                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                 Assigned on Briefs March 11, 2003

                                        IN RE Z.J.S. AND M.J.P.

                         Appeal from the Juvenile Court for Dickson County
                          No. 05-00-024-CC    A. Andrew Jackson, Judge



                         No. M2002-02235-COA-R3-JV - Filed June 3, 2003



WILLIAM B. CAIN , concurring.


       I concur in the opinion authored by Judge Koch on the merits of this case and particularly the
admonition to the Department of Children’s Services to the effect that an ounce of prevention is
worth a pound of cure.

         I cannot agree, however, that the standard of appellate review as to any case where a party
bearing the burden of persuasion must carry such burden by clear, cogent and convincing evidence1
is, as stated in the opinion, and as it is stated in Ray v. Ray, 83 S.W.2d 726 (Tenn. Ct. App. 2001).
Rather, I believe that the proper standard of review is stated in Estate of Acuff v. O’Linger, 56
S.W.3d 527 (Tenn. Ct. App. 2001). I do not believe that the respective standards of review stated
in Ray and Acuff are either consistent or compatible with each other. For reasons stated in Acuff I
do not believe that a “preponderance of the evidence” standard and a “clear and convincing
evidence” standard are at all compatible and cannot be reconciled one with the other. For this
reason, appellate review under the non-jury standard set forth in T.R.A.P. 13(d) is neither proper nor
possible. We are required under the rule to presume the correctness of the trial court’s findings of
fact unless the evidence preponderates against such findings. Under the “clear, cogent and
convincing evidence” standard, the party having the affirmative of the issue bears the burden of
proving to the factfinder the existence of the determinative facts, not by a mere preponderance of the
evidence but by clear, cogent and convincing evidence. It is the fact that must be proven by the
heightened standard of proof, not the conclusions to be drawn from such fact.

       The standard of proof asserted in the lead opinion is:



       1
           I do not perceive any distinction be tween “clear, cogent and convincing” and “c lear and convincing.”
                Because of the heightened burden of proof required by Tenn. Code Ann. § 36-
       1-113(c)(1), we must adapt Tenn. R. App. P. 13(d)’s customary standard of review
       for cases of this sort. First, we will review the trial court’s findings of fact de novo
       with the presumption of correctness provided in Tenn. R. App. P. 13(d). Thus, each
       of the trial court’s factual findings will be presumed to be correct unless the evidence
       preponderates otherwise. Second, we will 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 grounds for terminating the biological parent’s
       parental rights. Ray v. Ray, 83 S.W.3d at 733; In re L.S.W., No. M2000-01935-COA-
       R3-JV, 2001 WL 1013079, at *5 (Tenn. Ct. app. Sept. 6, 2001), perm. app. denied
       (Tenn. Dec. 27, 2001).

       This is precisely the position taken by the Supreme Court of Maine in Horner v. Flynn, 334
A.2d 194 (Me. 1975).

        In 1984, the United States Supreme Court decided Colorado v. New Mexico, 467 U.S. 310,
104 S.Ct. 2433 and 81 L.Ed.2d 247 (1984), and on the heels of this United States Supreme Court
decision, the Supreme Court of Maine overruled Horner v. Flynn and adopted the Colorado v. New
Mexico standard under which the trier of fact must be convinced that the controlling facts are
established by clear and convincing evidence to be “highly probable.” In overruling Horner, the
Supreme Court of Maine held:

               As a practical matter, the Horner definition of “clear and convincing
       evidence” removes the higher standard of proof aspect of the lower court’s factual
       findings from appellate review. Under Horner the question whether the evidence
       “which by its nature is capable of inducing belief does in fact induce belief is the
       responsibility of the factfinder to determine.” Horner, 334 A.2d at 200 (emphasis in
       original). In Horner itself, the Law Court upheld a finding of fraud even though the
       trial court had given the jury, albeit without objection, a mere preponderance
       instruction without any of the “clear and convincing evidence” qualifications. Id. at
       203. In effect the appellate court reviews a finding in favor of the moving party
       under Horner just as if the moving party needed only to establish his allegations by
       a preponderance. Believing, as we do, that the policies that motivated the imposition
       of the “clear and convincing evidence” standard apply with equal force at both the
       factfinding and appellate stages, we prefer a definition of “clear and convincing
       evidence” that allows meaningful appellate review of the lower court’s findings.
       Under the intermediate standard of proof we can address the question whether the
       factfinder could reasonably have been persuaded that the required factual finding was
       or was not proved to be highly probable.


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Taylor v. Commissioner of Mental Health, 481 A.2d 139, 153-54 (May 1984).

        This Court placed heavy reliance on both Colorado v. New Mexico and Taylor v.
Commissioner of Mental Health in our decision in Acuff. As we held in Acuff again quoting from
Taylor:

               As we have explained, a standard of proof serves to allocate the risk of error
       and to instruct the factfinder as to the degree of confidence society expects for a
       particular decision. To effectuate those purposes a standard of proof should operate
       to set the degree to which the factfinder must be persuaded of a particular factual
       conclusion. Where, as here, an important public interest and the desire to preserve
       prior judicial orders and adjudications lead us to imply the “clear and convincing”
       standard for the release of BRI acquittees, the lower court must find the required
       factual conclusion to be “highly probable.” Under the Horner approach the
       factfinder need only be persuaded that the factual conclusion in dispute is more
       probable than not. The additional requirement in Horner that the conclusion be
       supported by high quality evidence cannot adequately satisfy the objectives of the
       “clear and convincing evidence” standard. A “high quality evidence” requirement
       does not serve to allocate the risk of error and serves only indirectly to instruct the
       factfinder of the degree of confidence expected for a certain result. For example,
       there are many instances in which the evidence on both sides might be deemed of
       “high quality.” In such instances, Horner permits the party bearing the burden of
       proof to prevail despite having only a bare preponderance of the evidence. Although
       the introduction of high quality evidence may well be an important element in
       meeting the intermediate standard of proof, that alone would not suffice. The
       factfinder must be persuaded, on the basis of all of the evidence, that the moving
       party has proved his factual allegations to be true to a high probability. That degree
       of confidence effectuates the policy purposes for which we have, in this case and
       others, adopted the “clear and convincing evidence” standard.

Taylor v. Commissioner of Mental Health, 481 A.2d 139, 153-54 (Me. 1984 as quoted in Estate of
Acuff v. O’Linger, 56 S.W.3d 527, 536-37).

        The distinctions made in Ray and Acuff will seldom be called into issue which probably
accounts for the fact that in both Ray and Acuff, the Supreme Court denied permission to appeal. To
me, however, the distinction is quite real and critical to a case directly affected by the standard of
review. Under the Ray standard, it might well be said that the state could prove facts by a
preponderance of the evidence and from those facts it might be inferred that the defendant was guilty
beyond a reasonable doubt. More to the point, the plaintiff can prove facts by a preponderance of
the evidence from which it might be inferred that something is “highly probable.” Ray says: “Thus,

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each of the trial court’s factual findings will be presumed to be correct unless the evidence
preponderates otherwise. Second, we will 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
grounds to terminating the biological parents’ parental rights.” Ray, 83 S.W.3d at 783 (Tenn. Ct.
App. 2001).

       How can this possibly be when it is the fact that must be established by clear and convincing
evidence and must be established to the satisfaction of the factfinder?

         Again, as we held in Acuff relative to the standard of review, this Court has held:

                            Our review of a judgment based upon a jury verdict is
                   governed by Rule 13(d), Tennessee Rules of Appellate Procedure.
                   Findings of fact by a jury in civil actions shall be set aside only if
                   there is no material evidence to support the verdict. We note,
                   however, that there is a substantial body of case law that, as a matter
                   of law, requires certain facts be established by clear, cogent and
                   convincing evidence. For example the presumption of legitimacy
                   may be overcome only by clear, cogent and convincing proof. We
                   will, therefore, when we reach issues requiring the evidence to be
                   clear, cogent and convincing, examine the record to determine if there
                   is sufficient proof to constitute clear, cogent and convincing evidence
                   to support the findings of the jury.

         Shell v. Law, 935 S.W.2d 402, 405 (Tenn. Ct. App. 1996).

       The literal language of the non-jury review provisions of T.R.A.P. 13(d) are no more
compatible with appellate review of a case requiring clear, cogent and convincing evidence than are
the provisions of the same rule relating to appellate review of a jury case as stated in Shell v. Law.2

         Oil will not mix with water and as we held in Acuff:

                 Tennessee recognizes that while the “clear, cogent and convincing evidence”
         rule defies precise description it is, in fact, an intermediate standard more exacting
         than the preponderance of the evidence standard while at the same time not requiring


         2
            The “clear and convincing evidence” standard in Acu ff was of common law origin while that standard in Ray
and in the case at bar is statutorily established by T .C.A. § 36 -1-11 3(c)(1). T hus, this case is different from Acu ff in the
sense that exception is made in T.R.A.P. 13(d) to its app licability when a statute provides otherwise. The core problem
is, however, still the same in determining how to apply a “clear and convincing evidence” standard.

                                                              -4-
       the kind of certainty inherent in the criminal standard of proof beyond a reasonable
       doubt. See O’Daniel v. Messinger, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).
               Once this distinction is recognized, we are impelled to the same conclusion
       reached by the Supreme Court of Oregon that the “clear, cogent and convincing
       evidence” standard cannot co-exist with a “preponderance of the evidence” standard
       on the issue of burden of persuasion. Riley Hill Gen. Contractor v. Tandy Corp., 303
       Or. 390, 405 737 P.2d 595, 604 (1987).

Estate of Acuff, 56 S.W.3d 527, 535 (Tenn. Ct. App. 2001).

        I recognize that the Supreme Court in its recent decision In re Valentine, 79 S.W.3d 539
(Tenn. 2002) implemented both the T.R.A.P. 13(d) non-jury standard and the separate “clear and
convincing evidence” standard in reversing this Court’s decision terminating the parental rights of
the mother. The case, however, does not address the issue that provokes this concurring opinion.
The Court recited the T.R.A.P. 13(d) standard and then specifically held that the preponderance of
the evidence was contrary to a number of the fact findings upon which parental rights were
terminated. The T.R.A.P. 13(d) analysis, however, was neither necessary to that decision nor was
it the basis upon which the case was decided. In deciding the case, the Supreme Court held:

               We cannot conclude that factor (i)--persistent conditions--has been proven by
       clear and convincing evidence. Because termination of parental rights under Tenn.
       Code Ann. § 36-1-113(g)(3) requires clear and convincing evidence of all three
       factors and the proof supporting factor (i) fails to reach this level, consideration of
       factors (ii) and (iii) is pretermitted. Accordingly, we hold that the trial court erred by
       terminating Ms. Wallace’s parental rights under Tenn. Code Ann. § 36-1-113(g)(3).

               ....

       We further hold that the grounds for termination under Tenn. Code Ann. §§ 36-1-
       113(g)(2) and (3) have not been proven by clear and convincing evidence.
       Accordingly, we do not reach the issue of whether termination of Ms. Wallace’s
       parental rights was in Oliver’s best interest.

               We reverse the judgment of the trial court terminating Ms. Wallace’s parental
       rights and remand for further proceedings.

               ....




                                                  -5-
       We hold only that the present record does not establish clear and convincing evidence
       of grounds for termination. Costs of the appeal are taxed to the Tennessee
       Department of Children’s Services.

In re Valentine, 79 S.W.3d 539, 550 (Tenn. 2002).

        So far as I can determine the Supreme Court has not addressed the specific problem of what
I believe to be the basic incompatibility of Ray and Acuff. This may well be because resolution of
the problem was unnecessary to the ultimate decision in either Ray or Acuff. It is likewise not
necessary to the decision in this case, but as I conceive it, at least, is a dispute that needs to be
resolved.

         In the final analysis, it must be remembered that the “clear, cogent and convincing evidence”
rule is not just a standard of appellate review but rather is first and foremost a standard addressing
itself to the trier of fact. The trial judge or the jury, as the case may be, must determine that the
evidence has established the determinative facts to be “highly probable,” not just “more probable
than not.” The standard of appellate review is exactly the same under which we must determine that
the facts as found by the fact finder are “highly probable” not just “more probable than not.” It is
only after these determinative facts have been found to be “highly probable” by the factfinder that
either the factfinder or the appellate court may draw inferences from those facts.

        Since I believe that the evidence establishes, under the Acuff standard, that K.L.P. has failed
to comply with the requirement in her permanency plans that she obtain a safe and stable home for
the children, has not been able to comply with the requirement of her permanency plans that she
maintain steady employment to enable her to support herself and her children, and has failed to
remedy “persistent conditions” under Tennessee Code Annotated section 36-1-113(g)(3)(A) as
detailed in the opinion, I concur in the judgment.




                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




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