                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                 Assigned on Briefs June 23, 2005

                       IN RE M.W.M., W.W.M., S.M.M., & A.M.M.

                      Appeal from the Chancery Court for Lawrence County
                              No. 11033-02  Tim Hamilton, Judge



                       No. M2005-00053-COA-R3-PT - Filed August 1, 2005



WILLIAM B. CAIN , J., concurring.

        The evidence in this case, both as to termination of parental rights and to the best interest of
the children, indicates that termination of parental rights would survive even the ultimate standard
of “beyond a reasonable doubt.”

       I adhere to my longstanding disagreement with the majority in its assertion that:

               The heightened burden of proof mandated by Tenn. Code Ann. § 36-1-
       113(c)(1) requires us to adapt Tenn. R. App. P. 13(d)’s customary standard of review
       for cases of this sort. First, we must review the trial court’s specific findings of fact
       de novo in accordance with Tenn.R.App. P. 13 (d). Thus, each of the trial court’s
       specific factual findings will be presumed to be correct unless the evidence
       preponderates otherwise. Second, 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 required to terminate a biological parent’s
       parental rights. Jones v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at
       548-49; In re S.M., 149 S.W.3d at 640; In re M.J.B., 140 S.W.3d at 654.9
       9
        These decisions draw a distinction between specific facts and the combined weight of these facts.
       Tenn.R.App.P. 13(d) requires us to defer to the trial court’s specific findings of fact as long as they
       are supported by a preponderance of the evidence. However, we are the ones who must then
       determine whether the combined weight of these facts provides clear and convincing evidence
       supporting the trial court’s ultimate factual conclusion. The Tennessee Supreme Court used this
       approach in In re Valentine when it recognized the difference between the conclusion that a biological
       parent had not complied substantially with her obligations in a permanency plan and the facts relied
       upon by the trial court to support this conclusion. In re Valentine, 79 S.W .3d at 548-49; see also
       Jones v. Garrett, 92 S.W .3d at 838-39.


        This effort to separate “clear and convincing evidence” as a standard for the initial trier of
fact from “clear and convincing evidence” in applying the proper standard of appellate review is like
trying to separate the inseparable. The “clear and convincing evidence” standard is the same both
at the trial level and at the appellate level, and likewise at both levels, a “preponderance of the
evidence” standard and a “clear and convincing evidence” standard are totally incompatible. The
reasons supporting my view are set forth at length in Estate of Acuff v. O’Linger, 56 S.W.3d 527,
535-37 (Tenn.Ct.App.2001) and In re Z.J.S. and M.J.P., No. M2002-02235-COA-R3-JV
(Tenn.Ct.App.2003).

       Since under any standard of review termination of parental rights in this case is unassailable,
I concur in the judgment.



                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




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