                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs February 1, 2006

 IN RE GIORGIANNA H., STUART H., SABRINA H., SAVANNAH H., VICTORIA H.,
                    BENJAMIN H., & SARAHANNA H.

                       Appeal from the Circuit Court for Perry County
                          No. 3358    Robert E. Lee Davies, Judge



                    No. M2005-01697-COA-R3-PT - Filed March 21, 2006



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
