Judging from some opinions, legal experts both respectful and shocked

By Shirley Downing, Commercial Appeal

May 20, 2004

 http://www.commercialappeal.com/mca/local_news/article/0,1426,MCA_437_2899689,00.html

Legal and child welfare experts are divided on the controversial May 12 ruling that stripped a Chinese couple of parental rights to their 5-year-old daughter.

Circuit Court Judge Robert Childers refused to return Anna Mae He to birth parents Shaoqiang 'Jack' and wife Qin Luo 'Casey' He. The Hes have fought for four years for the return of their first-born child from foster parents Jerry and Louise Baker of Cordova.

Some lawyers praise Childers's professionalism and dedication to duty in the 20 years he's been on the bench. Other legal and child care experts use "appalled," "stunned" or "shocked" in describing the ruling.

"This is an extraordinary case and an extraordinary opinion," said adoption attorney Bob Tuke of Nashville, who served on a committee that helped rewrite the state's adoption code in the mid-1990s.

Tuke said Childers used a "sound application of the law, including constitutional principles" in reaching a decision.

Tuke also said the Hes' credibility was a factor - Childers simply did not believe them.

Memphis Bar Association president John Heflin III said Childers "is a very fine and experienced trial judge.

" Childers has won numerous awards and is past president of the Tennessee Trial Judges Association and past president of the Tennessee Judicial Conference, he noted.

Heflin said the ruling "is a lengthy, detailed, factual analysis of the many, many hours of testimony that he heard. Do I know whether he is right or not? I don't know. I wasn't in the courtroom. Would I agree with him?

"Judges have the unfortunate situation that half their customers are unhappy at the end of the case because they rule against somebody."

Other legal experts were not so generous. Steven Lubet, professor of law at Northwestern in Chicago and author of several books on judicial and legal ethics, said he was stunned by the ruling and its wording.

"I don't see how he can possibly find abandonment," Lubet said. "It is inconceivable that he would find abandonment while the parents are actively pursuing legal remedies to retrieve their child."

Lubet said Childers "draws every possible adverse inference against the Hes, many of them with seemingly no support at all" while not using the same reasoning with the Bakers.

Lubet said he plans to use the case in his classroom "to teach students how to uncover unspoken assumptions in judicial opinions. It is just filled with unspoken assumptions."

Richard Wexler, executive director of the National Coalition for Child Protection Reform in Alexandria, Va., called the ruling "appalling."

"No matter how much the judge tries to divert our attention by spewing venom at the Hes, at the bottom, this case is about wealth and poverty," Wexler said.

Chris Zawisza, director of Child Advocacy Clinic at the University of Memphis Law School, questioned the legal analysis of the 73-page ruling.

Beginning on Page 4, Childers describes the Bakers and their background, and the Hes and their background. By Page 9 he is describing the Bakers as warm, caring and filled with love for children. Over the next four pages, Childers discusses the Hes and gives his opinion of their actions and motives.

Zawisza said the law "requires that the court not compare the natural parents with adoptive parents in termination of parental rights proceedings because the issue in a termination case is whether there is clear and convincing evidence the parents either abused, neglected or abandoned the child, and that is it.

"It is irrelevant what potential adoptive parents look like."

Parents appeal Anna Mae ruling Statement by Hes labels Childers as 'a biased, prejudiced and lying judge'

By Shirley Downing, Commercial Appeal

May 20, 2004

The birth parents of 5-year-old Anna Mae He on Wednesday appealed last week's ruling that terminated their parental rights and gave their first-born child to a Cordova couple to adopt.

Attorneys for Shaoqiang 'Jack' and Qin Luo 'Casey' He notified Circuit Court of their appeal to the Tennessee Court of Appeals of the May 12 ruling by Judge Robert Childers.

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The Hes, both Chinese nationals, have fought more than four years for the return of their daughter from her foster parents, Cordova mortgage banker Jerry Baker and homemaker wife, Louise.

Baker attorney Larry Parrish earlier said it would be a "real blessing" if the Hes did not appeal. He could not be reached for comment Wednesday.

After a 10-day bench trial this spring Childers terminated the Hes' parental rights and branded the couple as calculating cheats. He said the Hes were unfit to parent Anna Mae. He said they were guided by efforts to avoid deportation.

"We totally disagree with Judge Childers's decision," the Hes said in a prepared statement. "His decision was based upon nothing but character assassinations, deliberate omission of some crucial evidence and distortion of basic facts."

The Hes' statement said facts would "show Honorable Judge Childers as a biased, prejudiced and lying judge."

Childers discounted virtually everything the Hes said at trial, but accepted Jerry Baker's testimony about what Jack He allegedly had said.

"If Judge Childers believes that Mr. He is always telling lies and Mr. Baker is always telling truth, then what Mr. Baker said that Mr. He said are also lies," the statement noted. "Mr. Baker can't turn lies into truth by simply repeating them. This is common sense."

The Hes said if Childers was truly concerned about Anna Mae's welfare he would not have posted such a harsh ruling on the Internet for the world and, eventually, Anna Mae to see.

"Common sense tells us that people are hurt when they are told that their blood parents are being labeled as cheats and frauds, this is true for people of Chinese and all other known cultures," the statement said.

The Hes accused Childers of "racial elitism" and said he also showed "extreme animosity" towards Casey He when he questioned the sincerity of her tears.

The Hes said they want their daughter to know her birth parents fought hard to keep her, that they did not abandon her, and that "Mom and Dad are normal human beings."

In early 1999 the Hes voluntarily gave the Bakers legal custody of the 3-week-old child. The Hes were under financial and legal stress. After a 90-day fostering period the Hes prepared to send Anna Mae to China to stay with relatives until Jack He - who had been fired from his graduate assistantship at the University of Memphis - finished school and resolved a sexual assault charge of which he was acquitted.

The Bakers offered to keep Anna Mae and put her on their insurance.

The Hes said they thought the fostering agreement was temporary, an assessment backed by three court witnesses. The Hes visited the girl more than 80 times in two years. But when the Bakers called police to their home after a dispute arose on Anna Mae's second birthday, officers told the Hes to stay away.

Several weeks later the Hes appealed to Juvenile Court. In a June 2001 hearing Referee Harold Horne indicated Anna Mae should go back to her birth parents.

Horne continued the hearing for two weeks to allow the Bakers time to get an attorney.

But the Bakers then petitioned Chancery Court to terminate the Hes' rights and allow the foster parents to adopt Anna Mae. Four months had elapsed without a visit, which met the state law for abandonment. This lawsuit removed the case from Juvenile Court.

The Hes said they were unfamiliar with American laws and customs when they gave the Bakers legal custody. They accuse the Cordova couple of using costly lawyers and the courts to steal their daughter.

The Bakers said they rescued an unwanted girl from a life of hardship in China. The Bakers have said their legal costs are about $500,000. The Hes have been represented by attorneys who are working for free. http://www.commercialappeal.com/mca/local_news/article/0,1426,MCA_437_2899502,00.html

Jack He has supported his family by working in low-paying restaurant jobs. The couple live in a Cordova apartment where Casey He tends the couple's two younger children.

While the Bakers celebrated last week's ruling, the Hes said they have been very discouraged.

Louise Baker said it felt as if bricks had been taken from her chest. "God is the one who did it for us," she told friends last week who called to share the family's happiness.

The Hes called it "heartbreaking to have our parental rights being terminated in the most brutal manner at the end of our four-year struggle. . . . This is a horror, a death penalty to us."

Anna Mae decision botched by judge

By Wendi C. Thomas, Commercial Appeal

May 20, 2004

 http://www.commercialappeal.com/mca/news_columnists/article/0,1426,MCA_646_2898787,00.html

If you let Circuit Court Judge Robert Childers tell it, Jack and Casey He are horrible parents.

Because of that, they don't deserve to get their 5-year-old daughter, Anna Mae He, back from her foster parents, Jerry and Louise Baker.

If you believe Childers (and I don't), the Hes are deceptive illegal immigrants motivated solely by their desire to stay in America.

If the Hes are bad as Childers claims, why hasn't the Department of Children's Services taken the Hes' other children away from them?

I'll tell you why. Because no American family is fighting to keep those children. And there's no proof the Hes are unfit parents.

Matters as complex as child custody cases are never as clear cut as Childers would have you believe.

His ruling to terminate the Hes' parental rights can be summed up in four words: Bakers good, Hes bad.

The Bakers, Childers says, are so wonderful that they missed church a few times so Anna Mae could see her biological parents.

On the other hand, the Hes had to lure Anna Mae to them with food during visits to the Bakers' home. Childers points this out as if to say, see, I told you they were bad.

The judge allows for no good will in the Hes' actions.

The Hes sent checks to the Bakers for Anna Mae's care, but the Bakers didn't cash them. The judge goes on to say the Hes didn't financially support their child.

The Hes brought Anna Mae gifts, but the fruit, clothing, toys and diapers were of "insubstantial economic value."

Hmm. I didn't know gifts had to have a high trade-in value to have worth.

Childers reluctantly acknowledges the risks of a "transcultural placement;" legalese for saying Anna is Chinese and they're white.

Then he pooh-poohs those risks, since they'll be erased by the Bakers' sensitivity.

The Bakers, I'm sure, are loving and caring parents.

But their best efforts to raise Anna Mae as a Chinese girl are destined to fall short.

No number of trips to Chinese festivals or Chinese churches, no number of visits from Chinese friends can replace waking up each morning to look into a face that looks like yours.

I can't shake the feeling that an anti-immigrant sentiment clouded Childers's judgment.

It's as if life in America is preferable to life anywhere else. But Childers can't come out and say that. Instead, he catalogs the Hes' every misstep (and granted, there are some) to make his case.

Mrs. He, Childers wrote, is "an impetuous person not subject to being intimidated. . . in achieving whatever she sets as her goal."

Mrs. He's goal? To reclaim her daughter, to which Childers assigns nefarious intent.

By the time I made it through the 73-page ruling I fully expected Childers to blame the Hes for global warm ing and rising gas prices.

Childers never proved the Hes are unfit parents. What he did prove is his version of justice is biased.

I hope it gets overturned.

Contact Wendi C. Thomas at (901) 529-5896