State DHS v. Russell

• Court: Court of Appeals of Tennessee
• Decided: September 29, 1997
• Docket: 03A01-9701-CV-00002
• Status: Published

Opinion

IN THE COURT OF APPEALS OF TENNESSEE

STATE OF TENNESSEE, ) FILED C/A NO. 03A01-9701-CV-00002 DEPARTMENT OF HUMAN SERVICES, ) ) September 29, 1997 Plaintiff-Appellee, ) ) Cecil Crowson, Jr. ) Appellate C ourt Clerk ) APPEAL AS OF RIGHT FROM THE v. ) HAWKINS COUNTY JUVENILE COURT ) ) ) ) REBECCA WALLACE RUSSELL, ) ) HONORABLE JOHN S. ANDERSON, Defendant-Appellant.) JUDGE

For Appellant For Appellee

MARK A. SKELTON JOHN KNOX WALKUP Rogersville, Tennessee Attorney General and Reporter Nashville, Tennessee

DOUGLAS EARL DIMOND Assistant Attorney General General Civil Division Nashville, Tennessee

MEMORANDUM OPINION

AFFIRMED AND REMANDED Susano, J.

1 The trial court terminated the parental rights of

Rebecca Wallace Russell (“Mother”) in and to her minor child,

Kayla Michelle Wallace, whose date of birth is February 10, 1993.

Mother appealed, arguing that the evidence preponderates against

the trial court’s determination that there is clear and

convincing evidence that termination is in the child’s best

interest and that one or more of the conditions set forth in

T.C.A. § 37-1-147(d)(1)(A)-(C) (Supp. 1995)1 exist in this case.

We affirm.

A parent has a fundamental right to the care, custody

and control of his or her child. Stanley v. Illinois, 405 U.S.

645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). However, this right

is not absolute; it may be terminated if there is clear and

convincing evidence justifying such termination under the

applicable statute. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct.

1388, 71 L.Ed.2d 599 (1982). In the instant case, we are called

1 At the time of the hearing below, i.e., May 18, 1995, T.C.A. § 37-1- 147(d) provided, in pertinent part, as follows:

After hearing evidence on a termination petition, the court may terminate parental rights if it finds on the basis of clear and convincing evidence that termination is in the child’s best interest and that one (1) or more of the following conditions exist:

(1) The child has been removed from the custody of the parent by the court for at least one (1) year and the court finds that:

(A) The conditions which led to the removal or other conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect and which, therefore, prevent the child’s return to the care of the parent(s) still persists;

(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be returned to the parent in the near future; and

(C) The continuation of the legal parent and child relationship greatly diminishes the child’s chances of early integration into a stable and permanent home;....

2 upon to determine whether the evidence preponderates against the

trial court’s finding that there is clear and convincing evidence

in the record (a) that termination of Mother’s parental rights is

in the best interest of the child, and (b) that one or more of

the conditions set forth in T.C.A. § 37-1-147(d)(1)(A)-(C) (Supp.

1995) exist in this case. See Rule 13(d), T.R.A.P.

We have carefully reviewed the record in this case.

The evidence does not preponderate against the trial court’s

findings. On the contrary, we find clear and convincing evidence

in the record that termination of Mother’s parental rights is in

the best interest of Kayla Michelle Wallace; that the child was

removed from Mother in May, 1993, more than one year prior to the

hearing below; and that one or more of the conditions set forth

in T.C.A. § 37-1-147(d)(1)(A)-(C) (Supp. 1995) exist.

We affirm this case pursuant to the provisions of Rule

10(b), Ct. of App. R.2 Costs on appeal are taxed against the

appellant. This case is remanded to the trial court for

enforcement of its judgment and collection of costs assessed

below, all pursuant to applicable law.

__________________________ Charles D. Susano, Jr., J.

2 Rule 10(b), Ct. of App. R., provides as follows:

The Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case.

3 4 CONCUR:

________________________ Houston M. Goddard, P.J.

________________________ Herschel P. Franks, J.