                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    March 19, 2004 Session

                                    IN RE: B. B. & T. S. B.

                        Appeal from the Circuit Court for Perry County
                            No. 4178     Donald P. Harris, Judge



                      No. M2003-01234-COA-R3-PT - Filed June 9, 2004




WILLIAM B. CAIN , J., concurring.


        I concur in the judgment that grounds for termination of parental rights in this case are not
established by clear and convincing evidence.

        I continue, however, to adhere to my view that a preponderance of the evidence standard on
the one hand and a clear and convincing evidence standard on the other are completely incompatible
with each other, both at the trial level and at the appellate level.

        In the majority opinion the correct rule in both the trial court and on appellate review are
stated wherein it is said:

               In order to be clear and convincing, evidence must eliminate any serious or
       substantial doubt about the correctness of the conclusions to be drawn from the
       evidence. In re Valentine, 79 S.W.3d at 546; Hodges v. S.C. Toof & Co., 833 S.W.2d
       896, 901 n.3 (Ten. 1992); Messier, 905 S.W.2d at 188. Such evidence should
       produce in the fact-finder’s mind a firm belief or conviction as to the truth of the
       allegations sought to be established. In re A.D.A., 84 S.W.3d 592, 596
       (Tenn.Ct.App. 2002); In re C.W.W., 37 S.W.3d 467, 474 (Tenn.Ct.App. 2000). In
       contrast to the preponderance of the evidence standard, clear and convincing
       evidence should demonstrate that the truth of the facts asserted is “highly probable”
       as opposed to merely “more probable” than not. Lettner v. Plummer, 559 S.W.2d
       785, 787 (Tenn. 1977); In re C.W.W., 37 S.W.3d at 474; see also Estate of Acuff v.
       O’Linger, 56 S.W.3d 527, 537 (Tenn.Ct.App. 2001).

       I part company with the majority, however, in the statement later in the opinion that in
appellate review:
       First, we must review each of the trial court’s specific findings of fact de novo, with
       a presumption of correctness unless the evidence preponderates otherwise, in
       accordance with Tenn. R. App. P. 13(d). Then, we must determine whether the facts,
       either as found by the trial court or as supported by the preponderance of the
       evidence, clearly and convincingly establish the elements necessary to terminate
       parental rights. Jones, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at 548-49.

        I do not agree that this is a correct statement of the standard of appellate review. My views
are exhaustively set forth in Estate of Acuff v. O’Linger, 56 S.W.3d 527 (Tenn.Ct.App. 2001)
perm.app.denied (Oct. 1, 2001) and in In re Z.J.S. and M.J.P., No. M2002-02235-COA-R3-JV, 2003
WL 21266854 (Tenn.Ct.App. June 3, 2003) (no ruling of an app. filed) (Cain, Judge, concurring)
and in State v. R.S. and K.S., No. M2002-00919-COA-R3-CV, 2003 WL 22098035 (Tenn.Ct.App.
Sept.11,2003) (Cain, Judge, concurring), along with In re: K.N.R., et al., No. M2003-01301-COA-
R3-PT (Tenn.Ct.App. 2004); see also Colorado v. New Mexico, 467 U.S. 310, 104 S.Ct. 2433, 81
L.Ed.2d 247 (1984); Taylor v. Commissioner of Mental Health, 481 At.2d 139, 153-54 (Me. 1984);
Riley Hill General Contractor, Inc. v. Tandy Corp., 737 P.2d 595, 604 (Or. 1987); Beeler v.
American Trust Co., 147 P.2d 583 (Ca. 1944), (Traynor, Justice, dissenting).

       Since I agree that the facts supporting termination of parental rights in this case are not
supported by evidence sufficient to make their existence “highly probable” I concur in the judgment.




                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




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