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IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE October 17, 2003 Session RDM v. STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES, IN THE MATTER OF: AGM, A Child Under Eighteen Years of Age
Direct Appeal from the Circuit Court for Roane County No. 12079 Hon. Russell Simmons, Jr., Circuit Judge FILED NOVEMBER 12, 2003 No. E2003-00330-COA-R3-CV

The Trial Court terminated parents' parental rights. The father has appealed. We affirm the Trial Court. Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed. HERSCHEL PICKENS FRANKS , J. delivered the opinion of the court, in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined. Spence R. Bruner, Kingston, Tennessee, for Appellant. Paul G. Summers, Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney General, Nashville, Tennessee, for Appellee.

OPINION The Trial Court severed the parental rights of the parents to AGM at the behest of the Department of Children's Services ("DCS"). The biological father, RDM, has appealed.1 BACKGROUND This case originated with a Petition for Temporary Custody filed by DCS regarding a minor child, AGM, against her parents. At the time the mother was incarcerated, and there was no one left to take care of the child. A Protective Custody Order was enter on March 24, 1998,

1

The mother did not perfect an appeal.

granting custody of the child to DCS, due to the emergency situation. By Order dated October 19, 1998, RDM was determined to be the father (since the mother was married to someone else at the time the child was born). He was granted 4 hours visitation per month at the DCS office pending further hearing. However, a few months later, the visitation was changed to supervised visitation, and a proviso was added that if there were "any further problems" or if either parent was arrested, the visitation would be suspended. The paternal grandmother filed a series of petitions seeking custody of the child, all without success. THE TRIAL In January 2002, DCS filed a Petition to Terminate Parental Rights, setting forth numerous grounds for termination, and that termination would be in the child's best interest. Numerous witnesses testified, and the Court found that although neither parent testified, the mother had advised the Court at a hearing in February that she had resumed living with the father, despite injuries he inflicted upon her in August 2001. The Court found that both parents had willfully failed to visit the child, that the child had been removed for more than six months, the conditions leading to removal still persisted, and the father was incompetent to care for the child based upon his mental condition. The Court found that both parents had failed to comply with the Plan of Care, and that returning the child to the parents would pose a risk of substantial harm. Further, the Court held that it was in the child's best interest to terminate parental rights. The evidence does not preponderate against the Trial Court's factual determination. Tenn. R. App. P. 13(d). DISCUSSION The father raises on appeal whether there was clear and convincing evidence to support the grounds for termination, and whether termination was in the child's best interests? A parent has a fundamental right to the care, custody, and control of his child. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208 (1972). Such right is not absolute and may be terminated if there is clear and convincing evidence to justify such termination under the applicable statute, and additionally, the court must find that termination is in the child's best interest. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 (1982); Tennessee Dept. of Human Services v. Riley, 689 S.W.2d 164 (Tenn. Ct. App. 1984); Tenn. Code Ann.

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