1

 I do not perceive any distinction between “clear, cogent and convincing” and “clear and convincing.”

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 11, 2003

IN RE Z.J.S. AND M.J.P.

 Appeal from the Juvenile Court for Dickson County

No. 05-00-024-CC A. Andrew Jackson, Judge 

No. M2002-02235-COA-R3-JV - Filed June 3, 2003 

WILLIAM B. CAIN, concurring.

I concur in the opinion authored by Judge Koch on the merits of this case and particularly the

admonition to the Department of Children’s Services to the effect that an ounce of prevention is

worth a pound of cure.

I cannot agree, however, that the standard of appellate review as to any case where a party

bearing the burden of persuasion must carry such burden by clear, cogent and convincing evidence1

is, as stated in the opinion, and as it is stated in Ray v. Ray, 83 S.W.2d 726 (Tenn. Ct. App. 2001).

Rather, I believe that the proper standard of review is stated in Estate of Acuff v. O’Linger, 56

S.W.3d 527 (Tenn. Ct. App. 2001). I do not believe that the respective standards of review stated

in Ray and Acuff are either consistent or compatible with each other. For reasons stated in Acuff I

do not believe that a “preponderance of the evidence” standard and a “clear and convincing

evidence” standard are at all compatible and cannot be reconciled one with the other. For this

reason, appellate review under the non-jury standard set forth in T.R.A.P. 13(d) is neither proper nor

possible. We are required under the rule to presume the correctness of the trial court’s findings of

fact unless the evidence preponderates against such findings. Under the “clear, cogent and

convincing evidence” standard, the party having the affirmative of the issue bears the burden of

proving to the factfinder the existence of the determinative facts, not by a mere preponderance of the

evidence but by clear, cogent and convincing evidence. It is the fact that must be proven by the

heightened standard of proof, not the conclusions to be drawn from such fact.

The standard of proof asserted in the lead opinion is:
-2-

Because of the heightened burden of proof required by Tenn. Code Ann. § 36-

1-113(c)(1), we must adapt Tenn. R. App. P. 13(d)’s customary standard of review

for cases of this sort. First, we will review the trial court’s findings of fact de novo

with the presumption of correctness provided in Tenn. R. App. P. 13(d). Thus, each

of the trial court’s factual findings will be presumed to be correct unless the evidence

preponderates otherwise. Second, we will determine whether the facts, either as

found by the trial court or as supported by the preponderance of the evidence, clearly

and convincingly establish the grounds for terminating the biological parent’s

parental rights. Ray v. Ray, 83 S.W.3d at 733; In re L.S.W., No. M2000-01935-COAR3-JV, 2001 WL 1013079, at *5 (Tenn. Ct. app. Sept. 6, 2001), perm. app. denied

(Tenn. Dec. 27, 2001).

This is precisely the position taken by the Supreme Court of Maine in Horner v. Flynn, 334

A.2d 194 (Me. 1975).

In 1984, the United States Supreme Court decided Colorado v. New Mexico, 467 U.S. 310,

104 S.Ct. 2433 and 81 L.Ed.2d 247 (1984), and on the heels of this United States Supreme Court

decision, the Supreme Court of Maine overruled Horner v. Flynn and adopted the Colorado v. New

Mexico standard under which the trier of fact must be convinced that the controlling facts are

established by clear and convincing evidence to be “highly probable.” In overruling Horner, the

Supreme Court of Maine held:

As a practical matter, the Horner definition of “clear and convincing

evidence” removes the higher standard of proof aspect of the lower court’s factual

findings from appellate review. Under Horner the question whether the evidence

“which by its nature is capable of inducing belief does in fact induce belief is the

responsibility of the factfinder to determine.” Horner, 334 A.2d at 200 (emphasis in

original). In Horner itself, the Law Court upheld a finding of fraud even though the

trial court had given the jury, albeit without objection, a mere preponderance

instruction without any of the “clear and convincing evidence” qualifications. Id. at

203. In effect the appellate court reviews a finding in favor of the moving party

under Horner just as if the moving party needed only to establish his allegations by

a preponderance. Believing, as we do, that the policies that motivated the imposition

of the “clear and convincing evidence” standard apply with equal force at both the

factfinding and appellate stages, we prefer a definition of “clear and convincing

evidence” that allows meaningful appellate review of the lower court’s findings.

Under the intermediate standard of proof we can address the question whether the

factfinder could reasonably have been persuaded that the required factual finding was

or was not proved to be highly probable.
-3-

Taylor v. Commissioner of Mental Health, 481 A.2d 139, 153-54 (May 1984).

This Court placed heavy reliance on both Colorado v. New Mexico and Taylor v.

Commissioner of Mental Health in our decision in Acuff. As we held in Acuff again quoting from

Taylor:

As we have explained, a standard of proof serves to allocate the risk of error

and to instruct the factfinder as to the degree of confidence society expects for a

particular decision. To effectuate those purposes a standard of proof should operate

to set the degree to which the factfinder must be persuaded of a particular factual

conclusion. Where, as here, an important public interest and the desire to preserve

prior judicial orders and adjudications lead us to imply the “clear and convincing”

standard for the release of BRI acquittees, the lower court must find the required

factual conclusion to be “highly probable.” Under the Horner approach the

factfinder need only be persuaded that the factual conclusion in dispute is more

probable than not. The additional requirement in Horner that the conclusion be

supported by high quality evidence cannot adequately satisfy the objectives of the

“clear and convincing evidence” standard. A “high quality evidence” requirement

does not serve to allocate the risk of error and serves only indirectly to instruct the

factfinder of the degree of confidence expected for a certain result. For example,

there are many instances in which the evidence on both sides might be deemed of

“high quality.” In such instances, Horner permits the party bearing the burden of

proof to prevail despite having only a bare preponderance of the evidence. Although

the introduction of high quality evidence may well be an important element in

meeting the intermediate standard of proof, that alone would not suffice. The

factfinder must be persuaded, on the basis of all of the evidence, that the moving

party has proved his factual allegations to be true to a high probability. That degree

of confidence effectuates the policy purposes for which we have, in this case and

others, adopted the “clear and convincing evidence” standard.

Taylor v. Commissioner of Mental Health, 481 A.2d 139, 153-54 (Me. 1984 as quoted in Estate of

Acuff v. O’Linger, 56 S.W.3d 527, 536-37).

The distinctions made in Ray and Acuff will seldom be called into issue which probably

accounts for the fact that in both Ray and Acuff, the Supreme Court denied permission to appeal. To

me, however, the distinction is quite real and critical to a case directly affected by the standard of

review. Under the Ray standard, it might well be said that the state could prove facts by a

preponderance of the evidence and from those facts it might be inferred that the defendant was guilty

beyond a reasonable doubt. More to the point, the plaintiff can prove facts by a preponderance of

the evidence from which it might be inferred that something is “highly probable.” Ray says: “Thus,
2

 The “clear and convincing evidence” standard in Acuff was of common law origin while that standard in Ray

and in the case at bar is statutorily established by T.C.A. § 36-1-113(c)(1). Thus, this case is different from Acuff in the

sense that exception is made in T.R.A.P. 13(d) to its applicability when a statute provides otherwise. The core problem

is, however, still the same in determining how to apply a “clear and convincing evidence” standard.

-4-

each of the trial court’s factual findings will be presumed to be correct unless the evidence

preponderates otherwise. Second, we will determine whether the facts, either as found by the trial

court or as supported by the preponderance of the evidence, clearly and convincingly establish the

grounds to terminating the biological parents’ parental rights.” Ray, 83 S.W.3d at 783 (Tenn. Ct.

App. 2001).

How can this possibly be when it is the fact that must be established by clear and convincing

evidence and must be established to the satisfaction of the factfinder?

Again, as we held in Acuff relative to the standard of review, this Court has held:

Our review of a judgment based upon a jury verdict is

governed by Rule 13(d), Tennessee Rules of Appellate Procedure.

Findings of fact by a jury in civil actions shall be set aside only if

there is no material evidence to support the verdict. We note,

however, that there is a substantial body of case law that, as a matter

of law, requires certain facts be established by clear, cogent and

convincing evidence. For example the presumption of legitimacy

may be overcome only by clear, cogent and convincing proof. We

will, therefore, when we reach issues requiring the evidence to be

clear, cogent and convincing, examine the record to determine if there

is sufficient proof to constitute clear, cogent and convincing evidence

to support the findings of the jury.

Shell v. Law, 935 S.W.2d 402, 405 (Tenn. Ct. App. 1996).

The literal language of the non-jury review provisions of T.R.A.P. 13(d) are no more

compatible with appellate review of a case requiring clear, cogent and convincing evidence than are

the provisions of the same rule relating to appellate review of a jury case as stated in Shell v. Law.

2

Oil will not mix with water and as we held in Acuff:

Tennessee recognizes that while the “clear, cogent and convincing evidence”

rule defies precise description it is, in fact, an intermediate standard more exacting

than the preponderance of the evidence standard while at the same time not requiring
-5-

the kind of certainty inherent in the criminal standard of proof beyond a reasonable

doubt. See O’Daniel v. Messinger, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995). 

Once this distinction is recognized, we are impelled to the same conclusion

reached by the Supreme Court of Oregon that the “clear, cogent and convincing

evidence” standard cannot co-exist with a “preponderance of the evidence” standard

on the issue of burden of persuasion. Riley Hill Gen. Contractor v. Tandy Corp., 303

Or. 390, 405 737 P.2d 595, 604 (1987).

Estate of Acuff, 56 S.W.3d 527, 535 (Tenn. Ct. App. 2001).

I recognize that the Supreme Court in its recent decision In re Valentine, 79 S.W.3d 539

(Tenn. 2002) implemented both the T.R.A.P. 13(d) non-jury standard and the separate “clear and

convincing evidence” standard in reversing this Court’s decision terminating the parental rights of

the mother. The case, however, does not address the issue that provokes this concurring opinion.

The Court recited the T.R.A.P. 13(d) standard and then specifically held that the preponderance of

the evidence was contrary to a number of the fact findings upon which parental rights were

terminated. The T.R.A.P. 13(d) analysis, however, was neither necessary to that decision nor was

it the basis upon which the case was decided. In deciding the case, the Supreme Court held:

We cannot conclude that factor (i)--persistent conditions--has been proven by

clear and convincing evidence. Because termination of parental rights under Tenn.

Code Ann. § 36-1-113(g)(3) requires clear and convincing evidence of all three

factors and the proof supporting factor (i) fails to reach this level, consideration of

factors (ii) and (iii) is pretermitted. Accordingly, we hold that the trial court erred by

terminating Ms. Wallace’s parental rights under Tenn. Code Ann. § 36-1-113(g)(3).

. . . .

We further hold that the grounds for termination under Tenn. Code Ann. §§ 36-1-

113(g)(2) and (3) have not been proven by clear and convincing evidence.

Accordingly, we do not reach the issue of whether termination of Ms. Wallace’s

parental rights was in Oliver’s best interest.

We reverse the judgment of the trial court terminating Ms. Wallace’s parental

rights and remand for further proceedings. 

. . . .
-6-

We hold only that the present record does not establish clear and convincing evidence

of grounds for termination. Costs of the appeal are taxed to the Tennessee

Department of Children’s Services. 

In re Valentine, 79 S.W.3d 539, 550 (Tenn. 2002).

So far as I can determine the Supreme Court has not addressed the specific problem of what

I believe to be the basic incompatibility of Ray and Acuff. This may well be because resolution of

the problem was unnecessary to the ultimate decision in either Ray or Acuff. It is likewise not

necessary to the decision in this case, but as I conceive it, at least, is a dispute that needs to be

resolved.

In the final analysis, it must be remembered that the “clear, cogent and convincing evidence”

rule is not just a standard of appellate review but rather is first and foremost a standard addressing

itself to the trier of fact. The trial judge or the jury, as the case may be, must determine that the

evidence has established the determinative facts to be “highly probable,” not just “more probable

than not.” The standard of appellate review is exactly the same under which we must determine that

the facts as found by the fact finder are “highly probable” not just “more probable than not.” It is

only after these determinative facts have been found to be “highly probable” by the factfinder that

either the factfinder or the appellate court may draw inferences from those facts.

Since I believe that the evidence establishes, under the Acuff standard, that K.L.P. has failed

to comply with the requirement in her permanency plans that she obtain a safe and stable home for

the children, has not been able to comply with the requirement of her permanency plans that she

maintain steady employment to enable her to support herself and her children, and has failed to

remedy “persistent conditions” under Tennessee Code Annotated section 36-1-113(g)(3)(A) as

detailed in the opinion, I concur in the judgment.

___________________________________ 

WILLIAM B. CAIN, JUDGE