In the Matter of Gwaltney

315 S.E.2d 750 (1984)

In the Matter of Debra Ann GWALTNEY Lisa Anette Gwaltney.

No. 833DC341.

Court of Appeals of North Carolina.

June 5, 1984.

*752 Kent G. Flowers, Jr., New Bern, for petitioner-appellee Craven County Dept. of Social Services.

Sumrell, Sugg & Carmichael by Rudolph A. Ashton, III, New Bern, for respondent-appellant Marie Anette Gwaltney.

ARNOLD, Judge.

Respondent argues that the court erred in awarding custody to the Department because there were no findings of fact supporting the allegations against her as set out in the petition and no finding of fact that she was an unfit mother. She argues that the findings of fact were insufficient to rebut her "constitutional right to the natural and legal custody of her minor children."

The primary concern of the trial court in a custody matter, as mandated by G.S. 50-13.2(a), is the welfare of the child, and this concern outweighs the presumption favoring the award of custody to a natural parent. In re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, disc. rev. denied and appeal dismissed, 295 N.C. 734, 248 S.E.2d 863 (1978). This Court in Kowalzek stated:

It is entirely possible that a natural parent may be a fit and proper person to care for the child but that all other circumstances dictate that the best interests of the child would be served by placing custody in a third party. Thus, we hold that the trial judge is not required to find a natural parent unfit for custody as a prerequisite to awarding custody to a third person. (Citation omitted.)

Id. at 368, 246 S.E.2d at 47. The findings of fact in the order now before us support the conclusions of law that the children were abused and neglected and that the best interests of the children would be served if custody was awarded to the Department.

An abused juvenile is one whose parent:

c. Commits or allows the commission of any sexual act upon a juvenile in violation of law; ... or d. Creates or allows to be created serious emotional damage to the juvenile and refuses to permit, provide for, or participate in treatment. Serious emotional damage is evidenced by a juvenile's severe anxiety, depression, withdrawal or aggressive behavior toward himself or others....

G.S. 7A-517(1). A neglected juvenile is one "who does not receive proper care, supervision, or discipline from his parent ...; or who lives in an environment injurious to his welfare...." G.S. 7A-517(21).

As the findings of fact indicate, all parties admitted the allegations in Part I of *753 the juvenile petition. These allegations were that the respondent-father had repeatedly sexually abused his two daughters; and that as a result the children suffered serious emotional damage evidenced by withdrawals, aggressive behavior, guilt and anxiety. Another admitted allegation under Part I of the petition was that Debra "has attempted suicide as a direct result of the behavior of the father respondent, and the acquiescence of the mother respondent, Marie Anette Gwaltney, to the sexual acts." (Emphasis supplied.) The findings of fact further indicate that the respondent-mother was living in the home while her children were being sexually abused; and that she knew that her husband was entering the bathroom while his twelve and thirteen-year-old daughters were bathing. This latter finding shows that the respondent-mother was allowing situations to occur in the home which would tend to promote the sexual abuse.

The disposition of legal custody with the Department is also supported by the recommendations of the guardian ad litem and the wishes of the minor, Debra Ann Gwaltney. Pursuant to G.S. 7A-640, the court may consider the recommendation of a guardian ad litem concerning the needs of a juvenile. The courts may also consider the wishes of a child of suitable age. See In re Peal, 305 N.C. 640, 290 S.E.2d 664 (1982). At the time of the hearing Debra was 14 years old.

The foregoing findings of fact amply support the adjudication of abuse and neglect and the order awarding custody to the Department. In light of this abuse and neglect, we find the trial court's disposition to be fair. The respondent-mother was given physical custody of one daughter and liberal visitation with the other daughter pending review of the custody and placement in sixty days. The order adjudicating the children to be abused and neglected and placing them in the legal custody of the Craven County Department of Social Services is

Affirmed.

WHICHARD and BECTON, JJ., concur.