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Chinese Immigrants Appeal to Get Daughter Back
By Ellen Barry
This article originally ran in the The Los Angeles Times on February 17, 2005. Reprinted here by request of the He family.
JACKSON, Tenn. - Lawyers for a Chinese immigrant couple on Wednesday appealed a judge's ruling that last year stripped them of parental rights to their daughter, Anna Mae.
Jack and Casey He had put the girl, now 6, into the care of foster parents when she was 3 weeks old because, they said, they could not support her.
Jerry and Louise Baker, a white couple from suburban Memphis, had sought to adopt Anna Mae, after the Hes went to court to get her back.
In his May 12 ruling, Circuit Judge Robert Childers sided firmly with the Bakers; he found that the Hes had legally abandoned Anna Mae by not visiting her or paying child support for four months.
David Siegel, the Hes' lawyer, argued before a three-judge appellate panel Wednesday that the couple were never told that leaving Anna Mae with a foster family could be perceived as abandonment or threaten their parental rights. He said the Hes had always regarded the arrangement as a temporary one, and were shocked when the Bakers began to limit their access to the child.
"There is not a scintilla of evidence that ever, at any time, has Mrs. He ever expressed an interest in adoption," Siegel said. Records of the couples' communications about Anna Mae are "replete with 'temporary, temporary, temporary, temporary,'" Siegel said.
Anna Mae was born when her parents were going through a difficult time. Her father, a doctoral student, had been charged with sexual assault and had lost his stipend and his student visa. He was later acquitted of the charges. Unable to afford health insurance, the Hes arranged 90-day foster care placement with the Bakers through a local agency.
He Case History:
When the term ended, both couples agreed to continue the arrangement, and the Hes signed papers agreeing to grant the Bakers custody. By the time Anna Mae was 2, the families were in open conflict over the child; the Bakers contend there was an agreement that they would raise her to adulthood.
Some have charged that Childers' decision-making was colored by cultural bias. In his ruling, the judge described the couple as duplicitous people whose fight for their daughter was motivated by the fear that they would be deported.
He said Casey He's courtroom tears were "calculated" and speculated that she had hidden her ability to speak English. He also echoed the Bakers' concerns that Anna Mae's life would be endangered if the Hes took her back to China, citing a high infant-mortality rate for girls and the nation's "one-child-rule."
In a friend-of-the-court brief, the Seattle chapter of the Organization of Chinese Americans argued that the court "may have been a victim of its own sublimated anti-foreign and ethnocentric biases." The brief said that Childers had used cultural stereotypes in his assessment of the Hes' character and had failed to take into account traditional Chinese views of children, family and government that could have explained their actions.
Richard Bergeon, a spokesman for the organization, said arguments about cultural bias may be useful if the case moves to a higher court of appeal.
"By entering this brief, we put race on the docket," he said.
Larry Parrish, a lawyer representing the Bakers, argued Wednesday that the Hes had destroyed their credibility through erratic, destructive behavior. He described one encounter in which the Hes asked the Bakers for their daughter back, explaining that they planned to give Anna Mae to a personal injury lawyer who had agreed to "take the baby in exchange for the fee." The Bakers warned them that doing so would be illegal, Parrish said.
Jack He said that account is unfounded.
In an interview, Parrish dismissed charges of cultural bias as "a complete and premeditated sham."
"If there was any cultural bias here, it was a bias against the Bakers by virtue of bending over backward to be deferent to the fact that the biological parents were Chinese," Parrish said. He described Jack He as "a con artist par excellence."
A second friend-of-the-court brief, written by lawyers at Vanderbilt University, the University of Memphis and Loyola University, argued that Childers had erred by comparing the Bakers with the Hes without first establishing that the Hes were unfit parents. The Hes have two other children, ages 2 and 4.
"It's not the job of the court to find a better set of parents for a child," said Christina A. Zawisza, associate professor of clinical law at the University of Memphis. "The state doesn't have the right to second-guess parents unless the child would be in danger."
The Hes and the Bakers were in the courtroom Wednesday, as was a small group of Chinese onlookers and a representative from the Chinese Embassy in Washington.
Jerry Baker, a banker, said Childers was a "fair and honest man" who had heard hours of testimony and reached the right conclusion.
"Personally, I think a lot of these friends of the court are just friends of the Hes," Baker said. "We feel like as long as they're allowed to remain in the United States, there's going to be appeal after appeal."
Jack He said he and his wife were horrified by Childers' ruling. During 91 hours of testimony, He said, he and his wife had been impressed by the judge's politeness. When they read the decision, he said, "we couldn't even speak. We couldn't even breathe."
The case has drawn together Memphis' small Chinese community — many of whom, like Jack He, came to America from mainland China as graduate students, said Jinliang Cai, president of the Greater Memphis Chinese Community.
"There are some people who feel we need to be assertive, we need to assert our dignity to protect the weak, and people who get taken advantage of," Cai said. Others, he said, "are humiliated, because it is very uncommon for the Chinese to give their children away, and they feel like it's unforgivable."