                 IN THE COURT OF APPEALS OF TENNESSEE

                                EASTERN SECTION                FILED
                                                                August 26, 1997

                                                             Cecil Crowson, Jr.
STATE OF TENNESSEE                         ) C/A NO. 03A01-9704-CV-00145 Clerk
                                                             Appellate C ourt

DEPARTMENT OF HEALTH/                      )
CHILDREN’S SERVICES,                       ) KNOX CIRCUIT
                                           )
       Petitioner-Appellee,                ) HON. BILL SWANN,
                                           ) JUDGE
v.                                         )
                                           )
JULIE ROGOISH,                             ) VACATED
                                           ) AND
       Respondent-Appellant.               ) REMANDED




JOHN KNOX WALKUP, Attorney General and Reporter
and
DIANNE STAM EY DYCUS, Senior Counsel, Attorney General’s Office, Nashville,
for Petitioner-Appellee.

TIMOTHY L. BALDRIDGE, BALDRIDGE & WHEATLEY, P.C., Knoxville, for
Respondent-Appellant.




                                     OPINION


                                                       Franks. J.




              The genesis of this dispute was an order entered by the Juvenile Court of

Knox County declaring defendant’s child to be dependent and neglected, with the

temporary custody of the child to the state.

              The Juvenile Court order was entered on the 3rd day of May, 1996, and

provided in pertinent part:

              1.     That Jonathan Alexander Rogoish is a dependent and neglected
              child within the meaning of the law, is hereby made a ward of this
              Court, and the temporary custody of the said child is awarded to the
              State of Tennessee, Department of Health/Children’s Services, formerly
              Department of Human Services, effective July 13, 1996, with the
              authority to consent to any necessary medical, surgical, hospital or
              institutional care.

              2.      That the Defendant, Julie Rogoish, shall have right of supervised
              visitation with said child upon her initiation according to the rules and
              regulations of the State of Tennessee, Department of Health/Children’s
              Services.

              3.      The plan of care, attached, is approved. The Court notes that the
              goal is reunification and that the primary responsibility that the mother
              has not finished is to undergo a psychiatric and psychological
              examination and follow all recommendations. The mother will
              cooperate with all service providers. The Department shall advise
              service providers that the mother may not present accurate information.

              Defendant timely perfected an appeal to the Knox County Circuit Court

pursuant to T.C.A. §37-1-159. The Circuit Court set the case for trial on July 30,

1997, but on January 31, 1997, the Trial Court entered an order dismissing the appeal

“without prejudice” because the Court found the Department had, in January 1997,

filed a petition to terminate the defendant’s parental rights in Juvenile Court of Knox

County. The mother has appealed to this Court.

              T.C.A. §37-1-159(c) provides:

              when an appeal has been perfected, the juvenile court shall cause the
              entire record in the case, including the juvenile court’s findings and
              written reports from probation officers, professional court employees or
              professional consultants, to be taken forthwith to the Circuit Court
              whose duty it is, either in term or in vacation, to set the case for an early
              hearing. When an appeal is taken from a juvenile court’s decision that
              involves the removal of a child or children from the custody of their
              natural and/or legal parents or guardian . . . such hearing shall be held
              within forty-five (45) days of receipt of the findings and reports. In its
              order, the circuit court shall remand the case to the juvenile court for
              enforcement of the judgment rendered by the circuit court. Appeals
              from an order of the circuit court pursuant to this subsection may be
              carried to the court of appeals as provided by law. (Emphasis supplied).

The Circuit Court’s action in setting this case more than a year after the decision in

Sessions Court, i.e., July 30, 1997, constitutes an impermissible delay. Moreover, the

Trial Court’s dismissal of the appeal deprived both the mother and child of their rights


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afforded by the Statute. While the 45 day time frame is directory, See Kite v. Kite,

1997 WL 259332 (Tenn.) 1997, the General Assembly clearly intended that cases

where a parent is deprived of custody of a child be given preference and processed

expeditiously. Such cases are to take precedence over other cases except those which

are also statutorily mandated to be heard within a specific time frame.

              T.C.A. §37-1-159 gave the plaintiff the right to a trial de novo before the

Circuit Court if her appeal was properly perfected and she was entitled to an

expeditious hearing. The summary dismissal of the appeal has no basis in law.

Parties who bring themselves within the statutory provision providing for an appeal

are entitled to the appeal as a matter of right. See Caldwell v. Hodsden’s Heirs, 69

Tenn. 305 (Tenn. 1978).

              The action of the Trial Court is vacated and the cause remanded. The

Trial Court is directed to give precedence to this case on its docket over any cases that

do not enjoy a statutory preference for an expedited hearing.

              The cost of the appeal is assessed to the appellee.




                                           ________________________
                                           Herschel P. Franks, J.

CONCUR:




___________________________
Don T. McMurray, J.




___________________________
William H. Inman, Sr.J.




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