stating that the tribunal “need only find those facts which are material to the resolution of the dispute”
How later courts described this case
- stating that the tribunal “need only find those facts which are material to the resolution of the dispute”
- recognizing the importance of "a stable and continuous environment" to a child's best interests
Written by the judges who cited it.
The opinion
Judge WYNN
dissenting.
The guiding light in child custody proceedings is the best interest of the child. Our General Assembly codified this principle in Section 50-13.2(a) of the North Carolina General Statutes which provides:
An order for custody of a minor child entered into pursuant to this section shall award custody of such child to such a person, agency, organization, or institution as will, in the opinion of the Judge, best promote the interests and welfare of the child. An order awarding custody must contain findings of fact which support the determination by the Judge of the best interests of the child.
N.C. Gen. Stat. § 50-13.2 (a) (Cum. Supp. 1984).
In the subject case, the trial court apparently relied upon the two determinations by the Department of Social Services in making the finding of fact that allegations of the step-father’s sexual abuse of the minor child had not been substantiated. However, the trial judge further found that the step-father had agreed to refrain from helping the child with his toileting, touching the child’s private parts and using choke holds on the child. Additionally, the record contains an interview summary with the five-year-old child in which the child states that the step-father “thumps me on my penis” and pulls on his penis “real hard”. The child stated that this conduct happens “a lot,” usually after he goes to the bathroom.
The record further contains the testimony summary of Dr. Sara H. Sinai, an associate professor of pediatrics at Bowman Gray School of Medicine at Baptist Hospital in Winston-Salem. Her specialty is child abuse cases. She testified that the minor child was brought to her attention by an emergency room physician who *443 had seen the minor and was concerned about bruises and injuries that he discovered. She examined the child, reviewed the medical records and concluded that “the child had sustained too many unexplained or poorly explained injuries, and it was my opinion that it was highly suspicious that he had been a victim of child abuse”.
The child’s statements, Dr. Sinai’s testimony, and the physical evidence, when coupled with the agreement of the step-parent not to commit inappropriate acts with the child, is evidence of child abuse which must not be ignored by the trial court even when the Department of Social Services makes its own determination that the allegations are unsubstantiated. The trial court’s order, in my opinion, fails to reflect a consideration of this evidence. I, therefore, would remand this case to the trial court for a consideration of the evidence which tends to indicate that the minor child was abused.