He Family Loses Appeal, Stirs Controversy
by Richard Bergeon
December 2005
The struggle to get their daughter back from a middle-class Tennessee white couple failed to come to a conclusion this month. On November 23 two members of the Tennessee State Court of Appeals issued their opinion, which was to not overturn a lower court ruling that stripped the Hes of their parental rights.
The parents lost their rights in a controversial case in March, 2004. A five year battle waged by a Chinese father, Jack He, who had come to the U.S. to study, and his wife, Casey He, and their two pro bono lawyers, David Siegel and Richard Goodman, is not over. They have pledged to appeal the ruling to the State Supreme Court and to the U.S. Supreme Court, if necessary.
The problem began nearly five years ago when the couple became enmeshed in a legal battle that cost the student his university job and forced them to seek medical and financial aid for a daughter that was soon to be born. Local officials and friends steered the couple into the hands of a private agency who arranged for the white couple, the Bakers, to provide foster care for the child.
Following a ninety-day period in which the Bakers provided loving care for the child the He couple was dissuaded by the Bakers from sending the child to live with their family in China. The Bakers insisted that the relationship, which was up to this time blissful, could continue if only the Hes surrendered custody of the child so that the Bakers could cover her health expenses under their insurance. The Hes agreed, but soon found the Bakers had other plans for the child's future.
When the long-term tussle over the child erupted into a shouting match the Bakers called the police who told the Hes to leave and not return. Not knowing their rights to visitation could not be curtailed the Hes stopped visitation and turned to the court to get the child back. Just as the local juvenile court was expected to rule in the Hes' favor the case was moved to another court and things went from bad to worse. After more than two years during which the Hes were barred, by what could best be called an unfriendly judge, from visiting their child. The case had to be passed on to another judge. This judge's ruling was taken to task by OCA-GS which filed an Amicus Brief with the Appellate Court in January of this year.
The lengthy opinion (114 pages) was issued more than nine months after the appeal was heard. This was itself unusual since appeals involving the rights of parents and children are often expedited. A reading of the opinion yields some obscure reasoning. For example, in justifying their concern about the interests of the child, the judges noted that if she returned to China the parents could be denied some government benefits because of the one child policy (the Hes now have three children.) While the judges acknowledged that the Chinese government has confirmed the policy exempts children born outside the country, the judges said the Chinese government could always change the rule.
The opinion included an also unusual five page defense of the opinion against the dissenting opinion of the third member of the court. Issued by Holly M. Kirby, J. the summary of the dissent reads as follows:
For all of its lengthy analysis, the majority fails to address key issues relating to the overriding question of whether the Hes “willfully” failed to visit A.M.H. during the four months preceding the Bakers' petition to terminate the Hes' parental rights. In my view, the Hes' failure to visit A.M.H. during the four months preceding the petition for termination cannot be characterized as “willful” under the statute because:
(a) the Hes engaged in regular, once-a-week visitation with A.M.H. prior to the January 28, 2001 incident when visitation ceased;
(b) during the four months preceding the filing of the termination petition, the Hes pursued legal recourse in Juvenile Court in an effort to regain custody of A.M.H.;
(c) the evidence in the record does not support the trial court's conclusion that the Hes' efforts to regain custody were motivated solely by the Hes' desire to avoid deportation; and
(d) the Hes did not know that failing to visit A.M.H. for four months could result in the termination of their parental rights.
I believe that, throughout its analysis on the issue of willfulness, the majority applies a different standard than would have been applied had the termination of parental rights been sought by the Tennessee Department of Children's Services (“DCS”). This is wrong. Thus, for these reasons, I would hold that the alleged ground for termination of the Hes' parental rights, their “willful” failure to visit A.M.H., has not been proven by clear and convincing evidence. In addition, I believe that the issuance of the February 2002 nocontact order, prohibiting all contact between the Hes and A.M.H., constituted clear error and unfairly impacted the evidence.
© 2005 OCA-Greater Seattle
OCA - GREATER SEATTLE CHAPTER