                                                                                                        01/08/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                              Assigned on Briefs October 1, 2018

                               IN RE JOHNATHAN M. ET AL.

                     Appeal from the Circuit Court for Macon County
                        No. 2017-CV-86 Clara W. Byrd, Judge
                        ___________________________________

                               No. M2018-00509-COA-R3-PT
                           ___________________________________

Mother appeals the termination of her parental rights. The trial court found the petitioners
proved two grounds for termination, “abandonment by an incarcerated parent and
exhibition of wanton disregard for the welfare of the children, prior to and during
incarceration, pursuant to Tenn. Code Ann. § 36-1-102.” We conclude the record
contains insufficient evidence to establish that Mother failed to visit or support the
children for four consecutive months immediately preceding her incarceration. However,
we affirm the trial court’s determination that Mother engaged in conduct prior to
incarceration that exhibited a wanton disregard for the children’s welfare. Nonetheless,
we have determined that the petitioners failed to prove by clear and convincing evidence
that termination of Mother’s parental rights is in the children’s best interests.
Accordingly, we vacate the judgment of the trial court to terminate Mother’s parental
rights.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which CHARLES
D. SUSANO JR. and BRANDON O. GIBSON, JJ., joined.

Jacquelyn M. Scott, Carthage, Tennessee, for the appellant, Destiny M.1

Christi Lynn Dalton, Lafayette, Tennessee, for the appellees, Joshua M. and Brittany M.

Lisa C. Cothron, Lafayette, Tennessee, Guardian ad Litem.


        1
           This court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
                                                      OPINION

       Johnathan and Jordan M. (“the Children”) were born in March 2009 and June
2011, respectively, to Joshua M. (“Father”) and Destiny M. (“Mother”). Father and
Mother divorced in November 2011 and shared custody of the Children until Mother was
incarcerated in October 2014. Three years later, on August 2, 2017, Father and his wife
Brittany M. (“Stepmother”) filed a petition to terminate Mother’s parental rights and for
adoption by Stepmother.

       Petitioners alleged, inter alia, that Mother willfully failed to provide financial
support for or to visit the Children since Petitioners obtained physical custody. Petitioners
also alleged that “prior to [Mother’s] incarceration [in October 2014], she engaged in
conduct to exhibit a wanton disregard for the welfare of the minor children, by
committing criminal acts.” The evidence that Petitioners presented to establish this
ground included the following.

      Mother was arrested for shoplifting at Walmart in 2011.2 The charges were
dismissed after Mother agreed to stay away from the store.

       On June 15, 2012, while employed at the Sumner County Jail as a custodial
officer, Mother stole a ring from the jail’s property room and sold it to the Westmoreland
Gun & Pawn Shop. On February 7, 2013, Mother pled guilty in the Criminal Court of
Sumner County in case number CR573-2012 to two counts of theft, the Class D felony
offense of theft of property over $1,000, and the Class A misdemeanor offense of theft of
property under $500. She received a four-year sentence for the felony, and a concurrent
sentence of eleven months and 29 days for the misdemeanor, both of which were
suspended, and Mother was placed on supervised probation.

      On August 28, 2012, Mother was charged with driving on a suspended license. On
December 19, 2012, Mother pled guilty to the Class C misdemeanor offense of driving on
a suspended license for which she received a sentence of 30 days, all of which was
suspended.

      On June 25, 2013, a warrant for probation violation was filed in the Criminal
Court for Sumner County in case number CR573-2012 (the jail and pawn shop thefts).
By order entered on December 19, 2013, upon Mother’s plea of guilty to violating



2
    The date of this incident is not in the record.



                                                        -2-
probation, the criminal court revoked her probation “to time served,” which was from
December 7 to December 16, 2013, and returned Mother to supervised probation.

        On January 29, 2014, Mother participated in the robbery of Sweet T’s Restaurant
in Sumner County along with her mother and brother. On July 17, 2014, Mother pled
guilty in the Criminal Court of Sumner County in case number CR223-2014 to the Class
A misdemeanor offense of theft of property under $500 for which she received a sentence
of 11 months and 29 days, all of which was suspended, and she was placed on supervised
probation.

      One month earlier, on June 27, 2014, Mother was again arrested for driving on a
suspended license. She entered a guilty plea on September 24, 2014, to the Class B
misdemeanor offense of driving on a suspended license, for which she received a six
month sentence, all of which was suspended.

       Mother was charged with the misdemeanor offense of child neglect in Clay
County in 2014. The record does not include an arrest warrant or judgment for this
incident and Mother did not recall the month this occurred. Nevertheless, Mother testified
that she was charged with failing to seek medical care for her boyfriend’s minor child
after he “busted his lip.” Mother pleaded guilty to the offense of child neglect in June
2015.

       On September 25, 2014, a warrant for probation violation was filed in case
number CR573-2012 (the jail and pawnshop thefts). Mother was served with this warrant
and placed in jail on October 8, 2014, for violation of probation. On June 25, 2015, while
Mother remained in jail, a warrant for probation violation was filed in case number
CR223-2014 (the Sweet T’s robbery). Following a hearing on both matters, by separate
orders entered on August 31, 2015, the criminal court revoked Mother’s probation in both
cases and ordered that the sentences run consecutively.

       The August 31, 2015 orders also reveal that Mother had been arrested and
incarcerated multiple times over the two years preceding her latest incarceration. The
orders list the dates of her arrests as follows:

      From 7-12-12 to 7-12-12
      From 8-10-13 to 8-10-13
      From 12-7-13 to 12-16-13
      From 4-2-14 to 4-2-14
      From 5-9-14 to 5-9-14
      From 10-8-14 to “present” [meaning August 31, 2015, the date of the order]

       Following a two-day trial, in which Petitioners and Mother testified and numerous
exhibits were introduced into evidence, the Macon County Circuit Court found that
                                          -3-
Petitioners proved by clear and convincing evidence that the “[p]etition to terminate the
parental rights of [Mother] should be sustained, upon abandonment by an incarcerated
parent and exhibition of wanton disregard for the welfare of the children, prior to and
during incarceration, pursuant to Tenn. Code Ann. § 36-1-102.” The court also found that
terminating Mother’s parental rights was in the Children’s best interests because Mother
had not maintained regular contact with the Children, had no meaningful relationship
with the Children, made no adjustment of circumstances, and because a change in
caretakers and physical environment would have a negative effect on the Children. This
appeal followed.

        Two issues are properly before this court: (1) whether the trial court erred in
finding that Petitioners proved grounds for termination by clear and convincing evidence;
and (2) whether the trial court erred in finding that termination of Mother’s parental
rights is in the Children’s best interests.3

                                      STANDARD OF REVIEW

       “To terminate parental rights, a trial court must determine by clear and convincing
evidence not only the existence of at least one of the statutory grounds for termination but
also that termination is in the child’s best interest.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006) (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)). And, trial courts
must make specific findings of fact and conclusions of law. Tenn. Code Ann. § 36-1-
113(k). Specific findings of fact and conclusions of law “facilitate appellate review and
promote just and speedy resolution of appeals.” In re Audrey S., 182 S.W.3d 838, 861
(Tenn. Ct. App. 2005). When a trial court fails to comply with this requirement, appellate
courts “must remand the case with directions to prepare the required findings of fact and
conclusions of law.” Id. (citing In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re
K.N.R., No. M2003-01301-COA-R3-PT, 2003 WL 22999427, at *5 (Tenn. Ct. App.
Dec. 23, 2003)).

       We review a trial court’s findings of fact de novo upon the record “accompanied
by a presumption of the correctness of the finding, unless the preponderance of the
evidence is otherwise.” In re F.R.R., III, 193 S.W.3d at 530 (quoting Tenn. R. App. P.
13(d)). However, the heightened burden of proof in termination proceedings requires this
court to 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


        3
        Mother attempts to raise a third issue—whether the trial court erred in finding that adoption by
Stepmother was in the Children’s best interests; however, that issue is not properly before this court.



                                                 -4-
evidence of the elements necessary to terminate parental rights.” In re Carrington H.,
483 S.W.3d 507, 524 (Tenn. 2016) (citing In re Bernard T., 319 S.W.3d 586, 596–97
(Tenn. 2010)). A trial court’s ruling regarding whether the evidence sufficiently supports
termination is a conclusion of law, which we review de novo with no presumption of
correctness. See In re Carrington H., 483 S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d
387, 393 (Tenn. 2009))

                                             ANALYSIS

                                I. GROUNDS FOR TERMINATION

        The trial court found that Petitioners proved two grounds on which it could
terminate Mother’s parental rights, both of which fall under the statutory definition of
abandonment set forth in Tennessee Code Annotated section 36-1-102(1)(A)(iv). The
first ground was for willfully failing to support or visit the Children and the second
ground was for conduct exhibiting a wanton disregard for the Children’s welfare.

        Tennessee Code Annotated section 36-1-102 contains five alternative definitions
for abandonment, provided under subsections (i) through (iv). In re Audrey S., 182
S.W.3d at 863 (citing Tenn. Code Ann. § 36-1-102(1)(A)(i)–(v)). By their plain language,
the definitions in subsections (ii), (iii), and (v) are not applicable to this case.4 The
definition contained in subsection (i) applies when a parent has “willfully” failed to visit,
support, or make reasonable payments toward the support of the child “[f]or a period of
four consecutive months immediately preceding the filing of a proceeding or pleading to
terminate the parental rights of the parent.” Because a parent who is incarcerated has no
means of paying support for her children, and thus, cannot be found to have “willfully”
failed to support the child under this definition, the General Assembly provided two
additional tests for abandonment for incarcerated or recently incarcerated parents in the
definition contained in subsection (iv). In re Audrey, 182 S.W.3d at 865–66.

       In Audrey S., this court explained the distinction between these two tests and the
reasoning behind them:




       4
         Tennessee Code Annotated section 36-1-102(1)(A)(ii) applies when a child has been found to
be a dependent and neglected child. Section 102(1)(A)(iii) applies only to biological or legal fathers.
Section 102(1)(A)(v) applies when a mother voluntarily leaves her infant at a facility pursuant to
Tennessee Code Annotated section 68-11-255.



                                                 -5-
The first test asks whether the parent “has willfully failed to
visit[,] . . . support[,] or . . . make reasonable payments toward the support
of the child for four (4) consecutive months immediately preceding such
parent’s . . . incarceration.” Tenn. Code Ann. § 36-1-102(1)(A)(iv). This
test . . . shifts the focus from the four-month period immediately preceding
the filing of the termination petition to the four-month period immediately
preceding the parent’s incarceration. . . . The second test asks whether the
parent “has engaged in conduct prior to incarceration which exhibits a
wanton disregard for the welfare of the child.” Tenn. Code Ann. § 36-1-
102(1)(A)(iv). This test . . . is not expressly limited to any particular four-
month period.

The General Assembly’s decision to provide two additional tests for
abandonment for incarcerated or recently incarcerated parents reflects, in
part, the difficulties inherent in proving that a parent has willfully failed to
visit or support a child for four consecutive months when the parent was
incarcerated during all or part of that time. Incarceration necessarily
restricts a prisoner’s freedom of movement, and many prisoners have no
resources with which to continue paying child support once their crimes
and resulting imprisonment have forced them to forfeit their regular jobs.
Thus, the parent’s incarceration provides a ready-made excuse for his or her
failure to visit or support the child during the four-month period made
relevant by the first statutory definition of abandonment. However, the
strong public interest in providing procedures for terminating the parental
rights of unfit parents does not dissipate simply because a parent’s
irresponsible conduct has reached the level of criminal behavior and
incarceration. Tenn. Code Ann. § 36-1-102(1)(A)(iv)’s first test for
abandonment prevents a parent from relying on his or her own criminal
behavior and resulting imprisonment as a defense to the termination of his
or her parental rights by allowing the court to examine the record of
visitation and support during the most recent four-month period for which
the excuse of incarceration is unavailable.

Tenn. Code Ann. § 36-1-102(1)(A)(iv) also reflects the commonsense
notion that parental incarceration is a strong indicator that there may be
problems in the home that threaten the welfare of the child. Incarceration
severely compromises a parent’s ability to perform his or her parental
duties. A parent’s decision to engage in conduct that carries with it the risk
of incarceration is itself indicative that the parent may not be fit to care for
the child. Taxonomy of Children’s Rights, 11 Wm. & Mary Bill Rts. J.
at 958. However, parental incarceration is not an infallible predictor of
parental unfitness. Accordingly, Tenn. Code Ann. § 36-1-102(1)(A)(iv)’s
                                       -6-
       second test for abandonment does not make incarceration alone a ground
       for the termination of parental rights. An incarcerated or recently
       incarcerated parent can be found guilty of abandonment only if the court
       finds, by clear and convincing evidence, that the parent’s pre-incarceration
       conduct displayed a wanton disregard for the welfare of the child. Thus, the
       parent’s incarceration serves only as a triggering mechanism that allows the
       court to take a closer look at the child’s situation to determine whether the
       parental behavior that resulted in incarceration is part of a broader pattern
       of conduct that renders the parent unfit or poses a risk of substantial harm
       to the welfare of the child.

Id. at 865–66 (footnotes omitted).

      Mother challenges the trial court’s conclusion that Petitioners clearly and
convincingly proved both tests for abandonment under Tenn. Code Ann. § 36-1-
102(1)(A)(iv). We will discuss each in turn.

                     A. Abandonment by Willful Failure to Support or Visit

      The petition at issue was filed on August 2, 2017, at which time Tennessee Code
Annotated section 36-1-102(1)(A) read in pertinent part:

       For purposes of terminating the parental . . . rights of a parent . . . of a child
       to that child in order to make that child available for adoption,
       “abandonment” means that:
                                     .      .         .

               (iv). . . [T]he parent . . . has been incarcerated during all or
               part of the four (4) months immediately preceding the
               institution of such action or proceeding, and either has
               willfully failed to visit or has willfully failed to support or
               has willfully failed to make reasonable payments toward the
               support of the child for four (4) consecutive months
               immediately preceding such parent’s . . . incarceration[.]

(Emphasis added).5



       5
          In 2018, the Tennessee General Assembly amended this subsection to remove the element of
willfulness from the definition of abandonment by failure to support or visit. See Tenn. Code Ann. § 36-
                                                                                       (continued…)

                                                 -7-
       Pursuant to the law then in effect, a court may deem a parent to have abandoned
his or her child when the parent was incarcerated for four months preceding a petition to
terminate, and the parent has willfully failed to visit, support, or make reasonable
payments toward the support of their child for four consecutive months immediately
preceding the parent’s incarceration. Mother was incarcerated on October 8, 2014, and
remained incarcerated through the trial of this case. Thus, the critical four-month period
“immediately preceding” Mother’s incarceration spans from June 8, 2014, to October 7,
2014.

       As with our review of any ground for termination, we first review the trial court’s
specific findings of fact, which we presume to be correct unless the evidence
preponderates against them. In re S.M., 149 S.W.3d 632, 640 (Tenn. Ct. App. 2004). We
then determine whether the facts, as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the grounds for
terminating the parent’s parental rights. Id.

       The trial court found that Mother “willfully abandoned” the Children by “being
incarcerated for almost three and one-half years[.]” However, according to the plain
language of the statute, a court may terminate a parent’s rights on this ground only if
there is evidence that the parent failed to support or visit “the child for (4) consecutive



1-102(1)(A)(i) (defining abandonment as, inter alia, “[f]or a period of four (4) consecutive months
immediately preceding the filing of a proceeding, pleading, petition, or any amended petition to terminate
the parental rights of the parent or parents or the guardian or guardians of the child who is the subject of
the petition for termination of parental rights or adoption, that the parent or parents or the guardian or
guardians either have failed to visit or have failed to support or have failed to make reasonable payments
toward the support of the child”). Rather than include willfulness as an element of the ground, Tennessee
Code Annotated section 36-1-102(1) now provides that it is an affirmative defense:

        For purposes of this subdivision (1), it shall be a defense to abandonment for failure to
        visit or failure to support that a parent or guardian’s failure to visit or support was not
        willful. The parent or guardian shall bear the burden of proof that the failure to visit or
        support was not willful. Such defense must be established by a preponderance of
        evidence. The absence of willfulness is an affirmative defense pursuant to Rule 8.03 of
        the Tennessee Rules of Civil Procedure[.]

Tenn. Code Ann. § 36-1-102(1)(I), enacted by 2018 Tennessee Laws Pub. Ch. 875 (H.B. 1856), eff.
July 1, 2018. We have previously held that this change will not apply retroactively. See In re Gabriel B.,
No. W2017-02514-COA-R3-PT, 2018 WL 3532078, at *4 n.7 (Tenn. Ct. App. July 23, 2018) (“Because
this change is substantive rather than procedural or remedial, however, the amended statute will not be
applied retroactively to this case.” (citing In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004))). Thus, we
apply the version of the statute at issue when the case was initiated.


                                                   -8-
months immediately preceding such parent’s . . . incarceration.” Tenn. Code Ann. § 36-
1-102(1)(A)(iv) (emphasis added) The court made no findings of fact on Mother’s
support or visitation during the four-month period immediately preceding her
incarceration, and the record contains no evidence regarding Mother’s support or
visitation during this statutorily prescribed period of time. Consequently, Petitioners
failed to prove that Mother abandoned the Children by willfully failing to support or visit
under Tennessee Code Annotated section 36-1-102(1)(A)(iv).

             B. Abandonment by Exhibiting Wanton Disregard for the Children

       Under the second test for abandonment for incarcerated or recently incarcerated
parents, a court may deem a parent to have abandoned his or her child when the parent
“engaged in conduct prior to incarceration that exhibits a wanton disregard for the
welfare of the child.” Id. § 36-1-102(1)(A)(iv). This definition requires courts “to
determine whether the parental behavior that resulted in incarceration is part of a broader
pattern of conduct that renders the parent unfit or poses a risk of substantial harm to the
welfare of the child.” In re Audrey S., 182 S.W.3d at 866. We have explained that “a
parent’s criminal behavior does not automatically constitute wanton disregard for the
welfare of a child,” but such behavior “may constitute such wanton disregard under the
appropriate circumstances.” In re Kierra B., No. E2012-02539-COA-R3-PT, 2014 WL
118504, at *8 (Tenn. Ct. App. Jan. 14, 2014). When considering whether a parent’s
criminal conduct constitutes wanton disregard, we consider “the severity and frequency
of the criminal acts.” Id.

       The trial court held that Mother’s conduct “prior to and during her incarceration”
constituted conduct exhibiting a wanton disregard for the Children’s welfare. As an initial
matter, we note that Mother’s conduct “during her incarceration” cannot be the basis for
termination on this ground. See Tenn. Code Ann. § 36-1-102(1)(A)(iv) (providing a
parent may be found to have abandoned the child by engaging in conduct before
incarceration that exhibits a wanton disregard for the child’s welfare). As noted earlier,
Mother was incarcerated on October 8, 2014, and remained incarcerated through the trial
of this case. Therefore, the court’s analysis of this ground is restricted to Mother’s
conduct prior to October 8, 2014.

       The trial court found, inter alia, that Mother involved Johnathan in a shoplifting
incident in 2011, stole a ring from her employer and pawned it in 2012, served as a
lookout while her family committed a crime in 2013, violated her probation on numerous
occasions, and was arrested at least three times for driving on a suspended license. The
court further found that Mother’s conduct directly affected the Children because
Johnathan was removed from school for stealing. After reviewing the record, we find that
the evidence preponderates against some of these findings.

                                           -9-
       First, we find no evidence that Mother involved Johnathan in the shoplifting
incident.6 The court found that “certain items were placed in the child’s diaper during the
shoplifting incident” based on Father’s testimony; however, it appears the court conflated
Father’s testimony on two separate issues. During direct examination, Father testified that
he believed Mother’s “actions” affected the Children because the Children tried to put
items in their pockets when Father took them shopping. In an apparent non sequitur,
Father proceeded to say that he tried to “potty train” the Children, but Mother would “just
throw them in a diaper.” Presumably, the court mistook Father’s statement about
throwing “them” in a diaper as a reference to Mother’s method of shoplifting. The record
contains no other evidence that Mother involved the Children in her alleged shoplifting or
any other criminal conduct.

       Further, the evidence does not support a finding that Mother’s conduct directly
affected the Children by causing their removal from school. Stepmother stated that
Johnathan’s thefts at school could be attributed to Mother’s conduct because “neither me
nor my husband steals and none of our other children steal.” Likewise, Father implied
that Johnathan’s “sticky fingers problem” resulted from Mother’s influence. However,
the mere fact that Mother was arrested once for shoplifting does not support a finding that
Mother’s conduct caused Johnathan’s bad behavior at school. Accordingly, the evidence
preponderates against these two findings.

       However, the record supports the trial court’s findings regarding Mother’s history
of criminal behavior, her repeated incarcerations and multiple probation violations, which
“can, alone or in combination, constitute conduct that exhibits a wanton disregard for the
welfare of a child.” In re Audrey S., 182 S.W.3d at 868; see also In re S.L.A., 223 S.W.3d
295, 299 (Tenn. Ct. App. 2006) (“Wanton disregard for the welfare of the child can be
established by the parent’s previous criminal conduct along with a history of drug
abuse.”).

       As we analyze whether a parent’s pre-incarceration conduct exhibited a wanton
disregard for his or her child’s welfare, “we consider the facts and circumstances
surrounding our other decisions where we have sustained a finding of wanton disregard.”
In re Renaldo M., No. M2016-00472-COA-R3-PT, 2017 WL 1041541, at *4 (Tenn. Ct.
App. Feb. 7, 2017). “By defining the term by examples, Tennessee courts have


6
  The court notes that the shoplifting charge was dropped and Mother never admitted to the crime during
trial. But see In re Cidney L., No. W2014-00779-COA-R3-PT, 2014 WL 6453549, at *5 (Tenn. Ct. App.
Nov. 18, 2014) (recognizing that evidence of dismissed charges did not prove that the parent committed
the crime charged, but the dismissed charges did provide “evidence of [m]other’s instability prior to
incarceration”).


                                                - 10 -
recognized ‘wanton disregard’ in much the same way as Justice Potter Stewart identified
pornography: ‘[we] know it when [we] see it.’” In re Anthony R., No.
M2014-01753-COA-R3-PT, 2015 WL 3611244, at *2 (Tenn. Ct. App. June 9, 2015)
(quoting Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (J. Stewart, concurring)).

       In cases where we have found a petitioner proved wanton disregard, and where the
parent’s conduct was not particularly egregious and did not directly threaten the child’s
safety, more than one type of bad conduct has usually been present. See, e.g., In re D.M.,
No. M2009-00340-COA-R3-PT, 2009 WL 2461199, *4–5 (Tenn. Ct. App. Aug. 12,
2009) (holding that the father’s criminal behavior and failure to provide for or support the
child constituted wanton disregard).7 For example, in In re K.F.R.T., 493 S.W.3d 55, 61
(Tenn. Ct. App. 2016), we held that wanton disregard was proven when there was proof
that the father “was arrested for theft, multiple D.U.I. offenses, repeated traffic offenses,
domestic violence . . . , multiple illegal border crossings, and even extortion,” which
“resulted in multiple incarcerations and/or deportations.” We explained our reasoning as
follows: “When viewed in their totality, these offenses clearly indicate that the ‘parental
behavior that resulted in incarceration is part of a broader pattern of conduct that renders
[father] unfit or poses a risk of substantial harm to the welfare of the child[ren].’” Id.
(quoting In re Audrey S., 182 S.W.3d at 866).

       On the other hand, when a finding of wanton disregard is based solely on one
criminal incident that did not directly threaten the child’s safety, we have found the
evidence did not clearly and convincingly establish conduct exhibiting wanton disregard
for a child’s welfare. In In re Renaldo M., 2017 WL 1041541, at *3, the trial court
terminated the mother’s parental rights after making the following findings:

       Subsequent to the children’s placement in foster care, [Mother] . . . engaged
       in criminal behavior that led to [her] incarceration in January 2015 for
       charges related to burglary. [Mother was] ultimately convicted of theft for
       these charges. Additionally, thereafter [Mother was] arrested, incarcerated,
       and convicted of contributing to the delinquency of a minor. . . . [Mother]
       knew that [her] children were in foster care and the tasks and requirements
       that needed to be completed in order to reunify with the children. [She] was

       7
           In cases where we found that only one type of conduct exhibited wanton disregard, the conduct
either directly threatened the child’s safety, was particularly egregious, or comprised an extensive
criminal history. See In re C.T.S., 156 S.W.3d 18, 25 (Tenn. Ct. App. 2004) (holding that the mother
exhibited wanton disregard by ingesting crack cocaine while pregnant with the child); see also In re
G.M.H., No. M2006-02665-COA-R3-PT, 2007 WL 1527003, *3 (Tenn. Ct. App. May 24, 2007) (holding
that the father exhibited wanton disregard by sexually abusing the children’s stepsister).



                                                - 11 -
       also aware that [her] failure to do so could lead to termination of [her]
       parental rights. Despite this knowledge and the efforts of DCS to assist
       [her] in reunifying with the children, [Mother] . . . continued to fail to
       comply with the Department and the orders of the Juvenile Court as well as
       continued to engage in criminal activity which led to the delinquency of a
       minor. The Court finds that this conduct shows a disregard for the welfare
       of the children.

       Additionally, the Court finds that the conduct of [Mother] in allowing
       unrelated adults in and out of the family home, which potentially led to the
       theft of [her] children’s medication on two occasions, domestic violence
       incidents in the home, and drinking and partying in the home, shows the
       [Mother’s] disregard for the welfare of [her] children. The Court finds that
       the [Mother] chose to engage in this conduct rather than concentrating on
       [her] parenting and reunifying with [her] children. In addition, the
       [Mother’s] continual violation of this Court’s orders regarding unrelated
       adults and animals in the home exhibits a complete disregard of the
       children’s welfare . . . .

       In the Renaldo M. appeal, we noted that, while the mother’s behavior led to her
being arrested on two separate occasions for two separate crimes, “the conduct giving rise
to each conviction occurred on [the same date].” Id. Thus, the two convictions did not
represent multiple acts of conduct. Consequently, we concluded, “The charges arising
from this incident alone do not support the trial court’s finding that Mother ‘continued to
engage in criminal activity which led to the delinquency of a minor.’” Id.

        In reaching our conclusion in Renaldo M., we compared and contrasted the
mother’s pre-incarceration conduct with that of parents in other cases. Id. at *4 (citing In
re Kierra B., 2014 WL 118504, at *8 (finding that the father showed a wanton disregard
for his child by engaging in “criminal behavior [that] was serious and detrimental to [the]
child’s welfare” and which resulted in him being “absent from [the child’s] life for most
of her childhood”); In re K.F.R.T., 493 S.W.3d at 61 (finding that the father’s behavior
was part of a broader pattern of conduct that rendered him unfit because he “was arrested
for theft, multiple D.U.I. offenses, repeated traffic offenses, domestic violence against the
biological mother of the children central to this appeal, multiple illegal border crossings,
and even extortion”); In re Donte N., E2013-01617-COA-R3-PT, 2014 WL 201612, at *8
(Tenn. Ct. App. Jan. 17, 2014) (finding that father exhibited a wanton disregard for his
children after he failed to comply with the permanency plan and moved out of state,
where he was then convicted of several offenses and received two one-year sentences for
charges involving minors); In re C.L.D., No. M2008-02805-COA-R3-PT, 2009 WL
1684667, at *7 (Tenn. Ct. App. June 15, 2009) (concluding that the mother exhibited a
wanton disregard for her children by, among other things, “being arrested approximately
                                           - 12 -
forty-seven times,” leaving two of the children “with her grandmother who, admittedly,
was unable to care for them” and leaving the youngest child “in the care of complete
strangers”); In re Selena L., No. E2015-02059-COA-R3-PT, 2016 WL 4056185, at *12
(Tenn. Ct. App. July 27, 2016) (finding that the mother’s “conduct prior to her
incarceration, including both her criminal activity and her illegal drug use, clearly and
convincingly constituted a wanton disregard for the welfare of the Children”); In re
Charles K. Jr., No. M2015-00714-COA-R3-PT, 2016 WL 3036049, at *10 (Tenn. Ct.
App. May 19, 2016) (finding clear and convincing evidence that the father showed
wanton disregard for the children where the father “exhibited a substantial amount of
criminal behavior, . . . engaged in domestic violence toward Mother while in the presence
of the Children, and . . . failed to address his mental health and substance abuse issues”)).

       In addition to comparing the severity and frequency of the conduct at issue in
Renaldo M., our decision was influenced by “the higher standard of proof that is required
before a party may be deprived of the constitutional right to be a parent to his or her
child.” 2017 WL 1041541, at *5. We noted that “[t]he record shows that . . . Mother has
shown a great deal of care and concern for the children, and she has made a genuine
effort to establish a meaningful relationship with them.” Id. Before the mother’s
incarceration, she completed parenting classes, attended visitations, and completed tasks
on her permanency plan. Id. After considering the entire record and our decisions in the
cases mentioned above, we held that the evidence did not prove clearly and convincingly
that the mother’s pre-incarceration conduct exhibited a wanton disregard for the
children’s welfare. Id.; see also In re E.C., No. E2016-02582-COA-R3-PT, 2017 WL
2438574, *13 (Tenn. Ct. App. June 6, 2017) (finding that a single instance of bad conduct
did not lead to a finding of abandonment when there were “redeeming factors” present).

        In the case at bar, Mother’s pre-incarceration conduct was less severe and frequent
than the conduct of the parents in the cases referenced in Renaldo M., but her conduct
was more frequent and severe than the mother’s conduct in Renaldo M. As we noted
earlier, when considering whether a parent’s criminal conduct constitutes wanton
disregard, we consider the conduct’s “severity” and “frequency” of the conduct. In re
Kierra B., 2014 WL 118504, at *8. We consider whether the parent’s behavior that
resulted in incarceration is part of a broader pattern of conduct that renders her unfit or
poses a risk of substantial harm to the welfare of the children. In re Audrey S., 182
S.W.3d at 866. Further, we recognize that a parent’s decision to engage in conduct that
carries with it the risk of incarceration is itself indicative that the parent may not be fit to
care for the child. Id. (citing James G. Dwyer, A Taxonomy of Children’s Existing Rights
in State Decision Making About Their Relationships, 11 Wm. & Mary Bill Rts. J. 845,
958 (2003)). Accordingly, it is significant when a parents have been given opportunities
to rehabilitate themselves and fail to take advantage of those opportunities. See State
Dep’t of Children’s Servs. v. J.M.F., No. E2003-03081-COA-R3-PT, 2005 WL 94465, at
*7 (Tenn. Ct. App. Jan. 11, 2005) (“[A]n incarcerated parent who has multiple drug
                                             - 13 -
offenses and wastes the opportunity to rehabilitate themselves by continuing to abuse
drugs, resulting in revocation of their parole and re-incarceration, constitutes
abandonment of the child, and demonstrates wanton disregard for the welfare of the
child.”).

       Viewing Mother’s history, we see a broad pattern of criminal conduct over more
than two years. Specifically, Mother’s conduct resulted in her being arrested and
incarcerated six times between June 2012—when the Children were one and three years
old, respectively—and October 2014—when she was last incarcerated, at which time the
Children were three and five years old, respectively. Moreover, Mother’s multiple
violations of the terms of her probation are also relevant, because Mother testified that
she “knew the consequences” of violating her probation. Furthermore, although driving
on a suspended license is not a severe offense and is not the type of conduct that renders a
parent unfit or poses a risk of substantial harm to the welfare of the child, Mother’s
offenses for driving on a suspended license while on probation for more severe offenses
are relevant when considered “in combination” with other conduct and circumstances.
See In re Audrey S., 182 S.W.3d at 867–68 (“[P]robation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
support or supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the welfare of a child.”). The frequency of Mother’s
criminal conduct and probation violations, when considered along with the severity of
Mother’s three convictions for theft and one conviction for child neglect, clearly and
convincingly proved a pattern of conduct that exhibited a wanton disregard for the
welfare of her children. Therefore, we affirm the trial court’s determination that
Petitioners proved the ground of abandonment by engaging in conduct prior to
incarceration that exhibits a wanton disregard for the welfare of the child under
Tennessee Code Annotated section 36-1-102(1)(A)(iv).

      Because one of the statutory grounds for termination has been proven, we must
determine whether terminating Mother’s parental rights is in the Children’s best interests.

                            II.    BEST-INTEREST ANALYSIS

       In addition to presenting clear and convincing evidence establishing at least one
statutory ground warranting the termination of parental rights, a petitioner must present
clear and convincing evidence that terminating the parent’s rights is in the best interests
of the children. In re Bernard T., 319 S.W.3d at 606 (citing Tenn. Code Ann. § 36-1-
113(c)(2); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007)). “The best
interests analysis is separate from and subsequent to the determination that there is clear
and convincing evidence of grounds for termination.” In re Carrington H., 483 S.W.3d
at 523 (quoting In re Angela E., 303 S.W.3d 240, 254 (Tenn. 2010)). While the combined
weight of the evidence must meet the clear and convincing standard, facts considered in
                                           - 14 -
the best-interest analysis need be proven only “by ‘a preponderance of the evidence, not
by clear and convincing evidence.’” In re Gabriella D., 531 S.W.3d 662, 681 (Tenn.
2017) (quoting In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015)). The best-interest
analysis is guided by a consideration of the factors in Tennessee Code Annotated section
36-1-113(i). In re Bernard T., 319 S.W.3d at 606.

       When considering the statutory factors, “courts must remember that the child’s
best interests are viewed from the child’s, rather than the parent’s, perspective.” In re
Gabriella D., 531 S.W.3d at 681 (quoting In re Audrey S., 182 S.W.3d at 878). “[A]
focus on the perspective of the child is the common theme evident in all of the statutory
factors.” Id. Accordingly, “[w]hen the best interests of the child and those of the adults
are in conflict, such conflict shall always be resolved to favor the rights and the best
interests of the child.” Tenn. Code Ann. § 36-1-101(d).

       Tennessee Code Annotated section 36-1-113(i) requires courts to consider all
statutory factors that are relevant; nevertheless, the best-interest analysis “does not call
for a rote examination” of the factors, In re Audrey, 182 S.W.3d at 878. Instead, it
requires “more than tallying the number of statutory factors weighing in favor of or
against termination,” In re Gabriella D., 531 S.W.3d at 682 (citing White v. Moody, 171
S.W.3d 187, 193–94 (Tenn. Ct. App. 2004)). “[T]he facts and circumstances of each
unique case dictate how weighty and relevant each statutory factor is in the context of the
case,” and the analysis “must remain a factually intensive undertaking.” In re Gabriella
D., 531 S.W.3d at 682. Thus, “depending upon the circumstances of a particular child and
a particular parent, the consideration of one factor may very well dictate the outcome of
the analysis.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d
at 194).

       Although Tennessee Code Annotated section 36-1-113(i) lists nine factors relevant
to the best-interest analysis, the list is illustrative, not exclusive. In re Carrington H., 483
S.W.3d at 535. The parties may offer proof of other relevant factors. In re Audrey S., 182
S.W.3d at 878. “After making the underlying factual findings, the trial court should then
consider the combined weight of those facts to determine whether they amount to clear
and convincing evidence that termination is in the child’s best interests.” In re Kaliyah S.,
455 S.W.3d at 555.

      On appeal, this court first reviews a trial court’s factual findings de novo and
accords these findings a presumption of correctness unless the evidence preponderates
otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at 524 (citations
omitted). However, the trial court’s ruling that the evidence sufficiently supports
termination of parental rights is a conclusion of law, which we review de novo with no
presumption of correctness. In re Carrington H., 483 S.W.3d at 524 (citing In re M.L.P.,
281 S.W.3d at 393)). In light of the heightened burden of proof in termination

                                             - 15 -
proceedings, we must then make our “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.” In
re Carrington H., 483 S.W.3d at 524 (citing In re Bernard T., 319 S.W.3d at 596–97).

       The trial court found that terminating Mother’s parental rights was in the
Children’s best interests because Mother (1) had not maintained regular contact with the
Children, (2) had no meaningful relationship with the Children, (3) made no adjustment
of circumstances, and (4) because a change in caretakers and physical environment would
have a negative effect on the Children. We, however, have determined that the third and
fourth factors relied upon by the trial court do not apply to this case because the Children
were not “removed” from Mother’s care, which generally occurs when the children are in
the custody of the state and placed in foster care. In re William T.H., No. M2013-00448-
COA-R3-PT, 2014 WL 644730, at *4–5 (Tenn. Ct. App. Feb. 18, 2014); In re C.E.P.,
No. E2003-02410-COA-R3-PT, 2004 WL 2191040, at *5–6 (Tenn. Ct. App. Sept. 29,
2004). Additionally, because one of the petitioners is the father of the Children, denying
the petition to terminate would not effect a change of caretakers and physical
environment as when the children are in foster care. Id. As we explained in William T.H.:

       A number of the statutory factors, by their language, were intended to apply
       in situations where a child has been removed from the home, is in the
       custody of the state, and is in foster care. In those situations, the preference
       is for the child to remain in foster care the least amount of time possible. If
       the parent does not make adjustments that would allow the return home of
       the child, termination of parental rights is the only way the child can obtain
       the stability of adoption. Consequently, many of the statutory factors focus
       on conditions in the home of the parent. Examples include:

              (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 interest to be in the home
              of the parent or guardian;
                                      .      .       .
              (5) The effect a change of caretakers and physical
              environment is likely to have on the child’s emotional,
              psychological and medical condition;

Id. at *4–5 (quoting Tenn. Code Ann. § 36-1-113(i)).

      In this case, the Children were not “removed” from Mother’s care due to
circumstances, conduct, or conditions that made it unsafe to be in Mother’s home.
Additionally, Father has full custody of the Children and Mother was not seeking custody
                                            - 16 -
of the Children; thus, a denial of the petition would not result in a change of caretakers or
physical environment. Accordingly, we will analyze the remaining factors relied on by
the trial court along with other relevant factors, and consider the proof put forth by the
parties, to determine whether the combined weight of the evidence clearly and
convincingly proves that termination is in the Children’s best interests.

                A. Maintaining Regular Contact and Meaningful Relationship

        Tennessee Code Annotated section 36-1-113(i), the third factor relied upon by the
trial court, is “[w]hether the parent or guardian has maintained regular visitation or other
contact with the child.” Tenn. Code Ann. § 36-1-113(i)(3). The fourth factor the trial
court relied upon is “[w]hether a meaningful relationship has otherwise been established
between the parent or guardian and the child.” Id. § 36-1-113(i)(4).

       The trial court held that these factors supported terminating Mother’s parental
rights because Mother had “not maintained regular contact with the minor children,
although she could have called once per week,” and that Mother did “not have a
meaningful relationship with the minor children, as Johnathan was five (5) years old and
Jordan was three (3) years old at the time of her . . . incarceration.”

        Mother argues that her lack of contact and meaningful relationship with the
Children should not be used against her because Petitioners interfered with her ability to
contact the Children. Mother cites Audrey S. for the proposition that a parent’s failure to
visit is excusable when another person’s conduct “amounts to a significant restraint of or
interference with the parent’s efforts to support or develop a relationship with the child.”
In re Audrey S., 182 S.W.3d at 864–65 (holding that the mother’s failure to visit her
children was not “willful” because the father refused to allow the children to visit her)
(internal citations omitted). However, in Audrey S., this court was considering whether
the mother’s conduct constituted a “willful” failure to visit under the first statutory
definition of abandonment, Tennessee Code Annotated section 36-1-102(1)(A)(i). Id. As
we have explained, the best-interest analysis is conducted from the child’s perspective. In
re Audrey S., 182 S.W.3d at 878. “From the child’s point of view, the reasons for the lack
of interaction matter little.” White, 171 S.W.3d at 194.

        Nonetheless, there is a precedent for finding that a petitioner’s interference with
the parent’s attempts to contact his or her child may render the factors inapplicable. In the
case of In re Taylor B.W., the Tennessee Supreme Court affirmed a trial court’s finding
that termination was not in the best interests of the children, even though the incarcerated
mother no longer had a relationship with her children and had not maintained contact for
several years. 397 S.W.3d 105 at 107–109, 114 (Tenn. 2013). The mother was
incarcerated after pleading guilty to the attempted second-degree murder of the father and
received a sentence of 12 years. Id. at 107. At the time, the children were seven and five
years old. Id. The mother and father entered into an amended custody agreement that
                                             - 17 -
provided the mother with visitation with the children on one weekend per month. Id. The
custody agreement also contemplated visitation after the mother was released from
prison. Id. Even so, the children stopped visiting the mother five years later when the
father remarried. Id. The father and stepmother then filed a petition to terminate the
mother’s rights and for stepparent adoption. Id.

        By the time of the trial, the mother had not seen the children for two years. In re
Taylor B.W., No. E2011-00352-COA-R3-PT, 2011 WL 5135256 (Tenn. Ct. App.
Oct. 28, 2011). The youngest daughter testified that she had few memories of the mother
and both children voiced a desire to terminate the mother’s rights and be adopted by the
stepmother. In re Taylor B.W., 397 S.W.3d at 109. Nonetheless, the trial court determined
that the father and stepmother failed to prove by clear and convincing evidence it was in
the best interests of the children to terminate the mother’s parental rights. Id. at 110. The
trial court found that the mother attempted to have regular visitation or contact with the
children to the extent that it was within her power to do so, and that she had a meaningful
relationship with her children before the stepmother became involved with the father. Id.
at 109 (citing Tenn. Code Ann. § 36-1-113(i)(3), (4)). As a result, the trial court found
that these factors weighed against terminating the mother’s parental rights. Id. at 110.

        On appeal, the Supreme Court found that the evidence did not preponderate
against the trial court’s findings that the mother had a meaningful relationship with the
children before she was incarcerated, and that the mother’s attempts to reestablish a
relationship with the children were frustrated by the father. Id. at 113. Thus, the Court
agreed that these factors did not support terminating the mother’s parental rights. See id.
at 114 (stating that none of the factors supported termination of the mother’s parental
rights). The Court also held that the trial court properly considered that the father had
agreed to the modification of the parenting plan to provide the mother with visits from
the children and address her co-parenting rights after her release. Id.

       Like the mother in Taylor B.W., Mother had a meaningful relationship with the
Children before she was incarcerated and attempted to maintain contact with them.
Mother testified that she took the Children to church, read stories to them every night,
played outside with them, and took them to the park. Additionally, the court admitted
photographs of Mother and the Children that showed they shared an affectionate
relationship.

        Sheena W., a friend of Mother, testified that Mother took the Children to the park
and spent time with them at home. Amber S., who had lived with Mother for almost two
years, testified that Mother would cook meals with the Children, give them baths, and
read books to them before they went to bed. Kimberly F., Mother’s paternal aunt,
testified that Mother was “always very good with her children,” playing with them and


                                           - 18 -
involving them in cooking meals. Both Kimberly and Amber testified that Mother was at
home with the Children most of the time on the days when they were in her care.

        Although Father testified that he did not believe Mother had a meaningful
relationship with the Children before her incarceration, he offered little explanation to
support his opinion. Both Father and Stepmother testified that Mother disappointed the
Children once when she promised to take them to a movie and did not. Father also
testified that sometimes the Children did not want to go with Mother when she picked
them up. However, Father also testified that the Children asked about their mom during
the first two or three months after she went to prison and would sometimes seem upset or
bothered by Mother’s absence. Father also testified that the Children were disappointed
when Mother missed her regular Monday evening telephone call. These facts suggest that
Mother had a relationship with the Children before she was incarcerated.

       Mother also attempted to maintain a relationship with the Children by
communicating with them by telephone and mail. Like the father in Taylor B.W., Father
had agreed to a modified custody arrangement that contemplated visitation during and
after Mother’s incarceration. Nonetheless, Father and Stepmother actively and repeatedly
interfered with Mother’s attempts to communicate with the Children. Mother testified
that she maintained contact with the Children during the first ten months of her
incarceration by calling Father’s cellular telephone. In July 2015, Mother began
contacting the Children by calling Petitioners’ home telephone number, and Stepmother
began logging the calls in a notebook. According to Stepmother’s notes, Mother was
allowed one 15-minute telephone call per week, on Monday evenings between 7 p.m. and
8 p.m.8 Mother called and spoke with the Children on three Mondays in July 2015 and on
one Monday in August 2015.

       In September 2015, Mother was moved from the Sumner County Jail to Nashville
Women’s Penitentiary. Mother testified that she was not permitted to make calls for a
month after she arrived. She also testified that she did not have money to make calls and
could not get a job at the prison because she was being held there temporarily. In
December 2015, Mother was moved to a facility in Memphis. After arriving, Mother
wrote a letter to Father explaining that she would not have funds to call the Children until




       8
         Stepmother’s notes indicate that these limitations were per court order; however, the juvenile
court’s order of November 16, 2015, restricts Mother’s contact to “one phone call per week.”
Nonetheless, the record shows that the majority of Mother’s calls occurred on Monday evenings.



                                                - 19 -
she received her first paycheck in January 2016.9 Mother testified that she earned only 17
cents per hour. However, Father did not reply to the letter. At the final hearing, Father
admitted that he did not even read Mother’s letters.

        Furthermore, Father and Stepmother’s admissions establish that they actively
obstructed Mother’s attempts to speak with the Children. Stepmother’s record of the
telephone calls shows that Stepmother either denied Mother’s calls or refused to allow
her to speak to the Children on three occasions when Mother called at a wrong time or on
a wrong day, while Mother protested that it was the only time she could call. In addition,
Stepmother admitted that she once interrupted Mother’s conversation with the Children
because Mother was talking about playing volleyball and having a pet turtle. Stepmother
testified, “I don’t appreciate her telling my children, you know, that prison is a good
place to be.” Stepmother also admitted that she told Mother to stop calling the Children.

       Father testified that he would not pay for Mother’s telephone calls and he admitted
that he and Stepmother denied one of Mother’s phone calls after she and Stepmother
disagreed on the telephone because, in his words, “she ain’t going to call and disrespect
us in our own house . . . . She’s supposed to be nice to us . . . . [W]e’re the ones letting
her talk to the kids.” Father explained that he and Stepmother “got on to her” because
they did not want the kids to think jail was a good place to be. Father testified that they
always stayed at home on Monday evenings to wait for Mother’s phone calls, “unless
[they] had something else to do.” Father also testified that he was tired of waiting for
telephone calls that never came and telling the Children to talk to Mother when they did
not want to. He eventually told them to tell Mother they did not want to talk to her, which
they did. Father testified that Mother “really didn’t do much calling back” after that.

       Mother’s telephone records from the Tennessee Department of Corrections
(“TDOC”) also show that Mother attempted to call on several Mondays at the designated
time, and the calls went unanswered.10 Although Mother called on fewer Mondays than
she could have, the TDOC records show that Petitioners refused or did not answer
Mother’s calls more often than answering them.


        9
          Sheena W. corroborated Mother’s testimony that the lack of funds was a major reason why
Mother did not call the Children. Sheena, who adopted Mother’s younger two children, testified that she
paid for Mother to call and speak with the younger children on a regular basis. The Tennessee Department
of Corrections records confirm that Mother made frequent calls to Sheena’s telephone number throughout
Mother’s time in prison.
        10
           Although Stepmother’s call-log states that Mother did not call on one of these days, the phone
records show that she made four attempts to call the Petitioners’ number that evening.



                                                 - 20 -
        Mother also testified that she called around Mother’s Day, and Stepmother told
her, “[I]f you’ve called to get props for Mother’s Day or sympathy or something . . . I’m
the one that they’re taking out for Mother’s Day.”11 After Stepmother told Mother to stop
calling in June 2016, Mother attempted to call three weeks in a row, but none of the calls
were answered. According to Stepmother’s notes, Petitioners were not home on those
occasions. Mother testified that she tried contacting one of her former attorneys about not
being able to contact the Children and that she thought a letter had been sent to Father’s
attorney about the Petitioners not answering their phone.

        The record also establishes that Father and Stepmother prevented Mother from
contacting the Children via mail. In Mother’s July 2015 letters to the Children, she
included a picture of her and her two youngest children. She informed Father that her
grandmother was dying and indicated that she wanted the Children to say goodbye.
Mother received no reply to that letter. According to Mother’s testimony, Stepmother
later said that she threw the picture away because she did not want the Children to think
that Mother was with Mother’s two younger children but not them. Mother also testified
that she wanted to send gifts to the Children, but Stepmother said she would not give the
gifts to the Children because it would not be fair for the Children to receive gifts if
Stepmother’s children did not receive gifts.

       Father and Stepmother’s testimony corroborates Mother’s testimony that the gifts
and letters were not delivered to the Children. Father testified that he and Stepmother let
the Children see the letters and gifts but did not let the Children keep them because
“that’s evidence if we need [it].” In addition, Father said that Mother sent “some stuff she
made in jail,” but he concluded, “Who wants to give their kids something they made in
jail?” Stepmother testified that she did not give or read Mother’s letters to the Children
because the letters were “all broken promises she’s made or continues to make,” and
contained “inappropriate” statements. When pressed for an example, Stepmother
admitted that none of the correspondence introduced into evidence contained
inappropriate statements.

       Admittedly, Mother’s meaningful, pre-incarceration relationship with the Children
deteriorated while she was incarcerated. Father testified that, over time, the Children no
longer seemed interested in speaking with Mother when she called. Father testified that
the younger child, Jordan, did not remember Mother and neither child had said anything
about her in over a year. Although some fault lies with Mother, fault also lies with


       11
          Stepmother admitted that she and Mother had a rivalry over Father because he had dated both
of them when they were younger.



                                               - 21 -
Petitioners’ active and repeated interference with Mother’s attempts, albeit not herculean,
to communicate with the Children to maintain a relationship.

       Considering Mother’s pre-incarceration relationship with the Children, the
circumstances of her incarceration, Father’s agreement to the juvenile court’s custody
modification, Mother’s attempts to contact the Children, and Petitioners’ active and
repeated interference with Mother’s attempts, we hold that factors three and four do not
favor termination of Mother’s parental rights.

                             B. Combined Weight of the Evidence

        After making the underlying factual findings, the court must consider whether the
combined weight of the facts amount to clear and convincing evidence that termination is
in the child’s best interests. See In re Gabriella D., 531 S.W.3d at 681; see also In re
Kaliyah S., 465 S.W.3d at 555. As discussed earlier, a trial court’s ruling that the
evidence sufficiently supports termination of parental rights is a conclusion of law, which
we review de novo with no presumption of correctness. In re Carrington H., 483 S.W.3d
at 524 (citing In re M.L.P., 281 S.W.3d at 393)). Moreover, in light of the heightened
burden of proof in termination proceedings, on appeal we must make our “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.” In re Carrington H., 483 S.W.3d at 524
(citing In re Bernard T., 319 S.W.3d at 596–97).

        “‘Clear and convincing evidence’ is ‘evidence in which there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.’” In
re Valentine, 79 S.W.3d at 546 (Tenn. 2002) (quoting Hodges v. S.C. Toof & Co., 833
S.W.2d 896, 901 n.3 (Tenn. 1992)). After considering the combined weight of the
evidence, we have serious and substantial doubt that termination of Mother’s parental
rights is in the best interests of the Children. Therefore, we hold that the Petitioners failed
to prove by clear and convincing evidence that termination was in the Children’s best
interests.

                                      IN CONCLUSION

      For the foregoing reasons, we affirm the trial court’s finding that Mother exhibited
a wanton disregard for the Children’s welfare, reverse the finding that terminating
Mother’s parental rights is in the Children’s best interests, and vacate the judgment
terminating Mother’s parental rights. Costs of appeal are assessed against the appellees,
Joshua M. and Brittany M.

                                                     ________________________________
                                                     FRANK G. CLEMENT JR., P.J., M.S.
                                            - 22 -
