                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                            Assigned on Briefs December 4, 2003

                                     IN RE K.N.R., ET AL.

                     Appeal from the Juvenile Court for Robertson County
                             No. D20072 Max D. Fagan, Judge



                   No. M2003-01301-COA-R3-PT - Filed December 23, 2003



WILLIAM B. CAIN , J., concurring.


        For reasons articulated 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 Rule 11 application filed)(Cain, J., 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, J., concurring), I cannot agree that the standard of appellate review is correctly
stated. I adhere to my view that the standard of review stated in Ray v. Ray, 83 S.W.3d 726
(Tenn.Ct.App.2001) perm.app.denied (July 15, 2002), and the standard of review stated in Acuff, 56
S.W.3d 527, are incompatible one with the other. I believe Acuff provides the correct standard of
review and that the Ray standard is incorrect. Ray held:

                 Because this heightened burden of proof differs from the customary burden
        of proof in civil cases, we must adjust the usual standard of review of factual findings
        found in Tenn. R. App. P. 13(d). In cases such as the one before us, we will review
        the trial courts specific findings of fact in accordance with Tenn. R. App. P. 13(d).
        Accordingly, the trial court’s findings of fact will be presumed to be correct unless
        the evidence preponderates otherwise. Then we will determine whether the facts, as
        found by the trial court, clearly and convincingly establish that a child will be
        exposed to a risk of substantial harm if he or she is placed in a biological parent’s
        custody. In re L.S.W., 2001 WL 1013079, at *5; In re T.L.P., No. W1999-01940-
        COA-R3-CV, 2001 WL 987152, at *2 (Tenn.Ct.App. Aug. 22, 2001) perm. app.
        denied (Tenn. Jan. 14, 2002).

Ray, 83 S.W.3d at 733. Such a standard contravenes the standard stated in Acuff, along with
contravening the standard stated by the United States Supreme Court in Colorado v. New Mexico,
467 U.S. 310, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) and the standard correctly stated by the
Supreme Court of Maine in Taylor v. Comm’r of Mental Health, 481 A.2d 139, 153-54 (Me.1984).
         In Acuff we held, as the Supreme Court of Oregon had held in Riley Hill Gen. Contractor,
Inc. v. Tandy Corp., 737 P.2d 595, 604 (Or.1987), that a “clear, cogent and convincing evidence”
standard cannot co-exist with a “preponderance of the evidence” standard on the issue of the burden
of persuasion. See Acuff, 56 S.W.3d at 535. In Acuff we adopted the United States Supreme Court
standard, which provided: “In contrast to the ordinary civil case, which typically is judged by a
‘preponderance of the evidence’ standard, we thought a diversion of interstate water should be
allowed only if Colorado could place, in the ultimate fact finder, an abiding conviction that the proof
of its factual allegations are ‘highly probable.’ ” Colorado v. New Mexico, 467 U.S. at 315, 104
S.Ct. at 2437-38, and 81 L.Ed.2d 247.

       Tennessee has long recognized that the “clear, cogent and convincing evidence” standard,
while it defies precise description, is in fact an intermediate standard more exacting than the
preponderance of evidence standard, while at the same time not requiring the kind of certainty
inherent from the criminal standard of proof beyond a reasonable doubt. See O’Daniel v. Messier,
905 S.W.2d 182, 188 (Tenn.Ct.App.1995).

        The difficulty with applying the Ray standard instead of the Acuff standard is persuasively
articulated by Justice Traynor in his dissent in Beeler v. American Trust Co., 147 P.2d 583
(Cal.1944).

               This is not an ordinary civil case, however, for, as the majority
               opinion concedes, it was incumbent upon plaintiff to support his
               contention by evidence, “clear, satisfactory and convincing; explicit,
               unequivocal and indisputable.” Wehle v. Price, 202 Cal. 394, 397,
               260 P. 878, 879; Goodfellow v. Goodfellow, 219 Cal. 548, 554, 27
               P.2d 898. While it rests primarily with the trial court to determine
               whether the evidence is clear and convincing, its finding is not
               necessarily conclusive, for in cases governed by the rule requiring
               such evidence “the sufficiency of the evidence to support the finding
               should be considered by the appellate court in the light of that rule.”
               Sheenan v. Sullivan, 126 Cal. 189, 193, 58 P. 543, 544; see, also
               Moultrie v. Wright, 154 Cal. 520, 98 P. 257. In such cases it is the
               duty of the appellate court in reviewing the evidence to determine, not
               whether the trier of facts could reasonably conclude that it is more
               probable that the fact to be proved exists than that it does not, as in
               the ordinary civil case where only a preponderance of the evidence is
               required, but whether the trier of facts could reasonably conclude that
               it is highly probable that the fact exists. When it holds that the trial
               court’s finding must be governed by the same test with relation to
               substantial evidence as ordinarily applies in other civil cases, the rule
               that the evidence must be clear and convincing becomes meaningless.
               There is a contradiction in thus destroying the vitality of the rule
               while affirming its soundness.


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       Beeler, 147 P.2d at 600. (Traynor, J., dissenting).

       Since, in the case at bar, regardless of our dispute over the correct standard of review, the
court correctly vacates the trial court order for failure to comply with the findings of fact
requirements of Tennessee Code Annotated section 36-1-113(k). I concur in the judgment.




                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




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