COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphr eys and Senior Judge Fitzpatrick Argued at Alexandria, Virginia

DOROTHY JANE BEAN-BREWER OPINION BY v. Record No. 1614-05-4 JUDGE LARRY G. ELDER OCTOBER 17, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Richard B. Potter, Judge William J. Baker for appellant. Denise C. Anderson, Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Dorothy Jane Bean-Brewer (appellant) appeal s from her jury trial conviction for child neglect in violation of Code § 18.2-371.1(B). On appeal, sh e contends the evidence was insufficient to prove a “willful act or omission” amounting to criminal negligence, as required to support a conviction under the statute. We hold th e evidence, viewed in the light most favorable to the Commonwealth, was sufficient, a nd we affirm appellant’s conviction.
I. BACKGROUND On August 31, 2004, appellant was a day care prov ider licensed by the State of Virginia to provide child care in her home and had been so licensed since at leas t 2000. As a licensed day care provider, appellant was “expected to be in full compliance with” certain “minimum standards” promulgated by the Virginia Department of Social Services. Appellant received a copy of the Department’s minimum standards when she was licensed, and c onfirmed that, in the summer of 2004, she had a copy of those standards. Those standards defined a “[c]hild,” for- 2 - purposes of “child day programs,” as “an individu al under 13 years of age” and provided that appellant--as the responsibl e “care giver” operating a “ch ild day program” “assum[ing] responsibility for the supervision, protection, and well-being of” such a child or children--could not have an assistant care give r under the age of fourteen. 22 Va. Admin. Code 40-110-10. The standards also provided as follows: Children shall be supervised by a ca re giver at all times. Children shall not be left alone in the care of an assistant under 18 years of age while in care.

Children shall be supervised in a manner which ensures that the care giver is aware of what the ch ildren are doing at all times and can promptly assist or redirect activities when necessary. In deciding how closely to superv ise children, providers shall consider the following: 1. Ages of the children; 2. Individual differences and abilities; 3. Layout of the house and play area; 4. Neighborhood circumstances or hazards; and 5. Risk activities children are engaged in. 22 Va. Admin. Code 40-110-650, 40-110-710. The Depart ment’s regulations also provided that a person operating a “family day home,” or in-hom e day care facility, coul d have a maximum of 12 children, not including the prov ider’s own children, at any one time. 22 Va. Admin. Code
40-110-30. On August 31, 2004, the day at issue, appellant had--in addition to her own two children, a six-year-old girl and a five-y ear-old boy--eleven or twelve child ren in her care. One of those children was a ten month old named Danyelle. Danye lle’s mother, Tricia, testified that she and her husband had obtained appellant’s name fr om a list of provider s licensed through the Department of Social Services , and appellant confirmed to Da nyelle’s parents that she was a- 3 - licensed provider. Tricia’s understanding was that appellant was the provider and that appellant, either primarily or solely, would be the person caring for Danyelle. Despite appellant’s representations, the evid ence established that appellant routinely delegated many of her child care responsibilit ies for Danyelle and her other younger charges to the older children in her care, an eleven-year-old girl, Jordan, and her eight-year-old brother, Miles. Jordan testified th at on August 31, 2004, the children ate breakfast and watched television on the first floor until 9:00 or 9: 30 a.m., at which time Jordan took nine or ten children, including Danyelle, who were “babies un til about kindergarten age,” to the basement. Jordan changed four of the younge r children who weren’t yet potty trained and “play[ed] games and whatnot” with the children. Appellant, who “would come down” only “on[c]e or twice a week,” did not go downstairs with Jordan and the others at that time. Other than appellant, no adults provided supervision in the basement. Appellant came down later in the morning on August 31, 2004, “to ask everybody what kind of pizza they wanted” for lunch. Appellant then went back upstairs, and without adult supervis ion, Jordan, Miles, and appellant’s two children, who were six and five, made sure the others wash ed their hands and had their diapers changed or used the bathroom before they went upstairs for lunch. After lunch, the younger children re turned to the basement for their naps. As on most days, Jordan was responsible for getting the childr en down for their naps while appellant cleaned up from lunch. Jordan put the mats and blankets down for the older children and put the babies, including Danyelle, in their cribs. Neither appe llant nor any other adult was in the basement at the time. Sometime between 1:00 and 2:00 p.m., while the younger children were napping, appellant, appellant’s two children, Jordan, and Miles were in the living room when a truck arrived to deliver a new bunk bed appellant had ordered for her si x-year-old daughter’s room.- 4 - Appellant, her children, Jordan, and Miles all carried parts of the bed to the daughter’s second-floor room. Sometime later, the parent of one of appellant’s charges, a one-year-old girl, arrived with an adult male. Appellant came down to the first floor, and she sat with the girl’s mother and the mother’s friend on the first floor for a while. Jordan went to the basement to awaken the mother’s child and brought the girl upstairs to her mother. Appellant, Jordan, the mother and her daughter, and the mother’s male fri end then went upstairs to put the bed together. Later on, appellant sent Jordan to the refrig erator in the garage to get some alcoholic “fruit” “coolers,” and appellant dr ank two coolers. At another poi nt, Jordan “had to go [to the basement] and make sure everybody was okay, because we thought we were hearing kids playing down there.” When the mother of another child arrived, Jordan went to the basement to get that child and handed her over to her mother. Jordan testified that, on an ordinary afternoon, appellant w ould usually accompany her to the basement to awaken the children from their naps and that appellant did so “because some of the kids . . . didn’t really like getting up.” On the af ternoon of August 31, 2004, however, appellant sent Miles, Jordan’s ei ght-year-old brother, “to go put on the lights and get all the kids up . . . and give them a snack.” Miles had neve r awakened the children before. Miles testified that appellant specifically told hi m to get Danyelle out of her crib. When Miles arrived in the basement, Danyelle was already awake. When eight-year-old Miles attempted to remove twenty-pound Danyelle fr om her crib, he hit her nose on the rail of the crib, and then he dropped her on her side on th e floor next to the crib. Miles then picked Danyelle up and “sat her on the floor,” and she began to crawl around. When another of the children, a four year old, told Miles that Danyelle’s mouth was bleeding, Miles took Danyelle upstairs to appellant an d reported the bleeding.- 5 - When Miles brought the bleeding Danyelle up stairs on the afternoon of August 31, 2004, appellant told Miles to give Danye lle to Jordan, and appellant went to get a wet washcloth to stop the bleeding. Jordan testified she believed Danyelle was bleeding because she was teething. Danyelle was “screaming at . . . the top of he r lungs,” and “she kept on wringing around in [Jordan’s] arms while she” continue d to “scream[] at the top of he r lungs.” Appellant then told Jordan to bring Danyelle into the bathroom, a nd when Jordan attempted to do so, Danyelle, who had “kept on squirming,” hit her head on the door frame. Jordan then gave Danyelle to appellant “to make sure there [were] no . . . bumps or br uises on her head.” Appellant kept Danyelle upstairs for a while to make su re her mouth had stopped bleeding. While Danyelle remained upstairs with appellan t, appellant sent Jord an to the basement to finish getting the children up and feed them a snack, which she did with the help of Miles and appellant’s six-year-old daughter. Shortly after that, appellant sent Jordan to the basement with Danyelle to change her diaper. Danyelle’s mother , Tricia, arrived to pick Danyelle up at the end of the day on August 31, 2004, while Jordan was in the basement changing Danyelle’s diaper. No adults were present. When Tricia pick ed Danyelle up, Tricia “noticed Danyelle looked funny, puffy,” “as if she had justgotten over a hard cry,” and she “just didn’t look right.” Danyelle “went straight to [Tricia’s] shoulder, ” and although Tricia was told Danyelle had just awakened from a nap, Danyelle “wanted to go right back to sleep again.” Tricia tried to “glanc[e] at Danyelle in the mirro r” but was unable to “get a real ly good look at her face.” Tricia “went upstairs and . . . yelled up to [appellant] th at [she] was there.” Appellant came down from the second floor to the first floor. Tricia aske d what had happened that day, but “there was no offer of information.” When Tricia inqui red about “some swelling and red marks around [Danyelle’s] eye,” appellant said “they were ‘b ed marks’” and that Danyelle had “napped from 1:30 p.m. - 4:30 p.m. and had a good day.”- 6 - Within five minutes after Tricia arri ved home with Danyelle, she and her husband decided Danyelle did “not seem right,” and they took her to the Prince William Hospital Emergency Room. A head CT showed a small intr acranial hemorrhage, or collection of blood in a place where it should not have been, around the te mporal lobe, and Danyelle was transferred to the pediatric neurology unit at Fairfax Hospital. At Fairfax Hospital, Danyelle was documented as having the following injuries: She had extensive facial bruising, mainly on the left side of her face. She had a bruised left lower eyelid. She had . . . torn tissue underneath her upper lip [that was unr elated to teething]. She had bruises on her lower thighs, just above the knees, on both sides, and her CT scan of her head re vealed she had a bruised brain. Because bruising to the brain could cause seiz ures, Danyelle was admitted for observation and released two days later. Multiple x-rays and a subsequent bone scan indicated no fractures, and Danyelle appeared to recover fully. The same evening Danyelle’s parents t ook her to the emergency room, the police contacted appellant to inquire about how Danyelle sustained he r injuries. The following day, September 1, 2004, a detective and a Child Protec tive Services worker questioned appellant’s oldest charges, eleven-year-old Jordan and her eight-year-old brot her, Miles, about how Danyelle sustained her injuries. Following that questioni ng, appellant was indict ed for “commit[ing] a willful act or omission in the care of [Danyelle] that was so gross, wanton and culpable as to show a reckless disregard for human life.” At trial, the Commonwealth presented the testimony of Jordan and Miles that appellant delegated many of her child care responsibilities over Danyelle and her other young charges to Jordan, Miles, and appellant’s own two children, who were five and six at the time. Jordan and Mile s also testified about how Danyelle sustained her injuries.- 7 - The Commonwealth offered testimony fr om Dr. Kent Hymel, a board-certified pediatrician with a subspecialty in child abuse and neglect. Dr. Hymel did not treat Danyelle directly but supervised the phys ician who did and reviewed Danye lle’s medical records. Dr. Hymel testified that the injuries to the left side of Danyelle’s “face, head [and] brain” could be explained by “a fairly forceful impact against the le ft side of her face over a very broad surface.” Dr. Hymel also offered “an opinion as an expert in child abuse a nd neglect” as to “whether an 8-year-old would have the ability to care for a 10-month-old child, to a reasonable degree of medical certainty.” He explained that the daily needs of a ten month ol d would be “[n]utrition, hydration, clothing and warmth, safety and obviously attention and love.” He opined that some eight year olds could dress a ba by, feed it a bottle and “[maybe] ev en . . . change a diaper” but that he had never encountered an eight year ol d with “the maturity, tr ack record of mature behavior themselves to do all of th e things that [he] summarized in the list of required tasks.” He said that “supervision,” “in particular,” “is wh at would concern” him because of the increasing mobility of a child of Danyelle’s age. Following her conviction, appe llant noted this appeal.
II. ANALYSIS Under settled principles, we view the evid ence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, and we must “affirm the judgment of the trial court unless plainly wrong or without evidence to support it.” Barrett v. Commonwealth , 268 Va. 170, 179, 597 S.E.2d 104, 108 (2004). Code § 18.2-371.1 provides in relevant part as follows: B. 1. Any parent, guardian, or other person responsible for the care of a child under the ag e of 18 whose willful act or omission in the care of such child was so gross, wanton and- 8 - culpable as to show a reckless disregard for human life shall be guilty of a Class 6 felony. On appeal, appellant disputes only the sufficiency of the evidence to prove she committed a “willful act or omission in the care of [Danyelle] that was so gross, wanton and culpable as to show a reckless disregard for hu man life.” Code § 18.2-371.1(B)(1). The Supreme Court recently clarified the element of in tent required to support a conviction under Code § 18.2-371.1: “The term ‘willful act’ imports knowledge and consciousness that injury will result from the act done. The act done must be intended or it must involve a reckless disregard for the rights of anothe r [that] will probably result in an injury.”
Barrett , 268 Va. at 183, 597 S.E.2d at 111. Thus, the issu e of intent requires an examination not only of the act that created the risk, but also of the degree to which the accused “was [or should have been] aware of the danger” that re sulted from the act. Ellis v. Commonwealth , 29 Va. App. 548, 555, 513 S.E.2d 453, 457 (1999); see Kelly v. Commonwealth , 42 Va. App. 347, 356, 592 S.E.2d 353, 357 (2004) (noting that criminal negl igence “‘is judged under an objective standard and, therefore, may be found to exist where the offender either knew or should have known the probable results of his acts’” (quoting Conrad v. Commonwealth , 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc))). A showing of “inattention and inadvertence,” i.e., simple negligence, is insufficient to justify the imposition of a criminal penalty. Ellis , 29 Va. App. at 555-56, 513 S.E.2d at 457; see also Commonwealth v. Duncan , 267 Va. 377, 384, 593 S.E.2d 210, 214 (2004). Rather, the negligence must be “gross negligence” and must be “accompanied by acts of commission or omission of a wanton or willful nature, showing a reckless disregard or indifferent disregard of the rights of others , under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of [her] acts.”- 9 - Barrett , 268 Va. at 183, 597 S.E.2d at 111 (quoting Cable v. Commonwealth , 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992)). Appellant, citing Ellis , contends “[t]he mere fact that [s he] did not stay in the same room as the children she had in her care and relied on the older children to assist her in caring for the younger children does not constitute a willful act or omission as required for [a] conviction” under Code § 18.2-371.1(B). Under the specifi c facts of this case, we disagree. Ellis involved a mother who turned on a burner of her apartment’s gas stove to light a cigarette and then left the ap artment to visit a friend in a nearby apartment while her two young children were napping. Ellis , 29 Va. App. at 551-52, 513 S.E.2d at 455. A fire broke out in Ellis’s apartment shortly after she left. Id. at 552-53, 513 S.E.2d at 455. In reversing Ellis’s conviction, we reasoned as follows: While appellant . . . purposefu lly and intentionally left her apartment . . . , the intent which is relevant to our determination of “bad purpose” does not relate simply to why she left the apartment. Rather, it relates to the degree to which she was aware of the danger when leaving her children unattended. Here, no evidence establishes that . . . she acted w ith knowledge or consciousness that her children would be injured as a likely result of her departure to visit a neighbor for a short period of time in another residential building. [Further, the evidence] fails to show that appellant left the apartment knowing the burner was on and in conscious disregard of the likely ignition of a greas e fire that would ultimately endanger the lives of her children. . . . . . . [I]nattention and inadvert ence have not been heretofore equated with actions taken willfully, thus making them subject to criminal penalty. Similarly, appellant’s inability to “see anything wrong with what she had done by going outside and leaving the children alone in the apartment,” while clearly misguided, is reflective of simple negligence, not criminal conduct. Id. at 555-56, 513 S.E.2d at 457 (citations omitted).- 10 - Here, by contrast, appellant was a licensed child care provider w ith a duty to be aware of and comply with the Department of Social Services’ minimum st andards applicable to a paid provider caring for the children of others in her home. See 22 Va. Admin. Code 40-110-40. Those regulations required the child ren in appellant’s care to be “supervised by a care giver at all times” and required that the care giver be fourteen years of age or older. Id. 40-110-10, 40-110-650. They also provided th at this supervision be conduc ted “in a manner which ensures that the care giver is aware of what the children are doing at all times” and permits the care giver
to “ promptly assist or redirect activities when necessary .” Id. 40-110-710 (emphasis added). Finally, those regulations provide d that, in determining how clos ely to supervise children, the provider “shall consider,” inter alia , “[a]ges of the children” a nd “[i]ndividual differences and abilities.” Id. Although violation of the Department’s mi nimum standards does not show criminal negligence as a matter of law, cf. King v. Commonwealth , 217 Va. 601, 605-06, 231 S.E.2d 312, 316 (1977) (holding conviction for reckless drivi ng, standing alone, is insufficient to prove criminal negligence); Darnell v. Commonwealth , 6 Va. App. 485, 489-92, 370 S.E.2d 717, 719-21 (1988) (applying King rationale to violation of stat ute prohibiting reckless handling of firearm and rejecting argument that such reckle ss handling equates to recklessness required to prove criminal negligence element of involuntar y manslaughter), viola tion of those minimum standards is relevant to an examination of whether appellant knew or should have known her actions “‘ma[d]e it not improbable th at injury’” would occur. Cable , 243 Va. at 240, 415 S.E.2d at 220 (quoting Bell v. Commonwealth , 170 Va. 597, 611-12, 195 S.E. 675, 681 (1938)). We hold that the evidence as a whole, including th e Department’s minimum standards for in-home child care providers and appellan t’s failure to comply with th em, viewed in the light most- 11 - favorable to the Commonwealth, supports a find ing that appellant should have known her acts probably would result in injury. Here, the evidence established that appellant routinely chose to allow two of the older children in her care--Jordan, an eleven-year-o ld girl, and Miles, Jordan’s eight-year-old brother--to provide extended supervision for the children entrusted to appellant’s care, most of whom were infants, toddlers, and preschoolers. Under the evidence in the record, viewed in the light most favorable to the Comm onwealth, after appellant fed the children on the first floor of her home on the morning of August 31, 2004, Jordan took the children to the basement play area at about 9:30 a.m., and appellant visited the basement briefly on only one occasion prior to lunch, in order to determine what kind of pi zza the children wanted. Jordan testified that appellant would come down and play with the y ounger children in the basement only “on[c]e or twice a week” and that the rest of the time, Jord an, Miles, and appellant’s two children were in charge. Prior to lunch on August 31, 2004, el even-year-old Jordan, with the help of eight-year-old Miles and appellan t’s five- and six-year-old ch ildren, helped appellant’s younger charges wash their hands and use the bathroom, a nd Jordan changed diapers as necessary. After lunch on the first floor, which appe llant supervised, appellant remained on the first floor and had Jordan return with the children to the baseme nt, where Jordan put three infants, including ten-month-old Danyelle, in their cribs; set ou t mats and blankets for the other young children; and waited until they all fell asleep. Shortly thereafter, appellant received a delivery, and a ll the children who were not napping helped carry the item delivered--a bed-- up to the second floor of the home, two floors above the sleeping children, where appellant became preoccupied with assembling it. Appellant consumed two alcoholic beverages while on the second floor, and the evid ence established she did not return to the basement at any time dur ing the course of the afternoon. When two- 12 - different mothers arrived to pick up their infants or toddlers, appellant sent Jordan to the basement to get each of the children. When a ppellant thought she heard some of the children stirring in the basement, she again sent Jo rdan to the basement to check on them. Finally, the evidence, viewed in the light most favorable to the Commonwealth, establishes that when appellant determined it was time for the remaining children to arise from their naps, she sent eight-year-old Miles to the ba sement with specific inst ructions to rouse the children and remove ten-month-ol d Danyelle from her crib. Wh ile removing Danyelle from the crib, Miles hit Danyelle’s nose on the rail and then dropped her on the floor outside the crib. Eight-year-old Miles was both too young to safely remove twenty-pound Danyelle from the crib and too young to realize that Danyelle might have been hurt when he dropped her. He made no effort to seek help until anothe r of the children told him Dany elle was bleeding. Even when Miles took Danyelle upstairs to ap pellant, he apparently did not inform her that he had dropped Danyelle. Finally, instead of taking physical cu stody of Danyelle, who was “screaming at . . . the top of her lungs” when Miles brought her to the second floor, appellant told Miles to give Danyelle to Jordan, who was unable to prevent th e flailing Danyelle, who was still screaming at the top of her lungs, from hitting her head on the frame of the bathroom door. Thus, the evidence proves appellant failed re peatedly in her duty to supervise the children, particularly eight-year-old Miles and ten-month-old Danyelle, “in a manner which ensures that the care giver is aware of what the children are do ing at all times” and permits the care giver to “promptly assist or redi rect activities when necessary.” See 22 Va. Admin. Code 40-110-710. The obvious, stated purpose of these minimum standa rds is to provide for “the supervision, protection, and well-being of [the childre n]” in the program. Id. 40-110-10. Here, by directing Miles to awaken the children and remove Danyelle from her crib, appellant delegated to Miles responsibilities that the De partment’s minimum standards indicated she was- 13 - not authorized to delegate and that the expert testimony of Dr. Kent Hymel, a board-certified pediatrician with a subspecialty in child abuse and negl ect, established an eight year old would not be mature enough to provide with any degr ee of consistency. The evidence as a whole establishes that, by entrusting Danye lle’s care to Miles, appellant engaged in a willful act or omission in the care of Danyelle “‘which ma[d ]e it not improbable that injury [would] be occasioned,’” see Barrett , 268 Va. at 183, 597 S.E.2d at 111 (quoting Cable , 243 Va. at 240, 415 S.E.2d at 220), and that, unlike the defendant in Ellis , appellant “‘knew or should have known the probable results of [her] acts,’” see Kelly , 42 Va. App. at 356, 592 S.E.2d at 357 (quoting Conrad , 31 Va. App. at 121-22, 521 S.E.2d at 325-26). Even assuming, as appellant argues, that she did not instruct Miles to remove Danyelle from her crib and that Miles e ither misunderstood he r directions or chose to remove Danyelle from her crib on his own initiative, appellant ha d a duty to supervise eigh t-year-old Miles in a manner that permitted her to “ promptly assist or redirect [his] activities when necessary .” 22 Va. Admin. Code 40-110-710 (emphasis added). B ecause appellant was on the second floor of her home when she sent Miles to the basement to awaken the children, she was wholly unable to “promptly assist or redirect [his] activities” before Danyelle was injured. Cf. Kelly , 42 Va. App. at 355-57, 592 S.E.2d at 357-58 (finding father criminally negligent under Code § 18.2-371.1(B) where, although he instructed sixteen-year-old s on or another of his “old er kids” to “take the children inside” from the car, his twenty-one-mont h-old daughter remained strapped in car seat in hot automobile and died as a result, and evidence established father knew situation had occurred before, although without fatal results). Appellant was al so unable to adequately assess Danyelle’s injuries or inform Danyelle’s mother about them because she did not know what had transpired. Further, although a ppellant was present when Mile s brought the bleeding and crying Danyelle upstairs and when Danyelle hit her head on the bathroom door frame while in Jordan’s- 14 - arms, appellant told Danyelle’s mother nothing about what had happened to Danyelle, saying instead that the “swelling and red marks around [D anyelle’s] eyes” were “‘bed marks’” from an extended nap and that Danyelle had “had a good day.” Thus, appellant’s behavior was more culpable than the behavior of the mother in Ellis

. Appellant, unlike Ellis, was licensed and paid to watch the children of others; knew she was required to abide by the Department’s minimu m standards for operating her in-home day care facility; and was or should have been aware of the danger posed by her acts, which exhibited “‘a reckless disregard . . . of the rights of others , under circumstances . . . which ma[d]e it not improbable that injury [would] be occasioned.’” Barrett , 268 Va. at 183, 597 S.E.2d at 111 (quoting Cable , 243 Va. at 240, 415 S.E.2d at 220).
III. For these reasons, we hold the evidence, view ed in the light most favorable to the Commonwealth, was sufficient to prove appe llant committed a “willful act or omission” amounting to criminal negligence, as required to support a conviction under the statute. Thus, we affirm appella nt’s conviction. Affirmed.