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

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

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.