Felony child neglect simply has a few more elements than the Commonwealth and the judge below were willing to recognize, the Court of Appeals explained as it reversed the conviction in a case called Shanklin v. Commonwealth, __ Va. App. ___, ___ S.E.2d ___, 23 VLW 1225 (4/7/09). This woman babysat a four-year-old child a few times, and the evidence was that his foot and his hands incurred second degree burns while the tot was in the care of this woman’s son. Sitting with the child for a five-hour period on a July day, she did notice that the child was sleepy and lethargic and could not walk, and that the locations of his burns were wrapped up in large amounts of duct tape, but she did not question the son when he came to pick the child up and take him back. This was all there was in the case, though the trial court made a finding that the amount of duct tape was “massive,” and thus should serve as a sign that there was something terribly wrong. The Commonwealth’s theory was that it was this woman’s duty to summon immediate medical help but, as the Court of Appeals explains, in these felony cases “the Commonwealth must show more than mere inattention and inadvertence; defendant’s negligence must rise to the standard of gross negligence.” The evidence here didn’t show that the babysitter recognized how bad the injuries were, nor that she disregarded a need for medical assistance of which she was not aware. It was clear from the record that she did not know how bad the burns were, and thus had no real reason to make an emergency doctor call, nor even to quiz her son about it. To show felony child neglect, the prosecutors would have to have shown that she made a willful decision to neglect known immediate medical needs. The Court of Appeals then went through the child’s behavior for possible red flags that would trigger this woman’s responsibility. The appellate judges find it significant that the child did not show any signs of discomfort, but simply was lethargic while he played and while he dined. And while duct tape as bandages may be unorthodox, the opinion by Judge Elder notes, it does work for a minor injury, and defendant not knowing what was under the duct tape she had no reason to tear it off. In fact she did ask her son when the child was dropped off what had happened to him and the son told her the kid burned himself with hot water. There was no discussion of how serious the injuries might be and it is obvious that there are numerous reasons a young child might be lethargic.