State DHS v. Russell

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.
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CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
Herschel P. Franks, J.
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