When asked about the court decision that terminated his parental rights to his oldest daughter, Anna Mae, Jack He becomes agitated. He pounds his fists on the table, pleading his case. He is particularly angry about the 73-page opinion issued by Circuit Court Judge Robert "Butch" Childers. "You've read Childers' decision, yes? You read what he says about us, yes? A few times, yes?" he asks. Touching his chest, he continues, "Me, I can recite it."
Reciting the opinion is not something He enjoys. It is filled with stinging criticism of He and his wife, Casey. Childers characterized the couple as manipulative and dishonest, essentially unfit to raise Anna Mae.
Throughout the trial, and the years leading up to it, He remained optimistic that he and his wife would regain custody of their daughter. Now, two months after the decision, He is at times deflated. "It is hard for us to see hope now," he says, burying his face in his hands. "I hoped for a favorable resolution but did not receive it. But we will appeal, and maybe the court will overturn the decision."
That persistence is part of He's character. The couple's lawyer, David Siegel, credits He's persistence for keeping the case alive. "There are many other cases like the Hes'," Siegel says. "But the other people didn't have the wherewithal and the guts to stand up to the powers that be. No matter what you say about Mr. He, you have to give him credit for that."
Siegel has been the Hes' lawyer for more than two years, having taken over after their court-appointed attorney, Dennis Sossaman, withdrew from the case in February 2002. Seigel agreed to work on a pro-bono basis, and estimates that his compensation, at an hourly rate of $175, already totals more than $150,000. Seigel says his gratuitous involvement was emotional, not logical. "[This case] reminded me of why I went to law school in the first place. I had been [practicing law] for about 16 years and I saw this case as a defining moment for my personal beliefs."
The Hes' custody battle is not uncharted territory for Siegel. He has practiced family law for years, but his passion for the case is evident. His intensity increases as he makes his points. He stops abruptly at times, honoring the judge's orders not to use Anna Mae's name when discussing the case.
Siegel and co-counsel Richard Gordon have filed an appeal against Childers' ruling. The lawyers have until mid-August to file a transcript notice with the appellate court. Once filed, the attorneys for both sides will receive a briefing schedule.
Seigel and Gordon maintain that custodial parents Jerry and Louise Baker and their attorney Larry Parrish did not prove that the Hes abandoned Anna Mae, nor did they prove that termination of the Hes' parental rights was in the best interest of the child. "You don't get to go to [point] two unless you prove [point] one," says Siegel. "There must be some legal guidelines that the judge must follow to terminate the rights, other than to have some feeling."
Amy Baker turns a cartwheel across the living room, showing off her new skill. Across the room, Anna Mae concentrates, drawing a picture on brown paper. Brow wrinkled, she tapes down the edges before presenting her creation in a ladylike manner. Then she smiles goodbye and retreats to the backyard, just like a regular kid, just like a kid who didn't have her face and name all over the national and local media.
"With us, she's just Anna, " says Louise Baker, Anna Mae's custodial mother. Louise and her husband Jerry have been Anna Mae's legal guardians since June 4, 1999. They were her foster parents prior to that. In fact, the Bakers have had custody of Anna Mae since she was four weeks old, when the couple agreed to foster-parent the child through Mid-South Christian Services.
The Hes were in a financial crisis. Jack had lost his assistant teaching position and stipend from the University of Memphis and was facing deportation as a result of losing his student status. He was also facing charges of sexual battery and assault for an alleged incident in October 1998. (Jack was eventually acquitted of all charges.) Then in late November 1998, the Hes were attacked at a Chinese grocery store, sending Casey, who was pregnant, to the hospital. After delivering Anna Mae prematurely on January 28, 1999, the Hes were unable to provide for her medical needs. A church friend suggested Mid-South Christian Services.
The Bakers had been foster parents through the agency since 1997, fostering 10 children during their transition from foster- to adoptive-care. Until Anna Mae, the couple had not fostered a child for more than a few days at a time. Anna Mae was to initially remain in their care for three months.
At the end of that period the Hes were still unable to care for Anna Mae. Jack had completed his degree requirements, but had been denied his degree by the university. A petition was filed in juvenile court granting the Bakers temporary custody of the child. A plan also was devised by Jack and Jerry for Anna Mae to reside with the Bakers until she was 18. (See below.) According to both men, the plan was written up during a poolside meeting at the Hes' apartment complex. According to the agreement, the Bakers were to keep the child, but the Hes were to have visitation rights and Anna Mae would retain her last name. Although the plan was not signed, the Bakers and their lawyer, Parrish, say it was the intent of both parties.
"We only did what a couple asked us to do, and that was to raise their daughter until she reached 18 years old," says Louise. "Somewhere during this process, they decided to do something else."
The day after receiving temporary custody, Louise began a journal detailing the Hes' visits to see Anna Mae. "I never kept a journal for any of the other children [we fostered] because there was never any agreement for us to keep them," she says. "The purpose of the journal was to log the truth. If I had done it as some sort of record to use against the Hes, the [entries] would have been much more selective."
In May of the following year, the Hes filed motions to modify the temporary custody agreement and have their daughter returned to them. After a visitation session at the Bakers' resulted in the police being called, the Hes discontinued visits with Anna Mae, based on what they understood to be police orders not to return to the home. Before the incident, the Hes had visited Anna Mae more than 80 times. Four months later, the Bakers filed for adoption of Anna Mae and termination of the Hes' parental rights in Chancery Court before Chancellor D.J. Alissandratos.
The Hes and their attorneys say the journal, which was the basis for much of the testimony during the trial, was a trap set for the Hes. Parrish, the Bakers' lawyer, sees it differently: "I didn't tell her to keep the journal, because I was not even her lawyer at the time," says Parrish. "But if I had been," he adds, "I would have told her to do so, because that's smart. At the time, everything was beautiful, but things can turn very antagonistic."
Parrish says his time and expenses have far outweighed his fees. (The Bakers' outstanding balance stands at more than $400,000.) "Even if this case did not involve this little girl," he adds, "what it boils down to is willful abandonment. I'm not crusading, but the birth parent thing doesn't mean anything to me."
Parrish, who is a former assistant U.S attorney and federal special prosecutor, is no stranger to high-profile cases. In the late 1970s, he led a team in prosecuting 16 people involved in the production of Deep Throat and other pornographic films. Although some of the indictments were eventually overturned, Parrish earned a reputation as a crusader. Two decades later, as special prosecutor, he worked to bring more than 200 indecency, prostitution, and obscenity indictments against several Memphis topless bars, but those indictments were overturned when the Tennessee Supreme Court ruled it was illegal for a prosecutor to be paid by a private group. (Parrish was given $500,000 by Citizens for Community Values to support his crusade against the topless clubs.)
In his opinion on the case, Childers described Casey He as "calculating, almost theatrical, in her actions" and "dishonest and manipulative." He also wrote that she "has a history of acting in an unstable manner when it serves her own self-interest." During trial testimony, Parrish pointed out that the Hes lied to get Casey into the country, saying they were married when there was no documentation. Parrish also detailed Casey's response to gag and no-contact orders handed down by Alissandratos: She picketed Parrish's office lobby, confronted Louise in a Germantown Wal-Mart, and refused to hand over Anna Mae's passport.
Jack describes his wife's actions as "reasonable," saying that any mother in a similar situation would have done the same things. "Did those things affect the outcome of this case? Clearly it hurt them," says Siegel. "But it shouldn't have hurt them, because desperate people do desperate things.''
Other legal issues further complicated the case. Some experts say Childers' ruling was based on a misinterpretation of Tennessee's adoption, custody, and parental rights laws. Siegel petitioned the Chancery Court for a bifurcation, or separation, of the two main aspects of the case: abandonment and termination of parental rights. The petition was denied. Child advocacy attorney Chris Zawisza says that Childers' denial could provoke an overhaul of the state's child-custody laws, since the case will likely go to the Tennessee Supreme Court.
Tennessee statute defines abandonment as "a period of four (4) consecutive months immediately preceding the pleading to terminate the parental rights of the parent(s) of the child that the parent(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child."
"It's the willful part of it that matters," says Zawisza, who began her career as a Florida attorney and went on to write most of that state's custody statutes. "There is no statute that defines willful." Tennessee's four-month period is one of the shortest in the country. Most states require six months or longer. "I think the big issue in this case is that it was a termination of parental rights," says Zawisza. "For that type of case, we look at the [birth] parents and them alone. Instead, [in the He/Baker case] there was a comparing of adoptive parents, character, and cultural issues. It seemed to me that the court was trying a case in which two people were divorcing and someone was trying to get custody."
Siegel has long argued that his clients did not willfully abandon Anna Mae. He contends that the Hes' juvenile court filings to modify the temporary custody order and their appeals to the juvenile court referees and judge are evidence of their desire to regain custody of their daughter. He contends the Hes did not return for visits because they were told not to do so by the police.
Parrish calls this an "excuse," adding, "These people never obeyed any orders from authority before. Why didn't they just disobey this one?"
Part of Childers' opinion was based on the state's repeal of the Settled Purpose Doctrine in the adoption code, which required a parent to have demonstrated a "settled purpose" to forego all parent rights in order for abandonment to be determined. That statute was repealed in 1996. But a 1998 case involving the revision was determined by the Tennessee Supreme Court to be unconstitutional. Siegel's argument is that this appeal requires the code to revert to the original Settled Purpose Doctrine. Childers disagreed, saying that even if this were true, the Hes' actions, or lack of actions, demonstrated a settled purpose to forego their rights to Anna Mae.
Memphis Area Legal Services general counsel Webb Brewer was one of the attorneys for the 1998 statute appeal, known as the Swanson case. "Very often we handle cases that look like the He case, in that you have affluent people who are wanting to adopt from lower-income people of color," says Brewer. "I think that's why this case has been receiving so much attention. When it was poor African Americans, no one really paid much attention. I think there is a need for some clarification [of Tennessee law], specifically in the lower courts. There is a strongly protected constitutional right of natural parents that shouldn't be interfered with. The courts have gotten into second-guessing parents. That's dangerous. If you don't maintain that line, then it starts to look like 'Big Brotherism,' and all types of parenting methods are questioned."
Zawisza and Brewer agree on the need for change. "It needs to be made totally clear that there are two phases in these cases, and you don't get to 'a better custodian' until you make the determination that there is abandonment and whether it manifestly is in the best interest of the child to terminate [parental rights]," says Zawisza. "No matter how hard the decision is, you don't get to 'those nice people over there' until you've followed the statute."
"We were told by child psychologist David Goldstein not to prepare her for something that may not happen," says Louise. She's talking about having to tell Anna Mae about a possible change of custody if a higher court's overturns Childers' opinion. "She knew that she had a mommy and daddy to take care of her and that she had a Chinese mommy and daddy."
"You try to talk to her about it, and she doesn't say anything," says Jerry. "She's not interested in it. We plan on telling her about everything when she gets older."
The Bakers say they have only experienced two negative incidents locally. One incident involved an anonymous phone call saying that Anna Mae would be kidnapped. However, the couple has been the topic of debate since the case was brought to the national spotlight in USA Today two years ago. "After a while you just get numb to it. Of all the things that came out in the trial I hate that our finances were exposed," says Jerry. After losing a high-paying job, Baker took a much lower-paying position, which led to the family moving into a smaller home. Legal fees left the family almost bankrupt."I think the Hes understood what they were doing," Baker says, "and they used this little girl as a pawn."
At every opportunity, Jerry and Louise steal hugs and kisses from Anna Mae. "I love you," Louise says. Although Anna Mae smiles an implied "I know" in return, there is tension in Louise's words. "The hardest part is getting back to normal," she says. "The thing is, though, that if the Hes asked us to help them in the future, we'd help them again."
Jack HE was acquitted of the sexual misconduct charges in February 2003. Like Anna Mae's custody battle, that case also was marked by years of delays, with a final outcome delivered almost four years after the initial allegation. He filed a legal complaint with the Tennessee Board of Professional Responsibility, this time against his own victorious defense attorney, James Hodges. Hodges is reluctant to discuss the complaint, which was mainly a fee grievance, saying only that the misunderstandings have been resolved. Jack's outstanding balance with Hodges for his criminal case representation stands at almost $7,200. His complaint against Alissandratos ultimately led to that judge's recusal from the case.
"My home life now is not so good," says Jack. "Each night, when I get home from work, my wife has put the two children to bed, but she is up waiting for me. And she asks me the same question each day: 'Is there any good news?'"
At the end of every conversation with a reporter, Jack reiterates important points to include in their story. "Make sure and clarify that with termination of parental rights there is no right for visitation and therefore we cannot see our daughter," he says. "And make sure to say that I no longer want to leave the United States without my daughter. I want to stay and fight. And make sure that you say we are very disappointed in the judge's decision. And make sure you include that we are very happy with Mr. Siegel's work. And make sure "
The events leading up to Judge Robert "Butch" Childers' decision to terminate the Hes' parental rights began more than nine years ago, when a Chinese college professor named Jack He came to America ultimately seeking to obtain a degree in information systems from the University of Memphis. He and his family became involved in a criminal case, immigration snafus, and ultimately the loss of custody of their first-born child. Following is a timeline of one family's troubled American experience.
October 17 -- He is accused by a fellow University of Memphis student of sexual battery and assault. The woman, also a Chinese immigrant, claimed He fondled her and relieved himself on her before she escaped the building. He had been tutoring the student in English. He loses his legal immigration status, his position as teaching assistant, and stipend as a result of the charges.
November 27 -- Jack and Casey He are attacked while shopping in a Chinese grocery store. Casey, six months pregnant, is struck in the abdomen and begins bleeding. She is taken to a hospital.
December 21 -- The Hes meet with a prospective adoptive family for their unborn child. They decide not to go through with adoption.
February 23 -- The Hes make their first of more than 80 visits with Anna Mae in the Baker home.
May -- A C Wharton is hired to represent Jack He in his criminal case. Wharton presents He with an offer of diversion, which would require him to serve a one- to two-year probation and undergo counseling before having his record expunged. He declines the offer, citing his innocence.
May -- Jack He completes masters coursework. His degree is withheld by the university pending the outcome of the criminal case.
June 2 -- Meeting is held with Bakers, Hes, attorney Kevin Weaver, and Diane Chunn of Mid-South Christian Services to discuss temporary custody rights for Anna Mae.
June 4 -- Still unable to financially care for their daughter, the Hes file a petition with juvenile court asking that custody of Anna Mae be awarded to the Bakers. The child is signed out of the custody of MSCS. The following year, Jack He and Jerry Baker write a plan saying that Anna Mae would be left in the care of the Bakers until age 18. Jack He says the plan was never totally agreed upon and no signatures were included on the handwritten document. Baker contends the plan reflects the intentions of the Hes.
June 5 -- Louise Baker begins keeping a journal of visits made by the Hes to see Anna Mae.
June 28 -- The petition is denied in juvenile court.
August 1 -- Casey He visits Anna Mae at the Baker home. She refuses to leave when Louise Baker has to leave for an appointment. Casey's actions lead to a call to the police.
October 28 -- Andy, the Hes' second child, is born. Louise assists the Hes by taking him to doctor's appointments and for immunizations.
May 28 -- Four-month abandonment period deadline expires.
May 29 -- Casey He files another petition for the return of Anna Mae from the Bakers.
May -- Wharton resigns as Jack He's attorney in the criminal matter. Stephen Sauer is appointed by the court to represent him.
June 20 -- Bakers file a petition in chancery court to terminate the Hes' parental rights. They request adoption, citing the Hes failure to visit Anna Mae for four months, as outlined in the state's abandonment statute. Proceedings are moved to Chancery Court and Chancellor D.J. Alissandratos.
June 22 -- Dennis Sossaman is appointed as attorney for the Hes.
August -- Larry Parrish is retained as legal counsel by the Bakers.
August 6 -- Hes meet for first time with court-appointed guardian ad litem, Kim Mullins, who is serving as Anna Mae's lawyer.
January 7 The Hes apply for a Shelby County marriage license. The couple had been accused of lying about their Chinese marriage because no legal documents had been produced.
January 23 Alissandratos orders the Hes to pay $15,000 in guardian ad litem fees within seven days, based on Jack He's testimony that Casey's brother is a millionaire and can loan them money. The Bakers are later ordered to pay the same amount.
January 24 USA Today publishes the first national article on the battle over Anna Mae.
February 8 Alissandratos issues a "no contact" order barring the Hes from visiting Anna Mae.
February 12 Alissandratos issues a gag order barring litigants from discussing the case outside the court, including the media. Jack and Casey He both defy this order.
February 14 Sossaman's motion to withdraw from representation of the Hes is granted.
February 15 David Siegel becomes the Hes' attorney. Agrees to take the case pro bono.
February 20 Casey He attempts to picket Parrish's office building carrying a sign, the USA Today article, and a photo of Anna Mae. The following day, she pickets the Bakers' home. Alissandratos holds her in contempt of court.
February Supporters of the Hes establish the Anna Mae He charitable foundation.
July Casey is arrested and jailed overnight for attempting to enter Alissandratos' chambers and resisting arrest. Charges against her are eventually dropped.
September 9 Avita, the Hes third child, is born.
February 18 Jack He's criminal trial begins, four years after the initial allegations are made.
February 21 He is found not guilty of sexual misconduct.
September 4 Judge Alissandratos denies Siegel's request for a summary judgment ruling, jury trial, and bifurcation, or separation of the abandonment and termination issues. Trial date is set for September 29th.
September 29 Linda Holmes, attorney for guardian ad litem Kim Mullins, requests continuance due to family emergency. Case is continued to October. Siegel's emergency motion for immediate visitation by the Hes is denied.
October Jack, through the Chinese Embassy in Washington D.C., files a complaint against Alissandratos with the Tennessee Court of the Judiciary. Alissandratos withdraws from the case, which is transferred to Circuit Court judge Robert Childers.
February 23 The termination of parental rights trial begins. Testimony lasts 10 days, with sessions lasting as long as 14 hours each day.
May 12 Childers renders his decision, granting the Bakers' motion to terminate the Hes' parental rights. Siegel and Gordon file an appeal a week later. The appeal blocks the Bakers' ability to adopt Anna Mae until the case is resolved.
May 18 The Hes issue a response to Childers' decision, calling it "the harshest of family law, equivalent to death penalty of the criminal law." n