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Burden of Proof

Thai Boy at Center of International Custody Dispute

Aired July 19, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: In Thailand, a little boy's mother allegedly sells him to a human smuggling ring, and he ends up in Los Angeles as a pawn. Should the child be returned to his grandparents in Thailand or stay in the United States? That's today on BURDEN OF PROOF.

(BEGIN VIDEO CLIP)

PETER SCHEY, IMMIGRATION RIGHTS ATTORNEY: For this child, today was a very important day. It was a day of life and death, and the answer came up life.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF. Greta is off today.

Three-year-old Thai boy Phanupong Khaisri arrived at Los Angeles International Airport in April with a couple pretending to be his parents. Officials say the couple was using him as a decoy in a scheme to smuggle a Chinese woman into the country as an indentured servant.

The adults were immediately deported, but the little boy stayed behind because he was running a fever. Los Angeles-area Thai activists took up his cause, noting that his father was dead and his mother was suspected of selling him to the smuggling ring.

A federal judge recently extended an order to block Phanupong's deportation, saying the boy, who is HIV-positive, has gotten "every bad break."

Joining us from Phoenix is the attorney for Phanupong's paternal grandparents, Dorothea Kraeger. In Los Angeles, we're joined by the little boy's attorney, Peter Schey, of the Center for Human Rights and Constitutional Law. And here in Washington: Ryan Fink (ph), former INS general counsel Paul Virtue, and Jenny Haight (ph). In the back: Rachel Goldstein (ph) and Craig Saperstein (ph).

Let's go right to Peter Schey.

Peter, you are acting as the lawyer for Phanupong now. Tell us his story, and how the events got to be where they are now.

SCHEY: Well, he was sold three times by his mother to traffickers, and there is national trafficking of women and children. He was essentially used as a decoy as these smugglers pretended to be families using false passports traveling around the world, his life was clearly placed in danger, he was drugged. When he arrived in the United States in April he was a very sick child.

United States government, unlike its treatment in the Elian Gonzalez case, in which they really rolled out the legal red carpet for that child, in this case they really ran roughshod over this child's rights, and along with the Thai government, really conspired to return him to Thailand as quickly and as quietly as possible.

The case came to our attention in early April, just a few days before he was due to be deported. We negotiated with the INS for several days in an effort to block that deportation, both because we felt that his safety could not be assured if he was returned to Thailand, and also because it was very clear to us that he had a serious medical condition, and that, indeed, if he was returned to Thailand he may die in the near future.

When those negotiations were unsuccessful, on the day that was set for his deportation, we went into federal court and we obtained a temporary restraining order blocking his deportation. And, as you announced at the beginning of your show, just a few days ago, the judge extended that order, made it a preliminary injunction order, and basically ordered that the child is to remain in the United States at least until his safety upon return to Thailand can be assured.

We want to be sure that he's not resold into the stream of illicit trafficking in women and children, and equally importantly, we want to be sure that his medical condition can be addressed once he's returned to Thailand.

COSSACK: All right, Peter, let's go through some facts now. There are no -- he does not have a mother, nor a father, who can speak for him, as opposed to you brought up Elian Gonzalez, there was a father who came from Cuba to speak for that young boy. There is no one like that to speak for this boy, is that right?

SCHEY: That is correct. Clearly, in this case, the mother is not a competent parent to really speak for this child. The mother, as we understand it, is a prostitute, a drug addict, working in a club in Bangkok, Thailand. The Thai government has done nothing to protect this child. It has acted as a government, not as a mother or father. Thai government has been driven by interests of sovereignty, and national pride, not by the interests of...

COSSACK: Let me just interrupt you for a second, but yet there are paternal grandparents, not maternal grandparents, but paternal grandparents, who do want to have this child, who do live in Thailand, and who have offered to adopt the child, and take him back and raise the child, and get him competent medical care.

Now, wouldn't it be best for this child then to go back to his paternal grandparents?

SCHEY: Well, There are paternal grandparents, and indeed, we are the ones who located the paternal grandparents, we are the ones who arranged for the paternal grandparents to come to the United States, we are the ones who have arranged for the lodging of the paternal grandparents here in the United States, we are the ones who assisted the paternal grandparents in obtaining a visa to come to the United States.

So we have taken every possible step to get the paternal grandparents over here to the United States and to get their view known.

At the same time, we are not ready and the court is not ready to release this child to the paternal grandparents at this time for several reasons. Firstly, up to this point, neither the Thai government nor the U.S. government have conducted any sort of investigation into the ability of the paternal grandparents to care for the child.

Secondly, the paternal grandmother has a conviction for trafficking in narcotics and, while we know that fact, we don't know the details of that conviction, and that's something we want to learn about.

Thirdly, we have no assurances, at this time, from the Thai government that even if paternal grandparents take Phanupong back to Thailand with them that his mother will have fairly immediate access to him, and be in a position to once again retrieve the child and sell him into international trafficking in women and children for the fourth time.

And finally, at this point, we have no assurances from the Thai government or from the paternal grandparents that they or the government are in a position to provide the critical medical attention that he needs to keep him alive.

COSSACK: All right, joining us now is Dorothea Kraeger, who is the attorney for the maternal grandparents, who are in this country.

Patsy, you have heard what Peter had to say. Give us your response on some of those our criticisms of your client.

DOROTHEA KRAEGER, ATTORNEY FOR PATERNAL GRANDPARENTS: Well, firstly, I would like to respond on several issues. And I think that was something that we brought before the court in our motion to intervene on behalf of the grandparents of an apparent and actual conflict of interest of Mr. Schey in representing both the interest of Master Phanupong, as well as the grandparents.

Mr. Schey is correct in saying that the grandmother did have a prior conviction for trafficking. What he fails to mention is the date of that conviction and the fact that that conviction was pardoned by the United States government.

This is not something that has been kept from the United States government. In fact, he is correct that he did obtain their visas for them directly from the U.S. Embassy in Bangkok. However, Mr. Schey did contact the grandparents.

I would like to also add that the Royal Thai government was able to track down the parentage of the child by a prescription that was on him and in fact, I believe the organization the Thai CDC paid for one of the plane tickets, and it is the 7th Day Adventist Church that is arranging for their stay at the White Memorial Hospital, and one of the other plane tickets. So I wanted to clarify that as well.

In addition, the grandparents, right now, are paying for all of the food costs and taking care of the child on a day-to-day basis between...

COSSACK: Patsy, could I ask you to respond to these two particular allegations: one, that the claim that there is no assurance that Phanupong's mother, who is a prostitute and who allegedly has sold him into this scheme, would not be able to come back and do it again. Can you respond to that?

KRAEGER: I certainly can. In fact, on Monday, in the United States district court, we filed a statement from the National Police in Thailand, the government police, that would assure the protection of Master Phanupong. And additionally, the mother was arrested in Thailand and is currently under the control of the court, which would be similar to being on probation in America.

So the government of Thailand has, in fact, made assurances to the United States district court and to the INS that they will provide for the security and the safety of the child. And it is also important to note that the mother lives in Bangkok, some five to six hours away from where the grandparents live.

COSSACK: All right. Let me then ask you about this allegation, the allegation that Master Phanupong could not receive proper medical care in Thailand -- he is HIV positive -- and as opposed to the kind of medical care he could receive in the United States.

KRAEGER: Yes, well, we refute that allegation completely. And in fact, we did tell the judge that on Monday in court. Thailand, it is interesting to note, is one of the leaders in HIV and AIDS treatment. And, in fact, in the Sunday "New York Times," in an article unrelated to this case on the World's AIDS Conference, the "New York Times" commented and President Mandela commented on what a leader Thailand was in the aggressive treatment and information provided to persons in Thailand. And Kenneth Roth from Human Rights Watch also presented a paper in South Africa about their aggressive treatment.

We did allow to the court that the current medical treatments that the child is on right now, AZT and a combination of anti-viral drugs, are manufactured in Thailand. And Glaxo Wellcome also -- not to give them a plug -- but they also provide many clinical programs and much medicine free to Thailand. In addition, the government of Thailand, the Ministry of Public Health, according to their constitution -- sorry, I'll just finish -- has guaranteed that they will provide for the full and complete treatment.

So, in short, we would say that Thailand has the same Western protocol for the treatment of HIV and AIDS that we do in the United States.

COSSACK: All right, let's take a break.

Up next, the INS once again in the middle of a child custody dispute. Now, how is the Thai boy's situation different than the case of Elian Gonzalez? Or is it? Stay with us.

(BEGIN LEGAL BRIEF)

In 1993, a Ku Klux Klansman was put into a Texas jail cell with black inmates who assaulted him. Yesterday, a federal jury found jail officials liable and awarded Larry Kevin Webster $55,000 in damages.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log onto cnn.com/burden. We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at anytime via video-on-demand. You can also interact with our show and even join our chat room.

Now, the INS originally wanted to send Phanupong back to Thailand immediately, but Thai-Americans in Los Angeles claimed he would be in danger if he went back to his country, putting them at odds with the government of Thailand as well as the U.S. Justice Department.

Well, Paul, you were here several times for us when we discussed the Elian Gonzalez case. And one of the arguments that was made in that case was that this situation was being -- Elian was handled differently because it was Cuba and therefore it was just a different result. Now, I think the facts in these cases, at least as they stand right now, are similar. And here is the INS, who allegedly, it seems like, wants to send Phanupong right back to Thailand.

Now, there are grandparents who are here in this country who wish to take care of him. Apparently, yes, there's a conviction, but it's been expelled. I mean, why is this case different than Elian?

PAUL VIRTUE, FORMER GENERAL COUNSEL, INS: Well, Roger, I have to agree that the facts are very similar. You have a child of tender years who is not in a position to speak on his own behalf. And so...

COSSACK: Even younger than Elian.

VIRTUE: Even younger than Elian. And so you -- the INS has to look to who can speak on the boy's behalf. And so I think I agree with you: The INS was inclined to send him back. In fact, the Thai government withdrew his application for admission on his behalf. And so I think, but for the fever, he might have been on his way back to Thailand. But given the circumstances now, I think the Immigration Service would rather see an independent friend of the court, if you will, or guardian ad litem appointed for the boy to make an assessment what to do, what avenue to pursue in this case.

COSSACK: But why? Because when the Elian situation arose, one of the things that happened was representatives of the INS went right down to Cuba and interviewed his father and came back and said, you know, we made a decision. We think this is a good father and will be a good father, and that's our decision. Why hasn't that happened here?

VIRTUE: Because, in that case, you had a biological father, and so I think the determination in that case was -- the presumption is that the father should be able to speak on behalf of the boy. I don't think you have that same presumption here. You have paternal grandparents who are obviously related to the boy, but there has been no determination that they act as guardians on the boy's behalf, at least yet. And so I think that's principally why you have a distinction.

COSSACK: But they're the only relatives. Look, we now know that the mother is in jail and the father's dead. Here comes now the paternal grandparents who come along and say, we'll take care of this child. I mean, why isn't there the same kind of reaction to go over, investigate and see whether or not they would be good parents as there was in the Elian case?

VIRTUE: Because I don't think you have the same presumption operating that you do for a biological father. And I think that is the real distinction here. And so I think a determination can be made with respect to the paternal grandparents, it just simply hasn't been made yet.

COSSACK: Patsy, is it a distinction without a difference?

KRAEGER: No, I don't think it is a distinction without a difference. In fact, the paternal grandparents have been granted foster care of the child by the Department of Public Welfare in Thailand, and they are in the process of permanently adopting the child. So I don't think it is a distinction without a difference. In fact -- or maybe it is. In fact, these grandparents are the legal guardians for the child in Thailand.

And I think -- and I might add -- and I did say this to the court -- that I think the court is treading on areas of foreign policy because we do have a treaty with Thailand. And I'm not sure if Thailand is a signatory to The Hague Convention, but if, in fact, they are, these parents have a right to assert their guardianship, their right to this child.

COSSACK: And Peter -- and let me just ask Peter -- Peter, what are you going to do? And let's suppose that the grandparents come to this country with an order from the royal Thai government saying, you know, we now have custody of this child and we have now been granted by the Thai government the right to raise this child. Now what? SCHEY: Well, firstly, that hasn't happened yet. And, indeed, we've interviewed the deputy director of the Ministry of Public Welfare and Health in Thailand. We've done a personal interview with that person, who's the person most knowledgeable with this case over in Thailand. And that person has indicated to us that, number one, at this point, all that the grandparents have is a temporary relationship with the child. And, indeed, it's only because the mother signed a document agreeing to that relationship. And the Thai government has informed us and has informed the court that the mother could revoke that agreement at any time.

If and when the grandparents were granted full custody of this child, and if and when the Thai government could assure this child's safety upon his return to Thailand, and if and when the Thai government could provide us and the court with adequate assurances that the child's medical needs would be fully addressed, if he is returned to Thailand, that he wouldn't simply die within a year or two because of his medical condition.

At that point, we would be the first to encourage his return to Thailand. But, until that day, we intend to protect the interests of this child. We have to recognize that children have human rights, just as adults have human rights.

COSSACK: Peter, let me just interrupt you for a second. We have to take a break and we can continue with this when we come back. Up next, let's discuss what the future does look like for 3-year-old Phanupong. Stay with us.

(COMMERCIAL BREAK)

COSSACK: After ruling that 3-year-old Thai boy Phanupong Khaisri must receive an asylum hearing, federal judge Dickran Tevrizian said, quote: "This is not the legal thing to do; it's the humanitarian thing to do."

Well, Peter, the judge said that, and I think what he meant was he was perhaps concerned about his legal status in doing, but he was concerned, we know, about the humanitarian efforts of what's going to happen to this boy.

Tell us about his life now.

SCHEY: Well, I think he's probably doing better now than he's ever done before. As I started to say before the break, I think that when we ignore the human rights of children, we really lose part of our souls.

I think that this child is currently doing better than he's probably ever done in his life. This child currently is receiving more love and more affection than he's probably ever received in his life. This child is currently receiving the best medical attention that he's ever received in his life.

COSSACK: But Peter, let me just interrupt you for one second. There is no one, as I understand it, who has stepped forward yet and said, in America at least, from the Thai community who has come forward and said: If he will remain here, we will adopt him. The only people that, as I understand it, have said we will take care of him are his grandparents from Thailand.

SCHEY: Well, he's currently in the care of Chutima, who is a Thai social worker, she is a former Thai monk, she is a former Thai lawyer. Her and her family are currently taking care of Phanupong. I certainly don't think that they have ruled out the possibly of taking care of him on a long-term basis, if that's ultimately in his best interest, if that's ultimately what the courts should believe should take place.

We have to take this case one step at a time, and we have to be driven by one thing, and one thing only, and that is the interests of this child, the safety, the security, the health and the well-being of this little child because he cannot speak for himself, and we cannot be driven by the interests of the United States government, we cannot be...

COSSACK: Let me let Patsy respond to this a little bit.

Patsy, what is best for this young boy? And has the court asked you to submit a plan for what his future would be in Thailand?

KRAEGER: The court has asked Mr. Schey to submit a plan. We are planning to ask the court for another hearing regarding the custody, and we will meeting, myself and Andrea Ordan (ph) of Morgan, Lewis & Bockius, with the minister of public health from Thailand. We will be submitting a plan to the court.

And I would also like to note that Thailand is a signatory to the U.N. Convention for the Human Rights of Children. And I'm very glad to hear that Mr. Schey has agreed that once proper assurances can be given to the court, that he will be happy to see the child return to Thailand because we are prepared to show that the child will be with his foster parents, and adoptive parents, his paternal grandparents, and that his health and safety will be well provided for in Thailand.

COSSACK: All right, Patsy, that's all the time we have for today. Thanks to our guests, and thank you for watching.

Today on CNN's "TALKBACK LIVE": the debate over anti-bacterial soap. Are we too clean for our own good? Can we ever be too clean for our own good? That's today at 3:00 p.m. Eastern, noon Pacific.

And we'll be back tomorrow with another edition of BURDEN OF PROOF. We will see you then.

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