Proof by clear and convincing evidence requires more than "a preponderance of the evidence", the traditional measure of persuasion, but less than "beyond a reasonable doubt", the stringent criminal standard. Succession of Bartie, 472 So.2d 578 (La. 1985); Hines v. Williams, 567 So.2d 1139 (La.App. 2d Cir.), writ denied, 571 So.2d 653 (La. 1990). Proof by a preponderance requires that the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not.
See Lyons, supra, requiring clear and convincing evidence to overcome the presumption of testamentary capacity; La. Ch. C. art. 1035(A), requiring proof of the grounds for termination of parental rights by clear and convincing evidence; La. S.Ct. R. 19 § 18(C) and In re King, 601 So.2d 657 (La.1992), requiring clear and convincing proof of attorney misconduct; La. C.C. art. 197, requiring clear and convincing evidence of paternity in actions instituted after the death of the alleged father; and La. R.S. 23:1221(2) regarding proof of permanent total disability by a workers' compensation claimant.In cases requiring proof by clear and convincing evidence, our courts review the factual findings for manifest error. For example, in Hines v. Williams, 567 So.2d 1139 (La.App.1990), writ denied, 571 So.2d 653 (La.1990), a filiation action, the supreme court applied the manifest error standard to the trial court's findings and then determined whether the facts proved paternity by clear and convincing evidence. In attorney disciplinary matters, the manifest error standard applies to the factual findings of the Hearing Committee in reviewing the record to determine whether the alleged misconduct was proven by clear and convincing evidence.
See Lyons, supra, requiring clear and convincing evidence to overcome the presumption of testamentary capacity; La. Ch. C. art. 1035(A), requiring proof of the grounds for termination of parental rights by clear and convincing evidence; La. S.Ct. R. 19 § 18(C) and In re King, 601 So.2d 657 (La.1992), requiring clear and convincing proof of attorney misconduct; La. C.C. art. 197, requiring clear and convincing evidence of paternity in actions instituted after the death of the alleged father; and La. R.S. 23:1221(2) regarding proof of permanent total disability by a workers' compensation claimant.In cases requiring proof by clear and convincing evidence, our courts review the factual findings for manifest error. For example, in Hines v. Williams, 567 So.2d 1139 (La.App.1990), writ denied, 571 So.2d 653 (La.1990), a filiation action, the supreme court applied the manifest error standard to the trial court's findings and then determined whether the facts proved paternity by clear and convincing evidence. In attorney disciplinary matters, the manifest error standard applies to the factual findings of the Hearing Committee in reviewing the record to determine whether the alleged misconduct was proven by clear and convincing evidence.
Proof by clear and convincing evidence requires more than 'a preponderance of the evidence', the traditional measure of persuasion, but less than 'beyond a reasonable doubt', the stringent criminal standard. Succession of Bartie, 472 So.2d 578 (La. 1985); Hines v. Williams, 567 So.2d 1139 (La.App. 2d Cir.), writ denied, 571 So.2d 653 (La. 1990). Proof by a preponderance requires that the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not.
Proof by clear and convincing evidence requires more than "a preponderance of the evidence", the traditional measure of persuasion, but less than "beyond a reasonable doubt", the stringent criminal standard. Succession of Bartie, 472 So.2d 578 (La. 1985); Hines v. Williams, 567 So.2d 1139 (La.App. 2d Cir.), writ denied, 571 So.2d 653 (La. 1990). Proof by a preponderance requires that the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not.
Two other appellate cases in which filiation was held not proven by the convincing standard involved problems with the mother's credibility. Jordan v. Taylor, 568 So.2d 1097 (La.App. 4th Cir.), writ denied, 571 So.2d 650 (1990), and insufficient evidence, Hines v. Williams, 567 So.2d 1139 (La.App. 2d Cir.), writ denied, 571 So.2d 653 (1990). In the latter action, the mother only presented evidence that she and the alleged father had cohabited during conception and that friends of the decedent "took it for granted" that the child was his.
This heightened burden of proof requires the state to show not only that the existence of the fact sought to be established is more probable than not, but that the fact is highly probable or more certain. State ex rel. B.H., supra; Hines v. Williams, 567 So.2d 1139 (La. App. 2 Cir.), writ denied, 571 So.2d 653 (La. 1990). Failure of the state to prove any of the statutory elements for termination of parental rights is a failure of the state to meet its burden of proof and termination of parental rights cannot be ordered.
This heightened burden of proof requires the state to show not only that the existence of the fact sought to be established is more probable than not, but that the fact is highly probable or more certain. State ex rel. B.H. v. A.H. , supra ; Hines v. Williams , 567 So. 2d 1139 (La. App. 2 Cir.), writ denied , 571 So. 2d 653 (1990). Failure of the state to prove any of the statutory elements for termination of parental rights is a failure of the state to meet its burden of proof and termination of parental rights cannot be ordered.
Accordingly, this heightened burden of proof requires the State to show not only that the existence of the fact sought to be established is more probable, but rather that the fact is highly probable or more certain. Hines v. Williams, 567 So.2d 1139 (La.App. 2 Cir.), writ denied, 571 So.2d 653 (La.1990). However, we are mindful that in assessing whether the clear and convincing evidentiary standard was followed in the lower court, we must determine whether the record reflects that the juvenile court manifestly erred.
“Proof by clear and convincing evidence requires more than ‘a preponderance of the evidence,’ the traditional measure of persuasion, but less than ‘beyond a reasonable doubt,’ the stringent criminal standard.” Hines v. Williams, 567 So.2d 1139, 1141 (La.App. 2 Cir.), writ denied,571 So.2d 653 (La.1990). “To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence.