May 18, 2004
On May 12, 2004, in his verdict on the Anna Mae (AMH) adoption case, Honorable Judge Childers of Memphis Circuit Court issued a civil death penalty to a Chinese couple, Jack and Casey He. Judge Childers terminated the Chinese Couple’s Parental Rights, forever severed the parent-child relationship between the Hes and Anna Mae, and cleared the way for a local mortgage banker, Mr. Baker and his wife, to adopt this 5-year-old Chinese girl.
Because of financial and other hardships, the Chinese couple signed a legal paper in June 1999 to award the Bakers, who offered to help the Hes, temporary custody of AMH until they could get back on their feet. After a few months, the Hes did get back on their feet, but the Bakers refused to return the daughter. During the nine-day trial, 28 witnesses testified and no one (except the Bakers) disputed the fact that the custody was given to the Bakers on a temporary basis, solely for the purpose of having AMH covered by the Bakers’ health insurance.
Court records show that the ensuing custody battle began in November 1999 when Mr. He asked Mr. Baker to return Anna Mae. The Chinese couple then encountered strong resistance and intimidation from the Bakers family, who insisted to adopt Anna Mae against the Hes' will. In June 2001, the local Juvenile Court was inclined to return the custody of Anna Mae to the Hes. The Bakers requested to delay the Juvenile Court hearing. A couple of weeks later, the Bakers moved the case to a higher Court and petitioned that Court to terminate the Hes' parental rights.
By terminating the Hes' parental rights, the Bakers make Anna Mae and her birth parents total strangers. With their parental rights terminated, the Hes will have no rights and no legal relationships to Anna Mae whatsoever, Anna Mae and her natural brother and sister will also be total strangers. Unlike a usual custody battle, where the losing side can still visit the child or even take the child out for a period of time, in a parental rights termination case, the birth parents lose all rights, zero contact with their child ever again.
That's why parental rights is one of the most fundamental human rights protected by US constitution. Termination of parental rights is a cruel instrument of law reserved for the worst parents. To terminate one's parental rights, the law requires highest level of burden of proof.
For a clear timeline of events, see: http://www.parentalrightsandjustice.com
Judge Childers’ ruling to terminate the Hes' parental right is thus the harshest of the family law, equivalent to death penalty of the criminal law. Adding insult to injury, he publicly denounced the Hes with all conceivable demeaning words and published his entire humiliating opinion on the Internet.
We totally disagree with Judge Childers's decision. This public statement will show that his decision was based upon nothing but wholesale character assassinations, deliberate omission of crucial evidences, unspoken and unfounded assumptions and distortion of facts. Therefore, we will appeal the decision.
However, since Judge Childers is a popular judge who has been on the bench for twenty years and because he was directly designated by the Tennessee Supreme Court, we feel that our chance of appealing his decision is rather slim. We are always hoping for the best, but preparing for the worst. At present, the best seems remote and the worst is conceivable: the Bakers may at any time repeat their tactics of pushing the US Immigration Department to have us deported in the near future.
It is really heartbreaking to have our parental rights being terminated in the most brutal manner at the end of our four-year struggle. The Court order requiring us to post $15,000 deposit in seven days, the privately issued No Contact Order which banned direct and indirect contact between us and our daughter, the delays in the trials awaiting INS deportation decisions, the refusals of our jury trial requests, the refusals to hear visitation motions… all these Court documents marked our trail of tears in this sad journey. Now, in this way, the struggle in the Memphis Chancery Court ended. We had wishfully dreamed for a family reunion, but now hope has turned into a nightmare. What we got are these chilling words appearing on the computer screen: “IT IS THEREFORE ORDERED, ADJUDGED and DECREED that the parental rights of Shaio-Qiang He and Qin Luo (He) be, and the same are hereby, TERMINATED”. This is horror, a death penalty to us.
As we overcome the initial paralyzing shock, our friends and we feel that we have to defend our residual dignity and human rights in front of the public, with facts and the other side of story. We do this not just for ourselves, but also for AMH and our other children, to have a record to show their parents are not the frauds and cheats depicted by Judge Childers. We will not release any Court documents, as required by the Tennessee law and Judge Childers’ orders. We will only refer to certain documents to serve the limited purpose of defending our human dignity and decency against Judge Childers' public humiliation.
Anna Mae, our daughter, is five years old now. We wish her well, wherever she is and will be. We wish her grow up to find that her mother and father fought this hard for her, and to find that her Mom and Dad never abandoned her, and to find that her Mom and Dad are normal human beings.
Dear Mae, Daddy and Mommy will always love you, always. Your mother is Qin Luo, her name is on your birth certificate, your father is Shaoqiang (Jack) He. You have a younger brother and younger sister, Andy and Avita.
The following is our first attempt to respond to the ruling, and is in no way complete and thorough. In the following fifteen statements we will talk about Judge Childers' ruling from several different aspects, including his publicizing of the opinion, his apparent animosity against the Hes, his selection of testimonies, his arguments on willful abandonment, his arguments on “best interest”, and his conclusion on the conduct of the Court.
We should also make it clear that this statement was issued against the advises of the Hes attorneys, David Siegel and Richard Gordon. Judge Childers publicized his opinion, because of his authoritative status, our failure to respond would mean admitting what he wrote and said.
For the entire 72-page ruling, please visit one of the following URLs:
Table of Contents
Public Statements by Jack and Casey He and Their Supporters Regarding the Honorable Judge Robert Childers’ Ruling on Termination of Parental Rights 1
Statement No.1, We question the appropriateness in Judge Childers' release of his entire opinion onto the Internet 5
Statement No. 2: We believe Judge Childers irreparably harmed the interest of our child Anna Mae by releasing the entire opinion to the media and public 6
Statement No. 3: We question Judge Childers' intention in releasing the electronic copy of his opinion onto the Internet 8
Statement No. 4: Judge Childers showed extreme animosity against Mrs. He from the very beginning 8
Statement No. 5: Judge Childers showed a racial elitism attitude in his opinion 9
Statement No. 6: Judge Childers only selected those testimonies of the Bakers that fit his liking, and omitted vital facts that would disprove his judgment 10
Statement No. 7: Judge Childers lied in his opinion when he stated that the Baker did not inhibit, discourage or otherwise interfere with any reasonable desire of the Hes to visit Anna Mae He, an important factor in his determination of willful abandonment 12
Statement No. 8: Judge Childers is self-contradictory in his findings on the January 28, 2001 incident, an important factor in his conclusion of willful abandonment 14
Statement No. 9: Judge Childers used logically inconsistent argument to conclude that Mrs. He willfully failed to request visitation on her petition to get Anna Mae back 17
Statement No. 10: Judge Robert Childers failed to establish a logical link between seeking custody of AMH and INS deportation 19
Statement No. 11: Judge Childers masqueraded Bakers' hearsay testimonies as Hes’ own testimonies 23
Statement No. 12: Judge Childers’ approach in selecting testimonies is flawed and resulted in using falsehood to support his best interest argument 24
No. 13: Childers' conclusion that “there is parental
misconduct or inability to parent by the Hes” is completely
No. 14: Childers' other “best interest” conclusions are
completely groundless and discriminating
Statement No. 15: Judge Childers' conclusion on the origin of the “no-contact” order involves the Court itself is not based on undisputed facts 28
On May 12, 2004, before Hes’ attorneys received the court’s email or a hard copy of the ruling, Judge Childers submitted his entire verdict, in electronic word processing file format, to the media and web sites, such as www.wreg.com. The file is then spread all over the World Wide Web.
We think his act is, at best, not appropriate for an ethical judge, at worst a direct violation of court practice and state adoption law, which clearly requires all parties involved in an adoption case to protect the privacy of one set of parents for the best interests of the minor child, no matter which set of parents wins the case. In the entire course of this trial, Judge Childers himself repeatedly made it clear that all court records remain sealed.
As we were told by the Court itself, the law to protect the confidentiality of the records and court reports of an adoption case serves an important purpose, which is to protect the privacy of the child and parents in this kind of civil cases, to ensure the child involved in the case to grow up with less psychological and emotional trauma regardless of the outcome.
Judge Childers' opinion contained detailed history information on both families, including the details of the four-year battle around custody and parental rights. Judge Childers’ opinion on the Hes is completely negative and demeaning. He depicted the birth parents of Anna Mae as cheats and frauds.
The words Childers used against us include “fraud”, “deceitfulness”, “without remorse, repentance or conscience”, “dishonest”, “unstable”, 'unfit”, “calculating”, “theatrical”, “self-interest”, “manipulative”, “hysteric”, “perjury”, ”lie”, “questionable character”, “ends-justify-means-philosophy”, ”filthy”, “foul smell”, “violate societal rules”, ”irrational and bizarre”, “irrational and erratic”, “falsely accusing persons”, “questionable personality”, “manipulative publicity”, “parental misconduct or inability to parent”, “neglect”, “inattentiveness”, “unhealthy and unsafe”, “emotional instability”, and many others.
Most of Judge Childers' findings are untrue character assassinations against the Hes. Judge Childers was not even able to maintain the appearance of justice.
Even if any of his accusations were true, we would prefer that the Honorable Judge keep them confidential, not only for the sake of the adults’ privacy, but also for the best interest of Anna Mae because we are sure that Anna Mae, when she grows up, does not want to see so much mean language used by a judge against her natural parents!!! Even though Judge Childers decreed that our parental rights HEREBY TERMINATED off his bench, the biological connection between Anna Mae and her birth parents could never be severed. Common sense tells us that people are hurt when they are told that their blood parents are being labeled as cheats and frauds, this is true for people of Chinese and all other known cultures. Judge Childers is fully aware of this because he heard detailed expert testimony in his Court about the connection between children and birth parents. During the trial, he heard cultural and psychological experts testify that children will always seek roots, such as who their birth parents are, where they came from, and why their natural parents disappeared from them, etc. when they grow up. But Childers deliberately submitted his disparaging opinions against the Hes onto the Internet for publication all over the World Wide Web, and by doing so, he caused irreparable harm to our daughter.
During the entire trial, Judge Childers himself stated that he was very concerned about the “best interest of the child”, but what he did eventually was exactly contrary to what he said in court.
One day, when Anna Mae grows up and finds that the Honorable Judge Childers once concluded that her birth parents are the lowest human beings of the world, you can imagine how much she will be hurt. Even If she does not find the information herself, her classmates and friends will GOOGLE it for her, by simply entering Louise and Jerry Baker into Internet search engines. Judge Childers’ public humiliation and denouncement of her birth parents will cause irreparable psychological and emotional trauma to her and irreversibly damage her self-esteem. This is a civil adoption case, it's about love for the child, we are not criminals, we are not hurting people. Our innocent child, Anna Mae, does not deserve such harm and damage from this Honorable Judge Childers.
We hope our children will also see this statement when the search engines pop up Judge Childers' opinion. Please feel free to distribute this statement unmodified without any restriction.
By his own statement, Judge Childers knows this case has attracted national and international attention, the world is watching. The fact he submitted his entire emotionally charged and humiliating opinion in electronic format to the web sites shows the urgent and impulsive need that he wanted to have the opinion published and publicized as quickly and as widely as possible. The Tennessee Code made it a class E felony to release confidential adoption documents with malicious intent. Honorable Judge Childers is a Circuit Judge of twenty years of experience, he knows the law well, it is regrettable that he was not able to overcome his impulsive emotional urges.
Considering the fact that
Mrs. He is the mother of Anna Mae and she never intended to give up Anna Mae for adoption
Mrs. He has never taken formal English classes in US.
Mrs. He testified during the first day of trial for the first time in Childers’ Court
Judge Childers' opinion speaks for itself:
Mrs. He is an impetuous person not subject to being intimidated or deterred in achieving whatever she sets as her goal. The evidence shows that she is calculating, almost theatrical, in her actions. The evidence further shows that she is dishonest and manipulative, and has a history of acting in an unstable manner when it serves her own self-interest. For example, during cross-examination, Mrs. He would begin sobbing when asked difficult questions. However, Mrs. He would immediately regain her composure when asked subsequent questions. It appears to the Court that Mrs. He’s courtroom hysterics were calculated by Mrs. He in an effort to avoid answering the difficult cross-examination questions.
Although Mrs. He does not speak the English language fluently, she appears to speak and understand English better than she professes. For example, Mrs. He spoke English during some of the Hes’ visits with AMH at the Bakers’ home and when Mrs. He took the Hes’ other children for medical treatment. She also spoke English during the incident when she was holding a sign outside of the Bakers’ home, and the Bakers’ neighbor, Rebecca Smith, asked Mrs. He to move her car, and she spoke English during the December 2003, incident at the Wal-Mart store. During the trial, in response to a question from attorney Linda Holmes, Mrs. He responded to the question by speaking in English, before the interpreter had begun interpreting Ms. Holmes’ question to Mrs. He. Mrs. He said, “Mr. Parrish filed legal motion,” then she stopped speaking English and began responding to the question in Chinese.
(Judge Childers’ final opinion)
Mrs. He testified during the first day of trial. During the trial, Childers kept his head low and kept typing notes. Unknown to the Hes, Childers held so much adverse feelings against Mrs. He from the very beginning. If Childers hid these feelings during the trial, he fully unleashed them in his ruling.
Mrs. He sobbed when testifying about her daughter, and Childers called this “calculated” “courtroom hysterics”.
Mrs. He, who had never taken formal English lessons in US, spoke a 5 word sentence “Mr. Parrish filed legal motion,” and Childers concluded that “she appears to speak and understand English better than she professes.” And hinted this as evidence of dishonesty.
A) how much English Mrs. He has professed to be able to speak and understand?
B ) How did Childers evaluate Mrs. He's real English ability?
C) How did Childers concluded that B is greater than A???
In his opinion, Judge Childers showed a clear attitude of racial elitism. Factors such as China’s economical condition and culture have played a heavy role in his opinion. His complete disregard of the Hes’ human rights and human dignity shows a strong disgust, resentfulness or even hatred that can't be rationally explained. This combined with his complete disregard of Anna Mae He's interest in his publicizing of the humiliating opinion against her birth parents exposed his false pretense in talking about the best interest of Anna Mae He, an American citizen. Judge Childers treated the three in a way as if they have no dignity and no rights.
The fact that Honorable Judge Childers has zero regard to both the interest of the Hes and Anna Mae He can only lead to the conclusion he is at the minimum a racial elitist. As the only common thing among the daughter and her blood parents is that they are genetically Chinese.
For the Hes and Anna Mae, Judge Childers did not even bother to maintain his normal level of professionalism and appropriateness in the wording of his ruling.
At the very beginning of his opinion, Judge Childers declared the Bakers as completely honest, sincere and credible, and declared the Hes as dishonest, manipulative and completely lacking credibility. With this presumption, he then selected only those testimonies from the Bakers that benefit the Bakers’ cause.
For instance, on the abandonment issue, he listed a number of visitation events that benefit the Bakers if perceived with skewed views (based on Bakers' testimony), but he deliberately left out events that prove that the Bakers were trying to hinder the visitations by the Hes.
In his findings of “Abandonment Factors, Chronology of Events”, for the period from June 4, 1999 custody order, to May 3, 2000, when the Hes filed a petition to modify the custody order, Judge Childers listed events on July 25, 1999, September 11, 1999, September 19,1999, October 15, 1999, October 31, 1999, December 22, 1999, February 28, 2000, February 28, 2000. The details of the visitation events are all based on Bakers’ journal and testimonies. For instance, the alleged comments from Mr. He on Anna Mae having a sibling, implying somehow the Hes wanted to give up Anna Mae, were all from the Bakers and were categorically denied by the Hes.
However, Judge Childers deliberately omitted the October 3, 1999 visit. In a journal kept by Louise Baker, on the October 3, 1999 visit, Mrs. Baker wrote:
“Jack and Casey came at 3:00. Anna played for a minute with them and then wanted us. The visit was very discouraging to us. They wanted to see if they could come and get Anna and keep her for a day next Sun. I told them No. She is too little to be away from us. Casey was very distraught, crying very loud. They left soon after. Jack kept telling us that they had friend that kept asking about her and a Dr. at Church wanted to see her. We told them she didn't need to see a Dr. and if anyone wanted to see her they could come to our home. We stood strong with this. I think Jack was trying to please Casey. No words were exchanged. We feel like Jack will try something now. We would like to get visits to every other week. We feel like they could wean away, but the last 2 visits we could see Casey is wanting to come more.
If Jack confronts us with the visit we are going to tell him this is the way its going to be and set rules for him. He is very pushy and overbearing. They are suppose to com[e] Thurs, 8:45 AM because Jerry is going to be out of town. Jack will not come to our home without Jerry being here.”
(Deposition of Louise Baker, Ex. 5, pp, 11-13)
During her sworn deposition, Louise Baker was asked whether she had a problem with Casey “wanting to come more”, her response under oath was:
“Well, we did not go into this for bonding time with Casey”
(Deposition of Louise Baker, p, 165, L. 15-18)
is clear and convincing evidence that the Hes wanted to visit more,
but the Bakers were hindering the Hes' effort to visit more. Also,
it's clear that the Bakers had prohibited the Hes from taking Anna
Mae out of Bakers home for any duration of time.
The October 3, 1999 visit, which was clearly documented and testified by the Bakers themselves and was clear and convincing evidence on the Bakers' attempt to obstruct, inhibit, discourage and interfere the visits from the Hes.
The omission of this evidence by Judge Childers clearly shows that Childers was only looking for answers he wanted in his opinion. Even for testimonies of the Bakers, Childers only selects the ones that he wants, only the ones that seem to fit his predetermined judgment.
In the rest of this Statement, we shall present more facts that demonstrate this pattern of bias and prejudgment in the ruling.
American Heritage ® Dictionary defines a lie as “a false statement deliberately presented as being true”. With this definition in mind, we shall prove Judge Childers was lying in his ruling.
In his opinion, Judge Childers wrote:
E. Hes’ Visitation from June 4, 1999 to January 28, 2001
The Hes visitation and contact with AMH has been subject to the Bakers’ discretion since the June 4, 1999, Consent Order Awarding Custody of AMH to the Bakers.
The Bakers did not obstruct, inhibit, discourage, or otherwise interfere with any reasonable desire on the part of either Mr. or Mrs. He to visit AMH.
(Judge Childers’ final opinion)
Based on information in Statement No. 6, it is clear that Judge Childers was making a false statement in his findings above. The Bakers, as documented and testified by themselves, completely prohibited the Hes from taking Anna Mae He out of Bakers’ home for any duration of time, and attempted to reduce Hes' frequency of visits from once a week (a reasonable desire) to once every two weeks in a hope that the Hes would wean away.
In his opinion, Childers ruled that Hes' once a week visits (eighty some visits between June 4, 1999, to January 28, 2001 ) were not enough. But, as early as October 3, 1999, the Bakers wanted to cut that level of visit by half. And the Bakers had their intentions fully established and documented with their own records and testimonies.
And this was ten months before the August 1, 2000 incident, in which Mrs. He wanted to stay with her daughter longer and refused to leave the Bakers home and Mr. Baker called police to escort Mrs. He out. The October 3, 1999 evidence shows clearly that the Hes wanted to come visit more and the Bakers discouraged and obstructed Hes' reasonable desire to visit more.
With these undisputed facts, we can concluded Childers' statement that the “Bakers did not obstruct, inhibit, discourage, or otherwise interfere with” Hes' reasonable desire to visit AMH was false.
We now show that Childers' presented this falsehood knowingly and deliberately as being true(a finding of fact), with a purpose.
The October 3, 1999 incident and related testimonies were crucial pieces of evidence presented by Hes' counsel in numerous court filings, including the final brief. Childers had complete knowledge of this incident. Moreover, from reading his opinion, Childers was clearly aware that to prove Hes' willful abandonment from their failure to visit for four months, he must prove such failure to visit was not due to the Bakers' hindrances of the visits.
Judge Childers had kept the October 3, 1999 incident and related
testimonies in his findings of fact, his conclusion above and the
subsequent conclusion of willful abandonment would not be able to
withstand any reasonable scrutiny. By deliberately omitting the
October 3, 1999 incident and related testimonies out of Bakers' own
lips, Judge Childers was able to make this falsehood stand as being
true on his seventy-two-page ruling.
We can conclude that Judge Childers deliberately presented the above false statement as a finding of fact with the purpose of establishing his willful abandonment conclusion. Based on the American Heritage (R) dictionary definition of “lie”, we can conclude that Judge Childers was telling a lie in his ruling. And a person telling a lie is by definition, dishonest.
Jack He was accused by Judge Childers of dishonesty on issues such as putting fake contacts on car purchase applications, but Jack He was not doing that to hurt anyone. Judge Childers lied, with the intention to terminate the Hes' parental rights.
On January 28, 2001, the Hes went to see Anna Mae at Bakers' home. The Hes wanted to take Anna Mae out for birthday portrait, the Bakers refused. The Hes and the Bakers had an argument, and the Bakers called police. The Hes testified that they were told by the police not to come back or they may be arrested.
In the original sworn statement, the police officer testified that he told the Hes not to come back to the Bakers' home. In addition, the police advised Jerry Baker not to let the Hes back into the Bakers' home (Deposition of Louise Baker, p 195 L 8-11). Later, under the urging of the Bakers and their counsel, the police officer changed his testimony to that he told the Hes not to come back to the Baker's home that day, even though that day was almost over because the Hes left the Bakers’ house at about 4:45 pm.
So we have a discrepancy between two versions of story, one is not to come back; the other is not to come back that day. Childers chose the latter one in the modified testimonies.
However, this conclusion is inconsistent with Childers' findings of facts. In his opinion, Childers wrote:
Immediately after the January 28, 2001, disturbance, the Bakers decided that all future visits by the Hes would have to be arranged at a location other than the Bakers’ home because of the August 1, 2000, and January 28, 2001, disturbances.
Immediately after January 28, 2001, in furtherance of the necessity to arrange future visitations at a site other than the Bakers’ home, Mrs. Baker telephoned the Exchange Club Family Center to inquire about its ability to provide visitation services and facilities for any future visits with AMH by the Hes.
The Bakers did not respond to Mrs. He’s April 2, 2001, telephone call because Mrs. He did not say anything about AMH or about wanting to visit AMH. The Bakers did not go to the Hes apartment after Mrs. He’s April 2, 2001, telephone call.
(Judge Childers' final opinion)
From what Childers considered as true facts above, we can conclude, after the Jan 28, 2001 incident::
The Bakers did not want to maintain normal social contact with the Hes
Bakers did not want to Hes to come to their home any more
These facts are consistent with the original testimony that the Hes were told not to come back to Bakers home, and are inconsistent with the modified testimonies that the Hes were told not to come back that day (which implies that the Hes could come back to Bakers home another day).
Therefore, it should be concluded that the Bakers decided not to let the Hes to come back to the Bakers' home after January 28, 2001, and the Bakers never informed the Hes that they could visit Anna Mae at the Exchange Club Family Center.
During a previous hearing, the Bakers attorney, Larry Parrish, stated:
“The thing that caused the visitation to break down a year ago was the twice repeated insistence on the part of the respondents to take this child from the home of the Bakers.”
(Transcript of Feb 14, 2004 hearing, p. 40, L.3-7)
After the June 4, 1999 custody order, the Bakers never allowed the Hes to take Anna Mae out of the Bakers home, and it was a deliberate decision by the Bakers in a hope that the Hes would wean away (Deposition of Louise Baker, Ex. 5, pp, 11-13).
In his opinion, Childers deliberately omitted the October 3, 1999 incident and related documents and testimonies, and deliberately omitted other documented events that showed Bakers' attempt to hinder and restrict Hes’ visitation of Anna Mae. For instance, the so called “Aug 1, 2000, disturbance” was due to the fact that Louise Baker asked Mrs. He to leave earlier and was using a false excuse to explain to her.
Based on his selective and inconsistent use of testimonies and omission of vital facts, Judge Childers concluded that
“The visitation by either Mr. He or Mrs. He, or both, from June 4, 1999, to January 28, 2001, was insignificant, token visitation.
Mr. He has engaged in only token visitation with AMH;
the Hes have failed to maintain regular, meaningful visitation and contact with AMH
The Bakers did not obstruct, inhibit, discourage, or otherwise interfere with any reasonable desire on the part of either Mr. or Mrs. He to visit AMH”
(Judge Childers’ final opinion)
Right after the January 28, 2001 incident, on February 1, 2001, the Hes wrote a letter to the Juvenile Court. In the letter, the Hes complained about Bakers' calling police to interfere with Hes' visitation and requested the Juvenile Court to provide assistance. This letter is on the record of the Juvenile Court, and was a stipulated fact during the trial. The Hes also attempted to contact the Bakers, without success. Two months and twelve days later, on April 9, 2001, the Hes filed the second petition with the Court to get Anna Mae back. Candace Brown, a staff of the Court and a credible witness by Childers' standard, testified that during April and May of 2001, the Hes went to the Court at least three more times to seek assistance on regaining custody of Anna Mae. On June 20, 2001, the Bakers filed their petition to terminate the Hes' parental rights, arguing that the Hes willfully abandoned Anna Mae by failing to visit Anna Mae for a period longer than four months, from January 28, 2001 to June 20, 2001. Four months of no visit is the threshold of abandonment in Tennessee law.
Judge Childers deliberately omitted the Hes' February 1, 2001 letter in his opinion. Childers knew that to prove willful abandonment, he must discount the April 9, 2001 petition to modify custody, because that petition was filed only two months and twelve days (and not four months) after the last visit. The following was his calculated attempt to do exactly this.
On his findings on “Willful Failure to Visit”, Judge Childers wrote:
“The Hes right to visit AMH was never restricted by any court until February 8, 2002, when this Court entered an order prohibiting the Hes from attempting “to have any contact, direct or indirect, in person, or otherwise, with AMH,”, until further order of the Court”.
(Judge Childers’ final opinion)
Later Childers wrote:
“Mrs. He signed a second Petition to Modify the Consent Order Awarding Custody on April 9, 2001, that was subsequently filed in Juvenile Court on May 29, 2001. The Court notes that Mrs. He did not request visitation with AMH when she filed the petition to modify custody. It is well settled that a parent may always petition to have visitation reinstated upon a showing of changed circumstances. Mrs. Hes’ willful failure to seek reinstatement of visitation with AMH demonstrates that her goal in filing the Petition to Modify to regain custody was for the sole purpose of remaining in the United States and avoiding deportation. Mrs. Hes’ failure to ask the Court to reinstate visitation with AMH, when she could have easily done so, evinces Mrs. Hes’ willful abandonment of AMH.”
(Judge Childers’ final opinion)
If the Hes’ right to visit was never restricted by any Court until February 8, 2002, then there was never a need for the Hes to request to have visitation rights to be reinstated by the Court. If there was no need to have visitation rights to be reinstated, how could there be a willful failure to seek reinstatement of visitation?
What happened was that although the Court did not restrict the Hes visitation rights until Feb 8, 2002, the Bakers were intentionally hindering and interfering with the Hes visits. Such intentions were clearly documented in Bakers' October 3, 1999, journal entry and later testimonies. The Bakers made it impossible for the Hes to have effective visitation with their daughter Anna Mae, so the Hes filed another petition on April 9, 2001. Suppose the Court ruled expeditiously and grant their petition, Anna Mae would have come home with her birth parents in a short period of time.
When someone DID something, when someone acted, we can easily prove that such act was willful, motivated or deliberate. When someone DID NOT do something, when someone DID NOT act, how do you prove that the person willfully chose NOT to do it? At least, you must prove that the person was explicitly given the opportunity to do it, and was explicitly told that doing it was necessary. Then, if the person refused to do it, you might say the person willfully fail to do it.
In the case of Mrs. He's petition, the forms she used were standard Juvenile Court forms, there was no place on those forms to request visitation, and no one told her she needed to request the Court to reinstate visitation because the Court never restricted her visitation rights. The Bakers interfered with Hes' visits, and the Hes filed a complaint about the interference to the Court and requested assistance, and there was a record, a trial exhibit for that complaint (which was conveniently omitted by Childers). Considering these facts, how could Childers possibly conclude that Mrs. He willfully chose not to request reinstatement of visitation at Bakers' place when she requested the Court to return Anna Mae to the Hes' home?
Childers' language “Mrs. Hes’ willful failure to seek reinstatement of visitation” is thus a twist of logic.
The only way to explain Childers' conclusion of Mrs. He's “willful failure to seek reinstatement of visitation” is this: Childers had to make this finding in order to terminate Hes' parental rights.
We can conclude Childers was working backwards: to terminate Hes' parental rights, he must establish willful abandonment, to establish willful abandonment, he must discount Hes' April 9, 2001 petition to regain custody, and to do that, he had to twist things.
As for Childers' so called gaining custody to avoid deportation argument, it is complete void of any logic and legal basis and is a demonstration of Judge Childers’ prejudgment. We shall elaborate this point later.
First, let us list Honorable Judge Childers’ theories regarding relation between the fight for custody of AMH and Hes ' deportation
the Hes only sought custody of AMH to prevent the Hes’ deportation,
Mrs. He only seems to be interested in regaining custody of AMH when deportation seems imminent. This fact is evidenced by Mrs. He filing the two (2) petitions to modify custody in close proximity to receiving calls from the United States Immigration & Naturalization Service (“INS”), regarding Mr. and Mrs. Hes’ immigration status.
Hes’ willful failure to seek reinstatement of visitation with
AMH demonstrates that her goal in filing the Petition to Modify to
regain custody was for the sole purpose of remaining in the United
States and avoiding deportation. Mrs. Hes’ failure to
ask the Court to reinstate visitation with AMH, when she could have
easily done so, evinces Mrs. Hes’ willful abandonment of
He received a second telephone call from the INS regarding the Hes’
current immigration status in the United States sometime in March,
April, or May, 2001, around the same time that Mrs. He filed a
second Petition to Modify custody in the Juvenile Court.
Again, due to the close proximity of the call from the INS and the
filing of the petition, the evidence shows that Mrs. He wanted to
retain some parental rights for the sole purpose of avoiding
From June 4, 1999,
through June 20, 2001, the frequency and duration of the Hes visits
with AMH evinced their intention to have only enough contact with
AMH to serve the Hes’ stated objective to avoid
On or about the times that the Hes filed a petition to modify custody, Mr. He had been contacted by the INS regarding the Hes’ illegal alien status.
The United States Immigration officials have suspended the Hes’ deportation proceedings until this cause is concluded.
(Judge Childers’ final opinion)
Judge Childers' willful abandonment conclusion is based on his belief that the Hes filed Petition to Modify custody only to avoid deportation.
It is obvious that Judge Childers believes that somehow by retaining parental rights of Anna Mae, the Hes can remain in US. But Childers did not give a logical link between the two.
First, it's obvious that the fact that Anna Mae was born in US and is a US citizen cannot explain Judge Childers' line of reasoning, because the Hes have a second son, Andy, born in October of 2000, on US soil and is also a US citizen. There is no law that says that because you have children born in US, or your children are US citizens, then you won't be deported.
So, if we believe Childers' theory, there has to be something special about Anna Mae beyond her being a US citizen, to give her the special power to ensure her parents can remain in the US. We can rule out her being the INS director. What else? Anna Mae's gender? It can't be. The Hes has another daughter, born in US. Her name? No. Her age? Her hair color? We don't think so.
If we back away from Childers' twisted viewing glasses but look at things in a normal way, one can easily explain the correlation, if any, between INS calls and the Hes’ filings of custody petitions. When people are preparing to move, the first thing they want to make sure is that they take their children with them. If we are not as twist minded, we can reason that because the Hes never intended to give up Anna Mae, when they fear there was a chance that they might be deported, they filed petitions to get their daughter back, so the family could leave US together. The petitions are just what they were, the Hes just wanted to get their daughter back. The petitions showed that the Hes never abandoned or intended to abandon Anna Mae, instead of the other way around as concluded by Judge Childers.
In May of 2001, right after the Hes filed the second petition to modify custody order, they sent their son, Andy, a US citizen to China, in fear of losing their son if they were deported. The Hes had Andy returned to US only after the Federal Court ruled that they won't be deported until the Anna Mae case is concluded.
As understood by the Hes, US law requires the children of aliens born US to live with their parents, but these children can come back to US when they become eighteen years old, as they are US citizens. The Immigration Court had several deportation hearings on the Hes. If they are deported, their son Andy and daughter Avita, both born in US and are US citizens, will be deported together with them. This is the law. Although the Bakers have been actively seeking to have INS deport the Hes family (without Anna Mae), the INS delayed the decision to deport the Hes family until the conclusion of the Anna Mae case, out of humanitarian considerations. The INS and Federal Court’s decision was not in any way controllable by the Hes, but their decision to delay deportation reflects common human conscience and respect for human rights.
The Hes have maintained all long that they had no intention to remain in US after so much suffering. What they are saying is this: just give back us our daughter and we will leave. They will live a much better life in China than being a restaurant dishwasher in US. Their experience in US made them to cherish their own culture and their own value more, free of oppression and humiliation of the Courts.
The Hes also repeatedly requested a speedy trial to get their daughter back, knowing that they would be deported by INS at the conclusion of the case regardless of the outcome.
They Hes never attempted to gain permanent residence in US since Mr. He was falsely charged with crimes he did not commit. They never attempted any legal means to remain in US indefinitely. They never applied for green card, never attempted green card lottery, never sought asylum, never attempted to marry a US citizen... They never attempted to remain in US illegally. One way to remain in US is just to go to a place where no INS officers know you, and wait a few years for a pardon from the US government. But, unlike many illegal aliens in US who simply disappeared out of the INS radar screen, the Hes reported themselves to the INS.
Judge Childers is an expert in law and he understood the above laws and reasoning very well. Therefore, Judge Childers’ using the complete bogus theory that the Hes wanted some parental rights and custody of Anna Mae He for the sole purpose of avoiding deportation is a calculated twist of law and facts to serve the purpose of finding willful abandonment and terminating Hes' parental rights.
Throughout Judge Childers' opinion, one can read about Mr. He or Mrs. He making this and that remarks. Judge Childers deliberatively left out references to the sources of the information. To the unsuspecting readers, it seems those words are from the Hes own testimonies, but the fact is, those are Bakers hearsay testimonies.
For example, the remarks the Hes made during the visits are all from Bakers' testimony, and Hes categorically denied those.
Another example, the opinion stated:
“Mr. He told Mr. Baker that the Hes were going to ship AMH to China, but he did not want to do that because the death rate of children of AMH's gender was fifty (50%) percent in the Peoples Republic of China.”
“Mr. He fears returning AMH to the Peoples Republic of China because the death rate for children of AMH's gender is fifty (50%) percent in that country”
(Judge Childers’ final opinion)
Anyone who read this part of the opinion, including the PRC Embassy got an impression that somehow Mr. He testified about the obviously bogus children death rate. The fact is that this was completely from Mr. Baker’s testimony. Mr. Baker said Mr. He said this, and Mr. Hr categorically denied that he said this.
As admitted by Judge Childers, Mr. He is a highly educated and highly intelligent person. Mr. He held multiple masters' degrees and had fairly good education on subjects such as statistics. A 50% death rate of one gender would mean a two to one ratio in gender population. A 50% death rate of one gender of children would mean 25% death rate of all Chinese children. No reasonably intelligent person can make such nonsensical statement; no person with minimum intellect will believe such a statement.
If Judge Childers considers everything Mr. He said as totally lacking credibility and Mr. Baker is totally honest, then Mr. He's alleged words out of Mr. Baker's lips should be equally treated as incredible. Because if Judge Childers believes that Mr. He is always telling lies and Mr. Baker is always telling truth, then what Mr. Baker said that Mr. He said are also lies. Mr. Baker can't turn lies into truth by simply repeating them. This is common sense, and Childers knows it very well.
Here is a good example to demonstrate that Judge Childers has perfect understanding of this simple logic and can skillfully apply it:
When treating the testimony by an expert witness, Dr. Yih-Jia Chang, Childers ruled:
Dr. Chang testified, as to Mr. He, that she based her opinion about Mr. He’s mental health on her clinical evaluation, mental status examination, and the MMPI test results. Dr. Chang testified that her clinical evaluation and mental status examination of Mr. He were based on questions she asked of and responses given by, Mr. He. The Court finds the credibility of Mr. He to be seriously lacking; therefore, the opinions given by Dr. Chang, based on Mr. He’s credibility, are entitled to no weight.
Childers' logic is straightforward, because Mr. He lacks credibility, everything said by Mr. He must be discounted. So, even for a mental-health evaluation by a qualified expert, Childers ruled that the evaluation result was useless, because it was “based on questions she asked of, and responses given by, Mr. He.” Hon. Robert L. Childers is making a new case law here: if a subject in a psychological test lacks credibility, then the MMPI test is not admissible to court as a mental-health evaluation.
But Childers based on his findings on Mr. Baker's hearsay testimony, and treated the hearsay coming from Bakers as truth told by Mr. He.
What referred to as “Mr. He said” in the visitation events were actually all originated from Mr. Baker.
In the best interest argument, Judge Childers said “Mr. He fears returning AMH to the Peoples Republic of China because the death rate for children of AMH's gender is fifty (50%) percent in that country”. As we stated above, these words were coming from Mr. Baker, but Mr. Baker claimed that Mr. He said it. Since Judge Childers considers Mr. He an incredible witness, this statement should be discounted as nonfactual.
The best interest determination should be based on facts. If Childers thinks that Mr. He is totally lacking credibility, these hearsay words, although from the 100% honest and sincere Mr. Baker, should not be taken as a fact. Judge Childers should use true facts in determining whether China would be a suitable home for Anna Mae.
The fact is, according to authoritative sources, female infant mortality rate in China and female infant mortality rate in USA are at comparable levels.
a casual reading of Childers' opinion can find additional problems.
Childers also ruled that:
Court concludes, by clear and convincing evidence, that there is
parental misconduct or inability to parent by the Hes.”
“Parental misconduct” and “inability to parent” are two distinctively different charges. A misconduct is a deliberate wrongdoing, an inability is the lack of an ability. If Judge Childers' evidence is so clear and convincing, and given the fact he spent 30 days painstakingly deliberating the case, can't he decide which one of the two(or both) charges ought be used against the Hes in his final ruling?
The Court appointed guardian, Ms. Kim Mullins, a totally credible witness by Childers' standards, under the order of the Court, went to the Hes' home, observed how the Hes parented their other children. She then wrote a report and also testified before Childers that everything she saw was OK, the parents were OK, and the kids were OK, and their relation was OK. The Court appointed guardian testified under oath that the Hes do have the ability to parent.
Court appointed guardian also reported and testified that she did not
see any sign of parental misconduct with respect to Hes' other
children. As for Anna Mae, there were no allegations or evidence of
parental misconduct by the Hes when she lived with the Hes, and there
were no allegations or evidence of parental misconduct during Hes' 80
some visitation events. Therefore, there is no evidence that the Hes
had parental misconduct with respect to all of their existing and
Could Honorable Judge Childers present a single shred of his “clear and convincing evidence” to support the unsubstantiated statement that “ there is parental misconduct or inability to parent by the Hes” in his final ruling?
For instance, in
his basis for the Termination of Parental Rights, Childers stated:
physical environment of the Hes’ home is unhealthy and
However, The Guardian Ad Litem, Kim Mullins, Linda Holmes, and Mr. Siegel visited Hes home in October 2003 and were pleased with their living conditions. Ms. Mullins submitted a report to court stating that the Hes’ home environment was all OK.
Judge Childers did point out in his ruling that Mr. Baker testified that he once saw Hes' kitchen filthy and apartment permeated with foul smell. But why didn't Ms. Mullins, Mrs. Homles and Mr. Siegel complain about the same odor problem? Has Judge Childers made an unspoken conclusion of law that places Mr. Baker's nose at a higher level of credibility?
Judge Childers emphasized that Mr. Baker earned $435,000 in year 2001 working at Pinnfund USA. But he failed to mention that Pinnfund was shutdown that year by SEC due to security fraud and embezzlement of investments by the management. Mr. Baker was a regional manager at Pinnfund. The Bakers had a history of filing bankruptcy and discharging large amounts of credit card debts. Childers seemed to suggest that Mr. Baker could get another high pay job like he had in Pinnfund, but he failed to consider the fact that Pinnfund management defrauded over three hundred million dollars from investors, and it is unlikely that Mr. Baker can get another opportunity such as Pinnfund.
Mr. Baker has a large family to support. Given the fact that the Bakers filed "Chapter 7" bankruptcy before, there is no guarantee that they will be able to fully support Anna Mae as they are facing yet another potential bankruptcy. Judge Childers never took into account Bakers' financial irresponsibility and instability in his best interest argument.
Judge Childers discounted Dr. John Copper's credibility based on a bankruptcy court's finding. However, Mr. Baker's credit history of filing bankruptcy and his management role in a firm that defrauded over three hundred million dollars was never a concern to Judge Childers. Mr. Baker purely impressed Childers as a sincere, honest, straightforward and high income witness.
We believe that Childers discriminated against the Hes in his ruling.
Regarding the February 8, 2002, No Contact Order, Judge Childers wrote:
The Court entered
the February 8, 2002, “no-contact” order because, on
February 7, 2002, the Court had ordered the Hes to deliver AMH’s
passport to the Clerk & Master by 4:00 P.M. that day. At
4:00 P.M. on February 7, 2002, the Hes’ counsel telephoned the
Court and advised the Court that the Hes had no intention of
complying with the Court’s order, and the Court then entered
the “no-contact” order the next day.
(Judge Childers’ final opinion)
However, on March 2, 2004, Larry Parrish, the Counsel for the Bakers and co-author of the February 8, 2002, No Contact Order testified under oath before Judge Childers that the no-contact order was issued and signed during private meetings between the Court and Larry Parrish. The No Contact Order was signed by Parrish and the Court only. The Hes and their counsel at the time had zero knowledge of this No Contact Order until the order was delivered to them. The Guardian Ad Litem, Ms. Kim Mullins also testified under oath on March 1, 2004, that she had no knowledge of the No Contact order until it had become a record, during her cross-examinations by both David Siegel and Larry Parrish. These testimonies of Parrish and Mullins were reported and posted on the Internet by WREG during the trial. The Hes have openly criticized the Court for issuing this No Contact Order in private meetings between the Court and Larry Parrish, without a motion, a hearing or any proof taken.
The origin of the February 8, 2002 No Contact Order is thus at least a disputed issue. Since the issue involves the conduct of the Court itself, Judge Childers should not make this one sided conclusion in his final opinion.
If Childers wanted to make a point about the No Contact Order, there was no need to go into that great detail in his conclusion of law. When talking about other events in his ruling, he never gave that kind of detail. Childers' version of the No Contact Order story referred to the 4:00 P.M. time twice, because timing of that order is a very important factor in determining whether the Court erred itself.