The Fighting 44s

The case of Anna Mae He is finally come to a close. On January 23 2007, after eight years of hardship and legal battle, the Supreme Court of Tennessee ruled that little Anna Mae should be returned to her biological parents, Shao-Qiang (”Jack”) and Qin Luo (”Casey”) He.

What follows is some commentary on the legal content and the tone of the judgments. I do not intend to provide any sort of formal analysis, legal or otherwise, nor will I describe in detail the procedural history of the case and the surrounding events. There are plenty of sites and articles online which do: simply search for “Anna Mae He.” I have written a previous piece on this case here; the facts are correct, the approach is artistic.

My goal in these comments is to simply point out some questionable aspects of the judgments which are, at best, indicative of gross logical error by the lower courts, and, at worst, judicial misconduct and bias. I will do so by pointing out errors in reason as well as the tone of disapproval evident in the judgments of the Court of Appeal dissent and the Supreme Court.

The text of the various judgments can be found at these links:

Chancery Court of Tennessee
Court of Appeals of Tennessee, Majority
Court of Appeals of Tennessee, Dissent
Tennessee Supreme Court Ruling (Unanimous)

Please note that I have not followed formal citation guidelines, but I have provided page and paragraph references where necessary, and if the context does not make it obvious which document I am referring to, I specify further in the citation.

TRIAL

The original trial occurred in the Chancery Court of Tennessee. As a point of interest, a “Chancery Court” is the modern American name for a “Court of Equity,” which comes from the English judicial system. Courts of Equity, as opposed to regular Common Law Courts, were specifically created to enforce “justice,” as opposed to strict legal rules. The chancellor acted as the “King’s conscience” and could modify or work around rigid laws and requirements to bring about a fair, just, and “equitable” ruling which might not otherwise be possible. It is ironic that the Chancery Court has done the opposite here.

Judge Robert Childers

Judge Robert Childers heard the case and made the judgment on the petition to terminate parental rights and the petition to modify custody. In his 72 page memorandum opinion, he sets out his view of the facts of the case, the credibility of the litigants and witnesses, considers the “Best Interest” of AMH, and then puts forth his legal conclusions. Childers is being asked to rule on two “petitions”: (1) the Bakers want the court to terminate the parental rights of the Hes (2) the Hes want to “modify” the Bakers’ custody over AMH so they can get their child back.

Because the Hes were having financial troubles, they wished to put AMH into temporary foster care until they could stabilize their income. They had intended to put her into foster care with the Bakers for 90 days. The Hes signed a consent order on June 3 1999, allowing the Bakers to have custody of AMH. On January 28, 2001, AMH’s second birthday, the Bakers refused to let the Hes see their daughter and called the police. When the police arrived, they told the Hes not to come back. The Bakers and the police interpreted the statement to mean “not to come back that day,” whereas the Hes maintain that they took it as an instruction not to come back at all, or risk arrest. This trial occurred in May 2004: from the day of AMH’s second birthday until the trial, the Hes had not seen their daughter.

Childers essentially made the following conclusions:

1. As of June 4, 1999, legal custody and guardianship was transferred to the Bakers. In his view, the Hes ceased to be AMH’s legal parents at that point.

2. The Hes willfully abandoned AMH by

a. willfully failing to provide support for AMH;

b. willfully failing to visit AMH for four consecutive months immediately preceding the filing of the June 20, 2001, Petition to Adopt and to Terminate Parental Rights. Under Tennessee law, if a parent knowingly and willfully fails to visit her child for four consecutive months, her parental rights may be terminated.

Additionally, he engages in a “Best Interest Analysis” and concludes that “Placing custody of AMH in Mr. He’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child” (para. 272, the grammatical error is his).

He therefore granted the Bakers’ petition and terminated the Hes’ parental rights, and denied the Hes’ petition to modify custody.

The first conclusion was made on a point of law, and we need not go into detail here. Suffice it to say that Childers, based on his interpretation of case precedent and the Tennessee Code, did not believe Shao-Qiang was the legal parent when the Hes filed their petition; all members of the Court of Appeal found that he was incorrect, and that Shao-Qiang was indeed AMH’s legal father.

The second conclusion was based on the fact that the Hes did not provide support for AMH and did not visit for four months.

With regard to the lack of support, Childers goes so far as to say “the Hes’ willful failure to support AMH is not excused because there was no court order requiring support, nor because the Bakers did not request support for AMH from the Hes” (para. 271). He seems to overlook the fact that “During the foster care period, February 24, 1999, to May 23, 1999, the Hes put a sum of money, approximately $300.00, on the Bakers’ couch during a visit. Mrs. He told the Bakers that the Hes would give the Bakers more money for AMH’s support as soon as they were financially able. Mrs. Baker told the Hes that the Bakers could not take the money. The Bakers were not allowed to accept money for foster children in their care, except for the $6.00 per day that Mid-South paid the Bakers under the foster care agreement with Mid-South” (para. 168).

Given the Bakers’ refusal to accept the money and the lack of any subsequent request for support, Childers’ point would seem to have little merit. Again, all members of the Court of Appeal agree: “we do not give the same weight as the trial court did to the Hes’ failure to pay child support for A.M.H. during the pendency of this case below due to the Bakers’ refusal to accept such support” (p. 108).

We know that Shao-Qiang was the legal father at the time of the petition, and we know that the Hes did not willfully fail to support AMH. Did they willfully fail to visit her?

The undisputed evidence indicates that they did not. The Tennessee Supreme Court notes the following facts:

(1) On January 28, 2001, the parents visited A.M.H. in the home of the Bakers;(2) The parents became upset when they could not take A.M.H. with them to sit for a family portrait;

(3) The parents refused to leave A.M.H. until a police officer arrived and told them to leave;

(4) During the subsequent four months and five days prior to the filing of the petition for termination, the parents pursued help in regaining the custody of their child by contacting the juvenile court and the local media;

(5) During this time, the parents initiated two juvenile court hearings on a petition to regain custody of A.M.H.;

(6) The first hearing was thwarted by the Bakers’ request for a continuance; and

(7) The second hearing was thwarted by the Bakers’ initiation of proceedings in chancery court. (p. 16)

Do these look like the actions of parents trying to abandon their child?

Additionally, Childers engages in a “Best Interest Analysis,” a legal approach which takes the health of the child into account. He states the following:

277. The Court concludes, by clear and convincing evidence, that AMH is a minor child of tender years, who has developed a strong psychological and emotional attachment to the Bakers, and that removal of AMH from the Bakers would cause substantial harm to AMH. 278. The Court concludes, by clear and convincing evidence, that the Bakers have provided AMH a safe, stable, healthy, loving environment for such a length of time that removal of AMH from that environment would cause substantial harm to AMH.

279. The Court concludes, by clear and convincing evidence, that continuation of any parent-child relationship between AMH and either Mr. or Mrs. He greatly diminishes AMH’s chances of early integration into a safe, stable, and permanent home.

280. The Court concludes that the risks inherent in removing AMH from AMH’s present circumstances substantially outweigh any risks posed by transcultural placement and loss of contact with AMH’s biological parents, the Hes.

281. The Court concludes, by clear and convincing evidence, that there is parental misconduct or inability to parent by the Hes.

282. The Court concludes, by clear and convincing evidence, that both Mr. and Mrs. He are unfit parents, based on abandonment of AMH by both Mr. and Mrs. He.

283. The Court concludes, by clear and convincing evidence, that it is in AMH’s best interest to terminate the parental rights of both Mr. and Mrs. He.

Childers also states in the first paragraph of his judgment that “the Hes only sought custody of AMH to prevent the Hes’ deportation.”

He says, in essence, that because AMH is already so attached to the Bakers (as a result of all the legal maneuvering), and because the Hes are “unfit parents,” it would be in AMH’s best interests to be raised by the Bakers.

These arguments are also false. First, attachment to the current caretaking family is not an overwhelming consideration in a custody battle; if it were, the current family could use legal delaying tactics to increase their time with the child, even if they obtained custody of the child through unjust means. Attachment is certainly a consideration for how a child would be returned to a family if she is returned, but it is not an overriding factor in the decision to return. Secondly, if the Hes were so unfit and unable to take care of AMH, how could they be raising two healthy children at the time of the trial? And if they were only interested in seeking custody of AMH to prevent their deportation, why would they bother when they had had two other children in the meantime?

Childers had no factual, logical, or legal basis for his rulings. How, then, could he have come to his conclusions? I believe we can find some explanation from the tone of his judgment.

His attention to detail was such that he managed to misspell Shao-Qiang He’s name as “Shaio-Qiang” throughout the memorandum (”aio” being a letter combination which does not occur in any system of Chinese-English romanization).

Jerry and Louise baker

When examining litigant credibility, he finds that Mr. Baker “has a great deal of love, care, and concern for children in general, but who has an enormous amount of love, care, and concern for his own natural born children and for AMH. He testified in an honest, straightforward, sincere manner” (para. 32). Mrs. Baker is “a sincere, honest, credible witness … she also has an enormous amount of love, care, and concern for children in general, but she also has an enormous amount of love, care, and concern for her own natural born children and for AMH” (para. 33).

Shao-Qiang He at Trial

Contrast this with his impression of “Jack”: “Mr. He is highly educated … he also has a high level of the knowledge of the culture in the United States … he is familiar with the justice system … He is proficient in computer skills, including the ability to access the Internet and to use website technology to garner resources and seek assistance from experts. He has an aggressive personality and shows no propensity to be deterred or intimidated. He is a thoughtful and deliberate person who exhibits a proclivity to calculate, plan, and carefully predetermine his action and behaviors. At all times relevant to this case, Mr. He has demonstrated the ability to access knowledgeable advisors in any area in which he needs assistance, to scrutinize the advice given, and, if dissatisfied with the advice, reject the advice and seek out other advisors. Since 1998, Mr. He has repeatedly engaged in a pattern of conduct marked by deceitfulness and dishonesty, without remorse, repentance, or conscience, and has shown a propensity to justify all means, including perjury, for what Mr. He deems to be justifiable ends” (para. 35-36).

Shao-Qiang at the Red Sun Buffet

Essentially, Shao-Qiang has a post-secondary education (Mr. Baker completed twelfth grade), has acclimated to the U.S., can use the internet, learned about the justice system, is capable of making and implementing plans, and will do whatever is necessary to get his baby daughter back. This would, I hope, describe most of middle-class America. I hope that these facts would apply to me if someone took my little girl away. Given Childers’ tone, however, it is clear that he sees the court as dealing with a master of manipulation, a diabolical and calculating machine, a modern Fu Manchu who uses his spawn to further his own ends while stacking Coke glasses at the Red Sun Buffet in Bartlett, Tennessee.

Qin Luo, Shao-Qiang, and little Avita, on hearing the trial decision

Mrs. He “is an impetuous person not subject to being intimidated or deterred in achieving whatever she sets as her goal. The evidence shows that she is calculating, almost theatrical, in her actions. The evidence further shows that she is dishonest and manipulative, and has a history of acting in an unstable manner when it serves her own self-interest” (para. 42). In other words, she cries when she is in difficult situations and will do whatever it takes to get her baby back.

In determining the credibility of the witnesses, Childers has this to say about Ms. Kimbrough Mullins, the guardian ad litem: “Ms. Mullins, in her fiduciary capacity to AMH and to the Court, has acted in good faith, has shown no bias or prejudice in performing her duties, but has steadfastly and diligently advocated for what Ms. Mullins considers to be in AMH’s best interest, regardless of the consequences, based solely upon the information she gathered during her investigation” (para. 58, emphasis mine).

“Regardless of the consequences”? Like, for example, taking AMH away from her biological parents, deciding who was better equipped to raise her, or perhaps asking the court to issue a no-contact order, destroying the Hes’ parent/child relationship? Is this acting in good faith? She had read a book on Chinese girls being placed in orphanages which had caused her to be concerned for AMH’s well-being (p. 9, Supreme Court judgment). A book on girls in foreign orphanages influenced her actions to oppose all contact between AMH and her biological parents. Is this unbiased? Is this unprejudiced?

Childers relied on the testimony of Dr. David Goldstein, a clinical psychologist contacted by Ms. Mullins; the court appointed him to evaluate AMH and the parties. Childers found him to be “a highly qualified, highly respected, experienced psychologist, who has been practicing for many years. The majority of Dr. Goldstein’s training has been in the area of child psychology” (p. 55).

Whereas Childers seems to have had a great deal of respect for witnesses provided by the Bakers and Mid-South, his attitude toward the Hes’ witnesses is less generous. He finds the testimony of the Hes’ witnesses to be either lacking in credibility or irrelevant. He finds Dr. John Copper’s testimony, for example, to be ” unbelievable, and totally lacking in credibility, stating that Dr. Copper is not an expert in Chinese adoption law, nor is he an expert on termination of parental rights.

This in itself would be completely acceptable, if only Childers had extended that same critical eye to Dr. Goldstein. The majority in the Court of Appeal indicates that “While [Dr. Goldstein] found the research involving transcultural adoptions to be sparse, he concluded that such adoptions do not appear to have any significant differences from normal adoptions” (p. 27). Not only did Dr. Goldstein admit to having read little research, but the point itself is false. I cannot overstate how wrong this is: transracial adoption introduces a complex set of issues which same-race adopters do not have to consider. For an introduction to these issues, please refer to these three sites.

Childers, however, found no issues of credibility on this point. Considering how critical he had been toward the credibility of Dr. Copper, it is difficult to understand how he could take Dr. Goldstein at his word on transcultural placement when the doctor had little expertise and experience in the matter.

Before any analysis has taken place in this judgment, the heroes and villains of the piece have already been cast. Childers does an admirable job in gutting the character of the Hes while elevating the Bakers and Mid-South Christian Services to near-saintly levels. On reading this set of facts, one might forget, for example, how the Bakers had kept written records of every visit by the Hes to their house. One might forget how the Bakers wished to reduce the number of visits the Hes made and minimize any emotional attachment AMH could have formed. What was it Mrs. Baker said in her journal? “We would like to get visits to every other week. We feel like they would wean away, but the last 2 visits we could see Casey is wanting to come more” (p. 13, Court of Appeal, majority). We might forget that the Bakers filed for custody five days after the four month parental termination period had elapsed, yet they are caring and compassionate, and certainly could not be described as “manipulative.”

“Jack,” “Casey,” and Anna Mae

The Hes are not perfect people, no, but were the Bakers? The Hes strategized and manipulated to get their daughter back. They were forced to do this for nine years, six of which had passed by the time of this trial. They did not do this to avoid deportation; they already had two other children. The Bakers strategized and manipulated to take a couple’s daughter away. Mr. Baker had a twelfth grade education, four natural children, and was in financial trouble. The court still managed to conclude that it was in AMH’s “best interest” to stay with the Bakers.

Again, the Best Interest Analysis should not have been relevant: the right of biological parents to raise their children is constitutionally protected unless abandonment is proven. It is here, however, where the Childers’ judgment becomes completely ridiculous. He, like the guardian ad litem, considers what he knows of the conditions in China:

There is no credible proof in the record to determine the employment prospects or the living conditions that the Hes would have in the Peoples Republic of China.There is a “one-child-per-family” policy in the Peoples Republic of China. Families with more than one child are subject to financial penalties and/or the loss of government services and benefits, including medical care and educational benefits.

If the Hes return to the Peoples Republic of China to live, they will be outside the jurisdiction of this Court. (Para. 234-236)

As the Supreme Court notes in their judgment, “the testimony concerning the general conditions in China is not relevant to a finding of substantial harm. Financial advantage and affluent surroundings simply may not be a consideration in determining a custody dispute between a parent and a non-parent. The evidence at trial showed that the parents have overcome many obstacles to achieve financial stability and are ably taking care of their other two children” (p. 19).

The Hes with members of the Chinese consulate

If we could simply move children around because we think they would be better off with another set of parents, in the event of a custody dispute, lower-income visible minorities would be almost certain to lose their children. If this sort of “evidence” were considered relevant, any white middle-class family in America would have a powerful tool with which they could take away the children of young immigrant families through litigation and primary reliance on “Best Interest Analysis.”

The best “factor” of Childers’ analysis, however, occurs in the next paragraph: “Mr. He fears returning AMH to the Peoples Republic of China because the death rate for children of AMH’s gender is fifty (50%) in that country” (Para. 237).

Even though any person of sound mind can see how intrinsically ludicrous that statement and figure are, I will present evidence anyway.

According to the CIA World Factbook 2006 estimates, China’s demographics break down like this:

Age structure:
0-14 years: 20.8% (male 145,461,833/female 128,445,739)
15-64 years: 71.4% (male 482,439,115/female 455,960,489)
65 years and over: 7.7% (male 48,562,635/female 53,103,902) (2006 est.)

Sex ratio:
at birth: 1.12 male(s)/female
under 15 years: 1.13 male(s)/female
15-64 years: 1.06 male(s)/female
65 years and over: 0.91 male(s)/female
total population: 1.06 male(s)/female (2006 est.)

Does it look like half the female children in China are dying? Between birth and fifteen years of age, the male/female ratio remains almost the same. This implies that if 50% of female children were dying, about 50% of male children would be dying, too. Not only is this mortality rate absolutely ridiculous, but it would also imply that girls are not treated very differently from boys. UNICEF tells us that overall child mortality for children under five is currently at 38/1000, or 3.8% and dropping. You cannot arrive anywhere near this number if you assume that half the girls in China are dying, because even if no boys die, you would still arrive at a child mortality rate of around 23.5%. The highest female child death rate we could possibly have is 3.8%, and that is assuming no boys die in China.

This is such a ludicrous statement that I’m skeptical as to whether Mr. He even said it, considering he grew up in China and has stated that he would strongly consider returning to China once he got his daughter back. Even if he did say it in some ill-conceived attempt at manipulation, it should not even have been mentioned as a factor of consideration in this judgment. Its very presence, along with the other glaring logical flaws illustrated above, indicates to me that Childers is basing his decision on something other than reason. The only reasonable explanation that I can see for Childers’ failure to justify his decision with anything resembling sound logic is bias.

APPEAL

The Hes of course appealed the ruling. The majority essentially upholds the decision in their 114 page judgment, but they did spell Shao-Qiang’s name correctly, which is gratifying. The judgment, however, is not unanimous: Judge Holly Kirby wrote a strongly-worded dissent, to which the majority responded in an equally strongly-worded conclusion. This is where things get very interesting.

The majority concludes that Childers erred in finding that Shao-Qiang was not AMH’s father at the time of the petition; it also concludes that the lack of financial support from the Hes was not indicative of abandonment, because the Bakers had refused it. It still holds that the Hes willfully abandoned AMH, however, because they did not visit her for four consecutive months. It also ruled on the constitutionality of certain Tennessee statutes and the Hes’ motion to “bifurcate” the proceedings: the Hes argued (correctly) that the court should first determine whether the Hes had willfully abandoned AMH, and then conduct a separate proceeding to determine AMH’s best interests. The majority held that the statutes were not unconstitutional, and that the proceedings did not need to be separated: they affirmed Childers’ decision that there was clear and convincing evidence for willful abandonment and that staying with the Bakers was in AMH’s best interest.

Judge Kirby, in her dissent, can scarcely believe the majority has found a willful failure to visit. Her wording is blunt and direct: “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.” (p. 1). She points out that the Hes visited weekly before the January 28 2001 police incident; that they pursued legal recourse in Juvenile Court during the four-month abandonment period; that the evidence does not support Childers’ conclusion that the Hes’ efforts were made to avoid deportation; and that the Hes had no idea how not showing up at the Bakers’ for four months could affect their parental rights. She says, in addition, that “the issuance of the February 2002 no-contact order, prohibiting all contact between the Hes and A.M.H., constituted clear error and unfairly impacted the evidence” (p. 2).

The existence of this “no-contact” order is another strong reason not to give priority to a best interest analysis, since it forced the Hes away from AMH, insuring a strong bond with the Bakers. In addition to what the order did, its very creation is suspect, and almost absurd: D.J. Alissandratos, the judge assigned to the case before Childers, had no idea why he issued it. Childers, interestingly, had nothing to say about this in his judgment.

The following exchange occurred between Alissandratos and Larry Parrish, attorney for the Bakers:

THE COURT:
Why did I issue a no contact order?

MR. PARRISH:
The guardian ad litem asked you to. The Hes were here with counsel at the time and didn’t object.

THE COURT:
Let me say this, I need to have an evidentiary hearing so I can see whether or not I need to reverse myself, stick with what I have done, whatever it is, because I don’t remember why I did it. It sounds more logical, which is — because it’s not like me to sit and go, I’m looking at an overcast day, I think I will deny, think I will deny you visitation. I usually do things for a reason. People might disagree, but I am a person who reasons through things.

MR. PARRISH:
I realize that.

THE COURT:
Obviously what happened was the guardian ad litem made a recommendation the other side remained silent on and didn’t offer proof, and I went on ahead, and I went on, said my job is to be decisive, not just ride the fence being indecisive.

So, I made a decision, one side said, I would like for you to decide this way, which is to deny visitation, and the other side was heard for whatever short time it was or long time it was or whatever, then I made a decision. Now, having done that, I’m more than happy to revisit it, but if I’m going to revisit it now, I’m going to need to hear from the guardian ad litem, and witnesses, anybody they want to call, because the law is not absolute on this. (p. 26, Court of Appeal, majority)

These were the words of Chancellor D.J. Alissandratos, who eventually recused himself from the case when the Hes accused him of judicial misconduct. I wonder why?

I admit, when I first read this passage, I found its sheer absurdity hilarious; this sort of dialogue, to me, would be more appropriate in a conversation about why I decided to pack a cheese sandwich for lunch, and not why I had decided to cut parents off from their child indefinitely. The record on appeal contained no ruling on visitation or a no-contact order, nor did it have a transcript of any evidentiary hearing addressing the entry of the order. The order appeared without justification and remained without justification.

The majority also acknowledged that, “On December 1, 2003, the Hes’ second child, Andy, returned to the United States. After picking up Andy at the airport, the Hes proceeded to Wal-Mart where they encountered Hope Baker, the Bakers’ older daughter, A.M.H., Aimee, and another child Mrs. Baker was babysitting. Mrs. Baker was in another part of the store shopping, and Hope was watching over the other children. Upon seeing A.M.H., Mother approached A.M.H., touched the child, and said loudly, “That’s my daughter. Give me my daughter.” Hope grabbed A.M.H. and began screaming for help. A Wal-Mart manager heard the scream for help and approached the group. Father subsequently approached the group and told another manager who arrived at the scene that the Hes wanted to take A.M.H. and leave. One of the Wal-Mart managers called the police to deal with the situation (p. 29).

Despite numerous examples of care and concern like this in the evidence which occurred before and after the four-month abandonment period, the majority still chose to uphold Childers’ ruling because of what amounted to a technicality: that the Hes did not visit for four months.

I believe it is this callousness, this smug reliance on technical statutory provisions (which were still not fulfilled) which prompted the dissent to write as strongly as she did.

Childers said that the Hes’ visits before January 28 2001 amounted to “token” visitation. Judge Kirby points to the undisputed evidence and states that this is “the first juncture where the trial court’s analysis went awry” (p. 3). The Bakers actively limited the Hes’ ability to spend time with Anna Mae. Judge Kirby says, “Remarkably, the trial court’s finding that the Hes’ visitation with A.M.H. was ‘token’ was not reviewed by the majority” (p. 3). This is her first shot at the majority.

Next, in the same paragraph, she quotes the majority as saying that the background situation - the knowledge that the Hes visited often before the four month abandonment period - can have no bearing on the willfulness of the Hes’ failure to visit, after they said that it can have bearing. She states, “Not only is this inconsistent with the majority’s prior statement and previous decisions by this Court, it is plainly wrong” (p. 3). This is very strong language for a judicial statement, and indicates there was significant disagreement in the Court of Appeal.

This language is found throughout the judgment. Judge Kirby states that the majority’s finding of the Hes’ sole motivation as the avoidance of deportation “is not supported in the record, and the majority fails to recognize the lack of evidentiary underpinning for the trial court’s holding” (p. 9); that “The majority’s treatment of the evidentiary basis for such a crucial finding is, in my view, wholly inadequate” (p. 10); and in the discussion of case precedent, that it “sidestep[s] the real problem in its analysis” (p. 17).

“Fails,” “wholly inadequate,” “sidestep”; these words are not used lightly by judges talking about other judges. My favorite passage, and perhaps the most striking one, is this:

Surprisingly, the trial court determined that the failure of the Hes to seek visitation in their petition for custody “evinces [Mother's] willful abandonment of A.M.H.” This determination defies logic; the petition did, after all, seek full custody of A.M.H., much more than mere visitation.’ The trial court’s finding in this regard is not questioned, nor even discussed, in the majority opinion. This determination should have been rejected by the majority, because it has no basis in law. (p. 9)

She is saying here that Childers and the majority in her court have acted irrationally and are completely wrong.

The majority of course fires back. They say that the dissent wants them to consider too much, and that “Ours is a limited role” (p. 109). “While the dissent may find this distinction unjust, it comprises the legal framework which must guide our resolution of this issue” (p. 110). They go on to say that they are “troubled by the dissent’s attempt” at case analysis (p. 110), and in their ultimate salvo, state, “It is apparent that the dissent has lost sight of the manner in which the trier of fact evaluates evidence” (p. 112). They are telling her, in essence, that she has forgotten how to do her job.

This strong language is, I would say, almost disrespectful, and is indicative of a high level of disagreement. It is in this judicial context that the Tennessee Supreme Court will make its ruling. This makes its decision all the more impactful, when language of a similar tone comes from a unanimous Supreme Court.

Shao-Qiang at the Tennessee Supreme Court

SUPREME COURT APPEAL

It is interesting that the judgments of Childers and the Court of Appeal majority are 72 pages and 114 pages long, respectively; the judgments of the Court of Appeal dissent and the Supreme Court are 19 and 20 pages. Quantity is apparently not indicative of quality, or consideration, or logic.

The Supreme Court essentially concludes everything that we have pointed out here: there was no willful abandonment because there was no willful failure to visit. The evidence does not support such a finding, and the court reverses the termination of parental rights. The court found that it did not have to consider a best interest analysis because there were no grounds for terminating parental rights, and that it did not have to consider constitutional grounds for reversal because the previous judgments could be reversed on statutory grounds.

They said what anyone with a remotely objective viewpoint has been saying for the last eight years: the Hes did not abandon their daughter, and they should be re-united.

The tone, language, and conclusion of this judgment all indicate that the five judges of the Tennessee Supreme Court very clearly saw through the Bakers’ legal manipulations and the flawed reasoning of the lower courts.

Their language was just as direct, if not as colorful, as Judge Kirby’s. We begin to see their attitude toward this case when they list the “undisputed facts” in the record. They emphasize the legal tactics of the Bakers in Juvenile Court: the Hes are first “thwarted by the Bakers’ request for continuance” and then “thwarted by the Bakers’ initiation of proceedings in chancery court” (p. 16). In listing these as the final two undisputed facts in its list, and in its use of the term “thwarted,” we see that court understands exactly what the Bakers were doing: preventing the possibility of any court-mandated contact between AMH and the Hes during those four months.

When the court discusses the consent to transfer custody, it states that “This evidence overwhelmingly shows that the parents’ voluntary relinquishment of custody was entered as a temporary measure to provide health insurance for A.M.H. with the full intent that custody would be returned” (p. 18). The evidence is, to the Supreme Court, “overwhelming.” They say nothing about the reasoning ability of the lower courts, but they do imply through that word that a reasonable person, certainly a reasonable judge, should have interpreted the evidence correctly. Speaking of reasonable judges, I note that Judge Holly M. Kirby, who wrote the Court of Appeal dissent with which the Supreme Court agrees, is the only judge the Supreme Court refers to by name in the text of its judgment.

Then the court makes its strongest statement: “Here, the only evidence of substantial harm arises from the delay caused by the protracted litigation and failure of the court system to protect the parent-child relationship throughout the proceedings” (p. 18).

“The only evidence of substantial harm.” “Protracted litigation” “Failure of the court system.” They are saying with no uncertainty here that the lower courts failed in their duty. They screwed up, they let the Bakers extend litigation through legal manipulation, and the only evidence of harm to little Anna Mae arises from that failure. This is the lesson the Supreme Court wants the lower courts, the Bakers, and Mid-South to learn.

They issue the following orders: “The attorney ad litem and guardian ad litem are hereby ordered relieved of any further participation in proceedings concerning A.M.H. The costs of this appeal are taxed to the appellees, Jerry L. Baker and Louise K. Baker, for which execution may issue if necessary” (p. 19).

The court wished to have the strategists and advisors to the Bakers and Mid-South, some of the main contributors to this travesty, removed from further involvement in Anna Mae’s life. Even though it was the Hes who appealed, the court taxed the entire cost of the appeal to the Bakers. The court is entitled to tax the costs to the appellants, or to split the costs between both parties, but it did not: it did what it could to say sorry to Jack, Casey, and Anna Mae He.

Given the tone and diction of this judgment, I believe it is a remonstration of the lower courts, Mid-South Christian services, and the Bakers.

There is a chance that all of the mistakes made in this case were mere errors in logic. I have tried to approach this with as open a mind as I can have, and I simply do not believe that such a conclusion is reasonable. The errors in reasoning of the trial and appeal court majority are so glaring that I can only conclude that there was bias on the part of those judges, either against the Hes or against the Chinese as a whole. The tone with which the appeal court dissent and the supreme court decisions were written would seem to support my conclusion. Though the dissent and Supreme Court judges would never say it, the choice here is to accept an explanation of either gross incompetence or bias. I do not believe - nor, I think, would the dissent and Supreme Court judges - that two Chancellors and two Appeal Court judges could be so incompetent. The only reasonable explanation is bias.

It may provide cold comfort to the Hes after eight years of struggle, but it is nonetheless comforting to know that there are men and women in powerful positions in America who have a clear sense of reason and justice.

The Hes

I make no secret that I am deeply grateful for what these six people have done. In a way, this commentary is an expression of my thanks and appreciation to Judge Kirby and the five members of the Tennessee Supreme Court. It is also my humble tribute to the Hes and little Anna Mae: the struggles they have been through and the struggles they have yet to endure. I hope that Anna Mae does not grow up to resent her parents, or the interest groups who supported them for political or personal reasons, or the court system, or indeed, the Bakers. Despite the somewhat scathing tone of my comments, I do believe that everyone involved only wanted what was best for you. I want you to know that there are people who you have never met, who you will never meet, who care enough about your family to learn and spread the story of your lives, because it is only right, and fair, and just.

This entry was posted on Monday, February 19th, 2007 at 5:00 am and is filed under Features. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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