Appellate Court Hears He Case for Child Custody
by Richard Bergeon
March, 2005
On February 16, Anna Mae He's parents presented their case for the return of their daughter before the Appellate Court of Western Tennessee. The three judge panel included two white males (Judge Highers, in his 60's and Judge Farmer, in his 50's) and Judge Kirby, a white female in her 40's. This summary is based on notes taken by Jinliang Cai of the Greater Memphis United Chinese Association.
Chris Zawisza spoke first representing a consortium of family law professors/attorneys critical of the way in which the trial was conducted. She said the case should have been conducted in two steps. There should have been a finding that there was abandonment before determining whether the parents were unfit. By combining the steps the judge confused the issues and the birth parents were unfairly treated.
The court appointed attorney for the child spoke for ten minutes. Judge Kirby asked her about her responsibilities, and about why a “no-contact” order was issued instead of an order for supervised visits. The attorney believed it was to protect the child from being taken to China, and could not explain why other options were not considered.
David Siegel, Jack He's counsel spoke for fifteen minutes. Questions from Kirby addressed Childer's conclusion that the Hes only pursued the return of the daughter to stay in the U.S. Siegel responded that there was no evidence; two petitions did not make a pattern. The judge confirmed that during the four-month period the Hes worked at regaining their daughter by writing a letter to juvenile court about obstruction of visitation, and the filing of a petition to obtain the child's return.
Casey He's counsel, Richard Gordon, spoke for ten minutes, and responded to Judge Kirby about why no child support was paid - an attempt to pay $300 was refused, the Hes' were in desperately poor financial situation, and it was commonly understood by everyone there was to be no support.
A State Attorney General's office representative spoke for ten minutes. Asked what the State's expectation of notification of termination of parental rights for private parties was, the response was that the state assumed all parties know the rules, and that it was unreasonable to enforce notification. Pushed about notification requirements for agencies, they answered that many agencies provided notification voluntarily. Mid-South Service, the agency involved, should have provided notice, but was not legally obliged to do so.
Bakers' attorney, Larry Parrish, spoke for thirty minutes. Ten minutes of his address defended Judge Alissandratos' decision to issue a no-contact order in 2002. Apparently the judge's order was his own idea (sidebar) because the Hes would not turn in their child's passport. Asked why weekly visitation was stopped, Parrish claimed the police did not tell the Hes to never come back, and that visitation was not a big deal because many prior visits were short. Asked about a contested oral agreement to leave the child with the Bakers until she was 18, Parrish stated that it was not a contract, just an expression of intent. Asked to explain the difference between rights of guardians vs. those of parents, Parrish lapsed into what is remaining of parental rights after surrendering guardian rights.
David Siegel, Jack He's attorney, rebutted focusing on the decision standard for parental rights termination - all evidence must be clear and convincing. Those grounds were not met because: there was no evidence the Hes were trying to avoid deportation; and, their legal actions during the four month period showed there was no willful abandonment.
The ruling is expected early in April. The future of this case is not certain. No matter what is determined there is likely to be a further appeal. Tennessee institutions continue to exhibit bias against minorities of all types. Recent examples were cited by Ellen Barry, a Los Angeles Times reporter following the He case.
February 14, 2005, “Learn English, Judge Tells Moms” - A Wilson County Tennessee judge commanded a Mexican woman, who spoke only Mixteco and was cited for neglect of her 11-year-old daughter, to speak English at a fourth-grade level by her next court hearing in six months. “If she failed, he warned, he would begin the process of termination of parental rights. …He has given similar orders to non-English-speaking parents in as many as five cases.”
March 19, 2005, “County Rescinds Vote to Ban Gays” - In the same Dayton, TN courtroom made famous by the Scopes "Monkey Trial" about 79 years ago, eight Rhea County commissioners unanimously voted March 15 to ban gays and lesbians from living in the county and to prosecute any found living there for “crimes against nature.” The wording called for the county attorney to write a resolution to make it a state law. After 48 hours of answering calls from around the world, the commissioners voted to undo the act.
NOTE: On Mar. 25, 2004 the Hes charged Judge Alissandratos with inappropriate judicial actions in issuing orders on his own volition and without a hearing. To issue a no-contact order against a parent: an attorney must file a motion; proof the parents might harm the child must be presented in a court hearing; and the parents must be given an opportunity for to oppose the order. Since none of these things occurred, Alissandratos had to remove himself from the case and it was given to Judge Childers.
The Judicial Review Court continuously granted Alissandratos delays until Childers ruled on the He case. Judge Childers issued his ruling (one that reflected cultural and racial bias) three days before the expiration of the last extension. Childers Fedex'd a copy to the Judicial Review Court. Because Childers found the Hes not credible, all charges against Alissandratos were dropped.
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