He's Win Court Decision

I found the following article to be very informative and in depth. Much more revealing than anything I can put together after the fact. This blogger has compiled a chronological account of the story as it unfolded. In the end it all boils down to a matter of opinion. I agree with what this blogger has written. Read the following story.

Justice Delayed...
Today was a big day ... Memphis American Idol auditions were on TV, President Bush gave his State of the Union, my Gil Zero's arrived in the mail ...

... but the piece of news that caught my eye today was the Tennessee Supreme Court's ruling in In Re Adoption of AMH. The court held today that Jack and Casey He would regain custody of their daughter.

I have been following this story for more than a year now, and it is far more complicated than a simple matter of custody. The child in question, Anna Mae He, will celebrate her eighth birthday this Sunday, and she hasn't seen her parents on a regular basis for more than five years. Her adoptive parents, Jerry and Louise Baker, are the only parents she's ever known. One of the Baker's other daughters, Hope, is crying in her mother's arms, after finding out that the courts had taken her little sister away.

Is this the right decision? Is this the best birthday present for 8-year-old Anna Mae? To be taken from her the people she has called "mommy" and "daddy" for as long as she could talk? I'm not so sure about that, but in terms of the law, I am absolutely sure that this is the right decision. The Tennessee Supreme Court ruled 5-0 in favor of the He's. Their opinion was unequivocal, which is perhaps how it had to be to give this case the finality it needed.

But this begs the question - If the issue were so easy to resolve, how did things get this far? How did the trial court give custody to the Bakers? How did the Court of Appeals uphold the denial of parental rights?

In terms of the law, the question was very simple. The Tennessee Code says that if a parent willfully abandons their child for a period of four months, they give up their parental rights. The He's, in a time of financial difficulty (and criminal charges and questionable immigration status), gave their daughter to the Bakers for temporary foster care. Although the arrangement was friendly at first, they became strained around Anna Mae's second birthday. The two couples had a fight, the police were called, and the He's didn't come back to visit. Instead, they went to the courts and began filing lawsuits, but once four months had elapsed, the Bakers filed a lawsuit of their own, successfully terminating the He's parental rights under the statute.

The He's argument was simple - yes, they didn't visit Anna Mae for a period of four months, but the abandonment wasn't "willful." In fact, they were trying to get her back as quickly as possible by pursuing legal action. The Supreme Court saw this very clearly - if you're trying to get your daughter back in court, you're not "willfully" abandoning her. Simple and straightforward - 5 judges in favor, none opposed. But what happenned in the lower courts?

Here's where it gets interesting. At the trial level, the judge became fixated on the Hes' immigration status. It turns out that Jack and Casey He weren't legally married and thus Casey didn't have a valid visa. When Jack was accused of attempted rape by a student (and later acquitted), he lost his graduate position at the University of Memphis and thus his visa status. The judge decided that the He's would do anything to avoid deporation, including filing lawsuits for custody of their daughter ... By the judge's logic, the He's were manipulating the legal system to protect themselves from the immigration authorities. They didn't care about their daughter at all; they only cared about themselves.

In the Tennessee Court of Appeals, two judges agreed, finding that the Hes' pursuit of custody was merely a pretext for avoiding deportation. Nevermind the fact that filing lawsuits doesn't actually protect you from deportation or the fact that obtaining custody of their daughter would have no impact on their immigartion status. In the eyes of these judges, staying in America must be the most important thing on the minds of these illegal immigrants. Now to her credit, one appeals court judge dissented strongly, and that likely provided the seed of doubt that led the Tennessee Supreme Court to grant a discretionary appeal.

The Supreme Court's opinion largely omits discussion of immigration. It takes the facts at face value and reaches the very rational conclusion - how could the Hes' abandonment be willful when they were actively trying to get custody of their daughter? Reading the three opinions is actually a little disturbing. The trial court paints a picture of manipulative immigrants using their daughter as a pawn for their own benefit. The Supreme Court, on the other hand, paints a picture of manipulative lawyers using the legal system to trick the He's into giving up their daughter. The dichotomy is a little bit troubling, because I think neither is completely reflective of the truth ... but it is certainly true that the He's never intended to abandon their daughter, and according to the law, they should have retained their parental rights.

But what about Anna Mae? What about an 8-year-old girl who will now be taken from the only parents she's ever known? What about a child that speaks little Chinese who will now be living in a Chinese-speaking household? What about an American citizen who will be living with illegal immigrants who are subject to deportation? The courts made the right decision, but they certainly did not treat this little girl right.