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Webb v. Webb5/20/2005
t and preserve her right to a safe and nurturing home; James continuously and repeatedly failed to provide essential parental care and protection for the child, and there is no reasonable expectation of improvement in such care and protection in the future; and, for reasons other than poverty or incarceration alone, James continuously and repeatedly failed to provide essential food, clothing, shelter, medical care, and education for the child, and there is no reasonable expectation of improvement in the parent's conduct in the future.
James' first argument is that the trial court did not consider the best interest of L.W. in its judgment pursuant to KRS 625.090(1)(b). To the contrary, the court specifically found, "that it is in the best interest of [L.W.] that the termination of the parental rights of James Webb be granted."
James next argues that there was no substantial evidence to support the court's findings. In particular, James complains that all the evidence demonstrated that his lack of contact with and support of L.W. was solely due to his incarceration. The evidence established that from the time of the child's birth on September 7, 2001, until November 27, 2002, when James was incarcerated in West Virginia, James only had nine visits with L.W. On two of those visits, he was arrested, and on one of the visits he was visibly under the influence of intoxicants. Although the record is unclear if or how long James was incarcerated from September 7, 2001, to November 27, 2002, James testified that he worked for six months in 2001 and that he received SSI . However, James paid nothing toward the support of the child during that time. James has made only one child support payment, on May 5, 2003. Thus, the condition in KRS 625.090(2)(g) was clearly met in this case.
As to the court's finding of abandonment (KRS 625.090(1)(a)2. and (2)(a); KRS 600.020(1)(g)), we believe the court correctly found that James' conduct since the child's birth amounted to an abandonment of the child. While incarceration of the parent cannot alone justify termination of one's parental rights, it is a factor to be considered in making its decision on whether or not to terminate parental rights. Cabinet for Human Resources v. Rogeski, 909 S.W.2d 660 (Ky. 1995). It has also been acknowledged that dedication of one's self to a criminal lifestyle which causes him or her to be incarcerated may support a finding that the parent substantially and continuously neglected the child. J.H. v. Cabinet for Human Resources, 704 S.W.2d at 664. The Court referred to such a lifestyle as "incompatible with parenting." Id.
In the present case, James has been incarcerated for the better part of L.W.'s life (for some periods between October 2001, and July 2002, and from November 28, 2002 to at least May 14, 2004) for multiple violations. At the time of the hearing, James was incarcerated for fourth offense DUI. This was not a case of the parent's incarceration for an isolated offense. See Rogeski, 909 S.W.2d 660. Hence, James' abandonment of L.W. was not solely due to his incarceration, but to his recidivist behavior.
We would also note that James' alcohol problem, evident from the fact that he was on his fourth DUI offense, was another factor the court could have considered in finding L.W. to be an "abused and neglected child" pursuant to KRS 625.090(1)(a)2. and KRS 600.020(1)(c). James is incapable of caring or providing for his daughter when he is intoxicated or repeatedly being arrested and incarcerated for DUI.
For the reasons stated above, the judgment of the Letcher Circuit Court is affirmed.
ALL CONCUR.
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