JAMES WEBB v. TONYA WEBB
Annotate this Case
Download PDF
RENDERED: MAY 20, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001806-ME
JAMES WEBB
APPELLANT
APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT, III, JUDGE
ACTION NO. 03-AD-00007
v.
TONYA WEBB
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, SCHRODER, AND VANMETER, JUDGES.
SCHRODER, JUDGE:
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.1
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”).
on November 7, 2001.
James’ first visit with the child was
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.2
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
1
The record does not contain information regarding the offense for which James
was jailed.
2
The record does not contain information regarding the offenses for which he
was arrested.
-2-
Violence Order regarding Tonya.
According to James’ testimony,
he was arrested for writing a letter to Tonya.3
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
3
There is no further information in the record regarding the details of this
DVO.
-3-
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
(b) Termination would be in the best
interest of the child.
(2) No termination of parental rights shall
be ordered unless the Circuit Court also
finds by clear and convincing evidence the
existence of one (1) or more of the
following grounds:
(a) That the parent has abandoned the child
for a period of not less than ninety (90)
days;
. . .
(e) That the parent, for a period of not
less than six (6) months, has continuously
or repeatedly failed or refused to provide
or has been substantially incapable of
providing essential parental care and
protection for the child and that there is
no reasonable expectation of improvement in
parental care and protection, considering
the age of the child;
. . .
(g) That the parent, for reasons other than
poverty alone, has continuously or
repeatedly failed to provide or is incapable
-4-
of providing essential food, clothing,
shelter, medical care, or education
reasonably necessary and available for the
child’s well-being and that there is no
reasonable expectation of significant
improvement in the parent’s conduct in the
immediately foreseeable future, considering
the age of the child;
. . .
(3) In determining the best interest of the
child and the existence of a ground for
termination, the Circuit Court shall
consider the following factors:
. . .
(b) Acts of abuse or neglect as defined in
KRS 600.020(1) toward any child in the
family;
. . .
(d) The efforts and adjustments the parent
has made in his circumstances, conduct, or
conditions to make it in the child’s best
interest to return him to his home within a
reasonable period of time, considering the
age of the child;
(e) The physical, emotional, and mental
health of the child and the prospects for
the improvement of the child’s welfare if
termination is ordered; and
(f) The payment or the failure to pay a
reasonable portion of substitute physical
care and maintenance if financially able to
do so.
The definition of an “abused or neglected child” is
set out in KRS 600.020(1), which provides in pertinent part:
(1) "Abused or neglected child" means a
child whose health or welfare is harmed or
threatened with harm when his parent,
-5-
guardian, or other person exercising
custodial control or supervision of the
child:
. . .
(c) Engages in a pattern of conduct that
renders the parent incapable of caring for
the immediate and ongoing needs of the child
including, but not limited to, parental
incapacity due to alcohol and other drug
abuse as defined in KRS 222.005;
(d) Continuously or repeatedly fails or
refuses to provide essential parental care
and protection for the child, considering
the age of the child;
. . .
(g) Abandons or exploits the child; or
(h) Does not provide the child with adequate
care, supervision, food, clothing, shelter,
and education or medical care necessary for
the child’s well-being. . . .
A trial court’s findings of fact in a termination of
parental rights case will not be disturbed unless they are
clearly erroneous, that is, not supported by substantial
M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114
evidence.
(Ky. 1998).
It has been held that incarceration of the parent
cannot be the sole grounds for termination of parental rights.
J.H. v. Cabinet for Human Resources, 704 S.W.2d 661 (Ky.App.
1985).
The trial court based its decision to terminate James’
parental rights on the following findings:
James has had no
contact with L.W. since November 13, 2002, for reasons other
-6-
than poverty or incarceration; James abandoned the child for a
period in excess of 12 months and failed to protect 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,
-7-
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.
Resources, 704 S.W.2d at 664.
J.H. v. Cabinet for Human
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
-8-
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.
Rogeski, 909 S.W.2d 660.
See
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.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James W. Craft, II
Whitesburg, Kentucky
Samuel P. Chandler
Whitesburg, Kentucky
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
