Webb v. Webb5/20/2005
AFFIRMING
BEFORE: DYCHE, SCHRODER, AND VANMETER, JUDGES.
This is an appeal from a judgment terminating the parental rights of appellant to his infant daughter. We adjudge that the findings of the trial court relative to termination were supported by substantial evidence. Hence, we affirm.
Tonya Webb and James Webb are the natural parents of L.W. born September 7, 2001. James was present when L.W. was born, but sometime thereafter went to jail. He got out of jail on October 24, 2001, and Tonya and James separated on October 26, 2001. At some point, Tonya filed for divorce . The court allowed James to have weekly supervised visitation with L.W. at the local office of the Kentucky Cabinet for Families and Children (the "Cabinet"). James' first visit with the child was on November 7, 2001. Tonya testified at the hearing in this case that on the second visit with the child, on November 14, 2001 (L.W. was two months old), James was so doped up that he could not stand up and his speech was slurred. Tonya testified that, because of his condition, all available caseworkers at the Cabinet office that day sat in on the visit. According to an affidavit by Michelle Meade, the Cabinet's caseworker for the Webb family, the last time James visited L.W. was on November 13, 2002, and there is no record of him contacting the Cabinet regarding L.W. anytime after that date. It is undisputed that from November 7, 2001, to November 27, 2002, James had only nine visits with L.W., and on two of those visits he was arrested on outstanding warrants.
Sometime in June of 2002, James was arrested for Driving Under the Influence of Intoxicants. In July of 2002, James was arrested and jailed for violation of a Domestic Violence Order regarding Tonya. According to James' testimony, he was arrested for writing a letter to Tonya. From November 28, 2002, to March 17, 2003, it is undisputed that James was incarcerated in West Virginia for driving under the influence. While in jail in West Virginia, the decree of dissolution was entered in his divorce from Tonya on January 21, 2003. On March 23, 2003, less than a week after being released from jail in West Virginia, James was incarcerated in Kentucky for the felony offense of driving under the influence ("DUI"), fourth offense.
On July 2, 2003, Tonya filed the petition for termination of James' parental rights as to L.W. Thereafter, James filed a response contesting the termination. At the time of the termination hearing on May 14, 2004, James was still incarcerated on the DUI, fourth offense in Kentucky. However, James was allowed to attend and participate in the termination hearing. Tonya and James were the only witnesses at the hearing. On August 4, 2004, the court entered its order terminating James' parental rights to L.W. This appeal by James followed.
KRS 625.090 provides in pertinent part:
(1) The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that:
(a) 1. The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction;
2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding; or
3. The parent has been convicted of a criminal charge relating to the physical or sexual abuse or neglect of any child and that physical or sexual abuse, neglect, or emotional injury to the child named in the present termination action is likely to occur if the parental rights are not terminated; and
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