            IN THE COURT OF APPEALS OF TENNESSEE
                        AT NASHVILLE
                                                        FILED
                                                         February 11, 1999

STATE OF TENNESSEE,                         )           Cecil W. Crowson
DEPARTMENT OF HUMAN SERVICES,               )          Appellate Court Clerk
                                            )
      Petitioner/Appellee,                  )
                                            )      Appeal No.
VS.                                         )      01-A-01-9711-JV-00662
                                            )
RALONDA NYOKA WRIGHT SMITH                  )      White Juvenile
WYLIE, CRAIG DOUGLAS WYLIE                  )      No. 1016
and JOHNNY SMITH,                           )
                                            )
      Respondent/Appellant,                 )
                                            )
IN THE MATTER OF:                           )
Kristalena Kay Smith, D.O.B. 5/04/89        )
Justin Thomas Wylie, D.O.B. 12/06/92        )
                                            )
Children Under Eighteen (18) Years of Age   )


        APPEALED FROM THE JUVENILE COURT OF WHITE COUNTY
                     AT SPARTA, TENNESSEE

                THE HONORABLE GARY W. DODSON, JUDGE




JOHN KNOX WALKUP
Attorney General and Reporter

DOUGLAS EARL DIMOND
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0499
       Attorney for Appellee

D. MICHAEL KRESS II
8 East Bockman Way
Sparta, Tennessee 38483
      Attorney for Appellant Ralonda Nyoka Wright Smith Wylie



                          AFFIRMED AND REMANDED



                                            BEN H. CANTRELL,
                                            PRESIDING JUDGE, M.S.

CONCUR:
CAIN, J.
COTTRELL, J.
                                   OPINION


                 The Juvenile Court of White County terminated a mother’s parental

rights to two small children. The only question in this appeal is whether the State

proved by clear and convincing evidence the statutory grounds for termination. We

affirm the judgment of the trial court.



                                             I.



                 Kristalena K. Smith was born on May 4, 1989 to Ralonda Wright Smith

and Johnny Smith. Justin Thomas Wylie was born out of wedlock on December 6,

1992 to Ralonda Wright Smith and Craig Douglas Wylie. Ms. Smith and Mr. Wylie

later married.



                 In February of 1994 Ms. Wylie took the children to a babysitter and told

the babysitter that she would return for the children by 9:00 or 10:00 p.m. By the

afternoon of the next day Ms. Wylie had not returned and she could not be reached.

She had left the name of a relative, but that person refused to become involved. The

Department of Human Services (DHS) took the children and filed a petition for

temporary custody. The petition alleged that the children had also been sexually

abused.



                 On February 22, 1994 the Juvenile Court of White County held a hearing

on the petition and found that the best interests of the children required removal from

the parents’ custody and that there was no less drastic alternative. Ms. Wylie was

represented at the hearing by retained counsel. There is no transcript in the record

from that hearing.




                                           -2-
              In March of 1995 the children were placed with their maternal

grandmother. Ms. Wylie showed up occasionally. She lived with Mr. Wylie in

Tennessee, Texas, and Florida, but sometimes she was completely out of touch with

the children and their grandmother for long periods of time. On the occasions when

Ms. Wylie did show up, she did not take any interest in the children. The grandmother

sometimes refused to let her daughter see her children because she upset them. In

September of 1995 the grandmother asked DHS to take the children back and

expressed a hope that the children would never be returned to Ms. Wylie.



              For part of the time her children were in state custody, the mother lived

with a man by the name of Cooper. Cooper’s mother testified that the children visited

with Ms. Wylie and Mr. Cooper, but that the children were neglected, not fed, and

scarcely had clothes to wear. Ms. Wylie’s sister rescued the children and took them

back to their grandparents.



              Ms. Wylie would not take advantage of any of the state services offered

to help her gain parenting skills. Neither would she comply with a plan of care

developed for her and the children. She disappeared for most of one year before one

of the state workers located her in jail just three months before the final hearing in this

case. For the seven months up to the date of the final hearing, Ms. Wylie had visited

her children only six times.



              Ms. Wylie testified that she was now in a stable environment, living in

subsidized housing with enough room for the children. She said she had a job caring

for an elderly person and could care for the children. Her family members, including

her mother who had had such reservations about the children ever being returned to

Ms. Wylie, testified that she had changed, that she was divorcing Mr. Wylie, and that

she could provide a home for the children.




                                           -3-
              At the end of the hearing the juvenile judge found clear and convincing

proof of the grounds for termination, but he deferred for sixty days a decision on

whether termination would be in the children’s best interests. After a hearing on

September 23, 1997 the juvenile judge entered another order containing the following

findings and conclusions:

              The Court further finds upon clear and convincing
              evidence that it is in the best interest of the children to
              terminate parental rights; that the conditions that led to
              the children’s removal still exist or other conditions exist
              which would in all probability subject the children to
              further neglect or abuse if returned home; there is little
              likelihood that these conditions will be remedied at an
              early date so that the children could be returned to the
              Defendants in the near future; that the continuation of the
              parent/child relationship greatly diminishes the children’s
              chances of early integration into a stable and permanent
              home.



                                          II.



              Parents have a fundamental right to the care, custody, and control of

their children. Stanley v. Illinois, 405 U.S. 645 (1972); Hawk v. Hawk, 855 S.W.2d 573

(Tenn. 1993). That right, however, may be surrendered by parents who engage in

acts that pose a threat of substantial harm to the children. Nale v. Robertson, 871

S.W.2d 674 (Tenn. 1994). The legislature has drawn some guidelines to balance the

parental rights against the state’s interest in preventing harm to the children. Under

the statutory scheme a court may take a dependent and neglected child out of the

parent(s)’ custody to protect the “physical, mental, and moral welfare of the child.”

Tenn. Code Ann. § 37-1-130(a). In appropriate cases, the state then provides a range

of services to the parents and the children to try to reunite the family. Tenn. Code

Ann. § 37-2-403. When all else fails, the court may permanently terminate a parent’s

parental rights.



              The procedure for termination has been described in some detail by the

legislature in Tenn. Code Ann. § 36-1-113. The parts relevant to this case are:

                                         -4-
(c)   Termination of parental or guardianship rights must
be based upon:

      (1)    A finding by the court by clear and
      convincing evidence that the grounds for
      termination of parental or guardianship
      rights have been established; and

      (2)    That the termination of the parent’s
      or guardian’s rights is in the best interests
      of the child.

                    *       *       *

(g)   Termination of parental or guardianship rights may
be based upon any of the following grounds:

                    *       *       *

      (2)    There has been substantial
      noncompliance by the parent or guardian
      with the statement of responsibilities in a
      permanency plan or a plan of care pursuant
      to the provisions of title 37, chapter 2, part
      4;

      (3)(A) The child has been removed from the
      home of the parent or guardian by order of
      a court for a period of six (6) months and:

             (i)    The conditions which
             led to the child’s 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) or
             guardian(s), still persist;

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

             (iii)  The continuation of the
             parent or guardian and child
             relationship       greatly
             diminishes the child’s
             chances of early integration
             into a stable and permanent
             home.




                           -5-
              The juvenile judge’s findings and conclusions track the statutory

requirements. After reviewing the transcript of the July 29, 1997 hearing, we concur

with the juvenile judge. The record shows that for more than three years Ms. Wylie

showed a remarkable lack of concern for her children. She utterly failed to comply

with her plan of care. For long periods of time she was out of touch with the state

workers who were supposed to monitor her progress. She continued to live with the

person suspected of abusing her infant son. Three months before the July 29, 1997

hearing she was in jail on a contempt of court charge for failing to comply with the

court’s order in a DUI conviction.



              The failure to terminate parental rights would prolong the delay in finding

a stable home for the children.



              The judgment of the trial court is affirmed and the case is remanded to

the Juvenile Court of White County for any further proceedings necessary. Tax the

costs on appeal to the appellant.


                                                  _____________________________
                                                  BEN H. CANTRELL,
                                                  PRESIDING JUDGE, M.S.


CONCUR:


_____________________________
WILLIAM B. CAIN, JUDGE


_____________________________
PATRICIA J. COTTRELL, JUDGE




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