Juvenile Injustice
by Stephen Cheng

It's been four years since the Elian Gonzalez affair rekindled Cold War sentiments and elevated a young Cuban boy to nationwide attention. The case played a minor role in the 2000 presidential election — and perhaps, for that reason, most would probably agree that it's best that custody cases are kept out of the political arena. But that's different from saying they need to be kept out of the media; indeed, if any case today deserves more attention, it's that of Anna Mae He.

Anna Mae was born in January 1999, to Chinese citizens living in the United States. Her mother, Qin Luo He, knew little English; her father, Shaoqiang He, was studying for an economics doctorate at the University of Memphis. That is, until he was charged in October 1998 with sexual assault; the charge led to the suspension of Shaoqiang He's student visa, education, scholarship and stipend. A jury acquitted him in February 1999, but by then he had gone several months without income, and was thus unable to meet the family's material needs. Anna Mae, only a month old, was given to the foster care of Jerry and Louise Baker through the Mid-South Christian Service.

The Hes assumed that such care was temporary when they gave their child over to extended foster care when their financial state still had a long way to improve. But they soon learned it wasn't, as they had signed documents that required them to get a judge's consent in order to retrieve their child (they claim they were tricked into signing). The Hes tried repeatedly to get their daughter back, and in June 2001 the Bakers filed a petition to keep the girl as their daughter. In May, however, Circuit Court Judge Robert Childers stripped the Hes of their parental rights. The Hes are now preparing to appeal.

Childers' reasoning amounted to two key points: that the Hes deliberately abandoned their daughter, and that they cannot provide a suitable living environment for children in any case. But one wonders why the Hes would demand Anna Mae's return if they lacked further interest in the child. They cared enough, at least, to make 80 visits to see their daughter.

Childers' abandonment rationale, however, ultimately revolved around a fracas in January 2001, when the He and Baker couples fought verbally over the latter's refusal to allow the Hes to take a photo with Anna Mae. The Memphis police were called, and the Hes were ordered to stay away, which they did. According to the Bakers and the police, the Hes were only told to stay away for the rest of the day; according to the Hes, they were told to stay away permanently. The Hes continued to pursue their claim through legal channels, but they complied with what they thought was a police order. Childers, perversely, felt that staying away from the Bakers constituted abandonment. "I don't see how he can possibly find abandonment," Steven Lubet, a Northwestern University law professor, told the Memphis Commercial Appeal. "It is inconceivable that he would find abandonment while the parents are actively pursuing legal remedies to retrieve their child."

Coupled with the abandonment claim was the fear that the parents' native culture would be stultifying for the child; at the trial, the Bakers had expressed concern that Anna Mae would be "shipped off" to China (as if taking her to see her grandparents were a bad thing), and Childers apparently agreed. The Hes' background was clearly in Childers' mind when he wrote at length in his opinion that the "physical environment of the Hes' home is unhealthy and unsafe," without specifying exactly how; at the same time, he waxed on about what sort of loving parents the Bakers would make, largely echoing the PR campaign the latter (and significantly wealthier) family had been waging before and during the trial.

The case obviously brings up memories of Elian, though it's important to note a few key differences. Elian was returned to his biological father; Anna Mae was not. And Cuba and China are hardly comparable — while both are undemocratic, Marxist countries, China is moving toward capitalism and a pro-America stance, while Cuba remains in the grip of an anti-American dictator. To be sure, as was the case with Elian, in the He case crass assumptions about the birth parents' political and cultural background dominated the discussion — except in the latter, those assumptions won out over measured consideration of the parents' and child's rights.

The Elian Gonzalez case ended with the violent seizure of the boy and his return to a state where hypocrisy was and is its best trait. The case made clear the harsh vagaries of US custody law. The He case, however, goes one step further and shows its injustice.