COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Clements and McClanahan
Argued at Richmond, Virginia
ALLEN BROWN
OPINION BY
v. Record No. 1961-03-2 JUDGE ROSEMARIE ANNUNZIATA
JUNE 8, 2004
SPOTSYLVANIA DEPARTMENT OF
SOCIAL SERVICES
FROM THE CIRCUIT COURT SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
(Donald R. Skinker, on brief), for appellant. Appellant submitting
on brief.
Joseph A. Vance, IV (Vance & Associates, on brief), for appellee.
Allen Brown (Brown) appeals from an order of the Circuit Court of Spotsylvania County
terminating his parental rights with respect to his son, D.B. He contends the circuit court erred in
terminating his parental rights because: (1) the Spotsylvania Department of Social Services
(DSS) did not make reasonable efforts to reunite D.B. with Brown, and (2) DSS did not
adequately consider placement of D.B. with Brown’s mother, Rosemary Brown. For the
following reasons, we affirm.1
1
The record reflects that the guardian ad litem for D.B. was provided notice pursuant to
Rule 5A:6. He did not file a responsive brief with this Court, however. Standard J. of the
Standards to Govern the Performance of Guardians Ad Litem for Children, effective September
1, 2003, calls for all guardians ad litem to “[f]ile appropriate . . . briefs[] and appeals on behalf of
the child and ensure that the child is represented by a [guardian ad litem] in any appeal involving
the case.” Id. at http://courts.state.va.us/gal/gal_standards_children_080403.html.
I. Background
On March 21, 2001, DSS visited the home of Allen Brown in response to information
that a child living in the home, A.V., was severely bruised. DSS discovered that A.V. had two
large gashes on his head, two black eyes, bite marks on his shoulder and inner thigh, and
numerous other bruises and scratches on his body and face. It was subsequently determined that
A.V. had a fractured skull as well. DSS immediately removed A.V. and four other children
living in the home, including Brown’s son, D.B. A.V. is not related to Brown.
DSS interviewed the children living in the home, and those interviews revealed that
Brown and Shawna Ostberg, another adult woman who lived with Brown, encouraged the
children to “punch and scratch A.V. because he [defecated] on himself.” The children also stated
that A.V. “was made to sleep and eat in the bathroom.”
The following day, March 22, 2001, Brown was arrested for child abuse and neglect in
violation of Code § 40.1-103. All children were removed from the home, including Brown’s
son, D.B. On May 9, 2001, the juvenile and domestic relations district court made a finding of
abuse and neglect against Brown with respect to D.B. DSS filed a foster care plan with the goal
of returning D.B. to Brown’s care, which the juvenile court approved on June 1, 2001.
The foster care plan required Brown to obtain and maintain suitable housing and to
complete parenting classes, anger management classes, a substance abuse evaluation, and a
psychological evaluation. Brown completed the anger management and parenting classes.
However, the parenting class instructor concluded that, “based on information received in class,
interviews with the couple, and parent counseling sessions[,] the risk for abuse and neglect
remains high.” She noted that “Mr. Brown . . . [has] a difficult time recognizing that any of [his]
behaviors place [the] children in danger.”
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On October 31, 2001, the circuit court convicted Brown of the abuse and neglect of A.V.
in violation of Code § 40.1-103 after receiving his guilty plea. Brown’s expected release date is
January 15, 2006.
On January 9, 2002, the juvenile court ruled, pursuant to Code § 16.1-281(B)(3), that
DSS no longer had to make reasonable efforts to reunite D.B. with Brown due to Brown’s
October 31, 2001 conviction. DSS subsequently filed a petition to terminate Brown’s parental
rights with respect to D.B. on February 8, 2002. The juvenile court ordered the termination of
Brown’s parental rights on October 7, 2002. Brown appealed the juvenile court order to the
circuit court.
Before the juvenile court ordered the termination of Brown’s parental rights, Brown’s
mother, Rosemary Brown, filed a petition seeking custody of D.B. In the circuit court hearing,
Troi Coleman, a foster care worker for DSS, testified that she had investigated Rosemary as a
possible relative placement for D.B. From interviews with Brown and Rosemary’s daughter,
Kim Marshall, Coleman learned that the living conditions in Rosemary’s home were inadequate
and that Brown believed “that his mother was not a possibility” for placement due to her living
conditions, age, and work hours. At the time of the interviews, Rosemary resided in a
one-bedroom apartment in Connecticut. Marshall “reiterated that space was an issue” in
Rosemary’s apartment, and Coleman learned that Rosemary in fact supported Marshall as the
appropriate relative with whom to place D.B. The New Hampshire DSS informed Coleman
about the suitability of Marshall’s home. It had recently removed K., another child of Brown,
from Marshall’s care and it had not yet decided to place K. with Rosemary, notwithstanding the
fact that Marshall and Rosemary lived in the same apartment complex at that time; the New
Hampshire DSS only allowed Rosemary supervised visitation with K. Contrary to his earlier
stated reservations, Brown expressed support for his mother’s request for custody at the circuit
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court hearing. Rosemary testified that she had the ability to care for D.B. if she were granted
custody, that she was capable of supporting herself, and that she had moved to a larger
apartment.
By order dated July 17, 2003, the circuit court terminated Brown’s parental rights and
denied Rosemary’s petition for custody of D.B. This appeal followed.
II. Analysis
Brown urges two grounds for reversal of the circuit court’s decision. First, he argues that
the circuit court erred in finding that DSS did not have to make reasonable efforts to reunite D.B.
with Brown after Brown’s conviction for child abuse and neglect. Second, he argues that DSS
failed to consider placing D.B. with Rosemary prior to termination of his parental rights. We
address each argument in turn.
A. Standard of Review
When addressing matters concerning the custody and care of a child, this Court’s
paramount consideration is the child’s best interests. Toombs v. Lynchburg Div. of Soc. Servs.,
223 Va. 225, 230, 288 S.E.2d 405, 407-08 (1982). On appeal, we presume that the trial court
thoroughly weighed all the evidence, considered the statutory requirements, and made its
determination based on the child’s best interests. Farley v. Farley, 9 Va. App. 326, 329, 387
S.E.2d 794, 796 (1990). The trial court is vested with broad discretion in making decisions
“necessary to guard and to foster a child’s best interests.” Id. at 328, 387 S.E.2d at 795. We will
not disturb a trial court’s factual findings on appeal unless plainly wrong or without evidence to
support them. Id.
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B. DSS Was Not Required to Pursue Efforts to Reunite D.B. with Brown Following
Brown’s Conviction for Child Abuse and Neglect
Code § 16.1-281(B) provides in relevant part:
The local board or other child welfare agency having custody of
the child shall not be required by the court to make reasonable
efforts to reunite the child with a parent if the court finds that . . .
(3) the parent has been convicted of an offense under the laws of
this Commonwealth or a substantially similar law of any other
state, the United States or any foreign jurisdiction 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 a
child with whom the parent resided at the time of such offense.2
The statute 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.” Code § 16.1-281(B).
By order dated January 9, 2002, the juvenile and domestic relations district court found
that DSS need not continue its efforts to reunite Brown with D.B. because Brown was convicted
2
Code § 16.1-281(B) was amended in 2002 to include subsection (4), which provides:
or (4) based on clear and convincing evidence, the parent
has subjected any child to aggravated circumstances, or abandoned
a child under circumstances which would justify the termination of
residual parental rights pursuant to subsection D of § 16.1-283.
As used in this section:
“Aggravated circumstances” means torture, chronic or severe
abuse, or chronic or severe sexual abuse, if the victim of such
conduct was a child of the parent or child with whom the parent
resided at the time such conduct occurred, including the failure to
protect such a child from such conduct, which conduct or failure to
protect: (i) evinces a wanton or depraved indifference to human
life, or (ii) has resulted in the death of such a child or in serious
bodily injury to such a child.
Because this amendment was added after Brown’s conviction for child abuse, we do not
consider its applicability to this appeal.
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of abusing and neglecting A.V., a child who resided with him, in violation of Code § 40.1-103.3
In its final order terminating Brown’s parental rights, the circuit court ruled that DSS was no
longer required to provide services to Brown because it found “by clear and convincing evidence
that Allen Brown [was] convicted of an offense under the laws of this Commonwealth which
constitutes felony assault resulting in serious bodily injury.”
Although he acknowledges that his violation of Code § 40.1-103 constituted a felony,
Brown contends that Code § 40.1-103 cannot be construed as a “felony assault” because it does
not contain the common law elements of assault, specifically the intent to cause bodily harm.
We disagree because we find 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.
Code § 16.1-281(B) was enacted in response to 42 U.S.C. § 671, a legislative effort by
the federal government to bring uniformity to the states’ foster care and adoption assistance
programs in exchange for federal aid. See 42 U.S.C. § 670 et seq. Code § 16.1-281(B) closely
mirrors 42 U.S.C. § 671(a)(15)(D). Subsection (D)(ii)(IV) of the federal statute provides that
reasonable efforts to reunite the child with a parent need not be made if the parent has
“committed a felony assault that results in serious bodily injury to the child or another child of
3
In 2001, when Brown was tried and convicted of child abuse and neglect, Code
§ 40.1-103 provided:
It shall be unlawful for any person . . . having custody of any child
willfully or negligently to cause or to 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 to 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 . . . tortured,
tormented, mutilated, beaten, or cruelly treated. Any person
violating this section shall be guilty of a Class 6 felony.
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the parent.” Neither the federal statute nor Virginia’s statute expressly defines the term “felony
assault.” The federal statute makes clear in other subsections, however, “that Congress expected
the state legislators to insert into the applicable state statutes the state crimes that would meet the
federal requirement instead of simply copying that portion of 42 U.S.C. § 671(a)(15)(D).” State
v. Florance S., 666 N.W.2d 741, 750-52 (Neb. App. 2003), overruled on other grounds by State
v. Selina N., 669 N.W.2d 429, 435 (Neb. 2003); see also 42 U.S.C. § 671(a)(15)(D)(i) (“the
parent has subjected the child to aggravated circumstances (as defined in State law, which
definition may include but need not be limited to abandonment, torture, chronic abuse, and
sexual abuse)”).
Assault is a common law crime in Virginia. See Jones v. Commonwealth, 184 Va. 679,
681, 36 S.E.2d 571, 572 (1946). Although the elements of assault4 and the elements of child
abuse and neglect, as defined by Code § 40.1-103, are not the same, we are persuaded that the
legislature did not intend to limit the definition of “felony assault” found in Code
§ 16.1-281(B)(3) to those crimes that only include the elements of common law assault. Rather,
we hold that the term “felony assault” in Code § 16.1-281(B)(3) means any crime which results
in serious bodily injury to the child.
In reaching the conclusion that the term “felony assault,” as used in Code
§ 16.1-281(B)(3), encompasses crimes other than common law assault, we are guided by the
4
Assault is defined as
an attempt with force and violence, to do some bodily hurt to
another, whether from wantonness or malice, by means calculated
to produce the end if carried into execution; it is any act
accompanied with circumstances denoting an intention, coupled
with a present ability, to use actual violence against another
person.
Zimmerman v. Commonwealth, 266 Va. 384, 387, 585 S.E.2d 538, 539 (2003).
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usual rules of statutory construction. “In construing statutes, courts are charged with
ascertaining and giving effect to the intent of the legislature.” Crown Cent. Petroleum Corp. v.
Hill, 254 Va. 88, 91, 488 S.E.2d 345, 346 (1997). “[A] fundamental rule of statutory
construction requires that courts view the entire body of legislation and the statutory scheme to
determine the ‘true intention of each part.’” Virginia Real Estate Bd. v. Clay, 9 Va. App. 152,
157, 384 S.E.2d 622, 625 (1989) (quoting McDaniel v. Commonwealth, 199 Va. 287, 292, 99
S.E.2d 623, 627 (1957)). “In construing statutes, courts should give the fullest possible effect to
the legislative intent embodied in the entire statutory enactment.” Id.
If, however, the words in the statute are not sufficiently explicit,
we may determine legislative intent “from the occasion and
necessity of the statute being passed [or amended]; from a
comparison of its several parts and of other acts in pari materia;
and sometimes from extraneous circumstances which may throw
light on the subject.”
Yamaha Motor Corp. v. Quillian, 264 Va. 656, 665, 571 S.E.2d 122, 126 (2001) (quoting
Richmond v. Sutherland, 114 Va. 688, 691, 77 S.E. 470, 471 (1913)) (alteration in original).
With these principles in mind, we conclude that the conviction of a crime other than assault that
results in serious bodily injury qualifies as a “felony assault” under Code § 16.1-281(B)(3) for
three reasons.
First, we are persuaded by the focus of “the entire statutory enactment” that the
legislature’s overarching concern in adopting Code § 16.1-281(B) was the physical health of the
child, made evident in subsection (B)(3) of the statute, which establishes “serious bodily injury”
to the child as a determinative factor in applying the statute. The term “serious bodily injury” is
defined as that injury which “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.” Code § 16.1-281(B). Irrespective of whether the offense was an
assault or a “bodily wounding,” it must have resulted in serious bodily injury to the child-victim
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to satisfy the requirements of Code § 16.1-281(B)(3). Consistent with the purpose of the act, we
believe the provision’s focus on crimes that result in serious bodily injury indicates, in this
particular instance, that the legislature is not as concerned with the nomenclature or the elements
of the crime itself, but rather with the effect the crime had on the child-victim.
Second, we note that an act which results in serious bodily injury is not an assault; it is a
battery. Therefore, incorporating the common law definition of assault to the term “felony
assault” in Code § 16.1-281(B)(3), as Brown urges, would not be appropriate because the
predicate act or offense in that statute must result in serious bodily injury. Code
§ 16.1-281(B)(3). By coupling the term “felony assault” with serious bodily injury, the
legislature defined the term within the statute itself. It is thus neither necessary nor appropriate
to look beyond the words of the statute to discern the meaning of “felony assault.”
Third, and finally, an interpretation limiting the definition of “felony assault” in Code
§ 16.1-281(B)(3) to the crime of felony assault as defined elsewhere in the Code would lead to
an absurd result. An assault in Virginia is punishable only as a misdemeanor, see Code
§ 18.2-57(A); see also Jones, 184 Va. at 681, 36 S.E.2d at 572, unless the person assaulted is a
law enforcement officer, in which case the offense is punishable as a felony. See Code
§ 18.2-57(C). Were we to interpret the statute as Brown suggests, the “felony assault” provision
of Code § 16.1-281(B)(3) would be rendered meaningless because one could never commit a
“felony assault” against a child. We decline to interpret Code § 16.1-281(B)(3) in such a
manner. The “plain, obvious, and rational meaning of a statute is always to be preferred to any
curious, narrow, or strained construction.” Turner v. Commonwealth, 226 Va. 456, 459, 309
S.E.2d 337, 338 (1983).
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Here, the record establishes that Brown encouraged the other children in the home to hurt
A.V.5 As a result of the beatings administered by the other children, A.V. suffered multiple
injuries, the most serious of which was a fractured skull. A fractured skull plainly “involves a
substantial risk of death” and may lead to “protracted and obvious disfigurement.” See Code
§ 16.1-281(B). Thus, although Brown was convicted of child abuse and neglect in violation of
Code § 40.1-103, his crime “constitute[d] [a] felony assault resulting in serious bodily injury” to
a child with whom he was living at the time. Id. Considering the purpose of Code § 16.1-281 as
a whole, and the court’s paramount duty to protect the best interests of children, we conclude
that, under the facts of this case, Brown’s crime of child abuse and neglect, as defined by Code
§ 40.1-103, and the result it caused sufficed to meet the definition of the term “felony assault” in
Code § 16.1-281(B)(3). We, therefore, affirm the trial court’s determination that DSS was
relieved of its duty to provide services to Brown in an attempt to reunite him with D.B.
C. DSS Did Not Fail To Consider Placing D.B. with a Relative
Brown argues that DSS did not give sufficient consideration to placing D.B. with his
grandmother, Rosemary. In support of his position, Brown relies primarily on the failure of DSS
to conduct a home study of Rosemary’s home. We reject Brown’s contention, finding that DSS
investigated Rosemary in accordance with its statutory duty and that, in any event, Rosemary’s
testimony sufficiently apprised the circuit court of the suitability of placing D.B. with her.
Code § 16.1-283(A) provides that, in a termination of parental rights case, “the court
shall give a consideration to granting custody to relatives of the child, including grandparents.”
5
We note that Code § 16.1-281(B)(3) empowers the court to look to the facts underlying
the previous predicate offense. The legislature’s use of the term “constitute,” which means “to
make up (the element or elements of which a thing . . . is made up),” Webster’s Third New Int’l
Dictionary 486 (1993), requires that we discern the underlying facts that “made up” or
“constituted” the “felony assault.” Furthermore, only an inquiry into the underlying facts of the
offense would reveal whether it resulted in serious bodily injury to a child; a conviction order
does not reveal such details.
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“Before the court grants custody of a child, under the provisions of Code § 16.1-283(A) the
Department has a duty to produce sufficient evidence so that the court may properly determine
whether there are relatives willing and suitable to take custody of the child, and to consider such
relatives in comparison to other placement options.” Logan v. Fairfax County Dep’t of Human
Dev., 13 Va. App. 123, 131, 409 S.E.2d 460, 465 (1991). Nothing in the statute or case law
suggests that DSS has an affirmative duty to conduct a home study. That being said, DSS is
mandated “to produce sufficient evidence so that the court may properly determine whether there
are relatives willing and suitable to take custody of the child, and to consider such relatives in
comparison to other placement options.” Id. We find that DSS met that requirement.
The record reveals that DSS investigated Rosemary as a possible placement for D.B. At
the time of D.B.’s removal, DSS questioned Brown regarding possible placements for his son.
Brown indicated at that time that his mother Rosemary was “not a possibility” due to her age,
work hours, and living arrangements. Instead, Brown suggested his sister, Kim Marshall, as a
possible placement for D.B., a choice in which Rosemary concurred. However, the record
establishes that K., another child of Brown, had been recently removed from Marshall’s home
and care and that the New Hampshire DSS had not placed K. with Rosemary, only according her
supervised visitation with the child at the time. DSS presented the facts discussed above to the
trial court for its consideration in determining the propriety of placing the child with a relative.
Moreover, Rosemary testified at the hearing and informed the court of her “suitability
and willingness” to take D.B. into her custody. See Hawthorne v. Smyth County Dep’t of Social
Servs., 33 Va. App. 130, 139, 531 S.E.2d 639, 644 (2000). The trial court also heard evidence
from an expert, Ann Henley, who had evaluated “the family history of the children and the
parents.” Based on her evaluation, Henley concluded that D.B. had no attachment to, or bond
with, Rosemary. She determined that Rosemary last saw D.B. when he was ten months old. She
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further concluded that placing D.B. with Rosemary would separate him from his sister, H., “the
only constant in D.B.’s whole existence.”6 “Thus, as required by statute, the trial court was
presented with evidence for its consideration as to the suitability of placing [D.B.] with
[Rosemary] before it ordered the termination of appellant[’s] parental rights.” Id. Based on the
evidence the trial court received, we cannot say that its decision to deny Rosemary’s petition for
custody of D.B. was plainly wrong.
For the foregoing reasons, we affirm the decision of the circuit court terminating Brown’s
parental rights.
Affirmed.
6
H. is not related to Rosemary, greatly reducing the chance that she and D.B. could be
joined in her household.
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