# FILED
February 11, 1999 Cecil W. Crowson Appellate Court Clerk 

### IN THE COURT OF APPEA LS OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE, ) DEPARTMENT OF HUMAN SERVICES, ) ) Petitioner/Appellee, ) ) Appeal No. VS. ) 01-A-01-9711-JV-00662 ) RALONDA NYOKA WRIGHT SMITH ) White Juvenile WYLIE, CRAIG DOUGLAS W YLIE ) 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 REMAN DED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: CAIN, J. COTTRELL, J.- 2 - 

## O P I N I O N

The Juvenile Court of Whit e County terminated a mother ’s parental rightsto two small childr en. The only question in this appeal is w hether the State proved by clear and convincing evidence the statutory grounds for termination. We affirm the judgment of the t rial court.

I.

Kristalena

K. Smith was born on May 4, 1989 to Ralonda Wright Smith and Johnny Smith. Justin Thomas Wylie was bo rn out of wedlock on December 6, 1992 to Ralonda Wright Smith and Craig Douglas Wyl ie. Ms. Smith and Mr. Wyli e later married.

In February of 1994 Ms. Wylie took the chi ldren toa babysitter and told the babysitter that she would r eturn for the children b y 9:00 or 10:0 0 p.m. By the afternoon of the next day Ms. Wyli e had not returned and she could not be reached. She had left the name of a relati ve, but that person refused to bec ome involved. The Department

of Human Services (DH S) took the children and fi led a peti tion for temporary custody. The petition all eged that the children had also bee n sexually abused.

On February 22, 1994 the Juvenile Court of White County held a hearing
on the petition and foundthat the best interests of the children required rem oval from the parents’ c ustody and that there was no les s drastic alternative. Ms. Wylie was represented at the hearing by retained counsel. There is no transcript in the record from that hearing.- 3 - In March of 1995 the children were pla ced with their maternal grandmother. Ms. Wylie showed up occasionally. She lived wit h M r. Wylie in Tennessee, Texas, and Florida, but sometimes she was com pletely out of touch with the children and their grandm other for long periods of time. On the occasions w hen Ms. Wylie did show

up, she did not take any interest in the children. The gran dmother sometimesrefused to let her daughter s ee her children because she upset them. In Sep tember

of 1995 the grandmother asked DHS to take the children back an d expressed a hope that the childr en would never be returned to M s. Wylie.

For part of the time her chil dren were in state custody, the mother lived with a man by thename 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 scarcelyhad clothes to wear. Ms. Wylie’s sister rescued the chil dren and took them back to their grandparents.

Ms. Wylie would not take advantage of any of the stateservices offered to help her gain parenting s kills. 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. Wy lie had visited her children only six times.

Ms. Wy lie testified that she was now in a stable environment, liv ing i n 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 fami ly members, including her mother who had had such reser vations about the children ever being returned to Ms. Wylie, testified that s he had changed, that she was divorcing M r. Wylie, and that she could provide a home for the children.- 4 - At the end of the hearing the juvenile judge f ound clear and convincing proofof the grounds for termination, but he deferred for sixty days a decision on whether termination would be in the children’s best intere sts . After a hearing on September

23, 1997 the juvenile judge entered anoth er order containingthe following findings and conclusions:

The Court further finds upon c lear and convincing evidence that it is in the best i nteres t of the children to terminateparental rights; that the co nd itions that led to the children’s removal st ill e xist or other conditions exist which would in all probability subject the chi ldre n to further neglect or abuse if returned home ; there is little likelihood that these conditions wil l be remedi ed at an earlydate so that the ch il dren could be returned to the Defendants in the near future; that the co ntinuation 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 contr ol of theirchildren. 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 chi ldren. Nale v. Robertson , 871 S.W.2d 674 (Tenn. 1994). The legisl ature has drawn some guidelines to balance the parental rights against the state’s interest in preventing har m to the children. Under the statutory scheme a court may take a depen de nt and neglected child out of the parent(s)’ custody to protect the “phys ical, ment al, and moral welfare of the child.” Tenn. Code Ann. § 37-1-130(a). In appropriate cases, the st ate then provides a range of servicesto the parents and the childr en to try to reunite the fami ly. Tenn. C od e 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 detai l by the legislature in Tenn. Code Ann. § 36-1-113. The parts r elevant to this case are:- 5 - (c) Termination of pare ntal or gu ardianship rights must be based upon: (1) A finding by the cou r t by clear and convincing e v idence that the grounds for termination o f p arental or guardianship rights have been established; and (2) Thatt he termination of the parent’s or guardian’s rights i s i n 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 substant ia l noncompliance by the parent or guardian w ith the statement of responsibil ities in a permanency plan or a plan of care pursuant to the provis ion s of title 37, chapter 2, part 4; (3)(A) The child has be e n removed from the home ofthe parent or guardian by ord er of a court for a period of si x (6) months and: (i) The conditions which led to the child’s remo val or other conditions whi ch in all reasonable probability would ca use the child to b e subjected to further ab use or neglect and which, therefore, preventthe child’s return t o th e care of the parent(s) or guardian(s), still per

sist; (ii) There is little likelih ood t ha t these conditions will be r emedied at an early date s o that the child can be returned to the parent(s) or guardian(s) in the near future; and (iii) The continuation of the p are nt or guardian and child relationship g rea t l y dim inishes the ch ild’ s chances of earlyi ntegration into a stable and permanent home.- 6 - The juvenile judge’s findings and conclusions tra ck the statutory requirements. After reviewing the transcript of the Jul y 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 l ong periods of time she was o ut of touch with the state workers who were supposed to monitor her progress. She continued to l ive with the person suspected of abusing her infant son. Three months before the July 29, 1997 hearing s he was in jail on a contem pt of court charge for fail ing to comply with t h e court’s order in a DU I conviction.

The failure to terminate parental ri ghts would prolong the delay in finding a stable home for the childr en.

The judgmentof the trial court is affirmed and the case is remanded to the Juvenile Court of Whit e 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, JUDG E

_____________________________ PATRICIA J. COTTRELL, JUDGE