                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                           Assigned on Briefs August 2, 2016

                                     IN RE C.C. ET AL.

                 Appeal from the Juvenile Court for Jefferson County
                   No. 15-00449 Dennis (Will) Roach, II, Judge


            No. E2016-00475-COA-R3-PT-FILED-SEPTEMBER 22, 2016
                      _________________________________

The Department of Children’s Services filed a petition seeking, on the basis of four
grounds, to terminate the parental rights of H.C. (Mother) to her four children, C.C.,
D.C., A.D., and S.D. (collectively the Children). In the same petition, DCS also sought
to terminate, on three grounds, the parental rights of B.D., Mother’s long-time boyfriend
and father of two of the Children, i.e., A.D. and S.D. (collectively the twins).1 The trial
court found, by clear and convincing evidence, three grounds to terminate Mother’s
parental rights and three grounds to terminate B.D.’s parental rights. By the same
quantum of proof, the court found that termination is in the Children’s best interest.
Mother and B.D. (collectively the parties) appeal. As modified, we affirm the judgment
of the trial court.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                      Affirmed as Modified; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which ANDY D.
BENNETT, J, and J. STEVEN STAFFORD, P.J., W.S., joined.

Kimberly R. Grace, Jefferson City, Tennessee, for the appellant H.C.

John T. Sholly, Knoxville, Tennessee, for the appellant, B.D.

Herbert H. Slatery III, Attorney General and Reporter, and M. Cameron Himes, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.


       1
          In the same petition, DCS also sought to terminate the parental rights of J.C., the
biological father of Mother’s other two children, C.C. and D.C. Those rights were terminated in
an order entered February 3, 2016. That case is not before us on this appeal.
W. Keith Repass, Dandridge, Tennessee, Guardian Ad Litem.

                                         OPINION

                                              I.

       The makeup and dynamics of this “family” are somewhat convoluted. Mother and
J.C., a convicted sex offender,2 had two children together, i.e., a daughter, C.C., and a
son, D.C. The couple had lived together for approximately two and a half years when
they married shortly after D.C.’s birth. Four days after their marriage, J.C. abruptly
moved out. Neither pursued a divorce. Soon, Mother began cohabitating with B.D., with
whom she had an “open” relationship, one that included other sexual partners. As
previously noted, Mother and B.D. had twin daughters. At some point J.C. returned. For
a time, the parties, the Children, J.C., and J.C.’s girlfriend all lived in the same house.
The parties and the “others” resided in Kentucky. That state’s equivalent of DCS was
referred to the house sixteen times. It once removed the Children for two days.

       Around December 25, 2011, the parties and the Children moved from Clay,
Kentucky to Talbott, Tennessee. Mother contends that they moved in order to be closer
to her son’s diabetic medical care at Vanderbilt University Hospital. Contrary to
Mother’s assertion, the “distance” factor could not have been the reason for the move.
This is because Vanderbilt is approximately two hundred miles from Talbott and
approximately one hundred and thirty miles from Clay, Kentucky.3 In other words, the
parties were closer to Vanderbilt when they lived in Kentucky. The evidence indicates
that Mother moved to Talbott to be near Jamie D. and Joshua D., a married couple who
lived there. Mother had met them through a chat room on the internet. She began a
sexual relationship with the couple prior to her family’s relocation to Tennessee. That
relationship was ongoing at the time of trial in 2015. At trial, Joshua D. estimated that
the relationship had lasted for “the better part of five years.” Mother and Joshua D.
describe their relationship as a “master-slave” relationship that involves BDSM.4 The


       2
         Prior to living with Mother, J.C. had been convicted in Michigan of fourth degree
sexual assault.
       3
          The travel distances stated here are based             on   Google    Maps.      See
https://www.google.com/maps/ (last visited Sept. 7, 2016).
       4
          The guardian ad litem states in his brief that BDSM is an “acronym . . . for bondage,
discipline, sadism, and masochism” (citing State v. Bvocik, 781 N.W.2d 719, 721 n.2 (Wis. Ct.

                                              2
proof shows that B.D. was aware of the nature of their relationship, as were the Children.
Prior to their removal, the Children were in contact with Joshua D. several times a week.

       Joshua D. made sex toys. Mother sold them door-to-door. Mother stated that she
also earned income by cleaning houses and offices. C.C. testified that Mother engaged in
prostitution. Mother denied this claim. Mother challenged C.C.’s credibility. B.D. did
not work. He received a Social Security Disability check for gout – a condition which he
says has rendered him disabled since 2005. While in Tennessee, Mother was introduced
to James C. by a person she met at a gas station. After knowing James C. for about six
months, she allowed him to live with the “family” three days a week for babysitting
purposes. Shortly thereafter, a restraining order was entered against him after he
physically abused the child, C.C.

       In October 2012, DCS responded to a referral accusing Mother of physical abuse
and psychological harm. DCS case manager Desmond Woodruff found no basis for the
allegations, but “other concerns were noted.” DCS filed a petition for an order against
Mother, J.C., and B.D. In that petition, DCS stated the following:

             The family’s home was dirty and cluttered with clothes, trash,
             and food strewn throughout the home. . . . Woodruff observed
             gnats and flies in the [C]hildren’s bedroom. One of the
             bathrooms had clothes, trash, and toilet paper in the sink.
             Also in the sink were gnats, flies, and ants.

             There was no food in the home for the [C]hildren. Mother
             admitted there was no food. . . .

             Mother reported that they are past due on this month’s rent.
             DCS had already paid the previous month’s rent during a
             prior case with this family.

             The [C]hildren were not enrolled in school at this time.
             Mother reported that she chose to home school [D.C.] due to
             his behavioral issues. Mother then decided to home school all
             of the [C]hildren. However, [D.C.] stated he does not do any
             school work at home. The remaining children reported that
             the Mother had only “written out some math problems” for

App. 2010)) “or bondage, domination, sadism, and masochism,” (citing Harrison v.
Commonwealth, No. 1244-14-2, 2015 WL 5945233, at *1 (Va. Ct. App., filed Oct. 13, 2015)).

                                            3
             them to do. Neither the Mother, nor [B.D.], were able to
             produce any documentation of the [C]hildren’s school work
             when asked[.]

             The Mother later showed [case manager] Woodruff
             paperwork to enroll [C.C.],[A.D.], and [S.D.] into [school]
             ....

             On [October 3, 2012], [D.C.] was charged with aggravated
             assault after attempting to attack a neighbor with a knife. The
             child, [D.C.], has since been committed to . . . a mental health
             facility in Chattanooga, TN.

             Mother reported that [C.C.] has been in therapy . . . since
             January 2012, but admitted that the child has not been to her
             appointments for the last month.

             There have been six (6) investigations of this family in 2012
             alone for the following allegations: medical maltreatment,
             nutritional neglect, sexual abuse, physical abuse,
             environmental neglect, and psychological harm. The last
             DCS case closed in Jefferson Juvenile Court on [September
             18, 2012].

(Paragraph lettering in original omitted.) On October 15, 2012, the trial court granted
DCS’s petition. The subsequent order required Mother and B.D. to (1) enroll the girls in
school and D.C. in an accredited home school; (2) clean the home; (3) develop a home
cleaning system; (4) create a budget; (5) ensure C.C. attends therapy appointments; and
(6) report weekly to DCS. The Children were removed from the home on October 26,
2012, for reasons of environmental neglect, housing issues, medical neglect, and failure
to enroll the Children in school. At that time, the Children faced several medical
problems. C.C., A.D., and S.D. had lice and flea bites, among other things. D.C., who
has a rare form of diabetes, was placed in a residential facility to monitor his high blood
sugar, which was measured at 600. The Children faced mental health issues. They all
have mood disorders. C.C. and A.D. threatened suicide. The twins had severe
nightmares. D.C. had post-traumatic stress disorder, an immune-anxiety disorder, and a
propensity for violent outbursts.

      The trial court adjudicated the Children dependent and neglected on March 19,
2013. On May 27, 2015, DCS filed a petition to terminate parental rights. DCS sought

                                            4
to terminate the parental rights of the parties on three of the same grounds – abandonment
by failure to provide a suitable home, pursuant to Tenn. Code Ann. § 36-1-113(g)(1)
(2014), -102(1)(A)(ii) (2014); persistence of conditions, pursuant to Tenn. Code Ann. §
36-1-113(g)(3); and mental incompetence, pursuant to Tenn. Code Ann. § 36-1-
113(g)(8). DCS sought to terminate Mother’s parental rights for a fourth ground –
abandonment by willful failure to support, pursuant to Tenn. Code Ann. § 36-1-
113(g)(1), -102(1)(A)(i), (D). The trial court found, by clear and convincing evidence,
grounds to terminate Mother’s parental rights for persistence of conditions, as well as
abandonment for failure to support and failure to provide a suitable home. By the same
evidentiary standard, the trial court found grounds to terminate B.D.’s parental rights for
abandonment for failure to provide a suitable home, persistence of conditions, and mental
incompetence. The trial court also found, clearly and convincingly, that termination of
the parental rights of the parties is in the Children’s best interest. The parties appeal.

                                            II.

        Mother raises one issue: “Whether the [t]rial [c]ourt erred in terminating [her]
parental rights on the grounds of abandonment by failure to support, abandonment by
failure to provide a suitable home, and persistent conditions.”

      B.D. raises the following issues, which we reprint verbatim from his brief:

             Did the trial court err by finding that statutory grounds
             existed to terminate the parental rights of [B.D.]?

             A. Was sufficient evidence presented to find that [B.D.] failed
             to provide a suitable home for his children?

             B. Was sufficient evidence presented to find that the same
             conditions persisted that originally resulted in the [C]hildren
             being brought into custody?

             C. Was sufficient evidence presented to find that [B.D.] is
             mentally incompetent?

             Did the trial court err by finding it was in the Children’s best
             interest to terminate the parental rights of [B.D.]?

                                     *      *      *



                                            5
              Did the trial court err by terminating both parents’ rights,
              when Tennessee law allows for the termination of only one
              parent’s rights when their circumstances are different?

(Paragraph numbering and capitalization in original omitted.)

                                            III.

        A parent has a fundamental right, based on both the federal and state constitutions,
to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute.
The State may interfere with a parent’s rights in certain circumstances. In re Angela E.,
303 S.W.3d at 250. Our legislature has listed the grounds upon which termination
proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings
are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739
(Tenn. 2004), and a parent’s rights may be terminated only where a statutory basis exists.
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998).

       To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least one of the statutory grounds for termination and that
termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “Clear and convincing evidence enables
the fact-finder to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these factual
findings.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted).
Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts asserted is highly probable.” In
re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

        Once a ground for termination is established by clear and convincing evidence, the
trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing
In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest[ ] analysis
is separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent’s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).



                                             6
       We are required to review all of the trial court’s findings with respect to grounds
and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold
that in an appeal from an order terminating parental rights the Court of Appeals must
review the trial court’s findings as to each ground for termination and as to whether
termination is in the child’s best interest[ ], regardless of whether the parent challenges
these findings on appeal.”).

      The Supreme Court has recently delineated our standard of review:

             An appellate court reviews a trial court’s findings of fact in
             termination proceedings using the standard of review in Tenn.
             R. App. P. 13(d). Under Rule 13(d), appellate courts review
             factual findings de novo on the record and accord these
             findings a presumption of correctness unless the evidence
             preponderates otherwise. In light of the heightened burden of
             proof in termination proceedings, however, the reviewing
             court must make its own determination as to whether the
             facts, either as found by the trial court or as supported by a
             preponderance of the evidence, amount to clear and
             convincing evidence of the elements necessary to terminate
             parental rights. The trial court’s ruling that the evidence
             sufficiently supports termination of parental rights is a
             conclusion of law, which appellate courts review de novo
             with no presumption of correctness. Additionally, all other
             questions of law in parental termination appeals, as in other
             appeals, are reviewed de novo with no presumption of
             correctness.

Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are
involved, considerable deference must be accorded to . . . the trial court’s factual
findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034,
at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery
Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

                                           IV.

       B.D. questions whether the trial court erred by terminating both his and Mother’s
parental rights “when Tennessee law allows for the termination of only one parent’s
rights when their circumstances are different.” (Capitalization and emphasis in original

                                            7
omitted.) Citing In re Audrey S., 182 S.W.3d at 838, he argues that “[i]n most all areas
on [sic] consideration, the circumstances of [B.D.] are substantially different from the
circumstances of [Mother].” He asserts that, different from Mother, he only has parental
rights to the twins, paid support, faces the ground of mental incompetence on appeal, and
has a more “easy going” approach to parenting.

        We recognize that termination of parental rights cases require “individualized
decision making” due to “the gravity of [the] consequences.” In re K.H., No. W2008-
01144-COA-R3-PT, 2009 WL 1362314, at *7 (Tenn. Ct. App., filed May 15, 2009)
(citation and internal quotation marks omitted). DCS must establish that a ground for
termination exists against each parent and that termination of each parent’s parental rights
is in the best interest of the children. Tenn. Code Ann. § 36-1-113(c). However, the
relevant facts of In re Audrey S. differ significantly from the case now before us. There,
of the two fathers involved, one was the mother’s high school boyfriend whom she lived
with briefly before their relationship ended in 1995. Id. at 849. The other was a man the
mother dated briefly in 1998. Id. at 851. Both fathers filed a petition to terminate the
mother’s parental rights in 2003. Id. at 856-57. At that time, the mother, who had been
in and out of incarceration for most of her children’s lives, had begun a lengthy sentence
for especially aggravated kidnapping and aggravated robbery convictions. Id. at 855.
Neither father was involved in those crimes. Id. In that case, the mother’s circumstances
were different from those of the fathers.

       Here, Mother and B.D. have been in a relationship and lived together for well over
a decade. Together, they moved in 2011 with the Children to Tennessee. The Children
were removed from a house they shared. The two continued to live together through the
time of trial, despite several changes in their residence. The trial court found only two
grounds for termination had been established against both Mother and B.D. – failure to
provide a suitable home and failure to remedy persistence of conditions. DCS must
establish proof of these grounds against each individual parent. However, given Mother
and B.D.’s living situation during the relevant time period, as well as issues that caused
the Children’s removal from the home, we disagree that B.D. and Mother generally had
“substantially different . . . circumstances” as it relates to these two grounds.

                                            V.

                                            A.

      The trial court concluded as follows with regard to whether Mother abandoned the
Children through willful failure to support in the four consecutive months immediately
preceding the filing of the petition to terminate parental rights:

                                             8
              [Mother] was aware of her duty to pay support, as she was
              under court order to do so. She was aware of the
              consequences of her failure to support, as she signed the
              Criteria for Termination of Parental Rights. [Mother] had the
              capacity to provide support and had no justifiable excuse for
              not paying support. [Mother] was able to work during the
              four months prior to the filing of termination, and did in fact
              work as a house cleaner and a manufacturer of sex toys.
              [Mother] has no justifiable excuse for her failure to support.

Our review of the record demonstrates that the evidence does not preponderate against
the trial court’s factual findings on this ground. From the above facts, the trial court
concluded the ground of abandonment by failure to support was proven against Mother
by clear and convincing evidence.

      Termination is proper if the parent abandons the child. Tenn. Code Ann. § 37-1-
113(g)(1). Tenn. Code Ann. § 36-1-102(1)(A)(i), (D) defines abandonment as:

              For a period of four (4) consecutive months immediately
              preceding the filing of a proceeding or pleading to terminate
              the parental rights of the parent . . . of the child who is the
              subject of the petition for termination of parental rights . . .
              that the parent . . . [has] willfully failed to support or [has]
              willfully failed to make reasonable payments toward the
              support of the child;

                                      *      *      *

              For purposes of this subdivision (1), “willfully failed to
              support” or “willfully failed to make reasonable payments
              toward such child’s support” means the willful failure, for a
              period of four (4) consecutive months, to provide monetary
              support or the willful failure to provide more than token
              payments toward the support of the child[.]

As this court previously stated, “[f]ailure to support a child is ‘willful’ when a person is
aware of his or her duty to support, has the capacity to provide the support, makes no
attempt to provide support, and has no justifiable excuse for not providing the support.”
In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *5

                                             9
(Tenn. Ct. App., filed Nov. 25, 2003) (citations omitted). Further, “[t]he willfulness of
particular conduct depends upon the actor’s intent. Intent is seldom capable of direct
proof, and triers-of-fact lack the ability to peer into a person’s mind to assess intentions
or motivations. Accordingly, triers-of-fact must infer intent from the circumstantial
evidence, including a person’s actions or conduct.” Id.

       In the present case, Mother signed the Criteria and Procedures for Termination of
Parental Rights on November 19, 2012. The document outlined her duty to make support
payments, as well as the consequences for failing to do so. In March 2013, the trial court
had ordered her to begin paying monthly support of $50 for each child, as well as $60 in
arrears. On October 21, 2013, by court order, Mother was referred to the Tennessee
Child Support Employment and Parenting Program (TCSEPP), which aims “to help non-
custodial parents overcome problems which have caused or may cause them to be unable
to pay child support regularly,” according to the order. Mother’s TCSEPP case was
closed on March 13, 2014 because of her “fail[ure] to job search or complete
assignments.” Mother was “not eligible for re-enrollment.” Prior to filing the
termination petition, Mother had made less than one month’s full support payment. As of
September 30, 2015, she owed $6,198.48 for child support arrears. She was held in
contempt in October 2015 for non-payment of support.

        Mother testified that she earned about $200 to $450 each week cleaning houses
after the Children were removed from her home. However, she could not produce proof
of her legal income due to, she said, her clients’ request for privacy and the direct
application of her earnings to pay her bills. Mother later got a job with home health
agency AllCare, through which child support could be garnished from her wages. B.D.
received $930 each month in disability payments. His testimony indicated that, together,
their monthly household expenses totaled about $1,200 – $650 for rent, $112 for cable,
$112 car payment, $67 car insurance payment, $85 for a cell phone, and $200 for
utilities. He had a $100 child support payment for the twins garnished from his disability
benefit.

       Although their reported household income exceeded their reported expenses,
Mother denies that her failure to pay support was willful. At trial, she testified that she
made child support payments whenever she was able. She states in her brief that she
experienced medical issues with Bell’s Palsy and a hormonal imbalance, both of which
“prevented her from being able to work or significantly limited her ability to work.” She
provided no documentation of these illnesses. Mother also argues in her brief that “[a]t
no point in the record did DCS provide evidence of the fact [Mother] had money and
rather than giving it to her children, she willfully kept it for herself[.]” This is not the
standard. Instead, we find Mother was aware of her duty to provide support payments,

                                            10
had the capacity to provide support, made no attempt to pay more than token support, and
had no justifiable excuse for not providing the support. In re Adoption of Muir, 2003
WL 22794524, at *5. Taking all of these factors into account, we hold that the evidence
clearly and convincingly demonstrates Mother willfully failed to support the Children.

                                             B.

       For both of the parties, the trial court made separate, but nearly identical, findings
of fact and conclusions of law on the ground of abandonment by failure to provide a
suitable home, which we present together. For both, the trial court held that this ground
was proven by clear and convincing evidence based on the following:

              The [C]hildren were removed from the home of [the parties]
              and placed into DCS custody on October 26, 2012. The
              Jefferson County Juvenile Court adjudicated the [C]hildren
              dependent and neglected and found that DCS had made
              reasonable efforts to prevent removal of the [C]hildren from
              the home. The Court finds that DCS made reasonable efforts
              to assist [Mother] in establishing a suitable home; however,
              [the parties] did not make any reasonable efforts to provide a
              suitable home.        Case Manager Susan Moyers made
              reasonable efforts to assist [the parties] in finding a home
              during the four month period from October 26, 2012 until
              February 26, 2013, by working diligently to find a home for
              the [parties] in both Hamblen and Jefferson counties. The
              [parties] were subsequently evicted from their mobile home,
              and temporarily moved into a motel in Cocke County before
              finally settling at their current address. As of August 2014
              the home of the [parties] had one bed in the house, and as of
              May 2015 two beds were in the home, which remains an
              inadequate number for six individuals. Finally, and most
              noteworthy in the eyes of this [c]ourt, three years from the
              date of removal, and in spite of a permanency plan
              requirement allowing access to their home, at the final home
              visit on October 28, 2015, the DCS caseworker was denied
              access to the home. However, when the door was opened by
              [B.D.], the caseworker was able to notice that the floor was
              filled with trash. Three years have passed since removal, and
              based on the evidence at hand, this court is clearly convinced
              that the home of [the parties] remains unsuitable for [the]

                                             11
              [C]hildren. Furthermore, the [c]ourt has no confidence that it
              will become suitable anytime in the near future.

The evidence does not preponderate against the trial court’s factual findings for this
ground.

       Tenn. Code Ann. § 36-1-102(1)(A)(ii) explains abandonment as a result of failure
to provide a suitable home:

              [F]or a period of four (4) months following the removal, the
              department or agency has made reasonable efforts to assist
              the parent . . . to establish a suitable home for the child, but
              that the parent . . . ha[s] made no reasonable efforts to provide
              a suitable home and ha[s] demonstrated a lack of concern for
              the child to such a degree that it appears unlikely that [the
              parent] will be able to provide a suitable home for the child at
              an early date. The efforts of the department or agency to
              assist a parent . . . in establishing a suitable home for the child
              may be found to be reasonable if such efforts exceed the
              efforts of the parent . . . toward the same goal, when the
              parent . . . is aware that the child is in the custody of the
              department[.]

        Moyers worked with the family the first four or five months the Children were in
State custody. She described that, at the time of removal, “[t]he trailer itself was really
rough,” had only “sparse” furnishings, and “was in disarray.” She stated the utilities had
been off for a time. Mother agreed that, at this time, the house was in “poor condition,”
but stated the Children were at a neighbor’s home. DCS provided funding to help the
family move into the trailer, but declined Moyers’ request for funding for the parties after
the Children were removed. The parties were evicted in January 2013. They next lived
in a hotel until they were evicted later that spring. Moyers tried unsuccessfully to get the
parties into housing. “[Mother] didn’t have . . . a form of identification. She didn’t have
a driver’s license and there was a problem with getting her [b]irth [c]ertificate out of
Kentucky,” Moyers stated at trial. The housing authorities required these items. Moyers
said she also reached out to others in the community to get housing for the family. The
parties could not afford rent for the housing options Moyers presented. Katie Ferguson,
DCS case manager for this matter from March 2013 to June 2014, worked with the
parties through the Coalition for Homelessness to secure housing for them, but those
efforts, too, were unsuccessful. The parties moved into their current home in September
2013 with the help of Youth Villages, a contract agency with DCS.

                                              12
       The condition of the parties’ home remains unsuitable. It does not have an
adequate number of beds. Trash appeared to cover the floor of the home during an
October 2015 DCS home visit. Mother denied this. She stated that the items were bags
of Halloween decorations or leaves. Jan Carmella Schoonover, the DCS case worker
present during that home visit, testified to observing, from the doorway of the home, the
smell of decaying food.

        The parties each argue that termination on this ground is improper because some
of the problems with the current home could be “easily remedied by a quick trip to the
thrift store or Big Lots” to get some furniture for the Children. The Children had been in
custody for three years by the time of trial. The parties had been in their home for about
two years. Their unwillingness to make the home suitable for the Children in that time
when, according to them, some of the problems could have been easily resolved,
“demonstrate[s] a lack of concern for the [C]hild[ren] to such a degree that it appears
unlikely that [the parent] will be able to provide a suitable home for the child[ren] at an
early date.” Tenn. Code Ann. § 36-1-102(1)(A)(ii).

       In his brief, B.D. asserts that “[p]art of the suitability of a home for [B.D.]’s
children is stability which is shown by the fact that he lived at the same home for almost
three years prior to the October 30, 2015 trial date.”5 This assertion is not supported by
the record. Instead, the record indicates, that on October 26, 2012 – about three years
before trial – the Children were removed from a trailer where the parties resided in White
Pine from which they were later evicted. At the time of trial, B.D. lived with Mother in a
home in Morristown.

       Mother argues on appeal that the home was suitable because it was free of drugs
and domestic violence and was not “uninhabitable to the point the building should be
condemned.” Again, this is not the standard. We find DCS put forth reasonable efforts
to help the parties establish a suitable home for the Children, though the parties failed to
provide a suitable home and demonstrated a lack of concern for the Children to such a
degree that it seems unlikely either parent will be able to provide a suitable home for the
Children at an early date. For the reasons stated above, we find, by clear and convincing

       5
         B.D.’s brief also states, “[B.D.] and his wife have lived at the same residence . . . for
about three years as of [October 30, 2015].” (Emphasis added.) Shortly thereafter, the brief
states “[Mother] and [B.D.] are not now married, nor have they ever been.” (Emphasis added).
We found no other suggestion in the record or the appellate briefs that B.D. is married. It is
unclear whether reference to B.D.’s “wife” in his brief is simply an error. The parties are in an
“open” relationship. Schoonover stated that, during a visit to their home, she observed that a
person appeared to be living in one of the bedrooms intended for the Children.

                                               13
evidence, grounds to terminate the parental rights of both the parties for abandonment
due to failure to provide a suitable home.

                                            C.

       The trial court found, by clear and convincing evidence, that termination was
proper for both the parties under Tenn. Code Ann. § 36-1-113(g)(3) due to their failure to
remedy persistent conditions. In making this finding, the court relied on the following
facts with regard to its individual holding against them:

             The [C]hildren were removed from the home of [the parties]
             more than six (6) months prior to the filing of the Petition for
             Termination of Parental Rights.          The [C]hildren were
             removed for, among other things, environmental neglect,
             housing issues, medical neglect, and failure to enroll the
             [C]hildren in school. At the time of removal, [D.C.], a Type I
             and Type II diabetic, was undergoing life threatening blood
             sugar issues, the home of the [parties] was in disarray, the
             [parties] were on the verge of being evicted, and all three
             female children had lice and flea bites. For the reasons
             mentioned above . . . the [c]ourt has found that the [parties]
             have not provided a suitable home for the [C]hildren and have
             not shown that such a home will or can be provided at any
             time in the near future. [D.C.] requires a high level of
             medical care due to his diabetes, and all the [C]hildren have
             mood disorders which require monthly management and
             appointments. However, both [of the parties] have displayed
             a significant lack of interest in the well-being of their
             [C]hildren as evidenced by their failure to attend the vast
             majority of the [C]hildren’s medical appointments while in
             custody. This lack of concern on the part of the [parties]
             leaves the court in a position of disbelief as to the probability
             that the most basic and pressing medical and psychological
             needs of the [C]hildren will be met in the near future if
             returned to the [parties].

With regard only to Mother, the trial court concluded the following:

             The testimony has also shown that in addition to the
             conditions existing at the time of removal, another issue has

                                            14
              come to light regarding the personal affairs of the family.
              [Mother] is in a master-slave sexual relationship with an
              individual named [Joshua D.]. This in addition to being
              married to [J.C.], and living with [B.D.]. [Mother] is the
              “Slave”, and [Joshua D.] is the “Master.” Until two years
              ago, or 2013, [Mother] was also working with [Joshua D.] as
              a door-to-door “salesman” who assisted him in his business of
              marketing sex toys. She would “demonstrate” to potential
              clients how the toys worked. The testimony has also
              established that the [C]hildren were both exposed to, and took
              note of this lifestyle. The [c]ourt has found [Mother]’s
              testimony to lack credibility when questioned about the lack
              of attendance at medical appointments, the condition of her
              home, her failure to allow DCS entry to examine the home in
              August of 2015, and the multiple interpersonal conflicts she
              has had with various providers, doctors’ offices, and DCS
              caseworkers.

As to B.D., the court also found, “[he] has borderline intellectual functioning, and the
evidence would show he has taken very little interest in the medical and psychological
conditions of his [C]hildren, or the master/slave sexual relationship of [Mother].” With
regard to the parties, the trial court made the following individual findings that we
present together: “Finally, and most tellingly, after three years of removal, and in the face
of everything mentioned above, [the parties each] refuse[ ] to acknowledge a problem
with [their own] parenting skills or those of [their partner].” The court found that both of
them “continue[ ] to shift responsibility for the problems [they each face] to [the
Children] and DCS.” The trial court concluded that DCS made reasonable efforts to help
the parties remedy those conditions, but that there is little chance the conditions will be
remedied soon so that the Children can be returned safely home.

      The evidence does not preponderate against the trial court’s findings of fact.
Tenn. Code Ann. § 36-1-113(g)(3) authorizes termination of parental rights when:

              The child has been removed from the home of the parent . . .
              by order of a court for a period of six (6) months and;

                     (A) The conditions which led to the child’s
                     removal or other conditions which in all
                     reasonable probability would cause the child to
                     be subjected to further abuse or neglect and

                                             15
                     which, therefore, prevent the child’s safe return
                     to the care of the parent[s] . . . still persist;

                     (B)    There is little likelihood that these
                     conditions will be remedied at an early date so
                     that the child can be safely returned to the
                     parent[s] . . . in the near future; and

                     (C) The continuation of the parent . . . and child
                     relationship greatly diminishes the child’s
                     chances of early integration into a safe, stable
                     and permanent home.

The parties each put forth several reasons that DCS failed to establish that the conditions
that led to the Children’s removal have persisted. First, the parties each assert that the
problems with housing had been remedied. Based on our analysis in the prior section, we
disagree and reiterate our holding that the parties have failed to provide a suitable home
for the Children.

        B.D. also asserts that the issue of “[m]edical neglect is inapplicable to [him], nor is
it something that [he] is in a position to address” because he is not the biological father of
D.C. and C.C. and “has no legal responsibility for their care.” We strongly disagree that
this issue is inapplicable to B.D. His biological daughters, S.D. and D.D., faced several
health problems at the time of removal. Both had impacted ear wax that required
treatment by several medical professionals and caused speech and hearing problems. His
daughters also had vision problems. M.H., foster mother of C.C., A.D., and S.D. from
October 27, 2012 until August 14, 2015, testified that when the girls came to her home
“they were very sick” with “pretty severe colds and coughs,” as well as “bedbug bites,
lice, and UTIs.” M.H. further testified that “[e]motionally they were pretty devastated by
their circumstances.” The twins regularly had trouble sleeping due to severe nightmares.
At one point, A.D. threatened suicide, prompting M.H. to take her to the hospital. At
trial, B.D. stated that when the twins were taken into custody “they were sick,” but, so far
as he was aware, they had no problems. While in custody, the twins had regular
psychiatric appointments. M.H. created and maintained an online calendar of their
medical appointments, along with C.C.’s, that she shared with the parties. B.D. attended
one medical appointment while the twins were in custody. At trial, B.D. said he often
was unable to attend “[b]ecause most of the time I was working,” though he testified to
being employed for only nine months of the three years the Children were in custody. He
was aware of the online calendar, but stated he was often unaware of the appointments.



                                              16
When asked to describe A.D. and S.D.’s medical needs, B.D. responded “[a]s far as I
know, they just see a psychiatrist” because of “them being taken from us.”

        In response to the condition of medical neglect, Mother asserts that she knows a
great deal about D.C.’s rare form of diabetes. Still, when D.C. entered custody, his blood
sugar level was 600. He told DCS either he or C.C. often had to administer his medicine
without adult supervision. Mother was generally absent from the Children’s medical
appointments. She attributes this to problems with transportation, being asked to no
longer attend certain appointments after being perceived as “combative,” being “refused
access to the appointments” by her daughter, C.C., or her own medical problems. The
trial court found Mother’s testimony about her absence at these appointments lacked
credibility. We accord “considerable deference” to the trial court on issues of a witness’s
credibility. In re Adoption of S.T.D., 2007 WL 3171034, at *4. We note, too, that
Mother’s presence was, at times, counterproductive. For example, at a psychiatrist
appointment for S.D., Mother became so belligerent that the psychiatrist said he would no
longer see S.D. as a patient.

      Mother also challenges this ground as it relates to her “BDSM relationship with
[Joshua D.] and her participation in the sex toy business[.]” Mother stated in her brief:

              It is unclear whether the [C]hildren actually saw [Mother] and
              [Joshua D.] engaging in BDSM activities, or if they found the
              sex toys [Mother] sold and drew their own conclusions.
              However, the [C]hildren did have some knowledge of what
              BDSM activities were and did see [Mother] at some point
              with the sex toys, either in transporting them for a sales party
              or by making said items.

At the time of the removal, the Children were ages twelve, ten, and six. Testimony at
trial indicated aspects of Mother’s alternate lifestyle had a negative impact on the
Children. Specifically, M.H. testified as follows6:

       6
          The trial court allowed this testimony under Tenn. R. Evid. 803(25), which provides
that the hearsay rule does not exclude the following:

              Provided that the circumstances indicate trustworthiness,
              statements about abuse or neglect made by a child alleged to be the
              victim of physical, sexual, or psychological abuse or neglect,
              offered in a civil action concerning issues of . . . termination of
              parental rights pursuant to Tenn. Code Ann. § 37-1-147 and Tenn.

                                              17
             [M.H., foster mother:] The twins stated that they had
             witnessed the making of whips and floggers and had been
             actually physically abused with one of [Mother]’s paddles
             that she uses for whatever purpose that they [are] made.

             [Attorney for DCS:] Okay. Did they say who made those?

             [M.H.:] They said that Josh [D.], Jamie [D.], [Mother], and
             [B.D.] sit around and make . . . the paddles and whips and
             stuff, yes.

                                      *      *      *

             [M.H.]: There was paddles [sic] – metal paddles that was
             used that the kids claimed – that the twins had stated that
             [C.C.] would hide them in the bathroom wall because they
             would use them on the kids and that [C.C.] busted out a
             bathroom wall in one of the homes that they lived in – the
             twins told me this – and that [C.C.] would place the paddles
             to hide them from [Mother] and whoever – and Jamie, who
             she had stated – they had stated would hit them with them.

M.H. further testified that she understood the paddle at issue was a sex toy. On August 8,
2013, the trial court ordered Joshua D. and Jamie D. to “have absolutely no contact” with
the Children. However, C.C. testified that Mother told her “no matter what anybody
says, [Jamie D. and Joshua D.] are still going to be a part of our lives.” M.H. reported
that, Joshua D. occasionally attended visits with the Children or drove Mother to visits or
the Children’s appointments. Joshua D. testified at trial that his relationship with Mother
was ongoing. Mother remained married to J.C., a registered sex offender, who she said
“always had an open invitation” to visit. B.D. was aware of these relationships.

       The above evidence establishes, clearly and convincingly, that neither of the
parties remedied the conditions that led to the Children’s removal. Their actions further
indicate little likelihood the conditions will be remedied at an early date. Should the

             Code Ann. § 36-1-113. . . . Declarants of age thirteen or older at
             the time of the hearing must testify unless unavailable as defined
             by Rule 804(a); otherwise this exception is inapplicable to their
             extrajudicial statements.

                                            18
Children continue a relationship with the parties it would greatly diminish their chance of
early integration into a safe and stable home. For these reasons, we find cause to
terminate the parties’ parental rights under this ground.

                                            D.

        The court found, by clear and convincing evidence, cause to terminate B.D.’s
rights on the ground of mental incompetence, pursuant to Tenn. Code Ann. § 36-1-
113(g)(8). The court stated, “[B.D.] is incompetent to adequately provide for the further
care and supervision of his two children.” The court added that “[B.D.]’s mental
condition is presently so impaired and is so likely to remain so that it is unlikely that he
will be able to assume or resume the care of and responsibility for his children in the near
future.” In reaching its holding, the court relied in part on a deposition by Dr. Scott
Swan, a licensed clinical psychologist at the University of Tennessee Psychological
Clinic. On appeal, B.D. objects to the use and consideration of Dr. Swan’s deposition
and asks for it to be excluded. He suggests Dr. Swan’s curriculum vitae and the
psychological evaluation are not in the record. B.D. is wrong on this part. B.D. also
asserts that Dr. Swan, who was deposed, “is not the person who met with, interviewed, or
tested the [parties],” pointing out that, instead, this was done by a student clinician, Sam
Manring, under Dr. Swan’s supervision. B.D. further asserts on appeal that Dr. Swan did
not review any of the documents filled out by the parties, the parties’ records received by
third-party sources, or the results of the tests used to create the psychological evaluation
of the parties, but that he only reviewed and revised Manring’s evaluation. Similarly, as
part of a motion filed September 23, 2015, B.D. declined to stipulate that the
psychological evaluation was admissible. Instead, he stated that the psychological report
was hearsay because the person who signed it was not the person who interviewed the
parties and that it would be wrong to admit it without offering an opportunity to cross
examine. The relevant portion of the motion did not give any supporting legal argument.

       We note that during the November 3, 2015 deposition of Dr. Swan, at which
B.D.’s counsel was present, Dr. Swan explained how his student clinicians and
supervising psychologists conduct an evaluation. Counsel for DCS then stated regarding
Mother and B.D.’s psychological report, “We’d move to have this as the State’s second
exhibit.” There was no objection by B.D.’s counsel. At trial, the court later allowed Dr.
Swan’s deposition into evidence because both parties had been present and had the
opportunity to cross-examine. The decision of whether to admit evidence is within the
discretion of the trial court. White v. Vanderbilt Univ., 21 S.W.3d 215, 222-23 (Tenn.
Ct. App. 1999) (citing Seffernick v. Saint Thomas Hosp., 969 S.W.2d 391, 393 (Tenn.
1998)). “Appellate courts will set aside a discretionary decision only when the trial court
has misconstrued or misapplied the controlling legal principles or has acted inconsistently

                                            19
with the substantial weight of the evidence.” White, 21 S.W.3d at 223 (citing Overstreet
v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999)). Here, before admitting the
deposition, the trial court determined both sides were present and had an opportunity to
cross-examine. At trial, B.D.’s counsel did not object to the court’s holding on this issue.
On appeal, B.D. does not assert a legal argument supporting the exclusion of the
deposition. We find no abuse of discretion.

      The trial court found as follows in holding, by clear and convincing evidence,
grounds to terminate B.D.’s parental rights due to mental incompetence:

              According to the deposition for proof, [B.D.] is borderline
              intellectual functioning, yet suffers from no diagnosis, and
              while calling into question [B.D.]’s ability to parent, Scott
              Swan, Ph.D., in his deposition for proof, ultimately stated it
              was “difficult to say” whether [B.D.] could adequately parent.
              However, Dr. Swan also stated that [B.D.] has failed to take
              responsibility for the family problems, and that [B.D.]
              continues to blame his children and DCS for the custody
              issues. Dr. Swan also stated that [B.D.] would most likely
              fare better as a parent if he could have another adult be there
              to help. This [c]ourt would normally be extremely hesitant to
              find that there is clear and convincing evidence of mental
              incompetence when an expert has left the matter open to
              question; however, the [c]ourt finds that the totality of the
              testimony and evidence before it leaves little to question.

The trial court went on to find “[B.D.] is unable to understand and appreciate the ongoing
medical and psychological issues faced by his children.” The court cited B.D.’s failure to
take responsibility for the twins’ removal into State custody, his inability to name either
of the twin’s psychological diagnoses, and his failure “to attend the overwhelming
majority of the medical appointments of his children.” Next, the trial court found that
B.D’s “parenting record . . . speaks for itself, and to hold otherwise would fly in the face
of history and the evidence in this case.” In support of this position, the court stated:

              The [C]hildren were removed from his home at one time in
              Kentucky. At the time, [B.D.] lived in the same home in
              Kentucky with [Mother], her husband (a sex offender), and all
              of the [C]hildren. [B.D.], while bringing home a modest
              income due to his disability, has allowed [Mother], who has
              never been divorced from her husband in Kentucky, to

                                            20
              maintain before his children an open master/slave
              sadomasochistic relationship while in Tennessee. [B.D.]
              appears to be managed by [Mother] to such a degree that the
              [c]ourt cannot imagine [B.D.] as parenting in any other form
              than that of a bystander. When [Mother] shut the door at the
              DCS home visit, [B.D.] stood by and allowed it to happen.
              When [Mother] is ordered to engage in sexual affairs with
              [J.D.], [B.D.] does not object.

Finally, the trial court found B.D.’s “borderline intellectual functioning . . . was also
exhibited in more subtle, yet telling ways.” The court cited B.D’s inability to recall
certain information from 2013, such as how long he lived at the White Pine residence, its
address, or the last name of James C., the babysitter, who lived in his family’s home. The
court also stated that “the evidence has shown [B.D.] has little emotional connection with
his daughters, and is relatively unengaged at visits.”

       Previously, we have declined to terminate parental rights under Tenn. Code Ann. §
36-1-113(g)(8) where “both psychologists opined that [f]ather and [m]other could learn
to competently parent with intensive, long-term intervention.” In re Christopher S., No.
E2012-02349-COA-R3-PT, 2013 WL 5436673, at *17 (Tenn. Ct. App., filed Sept. 27,
2013). Even when a parent had been diagnosed with a mild intellectual disability, we
have declined termination on this ground when the parent “had successfully obtained
vocational training, maintained employment, utilized public transportation, maintained a
household, and secured a competent support system.” Id. (citing State, Dep’t of
Children’s Servs. v. Whaley, No. E2001-00765-COA-R3-CV, 2002 WL 1116430, at *14
(Tenn. Ct. App., filed May 30, 2002)). For this ground, we have found termination
appropriate when expert testimony revealed that a parent suffers from a “lifelong
condition” in which the parent “functioned in such a low range that no amount of
training, education, or counseling could bring him up to the level where he could parent
these children.” State, Dep’t of Children’s Servs. v. Mims, 285 S.W.3d 435, 449 (Tenn.
Ct. App. 2008) (internal quotation marks omitted; emphasis added).

        In the present case, Dr. Swan described B.D. as “somewhat simplistic and concrete
in his attitudes about parenting.” He questioned B.D.’s “ability to parent these children
specifically.” Significantly, however, Dr. Swan added, “it would be difficult to say
whether he would or would not be capable. . . . I take issue with saying . . . that he has no
ability [to parent] because of his cognitive functioning because it’s in this borderline
range.” (Emphasis added.)




                                             21
        We are aware that the trial court cited various examples to indicate B.D.’s
“borderline intellectual functioning” and perceived inability to “parent[ ] in any other
form than that of a bystander.” However, while the evidence does not preponderate
against the trial court’s factual findings on this ground, we disagree that the totality of the
evidence shows this ground clearly and convincingly. As can be seen, Dr. Swan was
ambivalent on this issue. It is important to recognize that the issue is not whether B.D.
has impaired cognitive functioning. He clearly does. However, the real issue is whether
this impairment adversely affects his ability to parent his children. On this latter issue,
we cannot say, clearly and convincingly, that it does. We hold, as a matter of law, that
the evidence is not sufficient to, clearly and convincingly, show that B.D.’s parental
rights should be terminated based upon mental incompetence. See In re Carrington, 483
S.W.3d at 524 (“In light of the heightened burden of proof in termination proceedings,
however, the reviewing court must make its own determination as to whether the facts,
either as found by the trial court or as supported by a preponderance of the evidence,
amount to clear and convincing evidence of the elements necessary to terminate parental
rights. The trial court’s ruling that the evidence sufficiently supports termination of
parental rights is a conclusion of law, which appellate courts review de novo with no
presumption of correctness.”).

                                             VI.

        After finding that statutory grounds warrant termination of the parties’ parental
rights, we now focus on whether termination is in the Children’s best interest. When
considering the issue of “best interest,” we are guided by the following statutory factors:

              (1) Whether the parent or guardian has made such an
              adjustment of circumstance, conduct, or conditions as to
              make it safe and in the child’s best interests to be in the home
              of the parent or guardian;

              (2) Whether the parent or guardian has failed to effect a
              lasting adjustment after reasonable efforts by available social
              services agencies for such duration of time that lasting
              adjustment does not reasonably appear possible;

              (3) Whether the parent or guardian has maintained regular
              visitation or other contact with the child;

              (4) Whether a meaningful relationship has otherwise been
              established between the parent or guardian and the child;

                                              22
              (5)   The effect a change of caretakers and physical
              environment is likely to have on the child’s emotional,
              psychological and medical condition;

              (6) Whether the parent or guardian, or other person residing
              with the parent or guardian, has shown brutality, physical,
              sexual, emotional or psychological abuse, or neglect toward
              the child, or another child or adult in the family or household;

              (7) Whether the physical environment of the parent’s or
              guardian’s home is healthy and safe, whether there is criminal
              activity in the home, or whether there is such use of alcohol,
              controlled substances or controlled substance analogues as
              may render the parent or guardian consistently unable to care
              for the child in a safe and stable manner;

              (8) Whether the parent’s or guardian’s mental and/or
              emotional status would be detrimental to the child or prevent
              the parent or guardian from effectively providing safe and
              stable care and supervision for the child; or

              (9) Whether the parent or guardian has paid child support
              consistent with the child support guidelines promulgated by
              the department pursuant to § 36-5-101.

Tenn. Code Ann. § 36-1-113(i). “The above list is not exhaustive[,] and there is no
requirement that all of the factors must be present before a trial court can determine that
termination of parental rights is in a child’s best interest.” State Dep’t of Children’s
Servs. v. B.J.N., 242 S.W.3d 491, 502 (Tenn. Ct. App. 2007) (citing State Dep’t of
Children’s Servs. v. P.M.T., No. E2006-00057-COA-R3-PT, 2006 WL 2644373, at *9
(Tenn. Ct. App., filed Sept. 15, 2006)). In addition, “[t]he child’s best interest must be
viewed from the child’s, rather than the parent’s, perspective.” In re Marr, 194 S.W.3d
at 499 (citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).

       The trial court found that termination of both the parties’ parental rights was in the
best interest of the Children. It made a nearly identical finding that, although the parties
have “stabilized [their] home situation, inasmuch as [they have] resided in the same home
for a number of years, the evidence does not show that [their] home is suitable or safe for
minor children.” As to Mother, the court found that she “has been and is unlikely to

                                             23
make a lasting change in her parenting pattern.” She maintained visits and a relationship
with the Children. Still, she “continues to deny the majority of the responsibility for the
conditions which led to removal, and has consistently struggled against the efforts of
those who would could [sic] have helped her had she only been willing.” The court
stated again that B.D. “functions at a low intellectual level.” It also found he “has not
made a lasting change in his parenting skills.” Despite maintaining a relationship with
the Children, “the evidence has shown that during his visits he has been generally
unengaging” with them. Finally, B.D. “continues to deny the majority of the
responsibility for the conditions which led to removal.” The Children have been in foster
care for several years. The trial court found the Children are “thriving” there. They have
received “consistent,” “continuing psychological and medical care.” The court concluded
that “[t]o disrupt their healthy and stable lifestyle only to place them back in the custody
of their parents would likely have a devastating effect on both their mental and physical
well-being.” The evidence does not preponderate against the trial court’s factual
findings.

        When the Children were taken from the parties’ home, they had several health
problems. While the Children were in custody, Mother did not make an adjustment of
circumstances, conduct, or conditions such that it would be safe or in the Children’s best
interest to return them to her home. Most notably, she failed to provide a suitable home,
failed to pay more than token support, and failed to attend most of the Children’s medical
appointments.

        B.D. has also failed to make an adjustment of circumstances, conduct, or
conditions to make it safe and in the twins’ best interest to be in his home. In his brief, he
provides several examples to indicate that he is engaged with the twins. However,
according to M.H., his phone conversations with the twins generally lasted only a few
sentences. She also stated that he sometimes failed to distinguish between them. He had
little knowledge of the twins’ medical needs. B.D. testified that he did not talk with M.H.
about his daughters or their medical appointments, but instead relied on Mother for
information. We note that B.D. did have his disability check garnished to provide
support and had bought the twins school supplies. Although we declined to find that
DCS established a ground for termination due to his mental incompetence, we note that
Dr. Swan questioned B.D.’s ability to parent the twins independently because of limited
intellectual functioning. Dr. Swan testified during the deposition that B.D. “would need
some kind of ongoing assistance” such as “another parenting figure in the home.”

        On appeal, Mother maintains that, as it relates to her, the “main component” of the
trial court’s best interest determination “is [her] alternative lifestyle.” She adds that,
“While BDSM and slave/master relationships might seem unconventional to the average

                                             24
person, a reasonable person could not automatically conclude that BDSM and selling
adult toys is equivalent to being an unfit parent.” The testimony at trial revealed the adult
toys were made in front of and used to discipline the Children. In her own brief, Mother
states “the [C]hildren did have some knowledge of what BDSM activities were and did
see [Mother] at some point with the sex toys[.]” Further, the trial court ordered Joshua D.
and Jamie D. to have no contact with the Children, though C.C. testified that Mother told
her they would be in their life “no matter what.” Joshua D. testified at trial that his
relationship with Mother was ongoing. Finally, Mother remained married to J.C., a
registered sex offender to whom she gave “an open invitation to visit.” Mother suggests
in her brief that “DCS was reluctant to assist [her] and [B.D.] because of their alternative
lifestyle[.]” On the contrary, we find DCS worked with both Mother and B.D. to help
them establish a home, ensure that the home was suitable, execute and implement a
permanency plan, facilitate visitation, and attend the Children’s medical appointments.

        C.C. testified that she wishes “to move on with [her] life.” C.C. also stated that
she “hope[s] we get adopted” by her current foster home. Trial testimony indicates S.D.,
A.D., and D.C. also wish to be adopted. They are currently placed with R.C. and her
husband, who wish to adopt them. R.C.’s trial testimony indicated that she is
knowledgeable about the Children’s unique health and treatment needs. With these
factors in mind, we affirm the trial court’s holding, by clear and convincing evidence,
that termination of the parties’ parental rights is in the Children’s best interest.

                                            VII.

       We modify the order of the trial court by excluding its holding that termination of
B.D.’s parental rights is proper under Tenn. Code Ann. § 36-1-113(g)(8). The judgment
of the trial court is affirmed as modified. The costs on appeal are assessed to the
appellants, H.C. and B.D. This case is remanded for enforcement of the trial court’s
judgment and for collection of costs assessed by the trial court.



                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




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