# In Re Audrey S.

> Court of Appeals of Tennessee · November 7, 2005 · 182 S.W.3d 838

URL: https://www.frixlaw.com/law-library/cases/9643723

## Case

- **Full name:** In Re AUDREY S. & Victoria L.
- **Court:** Court of Appeals of Tennessee
- **Decided:** November 7, 2005
- **Citations:** 182 S.W.3d 838
- **Precedential status:** Published
- **Opinion:** Concurrence by Cain
- **Judges:** Koch, Clement, Cain
- **Cited by:** 1,094 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9643723

## How later opinions describe it (automated extraction)

- holding, after its review of the 2004 supplement to the 1995 enactment of section 36-1-113(g), that persistence of conditions “applies as a ground for termination of parental rights only where the prior court order removing the child from the parent’s home was based on a judic…
- holding that failure to support “is not excused by another person’s conduct unless the conduct actually prevents the person with the obligation from performing his or her duty, . . . or amounts to a significant restraint of or interference with the parent’s efforts to support …
- holding that the statutory ground of persistence of the conditions that led to the children’s removal was not applicable because removal of the children to state custody was based on the father’s petition for a change in custody, and was not based on an adjudication of depende…
- recognizing that “the parent’s incarceration serves only as a triggering mechanism that allows the court to take a closer look at the child’s situation to determine whether the parental behavior that resulted in incarceration is part of a broader pattern of conduct”
- finding father was not put on sufficient notice that his parental rights could be terminated on the ground of abandonment by wanton disregard especially because the ground considers conduct that is not confined to the four months leading to a parent’s incarceration

## Opinion text

WILLIAM B. CAIN, J.,
concurring.
I adhere to my longstanding view that a “preponderance of the evidence” standard and a “clear and convincing evidence” standard are incompatible with each other and cannot be reconciled either in the trial *884 court or in appellate courts. The effort to make these standards compatible, as asserted in Ray v. Ray, 83 S.W.3d 726 (Tenn.Ct.App.2001), and its progeny are in my view incorrect for reasons stated at length in Estate of Acuff v. O’Linger, 56 S.W.3d 527 (Tenn.Ct.App.2001) and In re Z.J.S. and M.J.P., No. M2002-02235-COA-R3-JV, filed June 3, 2003, 2003 WL 21266854 (Tenn.Ct.App.2003)-Cain, concurring).
Regardless of this disagreement, the exhaustive and scholarly opinion authored by Judge Koch for the majority discloses a case that would withstand scrutiny under any definition of clear, cogent and convincing evidence. I therefore concur in the judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9643723. Public record. Not legal advice.