In Re: C.LaC. and D.L. - Concurring ( 2004 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 26, 2004
IN RE: C.LaC. AND D.L.
Appeal from the Juvenile Court for White County
No. D20072 Sammie E. Benningfield, Jr., Judge
No. M2003-02164-COA-R3-PT - Filed March 17, 2004
WILLIAM B. CAIN , J., concurring.
I concur in the judgment that clear and convincing evidence establishes abundant grounds
for the termination of the parental rights of the mother in this case and further establishes that it is
in the best interests of the children to terminate her parental rights.
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. 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).
In any event, the evidence in this case is overwhelming and the clear and convincing evidence
standard set forth in Estate of Acuff v. O’Linger is clearly met. I concur in the judgment.
___________________________________
WILLIAM B. CAIN, JUDGE