dissenting.
I respectfully dissent from the opinion of my brothers.
I agree for the most part with the facts and conclusions as set forth in the majority opinion. It is the majority’s disposition of the issue on appeal with which I am primarily in disagreement.
The record shows without a doubt that the conditions in which the Riley children lived at the time they were placed in the custody of the Department of Human Services were such that if they were compared with the conditions described in Erskine Caldwell’s Tobacco Road,,1 Caldwell’s conditions would seem like Fifth Avenue, New York, in comparison with the Rileys’ circumstances. Further, I find that the Rileys’ circumstances at the time of trial, although improved, were dismal at best. Even with these admissions, I must still dissent.
An understanding of my dissent requires that we examine the statutes by which TDHS acquired custody in addition to examining the statute under which the Ri-leys’ parental rights were forever terminated. TDHS acquired custody because the Riley children were found to be “dependent and neglected” within the meaning of the laws. From the reports filed, it is evident that, insofar as Mrs. Riley is concerned, the children qualified as dependent and neglected under T.C.A. § 37-l-102(10)(B) (Supp.1984), because Mrs. Riley, by reason of “mental incapacity,” was unfit to care properly for the children. As to Mr. Riley, it would seem that because of his inability to provide financially for his family subsection (10)(G) of the statute would have application.
A fair reading of this entire record impels one to the conclusion that the cause of the conditions which have existed and now exist is the mental incapacity of Mrs. Riley and the inability of Mr. Riley, try as hard as he might, to procure an adequate income. Mrs. Riley is moderately retarded and has been tested as having the mentality of a seven year old. Mr. Riley is, at best, a borderline case. The psychologist who examined Mr. Riley measured his I.Q. at 72; he further testified that a finding of less than 70 qualified the subject for the designation of mentally retarded and that there was a 3 per cent margin of error in the 72 rating given Mr. Riley. Therefore, if the error in Mr. Riley’s I.Q. were on the high side, Mr. Riley would be considered to be mentally retarded. On top of that, Mr. Riley has a limited formal education. It *172ended at the seventh grade. Because of all of this, Mr. Riley has been able to obtain only menial employment, seasonal in nature. The record shows that he is a willing worker and is trying to make an honest living. On occasions he has worked for less than minimum wage in order to try to better his family’s living conditions. In short, he is playing the cards life has dealt him, the best he knows how to play them. He just was not dealt much of a hand.
There is nothing in this record to indicate that any of the existing conditions are the result of any willful act or willful neglect of either Mr. or Mrs. Riley. The record does show without doubt that both are doing their pathetic best to furnish a proper home for the children. Sad as it is, it must be admitted that their very best is simply not enough for the proper well being of the children. The record further shows that both parents love their children and want to have them with them and to be a family. One simply cannot read this record and not be emotionally moved. There are the many phone calls by the mother wanting to visit the children, but being unable to do so because of lack of transportation and the continued efforts of the father to obtain transportation and his inability to do so. At the time of trial he was making payments on a 1970 vehicle, but was unable to obtain possession until he had completely paid for it. However, no matter the pathos involved, a Court, insofar as custody is concerned, must look to the best interests of the children. This brings me to my disagreement with the majority over the issue presented by the case.
The best interest of the child is the paramount issue in the matter of custody. Walker v. Walker, (1983 Tenn.App.W.S.) 656 S.W.2d 11, 17. If this were simply a custody matter, there would be no dissent, for I believe the facts require that, for now, custody remain with the state. However, this is not a custody matter; it is a matter of the final termination of all parental rights of Mr. and Mrs. Riley. As noted in Ex parte Wolfenden, (1961 M.S.) 48 Tenn.App. 433, 348 S.W.2d 751, it is one thing to say to parents that they are deprived of custody; but it is an altogether different thing to say that they are no longer parents. Simply put, it is my opinion that before the state, operating through a Court, may say to parents that you may never see your child again, that you may never touch and embrace your child again, that you may never hear your child say “Mommy” or “Daddy” again, before the State can say all that, the parent must have willfully done something wrong.
The state has the right to terminate one’s life only when some heinous wrong has been willfully done. If that be true, then under which constitutional power granted by the people does the state have the right, without a finding of willful wrongdoing, to terminate forever the parental relationship, which in most cases is more precious than life itself? I believe none exists. It certainly cannot be done under the guise of the best interests of the child. If that were so, then every child living in dire poverty would be subject to being taken away from poor parents so that they could be adopted by more affluent and equally caring parents. Our law clearly provides for the element of willfulness in abandonment cases. Even if a technical abandonment is shown, if the abandonment is not willful because of some circumstance such as incarceration, there can be no abandonment. See T.C.A. § 37-1-102(1) (Supp.1984). As has been said, honest poverty is no disgrace and is not a justifiable cause for the loss of fundamental rights such as the “freedom of personal choice in matters of family life.” See San-tosky v. Kramer, (1982) 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599. Neither is mental incompetence. If a mental incompetent commits an act that ordinarily would be considered a crime, the law does not consider it as such. Of course, such a person may be deprived of liberty when the person is a danger to himself or others, but even so, the deprivation of liberty is never considered in law to be permanent. The deprivation of liberty exists only so long as the mental condition exists. See Jones v. United States, (1983) 463 U.S. 354, 103 S.Ct. 3043, 3053, 77 L.Ed.2d 694. The law is ever hopeful that the condition will *173change for the better, although it recognizes that such improvement may never happen. The point is that the sentence is not final. The termination of parental rights, however, is just as final as a death sentence.
In Santosky v. Kramer, supra, the Supreme Court of this nation recognized that, in parental termination matters, due process constitutional issues are presented. The termination is not to be decreed solely on the best interests of the child; parental rights must be considered as well.
In the instant case, custody was taken from the parents and placed in and retained by the state because of the failings of the parents. As stated, this was proper and I find in that action nothing offensive to my constitutional sensibilities. However, under our statutory scheme, if the “conditions which led to the removal ... still persists, [sic]” such persistent conditions may be the basis of a termination order. T.C.A. § 37-l-147(d)(l)(A) (1984). That statutory provision, applied to the facts of this case, means that the parental rights may be forever terminated because of the mental and monetary deficiency of the parents with no showing of any deleterious willful act of the parents. If these parents had been normal parents and then had suffered brain damage in an automobile accident and were unable to care for their children, would the state have the right to terminate parental rights because of the injuries? I think not. To take custody, yes, but not to terminate rights forever. The fact that these parents happen to have been born with their “injuries” is no reason for them to lose their right to see and know their children.
I would not hold the statutes involved facially unconstitutional, but I would hold that this case represents an unconstitutional application of the laws.
In closing, I cannot help but note that the record reveals that the children are now under the care of a couple who seem truly to love the children. They are caring for them without any financial support from the state. This fact makes this dissent even more difficult for me to write. I would hope that if some higher Court should agree with the position I take that the children would remain there. However, be that as it may, that which appears to be an unconstitutional deprivation of an inalienable right is, to me, paramount. Of course, the state in this case does not act out of bad motive; it has the best of motives, for now. If, however, a power is once recognized in the state to terminate parental rights forever without a finding of willfully deleterious acts on the part of the parents, such power would render meaningless other constitutional guarantees. As for me, I would forego all the others rather than give the state the power to deprive me forever of my right to see my children again without willful fault on my part.
. Erskine Caldwell, Tobacco Road (Cambridge, Mass., Bentley Pub. Co., 1970).