Bucci & Dix

Father's Parental Rights Terminated For Failing To Protect Daughter From Sibling

The Virginia Court of Appeals upheld termination of a father's residual parental rights this week in Kilby v. Culpeper Department of Social Services.  In may 2005, Mr. Kilby's younger child was placed in foster care after the Culpeper County Department of Social Services (DSS) discovered that the child's older brother had been sexually assaulting her for the past year.  She sustained severe injuries from the assault.  Mr. Kilby was prosecuted and convicted of cruelty or injury to a child based on his failure to prevent the abuse of his child.  In conjunction with the child's removal and Mr. Kilby's prosecution, DSS provided counseling and services and encouraged Mr. Kilby to make hanges so that his home was a safe environment for the child.  The Kilbys refused and DSS sought adoption for the child because the DSS no longer thought living at home was in the best interests of the child.   DSS petitioned the circuit court for termination of the Kilbys' residual parental rights so the child could be adopted.

The circuit court granted termination of Mr. Kilby's parental rights, and he appealed, arguing that his conviction did not amount to "felony assault" on his child, which was a prerequisite to termination under the statute.  In short, Mr. Kilby argued that since it was not he who inflicted the harm, but his other child, he could not be held accountable for that crime of omission.  The Court of Appeals disagreed with Mr. Kilby and affirmed the trial court's ruling.  It said that the term "felony assault" means any felonious crime resulting in serious injury to a child of the parent.

The Court of Appeals most certainly got this one right. In enacting child protection laws, the Virginia legislature had the overarching goal of protecting the heath and safety of the child.  Regardless of whether the father's crime was one of omission or commission, once a parent fails to act in the best interests of their child, their parental rights are subject to termination.