ANALYSIS OF OCTOBER 27, 2009 CAV OPINION

 

[Posted October 27, 2009]  There’s one published decision today from the Court of Appeals, involving one of the most difficult decisions that any trial court will ever face:  A petition to terminate residual parental rights.  The case is Kilby v. DSS, and involves a heartbreaking story of child abuse by a sibling.

 

The Culpeper DSS filed a petition to terminate Kilby’s rights as to his daughter, who had sustained significant injuries as a result of sexual abuse by her brother.  The DSS notified Kilby about the problem, but he failed to take any steps to prevent it, and the abuse continued.  At that point, the agency stepped in and removed the child, while Kilby was charged with cruelty or injury to the child.  He was convicted of that charge.

 

DSS then moved to change the girl’s foster care plan to adoption, and accordingly moved to terminate Kilby’s parental rights.  The termination statute permits the court to terminate such rights where, among other reasons, the parent has been convicted of an offense “that constitutes felony assault resulting in serious bodily injury” of his child.  (See subsection E(iii) for the details.)  The statute doesn’t define the term felony assault, but the trial court found that this description fit its understanding of the circumstances, so it terminated Kilby’s rights.

 

On appeal, the CAV traces the language of the termination statute with a companion statute, which “sets forth circumstances in which a child welfare agency may cease making reasonable efforts to reunite a child with a parent.”  (Check subsection B in this one.)  Interpreting that statute, the court had recently (2004) described the meaning of felony assault.  Because the court regards these two statutes as being in pari materia, it applies the reasoning from the 2004 case to affirm the trial court’s finding that Kilby’s actions did, indeed, constitute felony assault.

 

Kilby contended that the felony-assault provision only applied to affirmative assaultive acts by the parent, while his sin was one of omission: The failure to take steps to protect the child.  The court rejects this argument as well, finding that the focus of the statute is on the effect on the victim, not on the actions of the parent.

 

There’s one final important ruling here.  Kilby objected that the trial court had not found that he was an unfit parent, and he cited Virginia’s long-standing presumption in favor of parental custody of minor children.  The court responds today that a finding of felony assault obviates the need for a separate parental-fitness analysis.  It cites a Supreme Court decision in which the court had described an affirmative finding of the statutory factors for removal as being “tantamount to a finding of parental unfitness.”  That clear language abruptly ends Kilby’s final challenge.

 

I’ve been involved in a small number of termination cases, and every one of them is a tragedy of one sort or another.  The effect of such a ruling is permanent; the child becomes a legal stranger to the parent, and the parent has no visitation rights, no say in the child’s upbringing, no right even to call on the child’s birthday.  Of course, when a child can escape from a horrifying situation like this one, those would seem to be small prices to pay for the chance at a normal life.

 

This opinion is published, no doubt because it is the first appellate decision to make a finding of felony assault in conjunction with this statute.