                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, AtLee and Senior Judge Clements
PUBLISHED



            JASON WILLIAM KING, SR.
                                                                                  OPINION BY
            v.     Record No. 0164-18-2                                      JUDGE WILLIAM G. PETTY
                                                                                 AUGUST 21, 2018
            KING GEORGE DEPARTMENT OF
             SOCIAL SERVICES


                              FROM THE CIRCUIT COURT OF KING GEORGE COUNTY
                                           Herbert M. Hewitt, Judge

                           (Edith M. Min; Edith M. Min, PLLC, on brief), for appellant.
                           Appellant submitting on brief.

                           (Nicholas A. Pappas; Kristie L. Kane, Guardian ad litem for the
                           minor children; Kristie L. Kane, PLC, on brief), for appellee.
                           Appellee and Guardian ad litem submitting on brief.


                   Jason William King, Sr. appeals the orders terminating his parental rights to his children.

            King argues that the circuit court erred by sustaining a motion by the King George Department of

            Social Services (the Department) for summary judgment and terminating his parental rights

            pursuant to Code § 16.1-283(E)(iii), based on his prior conviction for involuntary manslaughter.1

            Upon reviewing the record and briefs of the parties, we conclude that the circuit court did not err.

            Accordingly, we affirm the decision of the circuit court.

                                                      BACKGROUND

                   “On review of a trial court’s decision to terminate parental rights we view the evidence in

            the light most favorable to the prevailing party, in this case, the Department, and grant to it all


                   1
                     The Department argues that King did not preserve his argument for appeal because he
            endorsed the final order as “Seen and objected to.” However, we find that King preserved his
            arguments for appeal in his response to the Department’s motion for summary judgment and
            closing argument. See Lee v. Lee, 12 Va. App. 512, 515, 404 S.E.2d 736, 738 (1991) (en banc).
reasonable inferences fairly deducible from the evidence.” Farrell v. Warren County Dep’t of

Soc. Servs., 59 Va. App. 375, 420-21, 719 S.E.2d 329, 351 (2012).

        King and Sonya Brown King (mother) are the biological parents of six children, five of

whom are the subject of this appeal. In 2011, King was home with four of his children, who ranged

in age from eight months (the infant) to four years old. Three of the children were outside playing.

The infant needed her diaper changed, so King, who had a “weak stomach,” placed the infant in the

bathtub to clean her bottom. The phone rang, and King left the infant in the bathtub with enough

water “to splash” while he answered the phone. While he was on the phone, the three-year-old child

came into the house and turned the water on in the bathtub where the infant was sitting. King did

not hear the child turn on the water, and when he returned to the bathroom, the infant was floating in

about a foot of water. He tried to revive the infant, but she was dead. As a result of the incident, the

Department became involved. King was subsequently convicted of involuntary manslaughter of the

infant pursuant to Code § 18.2-32.

        As a result of continuing problems, the Department remained active in monitoring the

children throughout the subsequent years and eventually removed the children and filed for

termination of King’s and mother’s parental rights pursuant to Code § 16.1-283. In February 2017,

the juvenile and domestic relations district (JDR) court terminated King’s parental rights to his

children pursuant to Code § 16.1-283(C)(2). King appealed to the circuit court.2

        On July 31 and October 10, 2017, the parties appeared before the circuit court. At the

conclusion of the evidence, King made a motion to strike, which the circuit court denied. The

Department made a motion for summary judgment. The circuit court directed the parties to submit



        2
         Mother also appealed to the circuit court, and then to this Court, the court’s termination
of her parental rights pursuant to Code § 16.1-283(C)(2). This Court affirmed. See S. King v.
King George Dep’t of Soc. Servs., No. 0179-18-2, 2018 Va. App. LEXIS 220 (Va. Ct. App.
Aug. 14, 2018).
                                               -2-
the motion for summary judgment and response, as well as their closing arguments, in writing.

After the documents were filed, the circuit court issued its letter opinion and sustained the

Department’s motion for summary judgment. On January 9, 2018, the circuit court entered orders

terminating King’s parental rights to his children pursuant to Code § 16.1-283(E)(iii). This appeal

followed.

                                              ANALYSIS

        “When considering termination of parental rights, ‘the paramount consideration of a trial

court is the child’s best interests.’” Fauquier Cty. Dep’t of Soc. Servs. v. Ridgeway, 59 Va. App.

185, 190, 717 S.E.2d 811, 814 (2011) (quoting Logan v. Fairfax Cty. Dep’t of Human Dev., 13

Va. App. 123, 128, 409 S.E.2d 460, 463 (1991)). Generally, “trial courts are vested with broad

discretion” in matters of a child’s welfare, and its “determination of matters within its discretion is

reversible on appeal only for an abuse of that discretion.” Farley v. Farley, 9 Va. App. 326, 328,

387 S.E.2d 794, 795 (1990). “A trial court’s decision will not be set aside unless plainly wrong or

without evidence to support it.” Id. Statutory interpretation, however, presents a pure question of

law and is subject to de novo review by this Court. Ainslie v. Inman, 265 Va. 347, 352, 577

S.E.2d 246, 248 (2003). When interpreting statutes, courts “ascertain and give effect to the

intention of the legislature.” Chase v. DaimlerChrysler Corp., 266 Va. 544, 547, 587 S.E.2d 521,

522 (2003). “Statutes dealing with the same subject matter must be read together so as to adhere

to the legislative intent underlying them and to permit them to operate together without conflict.”

McKinney v. Virginia Surgical Assocs., P.C., 284 Va. 455, 460, 732 S.E.2d 27, 29 (2012).

        King argues that the circuit court erred in terminating his parental rights pursuant to Code

§ 16.1-283(E), which states that a parent’s parental rights may be terminated

                if the court finds, based upon clear and convincing evidence, that it
                is in the best interests of the child and that . . . (iii) the parent has
                been convicted of an offense under the laws of the Commonwealth
                . . . that constitutes felony assault resulting in serious bodily injury
                                                  -3-
                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 . . . at the time of such offense.

Code § 16.1-283(E) defines “serious bodily injury” as “bodily 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.”

        King asserts that his conviction for involuntary manslaughter was not a “felony assault

resulting in serious bodily injury,” as required under Code § 16.1-283(E)(iii). This Court addressed

a similar argument in Brown v. Spotsylvania Dep’t of Social Services, 43 Va. App. 205, 597 S.E.2d

214 (2004). In Brown, we concluded that the Department was not required to make reasonable

efforts to reunite Brown with his child after he was convicted of child abuse and neglect in violation

of Code § 40.1-103. Id. at 216, 597 S.E.2d at 220; see also Code § 16.1-281(B)(3). This Court held

that “child abuse and neglect, as defined by Code § 40.1-103, and the result it caused [in that case,

multiple injuries, including a fractured skull] sufficed to meet the definition of the term ‘felony

assault’ in Code § 16.1-281(B)(3).” Brown, 43 Va. App. at 217, 597 S.E.2d at 220. In so holding,

we defined “felony assault” from Code § 16.1-281(B)(3) as “any felonious crime that results in

serious bodily injury to a child of the parent or a child who lives with the parent.”3 Id. at 213, 597

S.E.2d at 218. We held that “the provision’s focus on crimes that result in serious bodily injury

indicates . . . 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.” Id. at 215, 597 S.E.2d at

219. Furthermore, we note that although the current case concerns Code § 16.1-283 (termination of



        3
          This Court extended this definition of “felony assault” to Code § 16.1-283(E)(iii), the
relevant statute here, in Kilby v. Culpeper County Dep’t of Social Services, 55 Va. App. 106, 112,
684 S.E.2d 219, 222 (2009). We held in Kilby that “Code §§ 16.1-281(B)(3) and 16.1-283(E)(iii)
are part of the same statutory scheme, and were adopted to protect the physical well-being of
children.” Id. at 113, 684 S.E.2d at 222.

                                                  -4-
parental rights) and not Code § 16.1-281 (which concerns foster care plans and was the code section

at issue in Brown), the relevant language regarding conviction of an assault resulting in serious

bodily injury is identical.4 As we stated in Brown, “felony assault” is not limited to common law

assaults; the legislature’s concern in adopting Code § 16.1-283 was the physical health of the child.

        Accordingly, because King’s conviction for involuntary manslaughter was a conviction for a

“felonious crime that results in serious bodily injury to a child,” we conclude that the conviction

constitutes a “felony assault resulting in serious bodily injury.” Code § 16.1-283(E)(iii). 5

        Nevertheless, King argues that Brown does not control this case because involuntary

manslaughter requires a different mens rea than the crime of child abuse and neglect addressed in


        4
            Code § 16.1-281(B) provides,

                         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 the 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.

                    ....

                 “Serious bodily injury” means bodily 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.
        5
          To the extent that King suggests that Brown was incorrectly decided, we note that this
Court abides by the doctrine of interpanel accord. A holding by one panel of the Court of
Appeals of Virginia “bind[s] all other three-judge panels under the interpanel accord doctrine.”
Startin v. Commonwealth, 56 Va. App. 26, 39 n.3, 690 S.E.2d 310, 316 n.3 (2010) (en banc). A
decision of one panel protected by the interpanel accord doctrine “cannot be overruled except by
the Court of Appeals sitting en banc or by the Virginia Supreme Court.” Congdon v. Congdon,
40 Va. App. 255, 265, 578 S.E.2d 833, 838 (2003). The decision of the panel in Brown has not
been overruled by this Court sitting en banc or by the Supreme Court. Therefore, we are bound
by its interpretation of Code § 16.1-281(B)(3).
                                                -5-
Brown. We disagree. To obtain a conviction for involuntary manslaughter pursuant to Code

§ 18.2-32, the Commonwealth must show (1) the accidental killing of a person, contrary to the

intention of the parties; and (2) the death occurs in the defendant’s prosecution of an unlawful but

not felonious act, or in the defendant’s improper performance of a lawful act.” Gregg v.

Commonwealth, 67 Va. App. 375, 385, 796 S.E.2d 447, 452 (2017) (quoting Noakes v.

Commonwealth, 54 Va. App. 577, 585, 681 S.E.2d 48, 52 (2009)). Notably, “[t]o constitute

involuntary manslaughter, the ‘improper’ performance of a lawful act must amount to an unlawful

commission of that lawful act, manifesting criminal negligence.” Id. (emphasis added) (quoting

Noakes, 54 Va. App. at 585, 681 S.E.2d at 52).

       Criminal negligence is also required in order to obtain a conviction for child abuse and

neglect pursuant to Code § 40.1-103. Mosby v. Commonwealth, 23 Va. App. 53, 59, 473 S.E.2d

732, 735 (1996). Code § 40.1-103 provides, in part, “It shall be unlawful for any person

employing or having the custody of any child willfully or negligently to cause or permit the life

of such child to be endangered or the health of such child to be injured . . . .” Criminal

negligence must be “more than the lack of ordinary care and precaution[,] . . . something more than

mere inadvertence or misadventure. The negligence must be so gross and culpable as to indicate a

callous disregard of human life and of the probable consequences of [the] act.” Ellis v.

Commonwealth, 29 Va. App. 548, 556-57, 513 S.E.2d 453, 457 (1999) (internal quotation marks

and citations omitted).6 Therefore, not only can commission of either involuntary manslaughter or



       6
          To the extent that Code § 40.1-103 requires a showing of willfulness, that requirement
incorporates willful negligence. See Ellis, 29 Va. App. at 557, 513 S.E.2d at 458 (“While willful
misconduct requires an intentional or purposeful act or failure to act, gross or criminal
negligence involves a failure to act under circumstances that indicate a passive and indifferent
attitude toward the welfare of others. Moreover, the defendant must be proved indifferent in the
face of knowledge that injury or illegality will be the probable result or, in the alternative, that
circumstances exist under which the defendant may be chargeable with such knowledge.”
(citation omitted)).
                                                 -6-
child abuse and neglect result in serious bodily injury to the child victim, but also the requisite mens

rea is the same for both crimes.

        Alternatively, King argues that involuntary manslaughter is not a predicate offense for

termination pursuant to Code § 16.1-283 because it is not specifically listed in Code

§ 16.1-283(E)(ii). Code § 16.1 283(E)(ii) states, in pertinent part, that a parent’s parental rights may

be terminated when “the parent has been convicted of an offense . . . that constitutes murder or

voluntary manslaughter . . . if the victim of the offense was a child of the parent.” Code

§ 16.1-283(E)(iii) itself, however, subsumes into Code § 16.1-283(E) all the crimes that fit the

definition of a “felony assault resulting in serious bodily injury or felony bodily wounding resulting

in serious bodily injury or felony sexual assault” that are not already listed in Code

§ 16.1-283(E)(ii). As this Court noted in Brown,

                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) . . . . 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)”).

Brown, 43 Va. App. at 213-14, 597 S.E.2d at 218. In fact, as we noted above, Brown was convicted

of child abuse and neglect, a crime also not listed in Code §§ 16.1-281 or -283. Accordingly, we

conclude that involuntary manslaughter is a felony assault for purposes of Code § 16.1-283(E)(ii).




                                                  -7-
        Finally, King asserts that his parental rights should not be terminated based on his

conviction for involuntary manslaughter because the conviction was six years prior to the removal

of the children. Code § 16.1-283(E), however, does not impose any time restraints as to when the

convictions had to occur in connection with the removal of the children.

        Therefore, the circuit court did not err in terminating King’s parental rights pursuant to Code

§ 16.1-283(E)(iii).7

                                           CONCLUSION

        For the foregoing reasons, the circuit court’s ruling is affirmed.

                                                                                               Affirmed.




        7
          King also argues that the trial court erred because King made efforts that substantially
remedied the conditions which brought the children into foster care. However, the only basis on
which the trial court terminated his parental rights was pursuant to Code § 16.1-283(E)(iii) as a
result of his conviction for involuntary manslaughter. Therefore, we decline to consider this
additional argument.
                                                  -8-
