OCA - GREATER SEATTLE CHAPTER
Chinese Parents Finally Get Justice in TN Child Custody Case
After nearly seven years of battling a child custody case is over and Anna Mae He ha rejoined her parents. The Tennessee Supreme Court ruled on January 23, 2007 overturning both a lower and a state appellate courts' rulings giving the child back to her birth parents.
The case was of particular interest to OCA and the Greater Seattle Chapter in particular. The chapter's members devoted hundreds of hours in producing an amicus brief for the appellate court in support of the Chinese parents. The chapter was also instrumental in raising the issue to the national organization. Our fight for the couple was not unnoticed, it was ". . .a case that has prompted fierce debate about ethnic and cultural bias in the U.S. judicial system. . ." wrote Jenny Jarvie (LA Times, Jan. 24, 2007).
The long suffering parents and the child's unknown siblings were re-united on on July 24. In this battle for justice the family had the support of two local Memphis lawyers, David Siegel and Richard Gordon, who worked thousands of hours pro bono to see to it that America's ideals were upheld and the parental rights of non-citizens were not trounced upon. The Memphis Chinese community was also active in its support of the family and are, no doubt, rejoicing over the complete rejection of all prior judgements.
It appears that the pangs of reunion have been short for all concerned. It is regretable that the Memphis Chancery and Appellant courts were so obviously errant (see the summary of the ruling below) in causing the separation to last so long.
Tennessee Supreme Court Opinion
(01/23/2007 10:10:56)
The following is a summary. The full opinion is available for download:
In Re Adoption of A. M. H. - W2004-01225-SC-R11-PT
Shelby County - This case concerns the termination of parental rights. The appellants, who are the parents, seek reversal of the termination of their parental rights to the care and custody of their daughter, A.M.H. The trial court predicated the termination on the ground that the parents abandoned A.M.H. by willfully failing to visit her for four months.
First, we hold that the statute of repose under section 36-1-113(q) of the Tennessee Code Annotated does not deprive this Court of jurisdiction to review the termination of parental rights.
Second, because the undisputed evidence shows that there was animosity between the parties and that the parents were actively pursuing custody of A.M.H. through legal proceedings during the four-month period immediately preceding the filing of the petition for termination of parental rights, we hold that the trial court erred in finding a willful failure to visit.
Finally, we conclude that the parents' consent to transfer custody and guardianship of A.M.H. to the appellees was not made with knowledge of the consequences of the transfer. Therefore, according the parents those superior rights to the custody of their child that constitutional law mandates, only a showing of substantial harm that threatens the child's welfare may deprive the parents of the care and custody of A.M.H. Although A.M.H. has now been with the appellees for more than seven years, six of those years elapsed after the parents' first unsuccessful legal filing to regain custody.
Evidence that A.M.H. will be harmed from a change in custody because she has lived and bonded with the Bakers during the pendency of the litigation does not constitute the substantial harm required to prevent the parents from regaining custody.
For the reasons discussed below, the judgment of the Court of Appeals is reversed, and this case is remanded to the chancery court to be expeditiously transferred to the Juvenile Court of Shelby County for the entry of an order that implements a plan to reunite A.M.H. with her natural parents.
Following the reunification progress: