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Of the 510,000 children in foster care in 2006: 40% were identified as being White of Non-Hispanic origin, 32% were Black, 19% were Hispanic and 9% were other or multiracial.

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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 to visit:

  1. Whether the Hes made attempts to visit Anna Mae(AMH) in the four month statutory period.
  2. Whether the Hes had excuses not to visit Anna Mae.
  3. 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) found that:

  1. 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.
  2. 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.
  3. 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 it.

My brief attacks the three arguments of Judge Highers:

  1. 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 this question.
  2. The Bakers' and police testimonies were inconsistent, hearsay and not clear and convincing. Highers twisted facts to create a false image of the Hes.
  3. 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 citizens.

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.

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