For the Appellant

Amicus Curiae

II. Jurisdiction:

Tennessee Code Ann. Rules of Appellate Procedure, Section B Rule 3 along with Rule 8A allow any person aggrieved from a lower court decision to appeal for Appellate Court review. This court has appropriate jurisdiction to review this matter.

III. Statement of Interest

American Family Rights Association (AFRA) is a national non-partisan, not for profit organization with over 100,000 members nationwide. AFRA is dedicated to protecting the principles of liberty issues in the U.S. Constitution, The Bill of Rights and respective State Constitutions, and in this instance, the Constitution of the State of Tennessee. AFRA’s interest in public good for protection of families demand a duty to support and participate, as a friend of court, any action that arises and infringes on the fundamental liberty rights of parents.

AFRA’s involvement in ameliorating abuses of power, infringing on Constitutional issues to family autonomy and familial relationships has grown tremendously over the past decade.

AFRA members supported passage of two Amendments of Keeping Children and Families Safe Act. In particular, Public Act 108-36 § E, F and G requiring that Social Workers and their Supervisors become educated in Fourth, Fourteenth and other Constitutional Protection Laws of Parents and their children.

AFRA has also been very active nationwide in its attendance at Ways and Means Hearings on Child Welfare offering testimony. AFRA has also been active in state legislatures, Blue Ribbon Panel reviews from the State Executive Branches in the interests of liberty and autonomy of parental rights, participating in court watching, news reporting via newsletter publication and documentary film of precedent state cases supportive of parental liberty rights along with the most egregious decisions against fundamental rights. AFRA has also been active in helping passage of Connecticut’s Ritalin Law.

AFRA comes into this action as an amici in the hope that it will assist the court and broaden the matter through the issues and facts already presented by clarifying where some narrowness and, perhaps, even error have occurred to date. AFRA is dedicated to advocating for what is just and fair. We advocate the proper balance between parental rights and the child’s best interest through reason, neutral fairness and natural justice.

It is with due reverence to the court and full confidence that AFRA respectfully approaches the Court in the present action for Appellate review.

IV. Statement of Action

This action is an Appeal of a Chancery Court holding to terminate the parental rights of two biological parents, Shaoqiang (Jack) He and Qin Luo (Casey) He, Appellants petitioned by the foster parents, Jerry L. and Louise K. Baker, Appellees. The arrangements and agreement of foster care is in dispute between the parties.

V. Statement of Issue

1. Can the repeated and complete denial of almost all constitutional rights along with errors in administrative substantive and procedural law standards ever allow the court to have a clear and convincing (80%) analysis to determine parental fitness?

Moreover, would repeated and continual denial of due process, liberty interests and

equal protection of parents leave the “child’s best interest” an irrelevant standard of analysis? In fact, anything that would impinge on the liberty and autonomy of biological parents would throw the best interest standard into chaos.

VI. Procedural Background and Statement of Facts

On or about March, 1995, Shaoqiang (Jack) He, Appellant, entered the United States from the People’s Republic of China on an F1, educational visa. Mr. He secured scholarship monies and an Adjunct Professorship position in the Computer Lab located at the McCall Library at the University of Memphis. He pursued and completed an MS Degree in Management Information Systems at the University of Memphis in 1999. Mr. He also holds an MA in Teaching English as a Second Language from Arizona State University. Mr. He began his educational graduate program seeking a Doctorate in Economics. However, his scholarship and stipend have been reneged.

On or about May 1998, Mr. He returned for a visit to China and met and fell in love with Qin Luo (Casey), Appellant. They agreed that Qin Luo (Casey) would join him in the United States within a few weeks of his return.

When Qin Luo (Casey) arrived in the United States on or about June 28, 1998, Mr. He learned shortly thereafter (July) that Qin Luo (Casey) He is pregnant.

On or about October 19, 1998, Xiaojun Qi, another University of Memphis student, falsely accused Mr. He of sexual assault. On Sunday, Oct 11, 1998, Xiaojun Qi approached Shaoqiang (Jack) He for tutorial help with her studies since her English is not proficient. Shaoqiang (Jack) He agrees to tutor the student and before the session is done, Xiaojun Qi begins to complain about her husband and her finances and asks Mr. He for a $500.00 loan. Mr. He felt uneasy because Qin Luo (Casey He) is now pregnant and Mr. He feels that he will not have the funds to lend Xiaojun Qi. They end the session and part ways.

Nine days after the alleged incident and one day (October 19, 1998) after Complainant Xiaojun Qi formally lodged her complaint with Ms. Story at University of Memphis, (October 20, 1998, Mr. Shaoqiang (Jack) He received a call from the University of Memphis Campus Police stating that Mrs. Xiaojun Qi had lodged a sexual assault allegation against Mr. He. Mr. He vigorously denies any misconduct had occurred in the tutoring session. The Campus Police tell Mr. He that he may not return to his Adjunct position and that his stipend and scholarship are cancelled, without any grievance hearing. Mr. He now found himself unemployed and unable to continue his Doctoral Degree. The University Police tell Mr. He that because of insufficient evidence, they are suspending the investigation.

On Thanksgiving Day, 1998, Appellants were shopping in a Chinese Market on Summer Street. Shaoqiang (Jack) and Qin Luo, (Casey) claimed they are attacked by a male assailant. Qin Luo (Casey) was knocked into the shopping cart and injured. This injury led to vaginal bleeding later that day and required hospitalization at St. Francis Hospital. At this time, Qin Luo was approximately seven (7) months pregnant. Mr. and Mrs. He filed charges against the assailant only to find out the assailant was the husband of Xiaojun Qi, the Complainant of the alleged sexual assault against Mr. He at University of Memphis. The charges the Hes’ filed were never pursued and the police dropped the investigation and the investigation closed without the Hes’ knowledge.

Mrs. He suffered from intermittent episodes of premature labor after the assault, which resulted in a premature birth of their biological minor child AMH on or about January 28, 1999.

Mr. & Mrs. He now found themselves Chinese immigrants with little source of income and no health insurance to cover the enormous hospital bill resulting from Mrs. He’s assault injury, cesarean delivery and premature neo-natal care services in excess of $12,000.00.

Prior to the premature birth of AMH, a family friend from church, Elizabeth Marshall suggests the Hes’ go to Mid-South Christian Services for help.

They were then directed to a Diane Chunn Brower, Director and also a Birth Parent Counselor for Mid-South Christian Services a private adoption agency licensed by the State of Tennessee, Department of Children’s Services and operates under the auspices of their nationwide parent company, Bethany Christian Services. The agency primarily does adoption but does encourage adoptive parents to become pre-adoptive foster homes and also is licensed to provide foster homes in the State of Tennessee. Most parents who seek their services do so under the intention of adopting or relinquishing a child. After the birth of AMH, Ms. Chunn Brower realized that Mr. and Mrs. He had no intention of putting their child up for adoption. Ms. Chunn Brower even arranged for an interested adopting couple to visit the Hes’ in the hospital. However, Mrs. He was adamant that she did not want to give her child up for adoption but would consider short-term (90 days) foster care until she recovered from her surgery and was able to begin working.

Friends within the Chinese American community told Mr. and Mrs. He that they could possibly receive help from Families First or TennCare and also apply for Food Stamps. The Appellants. Jack and Casey He contacted Ms. Sarah Cloud at Juvenile Court to apply for financial assistance. Mr. and Mrs. He told Sarah Cloud that they were not financially able to take care of AMH, their minor child because of some legal problems Mr. He had encountered. Ms. Sarah Cloud called Mid-South Christian Services on behalf of the Hes’ and asked Ms. Diane Chunn Brower, Director of Mid-South Christian Services, if Mid-South could offer temporary (90 day) foster care for the Hes’ infant child. Ms. Chunn Brower acknowledged her professional relationship with the Hes’ as their Birth Parent Counselor and stated that she was counseling the Hes’ to consider adoption but that especially Mrs. He had vehemently refused. Sarah Cloud discussed the financial problems the Hes’ had informed her of including that they did not have medical insurance.

Ms. Cloud called Ms. Chunn Brower on or about February 24, 1999. Sarah Cloud does not have a permanency plan drawn up or order any child support payments, nor does Ms. Chunn Brower.

Ms. Chunn Brower had met with a family who desired adoption about one year earlier. The Bakers’, Appellees, had filled out a Pre-Adoptive Foster Care Application and attended the required PATH 30-hour training and certification requirements of the Tennessee Department of Children’s Services. Ms. Chunn Brower testified that the Baker’s had completed their Home Study required for Foster Parenting. (DCS Policy 16.4, TCA 37-5-106 – (see tab 1). Mrs. Baker had begun to suffer from “empty nest” syndrome, (see tab 1). This began after her youngest child entered his teen years. Mrs. Baker had voluntarily sterilized herself (tubal ligation) ten years prior after having given birth to three biological children in order that she may not become pregnant again. However, by the time she had sought out services from Mid-South Christian Services Adoption Agency, she had regrets about being unable to have another baby. In 1997, the Bakers’ filled out a Foster Home Application to see if, through foster care, they found an infant that they would want to adopt. This was ascertained by their response to a question on the Foster Application (Exhibit 10, p.3) “………also, this will be a way for us to make our decision if we still in a year want to continue our desire [emphasis added] for adoption.”

Mrs. Baker also had sought out and had performed a tubal reversal in order that she, at 36 years of age, could become pregnant again. This happened in August of 1998, approximately six and one half months before getting to foster AMH. According to Gary S. Berger, M.D., of the Chapel Hill Tubal Reversal Center, in Tennessee, a pregnancy should occur within the first year of a reversal. Mrs. Baker was already six and one half months post reversal, not pregnant and turning 37 years of age. AMH was an answer to her desire. In May of 1999, The Bakers’ became interested in adopting AMH. (JPO #84). This would be in and around the same time that the 90-day foster period was supposed to end. Neither Mr. nor Mrs. Baker informed Mr. or Mrs. He that they, along with Mid-South Christian Services are receiving over $400.00 per month foster care board subsidy payment for caring for AMH as Ms. Chunn Brower testified that the Bakers were being paid by Mid South Christian Services in her February 26, 2004 testimony. (TCA 37-5-106(C)(5)(6)(7),(8) DCS Policy 16.29(B) Foster Care Board Rates, $16.57 per day, DCS Policy 16.11(A)(4) p. 2 See tab 2). Instead, they tell Mr. He it is because they are all Christians – brothers and sisters who want to do the right Christian thing by helping the Hes out. Mr. He explains that he is brought to tears by such a statement of the Bakers and trusts them. (Transcript Jack He, pp. 38).

On or about April, 17, 1999, Mr. and Mrs. He, realizing the end of the temporary foster care was rapidly coming to a close, requested Mrs. Baker, to meet them at Sears in order to have AMH’s passport picture taken. They inform Mrs. Baker that they want to send AMH to China to be with relatives until their hardships are remedied with Mr. He’s legal challenges. This is the first time Mrs. Baker becomes aware of the Hes’, plans for future care. Mrs. Baker is also is aware, by rules and regulations stipulated in the Foster Parent’s Handbook (noteworthy, Foster Parent Handbook, the required manual of mandatory PATH 30 hour training – DCS Policy 16.4(B), see tab 3) of the prior history of Mr. Hes’ criminal arrest. The Department of Children’s Services Foster Parent Handbook also stipulates that Foster Parents are to hold confidential any and all information regarding the biological family and not release it to anyone outside without prior Department permission. (Foster Parent Handbook p. 6, (see tab 3)

On April 27, 1999, at approximately 1:30 a.m., Mr. He is arrested for the sexual assault allegations complained about nearly six months earlier. The same investigation that the University of Memphis Police claimed was dropped due to a lack of evidence. However, the police may feel less comfortable if they were informed that Mr. He could become a “flight risk” in a trip to China.

Mr. and Mrs. He borrowed money to retain a Criminal Attorney. On May 1, just 22 days before the expiration of the 90-day foster period, AMH’s passport was officially issued. (Exhibit 11). Also according to Louise Baker’s testimony (Transcript Louise Baker pp.172-173), The Bakers were now determined to adopt AMH even though they knew that Mrs. He was adamant not to relinquish custody of her daughter (Transcript, Louise Baker, p. 174). The Bakers’ were also aware of the Hes’ financial problems. (Transcript, Louise Baker, 174).

Mr. and Mrs. Baker also had an income, at this time, of over a quarter million dollars per year at the end of the temporary 90-day foster period. (Transcript, Louise Baker, p. 175). Mr. Baker approached Mr. He to try to persuade him not to send AMH to China stating that such a plan was not a good idea because the Hes would be sending AMH to the other side of the earth and it would be very difficult for the Hes to see or visit their daughter (Transcript, Jack He p. 47). Mr. Baker assured Mr. and Mrs. He that they would offer care for AMH for another temporary period and when the Hes’ wanted to get their daughter back, they could do so very easily (Transcript Jack He p. 48). At this point in time, Mr. Baker made a proposal to Mr. He that would solve this problem. He informed Mr. He that if the Hes’ wanted to continue temporary care, they would have to sign over guardianship to the Bakers’ in order that AMH’s medical insurance needs be met. Mr. and Mrs. Baker retained and arranged for the Attorney that represented Mid-South Christian Services, Kevin Weaver, Esquire, to draw up papers for what was presented to the Hes’ as a standby guardianship.

Mrs. He would have preferred to find someone to take AMH back to China for kinship care but was unable to secure such a person. Hence, they agreed to allow the Bakers to temporarily care for AMH for another 90 days.

Present at June 2, 1999 meeting was Diane Chunn Brower, acting as the Hes’ Birth Parent Counselor, Mr. Kevin Weaver acting as Attorney for Mid-South Christian Services, also acting as Counsel for The Bakers’ who paid for his services and Mr. He. Mrs. He was not present. Diane Chunn Brower admitted that she did not know the difference between guardianship and custody and therefore could not have advised Mr. He at this meeting. (Transcript Diane Chunn pp. 96-97). Attorney Kevin Weaver admits he did not tell the Hes’ they should have legal counsel present. Attorney Kevin Weaver admits that he did not explain the difference between a standby guardianship appointment and a transfer of legal custody. Attorney Kevin Weaver also admitted he did not understand the cultural differences of what Chinese determine as guardianship and custody. Attorney Weaver did not tell Mr. He that an interpreter is required if needed. Attorney Weaver did not tell Mr. He that a CASA, and/or Guardian Ad Litem for the minor child, was required. Attorney Kevin Weaver did not tell the Hes’ that both birth parents should be present along with an Attorney for the Birth Parents, as is required under “the family team” of Tennessee (DCS Policy 31.7, 16.31(A), (1)(2)(3)(a)(b)(c)(d)(e)(f)(g)(h), (4)(a)(b)(c), (6)(a)(b)(c)(d)(e), 7(a)(b)(c), (B)(1)(2)(3)(4)(5)(6), (C)(1)(2)(3)(4), D) – see tab 4) and should have been present. Attorney Weaver, as Counsel for Mid-South Christian Services would know this policy applied to the private adoption agency he represented since their licensure to provide adoption and foster care services originates from Tennessee Department of Children’s Services as indicated in (TCA 37-2-403). Attorney Weaver does not recall discussing a case plan or a permanency plan with Mr. He which requires having information regarding abandonment discussed and the language embodied within the plan along with child support guidelines as is required by Contents of Permanency Plan (TCA 37-2-403 (a)(1)(A),(2)(A,)(B)(i),(C)(3),(6)(b)(1),(6)(3),(6)(d) - see tab 5). Attorney Kevin Weaver made it clear to those present that transferring custody of ward to the Bakers would not terminate the parental rights of the Hes (JPO #92) in this June 2, 1999 meeting. (Transcript Attorney Weaver Pages 47-49).

Present in Juvenile Court on June 4, 1999, were Mr. and Mrs. He, Appellants, Mr. and Mrs. Baker, Appellees, Diane Chunn Brower, Director of Mid-South and acting Birth Parent Counselor to Mr. and Mrs. He, Sarah Cloud, Juvenile Court Officer, and an Interpreter, Pastor Kenny Yau. This was the only time that Mrs. He was privy to the document drawn up by Attorney Kevin Weaver and Pastor Yau did not interpret the document word for word but states he gave a summarized version to Mrs. He. This consisted of Pastor Yau telling her that since the Hes were unable to financially support the baby, some family would take care of their baby on their behalf but because the legal procedure is necessary to buy insurance for the baby or to administer medication or whatever to the baby by the custodian, Mrs. He needs to give the authority to the custodian by signing a document. (Transcript, Pastor Kenny Yau p. 10). Pastor Yau indicated that he used the word temporary specifically on the June 4, 1999 Juvenile Court meeting to mean a short period of time (Transcript Pastor Kenny Yau, p. 32). Pastor Yau did not explain what Mrs. He would need to do to regain custody or what would happen if the parties disagreed. No one at the June 4, hearing advised the Hes’ that their parental rights could be subject to termination if they willfully failed to pay child support even though there was never the necessary “permanency plan” and its required “abandonment” definition and notification included in the Petition that is required by Tennessee statute. (TCA 37-2-403(a)(1), 2(A), TCA 37-2-409(b)1, 37-1-166(a)(4), – see tab 6).

On or about November, 1999, Mr. and Mrs. He asked for the return of their daughter. In response to this request, Jerry Baker tells the Hes’, that Mrs. Baker has longed for another baby since 1997 and even had her sterilization process reversed in August of 1998. Mr. Baker related that Mrs. Baker had to undergo tremendous strain since she already suffered a miscarriage after her tubal reversal. Mr. Baker told the Hes’ that because Mrs. Baker was now pregnant that Mr. Baker would hold them responsible if Mrs. Baker were to miscarry again. Mr. Baker asked Mr. & Mrs. He to wait to reverse the legal custody of AMH back to them until the birth of the Baker child. The Bakers’ child was due on or about February 2000. Out of respect for the care they offered their daughter, the Hes’ agreed to wait until Mrs. Baker’s delivery.

On or about May 3, 2000, the Hes’ petitioned the court to have AMH returned to them. In a hearing on June 23, 2000, Referee Claudia Halton denies the petition stating a lack of substantially improving income and pending criminal charges against Mr. He of which Mr. He is eventually acquitted. Although Ms. Chunn Brower is the Hes’ Birth Parent Counselor, she calls Mrs. Louise Baker to tell her that the Hes’ have filed the petition. The Bakers’ retain Attorney Kevin Weaver, Counsel for Mid-South Christian Services to represent their interests at this hearing.

On or about January 28, 2001, the Bakers refuse the Hes’ request to take their child, AMH for another photo shoot. Mrs. Baker began documenting the visits of the Hes’ as early as October 3, 1999, seven months after they took AMH into their foster home. Mrs. Baker has never practiced visitation journaling with any of the other foster children (about 10) that she cared for in the past. On October 3, her entry reveals she is going to reduce the visitation to every other week. (Exhibit 6). Mrs. Baker is suspicious Jack will try something – to gain more visitation after she has decided she would wean them from visitation. (Transcript Louise Baker pp. 202). During this January 28 visit, Mrs. Baker is upset that once again, they ask to take AMH to a photo shoot for a family portrait. Mrs. Baker refuses. Mrs. He becomes upset and Mrs. Baker calls the police on the Hes. The police make the Hes’ leave and informs them of consequences that can happen if they are to return. One is that Mr. Baker can use justifiable force because they would be considered trespassing. The other is that they could both be arrested. This frightens the Hes’ who were already dealing with Mr. Hes’ criminal case.

On or about April 9, 2001, The Hes’ petition Juvenile Court to Modify Custody Order a second time. The hearing date is set for June 6, 2001 to be heard by Judge Harold W. Horne. Judge Horne asks if there is any written adoption agreement or if the biological parents have been unfit. The answer to both questions is no. Judge Horne tells the Bakers’ “no Judge in the world would allow them to adopt AMH based on these findings and facts.” It is at this point, according to the testimony of Mr. Jerry Baker that he and his wife, Louise Baker decide they are going to Petition to Terminate the Parental Rights of Mr. and Mrs. He. (Transcript of Jerry Baker, pp. 51-58). At the June 6, 2001 hearing, the Bakers’ complain that their legal counsel, Attorney Kevin Weaver had a scheduling conflict and could not appear. They ask and are granted a continuance until June 22, 2001.

On June 20, 2001, two days before the above-mentioned continued hearing was to take place, Attorney Kevin Weaver, acting on the Baker’s behalf petitioned the Chancery Court in Shelby County to Terminate the Parental Rights of Jack and Casey He. Shortly after this filing, Attorney Kevin Weaver removed his representation of the Bakers and also severed his services with Mid-South Christian Services.

On February 7, 2002, a hearing took place in Chancery Court with Judge Alissandratos.

Regarding a Motion, filed by Mr. Parrish, requiring the Hes to deposit $15,000 with the court to cover potential court costs. As the Petitioners or moving party, the Bakers’ were instructed to pay $700. The final disposition was delayed for over a year due to the Guardian Ad Litem having a sick family member. Six orders were given from Judge Alissandratos as follows.

1. The Hes’ had two days to deposit $15,000. Court costs. The Bakers’ had two days to deposit $700. Court costs.

2. The Bakers were granted “legal guardianship.”

3. A “No Contact” Ordered against the Hes forbidding contact with AMH.

4. The Hes’ needed to turn over AMH’s passport and their marriage license.

5 There was a Gag Order issued.

6. The Hes’ shall pay all court costs including DNA and psychological fees because Mr. He is a putative father.

Judge Alissandratos eventually had to recuse himself due to two bias complaints and the case was passed onto Judge Robert Childers. Judge Childers rescinded all six of the above orders.

February 23, 2004, The Petition for Adoption was filed with Chancery Court with Judge Robert Childers. He released his decision on May 12, 2004 not to allow the adoption but Terminated the Parental Rights of the Appellants, Mr. and Mrs. He.

VII. Argument

A. Biological parents have a presumptive Constitutional right to the care and custody of their child or children.

Every parent, even immigrant parents have a presumptive Constitutional right to enjoy the care and companionship of their child. The Due Process Clauses of the Fifth and Fourteenth Amendments protect all families on United States soil from undue and unwarranted governmental interference. The Supreme Court found in Yick Wo v. Hopkins, 118 U.S. 356, (1886) 'If Chinese laborers, or Chinese of any other class, now either permanently or temporarily residing in the territory of the United States, meet with ill treatment at the hands of any other persons, the government of the United States will exert all its powers to devise measures for their protection, and to secure to them the same rights, privileges, immunities, and exemptions as may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty.' ‘The fourteenth amendment to the constitution is not confined to the protection of citizens. It says: 'Nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'[118 U.S. 356, 369].

The Fourteenth Amendment guarantees life, liberty, due process and equal protection rights. As early as 1923, the Supreme Court in Meyer v. Nebraska, 262 US, 390 (1923), recognized the right of parents to make free choices regarding their children’s education. In Pierce v. Society of Sisters, 28 USC, 510 (1925), the Oregon initiative unreasonably interfered with the liberty of parents and guardians to direct their education and raising of their children.

Autonomy is inherent within the scope of liberty and is inclusive of all the fundamental rights that a parent holds when making decisions during the rearing of their children.

For more than eighty years The Supreme Court defined that the government should restrain from intervening upon the fundamental autonomy of the relationship enjoyed by parents and their children. The Supreme Court goes further stating that only under constrained determination that any other recourse has failed must a decision to terminate parental rights be considered.

In Stanley v. Illinois, 405 US, 645 (1972), the court has adamantly set a clear standard. An Illinois state statute deprived the putative father a hearing of his fitness as a parent and placing a third party guardianship in place. The Court held that the denial of the hearing to examine the father’s fitness was expected under due process and hence, was an equal protection violation.

So many parallels between the Stanley ruling apply to the instant case before this court. A putative father, an unwed mother also denied due process and equal protection rights. However, it is to an even greater degree that the present matter is so egregious to the Appellant’s rights being violated. A state statute that is unreasonably or misapplied as the Stanley court stated becomes “constitutionally repugnant.” [emphasis added] Stanley v. Illinois, 405 U.S. 645 (1972). The Stanley Court further stated “Nor has the law refused to recognize those family relationships unlegitimized by a marriage ceremony. The Court has declared unconstitutional a state statute denying natural, but illegitimate, children a wrongful-death action for the death of their mother, emphasizing that such children cannot be denied the right of other children because familial bonds in such cases were often as warm, enduring, and important as those arising within a more formally organized family unit.” [405 U.S. 645, 652]

In Meyer v. Nebraska, 262 U.S., 390 (1923) [citation omitted] it states that it found that parental autonomy was “the basic civil rights of man.” Skinner v. Oklahoma, 316, U.S., 535, 541 (1942) and [r]ights far more precious……than property rights.”

The Supreme Court affirmed parental rights a fundamental liberty again in Pierce v. Society of Sisters, 268, U.S. 510 (1925) involving the constitutional challenge of an Oregon statute, which mandated compulsory public school attendance. The court struck down the statute as violating the due process clause of the Fourteenth Amendment.

The Pierce court upheld the doctrine of Meyer v. Nebraska (268, U.S., 510 (1925) with the liberty of parents and guardians to direct the upbringing and education of their children under their control….”The child is not a mere creature of the state; those who nurture him and direct his destiny have the right to recognize and prepare him for additional obligations. (Id. at 534-35).

The Meyer Court further justified that they do not question the State’s right to protect minor children through a judicial determination – a neglect proceeding. “Rather we are faced with a dependency statute that empowers state officials to circumvent neglect proceedings.” [405, U.S. 645, 650].

Tennessee Code Ann §36-1-102 states abandonment as the willful [emphasis added] failure for a period of four (4) consecutive months to provide monetary support…. was used to circumvent neglect proceedings rightfully due to Mr. and Mrs. He. It is evident in the facts in this case that Mr. and Mrs. He were denied meaningful visitation by foster parent, Louise Baker as admitted in her testimony (Transcript pp. 191, 193, Ex. 6). Judge Alissandratos further obstructs the Hes’ rights to visit and continue the relationship with their minor daughter and the minor child’s liberty right to have a relationship with her biological siblings by issuing a “no contact” Order before parental unfitness had been determined. A determination that can only be made in a hearing. Judge Alissandratos violated the terms of the Brian A. Settlement Agreement as part of Tennessee Department of Children Services’ policy (Brian A. Settlement Agreement,- Brian A., et al., vs. Sundquist, et, al., Civil Action No. 3-00-0-445, see tab 7) which stipulates the following:

· All children get to grow up in a safe family.

· Reasonable efforts

· Relationships with family and kin always comes first

· Fast as possible from temporary to permanent.

· Contactor if not, DCS is responsible for care and protection

· Full and equal access to the best available services

· Least restrictive, most family-like settings.

· Stable placements addressing circumstances of removal and trauma of custody.

· Time is of the essence where one’s childhood is concerned.

· The next best thing to staying at home is staying closest to home.

· It’s not just the child; it’s the family’s decision in this.

· Fair hearings, legal rights to all

· If it’s not documented, it didn’t happen.

Judge Alissandratos denied the Hes’ contact with their child, AMH by indefinitely suspending the hearing for over a year due to a personal health issue of the Guardian Ad Litem. The Court appoints guardian Ad Litems and it was within Judge Alissandratos’ power to appoint a new Guardian Ad Litem. Judge Alissandratos interfered with AMH’s right to representation by acting so irresponsibly and with abuse of power.

The Foster parents admit in separate testimony to interfering with the visitation. Mrs. Louise Baker testifies “We were in control of the situation” (Transcript Louise Baker p. 194). Mr. Baker states that after the Hes’ filed their Petition to Modify Custody Order, well within the He’s parental rights that the Hes’ had breached a contract with Mr. Baker and he and Mrs. Baker thought it was time to terminate the parental rights (Transcript Jerry Baker, pp. 76-84 Ex. 6). Mrs. Baker sets her goal to wean the Hes’ of their visitation rights to twice a month. (Transcript of Louise Baker, pp. 198-199, Ex. 6).

This was willful and directly divergent to what is stipulated on page five (5) maintain regular visitation with the child of the Foster Parent’s Handbook as well as page seven (7) specifically support parents’ visitation for no less than four hours per month and page ten (10) stipulating; The foster parent’s cooperation is critical to maintaining a relationship between the child and the birth family. [Emphasis added]. DCS Policy 16.44-BA states “visitation is critical in helping to lessen the trauma of separation…” (See tab 8). Moreover, foster parents, Louise and Jerry Baker who Ms. Chunn Brower admitted fostered up to ten other children in the past now tried to create a smokescreen. Mr. and Mrs. Baker attempted to deceive the Court into believing that they were only foster parents for ninety days. Clearly, it would be against Tennessee Statutory Code and The Department of Children’s Services policy for licensing Contract Agencies to claim that Mr. and Mrs. Baker were not foster parents to the biologically unrelated child AMH the entire time she resided in their home. Mid-South Christian Services who accepted the foster parent application, certified the Bakers and completed their home study must know the statutory laws they must abide by, as the licensed Contract Agency, under the auspices of Tennessee Department of Children’s Services. Tennessee Department of Children’s Services stipulates that foster care review happens annually as Tennessee statute and Tennessee Department of Children Service’s policy dictates. The Bakers and Mid-South Christian Services accepted the obligations, stipulations and statutory rules in their totality and entirety when they contracted with one another including face to face contact, plan implementation, reasonable efforts towards reunification, periodic plan review, encouraging frequent biological family visitation both at the foster home and the biological family home, annual home study updates for foster care certification, continuing training and other Social Security Title IV-E federal mandates for the State of Tennessee to receive these funds. Even uncertified foster parents are obligated to the statutory rule of law regarding foster children in the State of Tennessee. It is reasonable to ascertain that Mr. and Mrs. Baker revealed their true, predetermined willful intent in their answer on their original Foster Care Application (Exhibit 10 P. 3) that their intended purpose of becoming Foster Parents was to determine if they could satisfy their desire [emphasis added] to find a baby Mrs. Baker had not yet been able to conceive. Now that they found a baby, they no longer wanted to foster other children. This satisfaction to their desire did not, however, relieve them from being foster parents or following the statutory rule of law that obliged them or Mid-South Christian Services. (DCS Policy, 16.4, 16.7, 16.8, 16.16, 16.31 A(1), 16.32 A, B, C, 16.35 A(1)(2)(3)(4), B(1)(2)(a)(b), 16.43, 16.44, TCA 37-5-106, TCA 37-5-109, see tab 9).

In Hickman v. Hickman, 2000, WL, 1339853 (Tenn. Ct. App.) the Tennessee Court of Appeals affirmed the trial court’s holding that there was no willful non-support since, the court noted there was no Order [emphasis added] as admitted by the father that no child-support was ever Ordered for the mother to pay. The court took into consideration, other items such as clothing – even though it was infrequent – as an attempt to offer care… In Martin v. Martin, 200 WL 298247, (Tenn Ct. App.) the same holding was reached that willful non-support could not be determined even though the mother had paid no support during the time the father was primary custodian.

The Supreme Court upheld the same analysis in Santosky v. Kramer, 455, U.S., 745 (1982). Under New York Family Court, a preponderance of the evidence to support the finding of termination of Parental rights was…

“Process is constitutionally due a natural parent of a state initiated parental rights termination proceeding (pp. 752, 757)”…The fundamental liberty interest of natural parents in the care, custody and management of their child is protected by the Fourteenth Amendment and does not evaporate simply because they have not been model parents or have lost temporary custody….When the state moves to destroy familial bonds, it must provide parents with fundamentally fair proceedings” [pp. 752-754]

In Prince v. Massachusetts, 321, U.S., 158 (1944) the Court found that parental rights prevail over a state regulatory interest unless public safety is evident. However, if a state regulation impinges upon a claimed religious freedom, it must fall unless it is conclusive that the child’s protection is in clear and present danger.

In Wisconsin v. Yoder, 406, U.S. 205 (1992), the Supreme Court held that application of a state compulsory school attendance obstructed the free exercise clause of the First Amendment is applicable by the Fourteenth Amendment. Even though half a decade had passed since the Santosky v. Kramer decision the Supreme Court held steadfast to fundamental liberty interest of parents and their children. Families’ rights to exist in an undisturbed “safe-haven” from governmental intervention will not be compromised.

Troxel v. Granville, 530 U.S. 57 (2000) issued its landmark decision on parental liberty. The Court found that the Washington state statute unconstitutionally interfered with the fundamental right of parents to rear their children.

It is resoundingly clear that the rights of parents and the liberty interests and autonomy has historical heritage in Supreme Court rulings. The Court has continually held a reverence and deference to the rights of the parent/child/family relationships, while striking balance of the authority of the State’s rights to protect the safety of children.

B. The “best interest of the child” standard becomes an irrelevant point of analysis when the due process rights of parents are repeatedly circumvented, denied or abrogated by state rule or procedural and process error.

Compelling interest was the only standard set forth by the courts, both federal and state to instigate government intervention into family life. A state court’s determination of parental unfitness has held to that standard by Supreme Court review.

When a State begins to abuse its powers, it raises a compelling or countervailing concern about also denying the rights of the child through its denial of parental rights. This renders the “child’s best interest” standard impotent in making a final analysis or determination

A brief review of the chronology of the facts shows the compelling injustice done to two Chinese Immigrants and thereby to their minor child, AMH.

Mr. He was falsely accused of sexual assault by a University of Memphis student while he attended and taught at the University of Memphis under an educational visa. Nine days after the alleged assault, Mr. He was called by the University of Memphis campus police one day (October 20, 1998) after Ms. Qi lodged an oral complaint with Ms. Story (October 19) and informed that he was released from employment and from his stipend and scholarship without the appropriate Preliminary Conference (Tenn. Policy 1:06:00:05, 6(a)(c) – see tab 10). This Preliminary Conference would have instructed Mr. He, who contested the allegations, of his right to a timely (20 days after Notice) TUPA hearing. Mr. He was suspended from his adjunct professorship without being told by Ms. Story that he was entitled to a separate Hearing on Suspension at the time of the decision to suspend, (Policy 1:06:00:05, 7(a)(b) see tab 10). It is further troubling that Ms. Story, who admits to being an attorney, trained in the laws of Tennessee, could not discern, as reflected in her testimony, the difference between a “Contested Fair Hearing” and a Social Discipline Committee. Ms. Story testifies that the Social Discipline Committee was the only outcome that she, as initial contact Director offered to a Mr. He, Respondent. Ms. Story claims that Mr. He chose this tribunal even though she admits in her testimony that Mr. He never received the appropriate Service of Notice of Hearing within the allotted five (5) days after investigation of the allegations. This written Notice appropriately Served would have afforded Mr. He the opportunity to Answer and deny the allegations within the five (5) day time frame he had to rebut the allegations with the aid of a legal advocate. Instead, Mr. He was instructed to answer the allegations in one day in the office of Ms. Story without the help of his legal advocate. It would have given Mr. He the opportunity to have had the appropriate Administrative Hearing to commence 25 days after the initial Complainant lodged the complaint and 20 days after the certified Service of Notice upon Mr. He. An Administrative Hearing that would have protected Mr. He’s due process and equal protection rights that he contested the allegations against him, contained sworn testimony, and would have given Mr. He the ability to face and question his accuser and allowed Mr. He legal representation. Ms. Story, instead, gave Mr. He only one avenue, and an inappropriate and wrong choice for a contested matter. (TCA 4-5-101, TCA 4-5-301). The Social Discipline Committee where a Respondent’s only choice is to admit guilt or, in essence, plea bargain and receive disciplinary sanction and recommended counseling. Ms. Story does not understand in her testimony that Service and Notice are required under Tennessee Uniform Administrative Procedures Act for any contested matter that involves the University of Memphis to protect the due process rights of individuals who are the Respondents in such proceedings. In her bungled manner, Ms. Story, has the University Police on October 20, 1998 pass the message via telephone to Mr. He that he is fired and his scholarship revoked. This is one day after Mrs. Qi’s lodged her complaint (Oct 19, 1998). University of Memphis allows up to five (5) days commencing and completing an investigation of sexual harassment. Ms. Story admits in her testimony that she was the initial contact director for Mrs. Qi and that it is her job to investigate such matters. Instead, without a diligent investigation, including forensics, she fires and suspends Mr. He without Notice. She then asks Mr. Her to come to her office (October 21, 1999) to tell him that he must answer the oral allegation in writing by the end of that day instead of the five (5) days allowed under Policy 1:06:00:05. Hence, Ms. Story was well aware that Mr. He vehemently denied the allegations to the campus police and then again, one day later to Ms. Story herself. Mr. He then, a third time denied the allegations in his submitted written denial on October 21, 1998. There could have been no confusion that Mr. He contested the allegations lodged against him. It is clear, that Notice and Service for the TUPA were never rightfully given to Mr. He. (Tennessee Policy 1:06:00:05(4)(b) – see tab 10). Henceforth, her capacity as Associate Dean of Students of Judicial and Ethical Programs, clearly delineates Ms. Story’s responsibility to investigate all cases which are subject to TUPA procedures and recommend to the President whether the hearing should commence in any contested case as outlined in Paragraph 8 of Tennessee Policy 1:06:00:05 as follows:

8. Notice of Hearing and Response

(a) Prior to the hearing all parties shall be afforded reasonable notice.

(b) This notice shall include:

(1) A statement of the time, place, nature of the hearing, and the right to be represented by counsel;

(2) A statement of the legal authority and jurisdiction under which the hearing is being held, including a reference to the particular sections of the statute or rules involved; and

(3) A short and plain statement of the matters asserted. If the institution or center or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon timely written application a more definite and detailed statement shall be furnished ten (10) days prior to the time set for the hearing.

(c) The party charged shall respond in writing within five (5) days (excluding Saturdays and Sundays) of the service of the notice of hearing which response may generally admit or deny all allegations, or may admit in part and deny in part the allegations made in the notice, and may set forth relevant issues of fact. If the party fails to respond he or she will be subject to the default provisions found in Section 14. If the party charged elects to be represented by an attorney at the hearing, the response must so indicate in writing and the name and office address of the attorney must be provided. Failure to provide written notice of the name and address of counsel in the response may result in the continuance of the hearing, if requested by the director.

9. Time for Hearings

(a) Hearings shall normally be held within twenty (20) calendar days of the date of the notice of hearing.

(b) Extensions of time may be granted upon motion by either party in the event pre-hearing discovery will not be completed by the designated time of the hearing, provided that the parties have proceeded with discovery with due diligence.

(c) Other than as required for the convenience of the hearing officer, extensions of time for hearings for reasons other than discovery shall be authorized only for good and compelling reasons. (Tennessee Policy 1:06:00:05, UM1391 University of Memphis Policy on Sexual or Racial Harassment, - see tab 10).

Ms. Story, either in her ignorance of the correct procedure when a Respondent contests or in her unethical bias erred when she never allowed Mr. He to have a timely Administrative Hearing. Ms. Story denied him a quick and speedy TUPA Hearing by using the wrong procedure and did not get a decision until September 15, 1999. Eleven months after the initial complaint was lodged against Mr. He. Mr. He never was given the opportunity for the TUPA Hearing at all since Ms. Story incompetently sent Mr. He down the wrong path to the Social Discipline Committee and created undue delay; denial of equal protection, denial of due process, denial of his right to contest his suspension of employment and other due process afforded him under the State of Tennessee and the Board of Regent’s University of Memphis policies. Policies established for just such matters concerning students and employees. It was Ms. Story’s ineptitude that later resulted in Mr. He’s false arrest since closure of a final decision on this matter was never afforded him.

Ms. Story acted in a prejudicial and capricious manner when she considered Mrs. Qi’s emotional manner in making the allegations in need of compassion and attention. However, after she erred and fired Mr. He without proper Notice or due process, she found Mrs. He’s outburst annoying, disturbing and in need of calling the police. She never had the compassion to obtain the appropriate interpreter to explain to Mrs. He why she took the erroneous action she did that caused the downward financial spiral to Mrs. He and her family. Instead, she isolated Mrs. He and carried on with her day and then called the campus police even though it was evident that Mrs. He was pregnant and distraught over the fact that Mr. He no longer had income to support their new family. Although Ms. Story made much of Mrs. Hes’s emotional reaction and comment, perhaps, Mrs. He, a pregnant Chinese immigrant, frustrated and away from any extended family realized with clarity that Ms. Story acted in a capricious, prejudicial manner who abused her power when she abruptly took away the only source of income Mrs. He had without good judgment, explanation or appropriate legal due process. It is noteworthy, that the first statement in University of Memphis’ Sexual Harassment Policy states that it is against University policy to discriminate against any member of the University community based on sex or race. (UM1391- see tab 10).

Mr. Baker contacted Mr. He to discourage him from sending AMH to China while he fought this false sexual harassment suit – insisting that The Bakers could care for AMH for free if only he would give them legal custody. This was misleading and fraudulent as outlined in the Tennessee Department of Children’s Services Provider Policy Manual for Contract Agencies Rule D. (page 4) under Compliance states:

The contract agency must not encourage nor in any way suggest to parents/guardians of a non-custodial child that the child should be put in custody to receive services….. Instead, the Contract Agency shall refer the parent/guardian to the BHO or to DCS Regional Health Unit….

It also violated Department of Human Services Covered Groups Under Medicaid Rule 12:40-3-2-02 (3)(a),(b), and (c) – see tab 11), It is noteworthy to mention that the Tennessee Department of Health Service’s definition of Fraud under Rule 1200-13-1-.21 1(f)Provider Non-Compliance or Fraud of Medicaid Program – see tab 11) states: Fraud – means an intentional deception or misrepresentation made by a person with the knowledge that the deception could result in some unauthorized benefit to himself or some other person. It includes any act that constitutes fraud under applicable Federal or State Law. It is not unreasonable to presume Mr. and Mrs. Baker would stand to benefit by satisfying their original desire they admitted to on their Foster Care Application (Exhibit 10 p. 3), which was to obtain a baby. Mid-South Christian Services would stand to benefit in receiving 18.5% (DCS Agency Fee Schedule - see tab 12) of Mr. Baker’s last three years of income which totaled over $400,000.00 per year. It is fair to think that the only time TennCare would not cover a dependent child is if there was a pre-determined intent to have the child adopted to a family who had income which exceeded the TennCare eligibility requirements. Tennessee Code Annotated 37-2-402(5) states……”Foster care shall cease at such time as the child is placed with an individual or individuals for the purpose of the child’s adoption by the individual…..” It now clarifies the plausibility that, in fact, the Bakers did not pre-plan the outcome of AMH’s fate alone. This becomes evident in the lack of required action [emphasis added] taken by Diane Chunn Brower, Director of Mid-South Christian Services. It is noteworthy that Mid-South Christian Services is listed on the Tennessee Department of Children’s Services webpage as a licensed, private Foster Care/Adoption provider under the auspices of Tennessee Department of Children’s Services and a Title VI-E fund recipient. (DCS Provider Policy Manual, page 65 Section X Payment for Services – see tab 13)

However, the Contract Agency, Mid-South Christian Services represented by Attorney Kevin Weaver and Director Chunn Brower did exactly that. They told Mr. He that the legal guardianship transfer was necessary for AMH to have healthcare. Specifically, any foster child in Tennessee who is considered dependent is automatically signed into Tenncare as is stated below:

Each TennCare enrolled child/youth in DCS custody must receive an initial Early

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