1 I do n ot pe rceive any distinc tion be tween “clear, c oge nt and conv incing” and “c lear an d co nvincin g.” 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs M arch 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

W ILLI AM B. C AIN , conc urrin g.

I concur in the opini on author ed by Judge Koc

h on the me

rits of this ca se and particularly the admonition to the Dep artment o f Childre n’s Servi ces to the

effec t that an ounce of p reventi on is worth a pound of cure.

I cannot agree, however , that the standard of appellate review asto any case where a pa

rty bearing the burde

n of pers uasion mus tcarry such burden by c lear, cogent and convincing evidence 1 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 Estat e 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 re asons statedin Acuff I do not believe that a “preponderance of the evidence” s tanda rd and a “clear and convincing evidence” stan dard ar e at all c ompatible and can not be re concile d 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 r

equired under the ruleto presum

e the cor rectne ss of the trial court’s findings of fact unless the evidence preponderates ag ainst such findings. Un der the “ clear, cogent and convi ncing evidence” standard, the party having the affirmative of the issue bear s the burden of proving to the factfinder

the existence of the determinative facts, not by a mere preponderance of

the evidence but by clear, c ogent and convincing evidence . It is the fact that must be proven by the heighte ned stand ard of pr

oof, not th

e conclu sions to be

drawn f rom such f

act.
The standard of pr

oof asse rted in the

lead opin ion is:-2- Becau se of

the heightened burden of proof requiredby Tenn. Code Ann. § 36- 1-113(c )(1), we

must adapt Tenn. R. A

pp. P. 13(d)’s customary

standard of

review for cases of this sort. First, we will review the trial court’s findings of fa ct de novo withthe pres umption of

correctness pro vided in Te nn. R. App. P. 13(d). Thus, each of the trial court’s factua

l finding s will be pr

esumed to be corr ect unle ss the evidence p repondera tes otherwise. Second, we will determine whether the fa cts, either as found by the trial court or

as supporte d by

the prep onderan

ce of the evidenc e, clea

rly and conv incingly e stablish the grounds for terminating the biological pa rent’s parental rights. Ray v. Ray , 83 S.W.3d a t 733; In r e L. S.W. , No. M2000-01935-COAR3-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 a

nd 81 L .Ed.2d 247 (1984), a nd on the heels of th

is United St

ates Supr eme 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 conv inced that t he con troll ing facts are establishe d by clear

and co nvin cing ev idenc e to be “highl y probabl e.” In ove rruli ng 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 l ower court ’s factual findi ngs from appellate review. Under Ho rne r the question whether the evidence “whichby its nature is capa ble of inducing belief does in fact induce belief is the responsi bility of the factfinder to determine.” Horner , 334 A.2d at 20 0 (empha sis 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 prepond eran ce instruction without an

y of the “cle ar and c onvincing evidenc e” quali fication s. Id. at 203. In effect the a

ppellate court reviews a finding in favor of t he 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 evide nce” standa

rd apply with equal force at both the fac tf inding and appellate stages, we pref er a definition of “clear and convincing evidence” that allows meaningful appellate rev iew o f the lowe r court’ s finding s. Under the intermediate standard of proof we ca n address the question whether the factfinder c ould reasonably ha ve been persuaded that the required f actual finding was or was not proved to be highly probable.-3-

Taylor v. C

ommission er of Men tal 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 H

ealthin 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 andto instruct the factfinder as to the degree of confidence society

expects for a particular decision. To effectuate

those pur poses a st andard o f proof s hould ope rate to set the de gree t

o 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 o

rders a nd adju di catio ns lea d us t o imp ly the “cl ear and convi ncing” standardfor th e re lea se o f BR I acquittees , the lower court must find the required factual conclusi on to be “hig hly probable.” U nder the Horner

approach the factfinder need only be pe

rsuaded that the fact

ual c onclusion in dispute is more probable than not. The additional requirement in Horner tha t the conc lusion be supportedby h

igh qua lity evidenc e canno t adequa

tely satis fy the obj ectives of the “clear and convincing e

vidence ” sta

ndard. A “high quality

evidence” requirement does not s erve to allocate the risk of error and serves only indirectly to instruct the factfinder of the degree of confide

nce expected for a certain result. For examp le , there are many

instances in which the evidence on both sides might be deemed o f “high quality.” I

n such instances, Horner permit s the party bea

ring the burden of proof to pr ev ai l d es pi te ha vi ng on ly a bare preponderance of the evide nce. Al thou gh the in tr od uc ti on of

hi gh qu al it y ev id en ce ma y w ell be an importa nt elemen

t in meeting the inter

media te standa rd of proof, that alone would not suffice. The fac tfinder must be persuaded, on the basis of all of the evidence, that the movin g party has proved his factual allegations to be true t o a high probability. That deg ree of confidence effectuates the policy purposes for which we have, in this cas e and others, adopted the “clear and convincing evidence” standard. Taylor v. Commissioner of M

ental Hea lth , 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 seldo m be called in to issue whic h probab ly
accoun ts for the fact that in both Ray and Acuff , the Supreme Court

denied permission to appeal. To me, however, the d istinction 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 stat e could pr ov e f ac ts by a preponderance

of the evidence and from

those fa cts it might be

inferred that the

defenda nt was guilty beyond a re asonable 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 say s: “Thus,2 The “clear and convincing evidence” standard in Acu ff was of common l aw origi n whil e that standard in Ray and in the cas e at ba r is statutorily es tablishe d by T .C.A . § 36 -1-11 3(c) (1). T hus, this ca se is dif fe ren t f rom Acu ff in the
sense tha t ex cepti on is made i n T.R.A. P. 13(d) to its app licability wh en a statu te provides ot herwis e. The core proble m is, howeve r, s ti ll the same i n det ermi nin g how t o apply a “cl ear an d convi ncin g evi dence” st andard. -4- eachof the trial court’s factual findings will be presumed to be correct unless the evide nce preponderates otherwise. Second, we will determine whether the fa cts, either as found by

the trial court or as supported by the

prepond erance of the evidence, clearly

and convincingl

y e stablish

the grounds to termi nating the biological parents’ parental rig hts.” Ray , 83 S.W.3d a

t 783 (Ten

n. 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

judgme nt based u

pon a jury

verdict is governed by Rule 13(d), Tenne ssee Rules of App ella te Procedure. Finding s of fact by

a jury in civil actions shall

be set as ide only

if there is no mater

ial evide nce to sup

port the v erdict. We note , however, that

there is a substantia

l body of case law that, as a matter of law , requ ires certain facts be established by clear, cogent and convin cing evidence. For example the presumption of legitimacy may be over

come only by clea r, co gen t and convincing pr

oof. We will, therefore, when we rea ch issues requiring the evidence to b e clear, cogent

and convincing, examinethe record to determine if there is sufficient proof to constitute clear, cogent and convincing evidenc e to su pp or t t he fi nd in gs of th e j ur y.
Shell v. Law , 935 S.W.2d 402, 405 (Tenn. Ct. App. 1996).
The literal language of the non-jur y revi ew pro visions of T.R.A.P. 13(d) are no more compatib le withappella

te review of a case requiring clear, cogent and convincing evidence than are the provisions of the same rule relating to appellate re view of a jury

case as stated in Shell v. Law

. 2

Oil will not mix with water and as we held in Acuff :
Tennesseerecognizes that while the “clear, cog ent and convincing evidence” ruledefies p

recise description it is, in

fact, an intermediate standard more exacting than the preponderance of the evidenc e standa

rd while at the same time not requiring-5-

the kind of certainty inhe

rent in the criminal standardof proof bey ond a rea sonable 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 Or egon that the “clear, c og ent and convincing evidence” standard cannot co-exist w ith a “preponderance of the e vidence” 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 A cuff

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

I recognize that th

e Supreme

Court in it s recent decision In re Valentine , 79 S.W.3d 539 (Tenn. 2002) implemented both the T.R.A.P. 13(d) non-jury sta ndard and the separate “c lear an d convincing evidence” standard in reversing this Court’s decision terminating the parental rights of the mother. The case, however, does not addre ss the issue that pro vokes this concurring opinion. The Court recited the T.R.A.P. 13(d) standard and then specifically

held that the preponderance of the evidenc e was co ntrary to a numbe

r of the f

act find ings upo n which pa

rental r ights we re terminated. The T.R.A.P. 13(d) analy sis, however, was neither necessary to that decision nor was it the basis upon which the case was decided. I n deciding the case, the Supreme Court held:

We cannot c onclude t

hat fac tor (i)- -persist

ent condi tions- -ha s 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 factor s and the proof supporting factor (i) fails to rea ch 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 t

he grounds for termination under Tenn. Code Ann. §§ 36-1- 113(g)(2) and (3) hav e not been proven by clear and convincing evidence

. Ac co rd in gl y, we do not reach the issue of whether termination of Ms. Wallace’ s parenta l rights w as in Olive

r’s best interest.
We revers e the judgment of the trialcourt terminating Ms. Wallace’s parental rights and remand for further proc eedings.

. . . .-6-

We hold only that

the present record does not establish clear and convincing evidence of ground s for ter

mination. C osts of the appeal a

re taxed to

the Tenness e e Department of Children’s Services.
In re Valentine , 79 S.W.3d 539, 550 (Tenn. 2002).

So far as I can dete rmine 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 bec ause resolution of the problem was unnecessar yto the ultimate decision in either Ray or Acuff. It is likewise not necessary to the decision in thisc ase, but as I conc eive 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 fir st and foremost a standard addressing itself to the trier of fact . The trial judge or the jury , as the case may be, m ust determine that the evidence has established the determin ative fa cts to be “

highly probable ,” not just

“more pr obable 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 “hig

hly probable” not just “more probable than not.” It

is only after the se determinative facts have been found to be “highly probable” by

the factfinder

that either the factfinder

or the ap pellate c ourt may

draw inf erence s from thos e facts

. Since I believe that the evidenc e establishes, under the Acuff standard, that K.L.P. has failed to comply with the require ment in her permanency

plans that she obtain a safe and stable home for the childre

n, has not b een able

to comply

with the r

equirem ent of he r perma nency plans tha t sh e maintain steady employ

ment to en ab le her to

support he

rself and her children, a

nd has fa iled to remedy “persistent conditions” unde r Tennessee Code Annotated section 36-1-113(g )(3)(A) as detailed in the opin

ion, I concur in the judgment.

___________________________________ WILL IAM B. CAI

N, JUDGE