Key Issues in AMH Appeal

The following  was distributed to the attendees of the Oct 4, 2006 oral argument at the TN Supreme Court

Key Issues in AMH Appeal (Summary of Amicus Brief by Dr. Dongxiao Yue, a Citizen of PRC)

For full text of the brief and more information, please visit

Why does this case matter to you? The AMH case ruling may affect your parental rights.

Hes’ regular visits before January 28, 2001

I.          The custody arrangement with Bakers was temporary (Cloud, Yau testimonies on 99/06/04 order)

II.       Hes wanted to visit more (Bakers’ journal)

III.     Bakers' determined efforts to hinder, restrict and obstruct Hes' visits (Bakers’ journal)

IV.    Hes’ attempts to get their child back (Written note with 3 options, May 2000 petition)

The 4 months: finding "willfulness" requires "voluntary, intentional violation of a known legal duty."

I.          Attempts - Hes made repeated attempts to visit  

A.   February 15, 2001 fax to Juvenile Court complaining about Bakers’ hindrance (trial exhibit)

B.   Multiple visits to Court seeking help on visitation and custody (Brown, Cloud testimonies)

C.   Filing the April 9, 2001 custody petition under the advice of Juvenile Court (Court file)

D.   Custody determination includes visitation determination (TN statute 36-6-205(3) )

E.    Hes knew having custody of child could not help their immigration status

1.        Option #1 of Mr. He’s May 2000 proposal to Mr. Baker, saying Bakers must not report Hes to INS after AMH was returned to the Hes (memo, evidence presented by Bakers)

2.        Willfully failed to appeal of Court’s denial of May 2000 petition (trial court finding)

3.        Sent their second child Andy to China in May 2001 (trial court finding of fact)

II.       Excuses - Hes had justifiable excuses for failing to visit

A.   Bakers did not want Hes back to their home any more (Bakers’ testimony at trial)

B.   Police ordered Hes not to come back to Bakers’ home (Bakers’ written testimony in 2002)

C.   Hes had no place to visit, Bakers refused to communicate (ignored Hes’ phone messages)

D.   Bakers’ revised testimony does not meet the standard (hearsay, conflict with prior testimony)

E.    Police testimony is not clear and convincing (Deputy Astor: “Possibly, yes” on “that day”)

F.    Court’s finding that Hes were not intimidated is not clear and convincing (time shifting)

III.     No Knowledge - Hes were unaware of Tennessee abandonment statutes

A.   Knowledge of a known legal duty is necessary in finding willfulness (definition of “factor”)

B.   Magic number 4 (TN Statute) and due process

C.   Termination of parental rights is a state action (court is a part of the state, equal protection)

D.   Bakers have the burden to prove that Hes knew their legal duty

Invalidity and illegality of the Guardianship and No-Contact order

l        1999/06/04 consent order, guardianship was typed in without Hes’ knowledge(Cloud)

l        Ex parte guardianship and “no-contact” order between the Judge and Bakers’ attorney Parrish on Feb 7, 2002 -- after Hes and their attorney left the court (Parrish testimony)

l        Signed the next morning by the Judge and Parrish in private (Parrish testimony)

Conclusion: No willful failure. Court erred, must reverse and return child. Hes’ rights may not be deprived under any color.







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