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In re Audrey S.8/25/2005
Marr, 127 S.W.3d at 741-42. Second, the court has repeatedly declined to grant Tenn. R. App. P. 11 applications in other cases in which this court has reached the same conclusion. White v. Moody, 2004 WL 3044909, at *5, perm. app. denied (Mar. 21, 2005); State Dep't of Children's Servs. v. C.S.M., 2002 WL 385870, at *6, perm. app. denied (Tenn. Sept. 16, 2002); Ray v. Ray, 83 S.W.3d at 732 n.7, perm. app. denied (Tenn. July 15, 2002). Third, the court vacated this court's decision in conformance with its established procedure of dismissing a case and vacating the lower court opinions when it determines that the courts lack subject matter jurisdiction over the case. Osborn v. Marr, 127 S.W.3d at 741. Finally, much to the chagrin of many a litigant, the Tennessee Supreme Court's decision to grant a Tenn. R. App. P. 11 application for permission to appeal does not necessarily indicate that the court disagrees with the decision rendered by this court. See, e.g., Staubach Retail Servs.-Southeast, LLC v. H.G. Hill Realty Co., 160 S.W.3d 521, 523 (Tenn. 2005); Mills v. Wong, 155 S.W.3d 916, 925 (Tenn. 2005).
VI.
We affirm the juvenile court's October 7, 2004 and November 11, 2004 orders terminating Jamie F.'s parental rights to Audrey S. and Victoria L. and denying Jamie F.'s petition for visitation. We tax the costs of this appeal to Jamie F. for which execution, if necessary, may issue.
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 court or in appellate courts. The effort to make these standards compatible, as asserted in Ray v. Ray, 83 S.W.2d 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 (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.
WILLIAM B. CAIN, JUDGE
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