Kilby v. Culpeper Dept. of Soc. Services

• Decision Date: 27 October 2009
• Docket Number: Record No. 0446-09-4.
• Citation: 684 S.E.2d 219,55 Va. App. 106
• Parties: Russell KILBY v. CULPEPER COUNTY DEPARTMENT OF SOCIAL SERVICES.
• Court: Virginia Court of Appeals

684 S.E.2d 219

55 Va. App. 106

Russell KILBY v. CULPEPER COUNTY DEPARTMENT OF SOCIAL SERVICES.

Record No. 0446-09-4.

Court of Appeals of Virginia, Alexandria.

October 27, 2009.

Kirk T. Milam (The Law Office of Kirk T. Milam, P.L.C., on brief), for appellant.

Robert F. Beard, Culpeper; Deborah E. Reed, Charleston, WV, Guardian ad litem for the minor child (Rappahannock Legal Services, Inc., on brief), for appellee.

Present: KELSEY, PETTY, JJ., and CLEMENTS, Senior Judge.

PETTY, Judge.

Russell Kilby, appellant, challenges the termination of his parental rights to his child. Kilby argues that the trial court erred when it found that he had been convicted of an offense under the laws of the Commonwealth of Virginia that constituted felony assault resulting in serious bodily injury or felony sexual assault of the child. Kilby also argues that the trial court erred when it found that the termination of his parental rights was in the child's best interest.¹ For the reasons set forth in this opinion, we disagree with Kilby and affirm the trial court's ruling.

I. BACKGROUND

We view the facts and incidents, and all reasonable inferences flowing therefrom, in the light most favorable to the party prevailing below. See Logan v. Fairfax County Dep't of Human Dev., 13 Va.App. 123, 128, 409 S.E.2d 460, 462 (1991). In May 2005, Kilby's child was placed in foster care after the Culpeper County Department of Social Services (DSS) discovered through the course of a related investigation that the child's brother had been sexually assaulting her for the past year. This abuse was so severe that the child suffered an injury to her anus, which led to long-term bowel incontinence that caused the child to regularly soil her clothing. Kilby was prosecuted for, and convicted of, a violation of Code § 40.1-103, cruelty or injury to a child, based on his failure to prevent the abuse of his child.² Because the Kilbys would not take steps to create a safe home environment for the child, DSS eventually changed the child's foster care plan goal to adoption and, consequently, petitioned for termination of Kilby's residual parental rights. Following a hearing, the trial court terminated his parental rights pursuant to Code § 16.1-283. Along with a finding that termination was in the best interests of the child, the trial court also found that Kilby "had been convicted of an offense under the laws of this Commonwealth ... that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent." Code § 16.1-283(E)(iii). Alternatively, the trial court found that Kilby's "residual parental rights regarding a sibling of the child had previously been involuntarily terminated." Code § 16.1-283(E)(i). This appeal followed.

II. ANALYSIS

A. Standard of Review

As we address the issues Kilby has raised in this case, we are mindful of our standard of review. While we review the trial court's interpretation of a statute de novo, Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d 246, 248 (2003), we will not disturb the trial court's factual findings on appeal unless they are plainly wrong or without evidence to support them, Farley v. Farley, 9 Va.App. 326, 328, 387 S.E.2d 794, 795 (1990). Recognizing that "the termination of [residual] parental rights is a grave, drastic and irreversible action," Helen W. v. Fairfax County Dep't of Human Dev., 12 Va.App. 877, 883, 407 S.E.2d 25, 28-29 (1991) (internal quotation marks and citation omitted), we, nevertheless, presume the trial court has "thoroughly weighed all the evidence [and] considered the statutory requirements," Logan, 13 Va.App. at 128, 409 S.E.2d at 463 (internal quotation marks and citation omitted). Moreover, the trial court is vested with broad discretion in making decisions "necessary to guard and to foster a child's best interests." Farley, 9 Va.App. at 328, 387 S.E.2d at 795. Finally, we recognize that this Court's primary interest in deciding this case is this child's best interests. See Toombs v. Lynchburg Div. of Soc. Servs., 223 Va. 225, 230, 288 S.E.2d 405, 407-08 (1982).

B. Termination of Parental Rights Pursuant to Code § 16.1-283(E)

Code § 16.1-283(E), which governs the termination of the residual parental rights of parents whose children have been placed in foster care, provides several grounds for termination. In all cases, the court must find by clear and convincing evidence that the termination of parental rights is in the best interests of the child. Code § 16.1-283(E). Then, the court must also find, by clear and convincing evidence, one of the following:

(i) the residual parental rights of the parent regarding a sibling of the child have previously been involuntarily terminated (ii) the parent has been convicted of an offense under the laws of this Commonwealth ... that constitutes murder or voluntary manslaughter ... if the victim of the offense was a child of the parent ...; (iii) the parent has been convicted of an offense under the laws of this Commonwealth ... that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent ...; or (iv) the parent has subjected any child to aggravated circumstances.

Id.

1. Felony Assault

Kilby argues that the trial court erred by determining that his parental rights should be terminated under Code § 16.1-283(E)(iii) because, he contends, his conviction under Code § 40.1-103 for cruelty or injury to a child is not "an offense ... that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault" within the meaning of Code § 16.1-283(E)(iii). We disagree.

Code § 40.1-103 provides, in pertinent part:

It shall be unlawful for any person employing or having the custody of any child willfully or negligently to cause or permit the life of such child to be endangered or the health of such child to be injured, or willfully or negligently to cause or permit such child to be placed in a situation that its life, health or morals may be endangered, or to cause or permit such child to be overworked, tortured, tormented, mutilated, beaten or cruelly treated.

In Brown v. Spotsylvania Department of Social Services, 43 Va.App. 205, 597 S.E.2d 214 (2004), we had occasion to discuss whether a conviction under Code § 40.1-103 was a "felony assault" within the meaning of Code § 16.1-281(B)(3), which sets forth circumstances in which a child welfare agency may cease making reasonable efforts to reunite a child with a parent. Code § 16.1-281(B)(3) uses the exact same language as Code § 16.1-283(E)(iii). According to Code § 16.1-281(B)(3), a child welfare agency is no longer required to reunite a child with his or her parent:

if the court finds that ... the parent has been convicted of an offense under the laws of the Commonwealth ... that constitutes felony assault resulting in serious bodily injury or felony bodily wounding resulting in serious bodily injury or felony sexual assault, if the victim of the offense was a child of the parent....

Code § 16.1-281(B), again like Code § 16.1-283(E), defines "serious bodily injury" as an injury "that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ or mental faculty." However, neither Code § 16.1-281, nor Code § 16.1-283 defines the term "felony assault." Thus, we interpreted that phrase in Brown, 43 Va.App. at 205, 597 S.E.2d at 214.

The appellant in Brown argued that Code § 40.1-103 could not be a "felony assault" because it did "not contain the common law elements of assault, specifically the intent to cause bodily harm." Brown, 43 Va.App. at 213, 597 S.E.2d at 217. We rejected that argument and, relying on settled principles of statutory interpretation, held that "the term `felony assault,' as used in Code § 16.1-281(B)(3), means any felonious crime that results in serious bodily injury to a child of the parent or a child who lives with the parent." Id. We reasoned that the General Assembly's "overarching concern in adopting Code § 16.1-281(B) was the physical health of the child" because of the emphasis the statute places on the term "serious bodily injury," id. at 215, 597 S.E.2d at 216-17, and that another interpretation of the phrase "felony assault" would render the provision meaningless.

Turning from Brown to the issue in this case, we hold that a conviction under Code § 40.1-103 is a "felony assault" for the purposes of Code § 16.1-283(E)(iii) as well as Code § 16.1-281(B)(3). In reaching this decision, we are guided by the concept of in pari materia. The concept of in pari materia embodies the idea that "`statutes which relate to the same subject matter should be read, construed and applied together so that the legislature's intention can be gathered from the whole of the enactments.'" Alger v. Commonwealth, 19 Va.App. 252, 256, 450 S.E.2d 765, 767 (1994) (quoting Black's Law Dictionary 791 (6th ed. 1990)). "Under the rule of statutory construction of statutes in pari materia, statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great, connected homogeneous system, or a single and complete statutory arrangement." Lillard v. Fairfax County Airport Auth., 208 Va. 8, 13, 155 S.E.2d 338, 342 (1967). Code §§ 16.1-281(B)(3) and 16.1-283(E)(iii) are part of the same statutory scheme, and were adopted to protect the physical well-being of children. Concluding that the term "felony assault" includes Code § 40.1-103 in the context of Code § 16.1-281(B)(3), but not in the context of Code § 16.1-283(E)(iii), when the two statutes are part of the same legislative scheme and the...