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MEMPHIS, Tenn. (AP) — In a child custody battle with echoes of Elian Gonzalez, an appeals court will consider if a judge's cultural bias against a Chinese couple led him to take away their 6-year-old daughter.
An American couple has raised Anna Mae He since she was a month old, and Circuit Court Judge Robert Childers ruled in May that she should stay with them, despite a five-year struggle by her biological parents to regain custody.
Critics say Childers wrongly considered whether Shaoqiang and Qin Luo He would return to China with their daughter and deprive her of a comfortable life in suburban America. The judge opened the way for the American couple, Jerry and Louise Baker, to adopt Anna Mae.
In a trial that attracted Chinese spectators from the Memphis area and representatives of the Chinese embassy in Washington, Childers noted in his ruling that China has a "one-child-per-family" policy and that families such as the Hes with more than one child could lose medical and educational benefits. He also referred to the Bakers' fear that girls have a higher death rate than boys in China.
The Tennessee Court of Appeals -- with oral arguments set for Wednesday -- is being asked if Childers' decision was skewed by the same kind of cultural questions that influenced the custody fight over young Elian Gonzalez in Florida five years ago.
The boy's mother drowned during their journey from Cuba and he was sent to an uncle in Florida. Since Elian's father in Cuba was a fit parent, the uncle's argument that Elian would have a better life in America was deemed irrelevant.
The Organization of Chinese Americans, based in Washington, filed a legal brief with the appeals court challenging Childers' authority.
"The court tries to paint the Hes as uncaring and selfish toward the child because she is a girl," the group said. "The most flagrant of these is the misconception that taking the girl back to China would knowingly put the child at peril of death."
The Chinese organization said emotional outbursts by Mrs. He when refused permission to see her child would be accepted in China but were regarded by the judge as evidence of mental instability.
"If she doesn't show emotion she is uncaring; if she shows it, she is irrational," the brief says.
The Bakers took Anna Mae into their home as a favor to the Hes who were out of work in a foreign country and facing large legal and medical bills. In June 2000, the Hes filed their first petition to get Anna Mae back from what they say was temporary foster care.
When the Hes sought return of their first-born child, the Bakers refused and began moves to adopt her.
The Bakers argue their family is the only one Anna Mae has known and taking her away could crush her psychologically. But the Hes say leaving her with the Bakers will keep the child from ever knowing her biological family.
Childers presided over a trial on a petition from the Bakers to terminate the Hes parental rights.
The Hes visited Anna Mae regularly after the Bakers first took her in. But those visits ended in January 2001 when police escorted the Hes from the Baker residence during an argument between the two couples.
Childers said the Hes wanted someone else to take care of Anna Mae and launched the fight to get her back as a way to avoid deportation. The Bakers, he ruled, were simply better parents.
The He family's troubles began in 1998 when Shaoqiang He was working toward a Ph.D. in economics at the University of Memphis and was charged with sexually assaulting a female student.
He was kicked out of school, losing the student stipend that was his main source of income, even though he was acquitted of the assault charge in 2003.
He said his family, which now includes a 4-year-old son and 2-year-old daughter, celebrated Anna Mae's birthday Jan. 28.
They took pictures with a birthday cake, he said, in hopes she will see them one day "and know we never forget her." | 
