It is easy to take liberty for granted, when you have never had it taken from you. -- Dick Cheney
Dr. Yue Submits Amicus Curiae Brief in He Case
Dr. Yue presents a view of the
amicus curiae brief recently submitted
to the Tennessee Supreme Court on behalf of Mr. & Mrs. He.
I saw that you have sent the Amicus brief to concerned parties. That being
the case, I would like to give a short summary of my brief, so readers
can get a quick glimpse of the essentials. To save some paper, I reflowed
the brief into single spaced format. [See attached PDF].
"... a phrase that literally means "friend of the court" -- someone
who is not a party to the litigation, but who believes that the court's decision may
affect its interest."
~William H. Rehnquist (The Supreme Court, page 89.)
There were three key issues in this appeal on the matter of willful failure
- Whether the Hes made attempts to visit Anna Mae(AMH) in the four month statutory period.
- Whether the Hes had excuses not to visit Anna Mae.
- Whether knowledge of the TN abandonment statute is required for finding willfulness.
On Appeal, Judge Alan Highers of the Tennessee Court of Appeals (Western Division)
- During the 4 months, the Hes' repeatedly complainted regarding visitation with the
Juvenile Court and their April 9, 2001 formal petition for custody were all fake.
These were for the sole purpose of avoiding deportation, becausing INS was calling
and the Hes thought having AMH custody could shield them from deportation. Therefore,
the petition(s) with the juvenile court doesn't count as attempts to visit.
- Bakers and police testified that Hes were only told not to return that day.
Evidence showed Hes were not afraid of authority of others. Thus, there was no
excuse for the Hes not to visit.
- To counter Judge Holly Kirby's dissenting opinion based on case law, Judge Highers
quoted a dictionary definition of the word "factor," he then found that
"factor" is not a neccessary element in this context. Judge Highers
concluded that one doesn't need to know the abandonment law to be willfully violating
My brief attacks the three arguments of Judge Highers:
- Specific pieces of evidence clearly show that the Hes knew that having custody
of AMH would not help them to avoid their deportation, as early as May 2000. The
Option #1 discussed between Mr. He and Mr. Baker was a conclusive evidence on
- The Bakers' and police testimonies were inconsistent, hearsay and not clear and
convincing. Highers twisted facts to create a false image of the Hes.
- Judge Highers' choice of the mathematical definition of the word "factor"
was a deliberate act (which I call a judicial fraud) in an attempt to deceive
Judge Kirby, to subvert the law and abridge Hes' rights. With the right choice
of the dictionary definition, the case law clearly states that knowlege of the
abandonment statute is required to conclude willfulness.
I also addressed the constitutionality issue of
Title 36 of the Tennessee Code.
I conclude that once the knowledge of the abandonment statute is required in finding
willfulness, Title 36 and Title 37 are in perfect harmony and in compliance with
the Fourteenth Amendment of the US Constitution. This conclusion will put an end
to the notice requirement debate.
Basically, no notice is required for termination actions petitioned by private parties,
as long as the petitioner can prove that the parent(s) knew the Tennessee willful
abandonment statute prior to the four month statutory period.
As I said, the law is only good as the judge. The Amicus brief is explosive stuff.
Let's wait and see whether the Tennessee high court will accept it.
I have sent the brief to Peoples Republic of China (PRC) Embassy and demanded the
PRC government to fulfill its obligation to protect the rights of its overseas
Dongxiao Yue, Ph. D
Parental Rights and Justice
About the Author
Dr. Yue graduated from Beijing University in 1990 and
earned his Ph.D. from University of Minnesota at 25.
Note: I will be making a copy of the entire Amicus brief available on this
site in the near future. In the mean time you can download the pdf version.