couple's daughter to American foster family

By WOODY BAIRD, Associated Press
February 14, 2005

MEMPHIS - An appeals court is being asked if cultural bias swayed a judge who took away a Chinese couple's legal rights to their 6-year-old daughter.

An American couple has raised Anna Mae He since she was a month old, and Circuit Court Judge Robert Childers ruled in May that she should stay with them, despite a five-year struggle by her natural parents to regain custody.

Critics say Childers wrongly considered whether Shaoqiang and Qin Luo He would return to China with their daughter and deprive her of a comfortable life in suburban America.

Now, the Tennessee Court of Appeals - with oral arguments set for Wednesday - is being asked if Childers' decision was skewed by the same kind of cultural questions that influenced the custody fight over young Elian Gonzales in Florida five years ago.

"The selection of a home country for a child is completely within the constitutional prerogative of the child's parents, as long as the parents are otherwise fit," says an appeals court brief filed by child custody specialists at Loyola University in Chicago, Vanderbilt University in Nashville and the University of Memphis.

In taking away the Hes' parental rights, Childers ruled that they were emotionally unstable and abandoned their daughter by having no contact with her for four months, a standard for abandonment under Tennessee law.

Childers opened the way for the American couple, Jerry and Louise Baker, to adopt Anna Mae.

Larry Parrish, the Bakers' lawyer, said suggestions that Childers was culturally biased against the Chinese parents are based on "a total lack of appreciation of what the facts are."

"It sort of offends me that they call themselves child advocates," he said. "They are not advocating anything in the interest of this child."

The fight over Anna Mae has dragged through the courts since June 2000 when her parents filed their first petition to get Anna Mae back from what they say was temporary foster care.

The Bakers took Anna Mae into their home as a favor to the Hes, who were out of work in a foreign country and facing large legal and medical bills.

When the Hes sought return of their first-born child, the Bakers refused and began moves to adopt her.

The Bakers argue their family is the only one Anna Mae has known and taking her away could crush her psychologically. But the Hes say leaving her with the Bakers will keep the child from ever knowing her biological family.

Childers presided over a trial on a petition from the Bakers to terminate the Hes' parental rights.

The trial attracted Chinese spectators from the Memphis area and the Chinese embassy in Washington, D.C., occasionally sent representatives to observe the proceedings.

Childers noted in his ruling that China has a "one-child-per-family" policy and that families with more than one child could lose medical and educational benefits. He also referred to the Bakers' fears that girls have a higher death rate than boys in China.

"The court tries to paint the Hes as uncaring and selfish toward the child because she is a girl," the Organization of Chinese Americans says in a brief filed with the appeals court. "The most flagrant of these is the misconception that taking the girl back to China would knowingly put the child at peril of death."

The Chinese organization, headquartered in Washington, said emotional outbursts by Qin Luo He when refused permission to see her child would be accepted in China but were regarded by the judge as evidence of mental instability.

"If she doesn't show emotion, she is uncaring; if she shows it, she is irrational," the brief says.

The Hes visited Anna Mae regularly after the Bakers first took her in. But those visits ended in January 2001 when police escorted the Hes from the Baker residence during an argument between the two couples.

Childers said the Hes wanted someone else to take care of Anna Mae and launched the fight to get her back as a way to avoid deportation. The Bakers, he ruled, were simply better parents.

The brief filed by the university law centers contends the judge made that decision too quickly. Instead, it contends, he should have broken the trial into two segments.

The brief says first Childers should have decided if the Hes were fit parents, without comparing them to the Bakers. Then he could make a decision on the Bakers' adoption petition.

It is not a judge's job to decide "whether a better set of parents might be available" than a child's biological parents, the university lawyers said.

Their brief compared the struggle over Anna Mae to the Elian Gonzales fight between his father in Cuba and his maternal uncle in Florida. Since the boy's father was a fit parent, the uncle's argument that Elian would have a better life in America was deemed irrelevant.

The He family's troubles began in 1998 when Shaoqiang He was working toward a doctorate. in economics at the University of Memphis and was charged with sexually assaulting a female student.

He was kicked out of school, losing the student stipend that was his main source of income, even though he was acquitted of the assault charge in 2003.

He said his family, which now includes a 4-year-old son and 2-year-old daughter, celebrated Anna Mae's birthday on Jan. 28.

They took pictures with a birthday cake, he said, in hopes she will see them one day "and know we never forget her."

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