The Court
of Appeals upheld termination of the parental rights of a father who was
convicted of letting his daughter be sexually abused by her brother so badly
that permanent physical injury was caused. The trial court did this under §16.1-283(E)(iii) on the
basis of this father’s conviction under §40.1-103 for cruelty or injury to a
child. The father argued that that does not constitute “felony assault
resulting in serious bodily injury … etc.” within the meaning of
§16.1-283(E)(iii). He sought to
distinguish Brown v. Spotsylvania DSS,
43 Va. App.
205, 597 S.E.2d 214 (2004) on the ground that he did not affirmatively
inflict serious bodily injury on his child, but was convicted criminally of an
act of omission when he failed to protect the child from her brother. The Court of Appeals said it is a
distinction without a difference, and that these statutes are all part of a
statutory scheme which must be read in
para materia. And when the
father objected that he should be protected by the parental presumption because
he was not actually adjudicated of unfitness, the Court of Appeals rejected
that argument (citing Knox v. Lynchburg
DSS, 223 Va. 213, 288 S.E.2d 399 (1982)) on the interesting ground that once a
trial court finds all the factors necessary under §16.1-283, it does not have
to go on to make an express finding of parental unfitness, since it’s implied
therein. Kilby v. Culpeper DSS, ___ Va. App. ___, ___ S.E.2d ___, 24 VLW 574
(10/27/09).