                    IN THE COURT OF APPEALS OF TENNESSEE

                                      EASTERN SECTION                       FILED
                                                                            February 10, 1998

                                                                    Cecil Crowson, Jr.
THOMAS DEWAYNE WORLEY,                            ) C/A NO. 03A01-9708-JV-00366 Clerk
                                                                    Appellate C ourt

                                                  )
         Respon dent-Ap pellant,                  ) HAMILTON JUVENILE
                                                  )
v.                                                ) HON. SUZANNE BAILEY,
                                                  ) JUDGE
STATE OF TENNESSEE,                               )
DEPT. OF CHILDREN’S SERVICES,                     ) AFFIRMED
                                                  ) AND
         Petitioner-Appellee.                     ) REMANDED




LAU RIE J. H ADW YN, C hattanoog a, for App ellant.

JOHN KNO X WALK UP, Attorney General and Reporter, and
DOUGLA S EARL DIM OND, Assistant Attorney General, Nashville, for Appellee.




                                            O P I N IO N


                                                                   Franks, J.


                 The Juvenile Court terminated Appellant’s parental rights to Samantha,

pursuant to Tenne ssee Code A nnotated §36-1-11 3(g)(6). 1 Appellant insists that since

his parental rights were terminated solely on the length of his criminal sentence and

his daughter’s age, his constitutional right to a parental relationship with his daughter

are impermissibly abrogated by this statute.

                 Appellan t was sente nced on F ebruary 27, 19 95 to twen ty-five years in



     1

     The parent has been confined in a correctional or detention facility of any type, by order of the
     Court as a result of a criminal act, under a sentence of ten (10) or more years, and the child is
     under eight (8) years of age at the time the sentence is entered by the Court.
prison for second degree murder. Samantha was two years of age at the time the

sentence was entered.

               The United States Supreme Court has observed that the right and

responsibility of a parent to care for and have custody and control of his children is a

“fundamental” right. Courts in this State have sometimes characterized the right as

“sacred ”. See Stanle y v. Illinois, 405 U .S. 645 , 92 S.C t. 1208, 3 1 L.Ed .2d 551 (1972 ).

Accord ingly, any statute that res tricts this right is sub ject to a “strict scru tiny” analysis

of whether the classification is necessary to promote a compelling government

interest. See State D epartme nt of Hum an Service s v. Ogle, 617 S.W.2d 652 (Tenn.

App. 1 980).

               The Tennessee Supreme Court in State Department of Human Services

v. Smith, 785 S.W.2d 336 (Tenn. 1990), in discussing the statutory scheme for

termination of parental rights said at page 338:

               In providing for the removal of custody and for the termination of
               parental rights the legislature has acknowledged competing interests -
               the child’s need for a permanent, stable and safe environment and the
               parents’ (and the child’s) interest in the parent-child relationship - and
               have decided in favor of the former. In fact, the foster care sections of
               the statutes, which include termination provisions, are prefaced with a
               statement o f purpose and cons truction wh ich conclu des, “if an e arly
               return to the care of their parents is not possible, [the child] will be
               placed in a perm anent h ome a t an early d ate.” T.C .A. §37 -2-401 (a).
               And, “[w ]hen the inte rests of a ch ild and those of an adu lt are in
               conflict, such conflict is to be resolved in favor of a child, . . .”.

The Smith Court went on to hold that if the circumstances that required the removal of

the child to foster care canno t be changed and corrected, then the child’s we lfare

requires term ination of th e parental rig hts so that the c hild may be p laced in a stab le

and permanent home.

               The statute under attac k bears a re al and sub stantial relation to

furthering the best interests of children, and such statutes permissibly afford greater

protecti on to th e mino r’s intere st than to the righ ts of a p arent. See In r e: R.G ., 436


                                                2
NY Supp.2d 546 (198 0). The legislature has expressed as a compelling state interest

that minor children not remain permanently in foster care. T.C.A. §36-1-113.

               The appellant, by his own acts, has severely diminished, if not nullified,

his ability to discharge his role as a proper parent. When the parenting role is not or

cannot be fulfilled, under the doctrine of parens patriae the S tate h as a “ spec ial du ty”

to fulfill that role . See Hawke v. Hawke, 855 S.W.2d 573 at 580 (Tenn. 1993). The

proper parental role in the life of a child under eight years is crucial to the child’s

welfare, and there is a compelling need for the State to protect the best interests of the

child in this regard. The statute und er consideration properly addresse s and furthers

that interest. For a parent who is unable or unwilling to care for the child’s best

interest, a statute that enables the State to terminate parental rights on these grounds

does n ot violat e the pro cess cla use of the Co nstitution s. See In re: B., 460 NYS 2d.

133 (1 983).

               For the foregoing reasons we affirm the judgment of the Trial Court and

remand w ith costs of the appeal asse ssed to app ellant.




                                             __________________________
                                             Herschel P. Franks, J.


CONCUR:




___________________________
Don T. McM urray, J.




___________________________
Charles D. Susano, Jr., J.


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