Custody fallout: Judge scolded
Mike Maple/The Commercial Appeal
Casey He and Jack He will likely be reunited with Anna Mae, now 7. The Tennessee Supreme Court documented what it calls Chancellor Robert L. Childers' mistakes and errant judgments.
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His conduct worked against Chinese parents, court details
By Trevor Aaronson
January 28, 2007
Shelby County Chancellor Robert L. Childers finds himself in a game of role reversal.
He's the one whose actions and judgments are impugned.
On Tuesday, Tennessee Supreme Court Chief Justice William M. Barker spanked Childers in a 20-page opinion that likely will reunite 7-year-old Anna Mae He with her Chinese-born parents in Memphis.
In an opinion whose language was reserved, the state's high court meticulously documented Childers' mistakes and errant judgment in the bitter custody battle that has garnered international attention.
In his May 2004 opinion and ruling that stripped parental rights from Shao-Qiang "Jack" He and Qin "Casey" Luo He, Chancellor Childers questioned the credibility of the girl's birth parents and every witness who spoke at trial on their behalf.
Childers dubbed He, the birth father, "a person of questionable character."
Meanwhile, as the Tennessee Supreme Court pointed out, Childers deemed Anna Mae He's caretakers, Jerry and Louise Baker, and every witness called on their behalf as honest and trustworthy despite flaws in their actions.
Childers viewed the Bakers as "honest" parents with "a great deal of love, care and concern."
The state Supreme Court opinion raises many questions for Childers.
But he won't answer them.
"It's inappropriate to comment on a case," said Sue Allison, a spokesman for the Tennessee Administrative Office of the Courts.
"And he's simply a judge that wouldn't do anything inappropriate."
According to the state high court, startling flaws marred the complicated custody trial that spanned 91 hours of testimony, 15 hours of oral pleadings and six hours of closing arguments.
Chancellor Childers based his decision to strip parental rights from Jack and Casey He on the legal premise that they abandoned their child for more than four months.
"The Hes willfully failed to visit [Anna Mae He] from Jan. 29, 2001, to June 20, 2001," Childers wrote in his ruling.
The Tennessee Supreme Court struck down that finding.
"This undisputed evidence does not support a finding that the parents' failure to visit [Anna Mae He] was willful," Chief Justice Barker wrote.
As the relationship between the Hes and Bakers deteriorated, Louise Baker called police on Jan. 28, 2001, to remove Casey He from their house after she would not leave during a meeting with Anna Mae.
Despite testimony from sheriff's deputies that they likely told the Hes they could not return to the house that night, the Hes said they believed they were never allowed to return to the Bakers' home.
And so they didn't.
Four months and five days after police were called, the Bakers filed a court petition asking to take custody of Anna Mae, arguing that the Hes had abandoned the girl for the required four-month period.
Childers agreed with this -- even though the Hes filed court papers during that four-month period in efforts to regain custody of their child.
Chief Justice Barker wrote: "Where, as here, the parents' visits with their child have resulted in enmity between the parties and where the parents redirect their efforts at maintaining a parent-child relationship to the courts, the evidence does not support a 'willful failure to visit' as a ground for abandonment."
During the trial, Chancellor Childers allowed questionable sources into evidence and then used those sources, coupled with biased testimony against the Hes, to string together a ruling that took away their parental rights, the Supreme Court found.
For example, Kimbrough Mullins, the court-appointed attorney ad litem charged with looking after the child's best interests, favored keeping Anna Mae He with the Bakers and used a sketchy source to support her opinion.
Mullins, who did not return calls for comment, testified that the 7-year-old girl identified the Bakers as her parents, even though she never witnessed Anna Mae interact with the Hes, the high court ruling states.
Additionally, Mullins relied on a book she read about Chinese orphanages to support a claim that Anna Mae could be in danger of being abandoned should the Hes take her back to China.
"I honestly can't tell the court today I know to an absolute certainty what kind of life she would have [in China]," Mullins testified. "This book that I read caused me some concerns."
In the Supreme Court opinion, Chief Justice Barker wrote: "The guardian ad litem continued to oppose visitation and reunification with the parents throughout the proceedings."
In the custody case, Chancellor Childers appointed David B. Goldstein, a clinical psychologist, to provide evaluations and discuss Anna Mae He's relationships to the Bakers and her birth parents.
Despite court orders, Goldstein did not perform psychological evaluations of Anna Mae He, her birth parents or the Bakers, the Supreme Court found. The psychologist limited his research to a videotaped meeting between the girl and her birth parents.
"I did assume that there was very little attachment to the [parents]," Goldstein testified.
The state Supreme Court noted: "He testified that he was unable to say whether visitation should take place and unable to give any opinion as to custody."
Nevertheless, Chancellor Childers found Goldstein to be a "very knowledgeable, honest and forthright witness."
By contrast, three psychologists brought to the stand by the Hes "pointed out ... flaws in Dr. Goldstein's process and report." These psychologists recommended continued contact between Anna Mae He and her birth parents.
Chancellor Childers found their testimony "of little assistance to the court," the Supreme Court documented.
Childers also said a witness who discussed Chinese culture "lacked credibility."
The Shelby chancellor applied similar inequity to the Hes and the Bakers.
Because of her tendency to cry when asked tough questions, Childers described Casey He as "impetuous," "calculating" and "manipulative."
Even though Louise Baker kept detailed notes on the times of arrival and departure and actions during meetings between Anna Mae He and her birth parents, Childers reserved different words for her. He described Louise Baker as "a sincere, honest and credible witness."
The Tennessee Supreme Court chose not to address another significant problem in the Anna Mae He custody battle.
That problem -- Childers' ruling that Jack He wanted his daughter back "for the sole purpose of avoiding deportation" -- was dealt with at length in Judge Holly M. Kirby's February 2005 dissent in the Court of Appeals decision, which upheld Childers' ruling to take away the Hes' parental rights.
As Kirby pointed out, Childers had no documentary evidence that the Immunization and Naturalization Service was interested in deporting He to China.
"The Bakers' attorney sought to establish, through repeated and exhaustive questioning, that the Hes' fears of deportation motivated their conduct, and that their claimed desire to parent [Anna Mae He] was insincere," Kirby wrote. "However, questions from lawyers do not constitute evidence."
Childers took as evidence a theory Larry Parrish, the Bakers' attorney who is now a Republican candidate for the State Senate, pushed forward in court testimony.
Because He was contacted by INS around the time he filed the petition to regain custody, Parrish questioned the birth parents' motivation.
"But the first time [INS contacted you] was in the spring of 2000, about a month before you filed the first petition to modify, is it not?" Parrish asked.
"Uh, huh..." He replied. "My answer is yes. I have been called."
Childers didn't need further evidence.
-- Trevor Aaronson: 529-2864