In re N.K. , 414 N.W.2d 5 ( 1987 )

JOHNSON, Circuit Judge.

This is an appeal from a trial court judgment awarding legal custody of N.K. and H.K. to their natural father, J.K. We reverse and remand for a new dispositional hearing.

J.K. (father) and M.W. (mother) were married in December 1972. This was mother’s first marriage and father’s third marriage. The parties had two daughters, H.K., born September 17, 1975, and N.K., bom November 16, 1976. Father and mother were divorced on June 19, 1978. Father remarried in June 1981; mother married D.W. (stepfather) in January 1979.

The legal custody of H.K. and N.K. has been the subject of litigation for over six years. In September 1979, father was prosecuted for sexual contact with a minor, an 11 year-old babysitter. Although father was acquitted by a jury, his visitation rights to H.K. and N.K. were restricted and, until 1984, visits were supervised by the Department of Social Services. In August 1984, the Department of Social Services investigated allegations that H.K. and N.K. had been sexually abused, either by father or by stepfather or by both. As a result of this investigation, the state’s attorney filed a dependency and neglect petition and the court placed temporary custody of both girls with the Department of Social Services.

All parties to the proceedings stipulated that the children were dependent and neglected, and the trial court conducted a five day dispositional hearing. The trial record included extensive testimony by medical and psychological experts and an in camera interview between the court and the girls.

The trial court found that father had a warm and loving relationship with his 18 month old son by his current marriage and that father and his wife provided a suitable environment for children. The court found that a warm relationship existed between father and his daughters and that neither child felt any antipathy toward their father.

The court further found that the children had been the victims of excessive “corporal and related punishment” at the hands of mother and stepfather and that stepfather had sexually abused both of the girls. Finally, the court determined that father had not sexually abused the children and that the allegations of such abuse were not sufficiently corroborated by specific and credible evidence.

The trial court entered its judgment, which placed custody of H.K. and N.K. with father and granted mother specific rights of visitations. The court ordered continued counseling for father and the girls.¹

Mother, H.K. and N.K. appeal contending that the trial court’s award of custody to father was not supported by clear and convincing evidence and that it was an abuse of discretion.

In reaching its disposition the trial court must “balance the rights of the parent with the best interest of the child and the public.” Interest of S.M.M., 349 N.W.2d 63, 64 (S.D.1984); SDCL 26-8-22.11. The best interest of the child must always prevail. In Re S.M., 384 N.W.2d 670 (S.D.1986).

The trial court’s findings will not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. SDCL 15-6-52(a). Matter of S.M., supra; Matter of SL., H.L. and M.B., 349 N.W.2d 428, 432 (S.D.1984). Findings of the trial court will be overturned only when, after review of all the evidence, the reviewing court is left with a definite and firm conviction that a mistake has been made. Wiggins v. Shewmake, 374 N.W.2d 111 (S.D.1985).

We cannot say that the trial court was clearly erroneous in finding that stepfather had sexually abused the children and that father had not. Both men denied any sexual misconduct and the court was required to resolve these issues from conflicting evidence.

On the other hand, we find that the trial court’s award of custody to father was an abuse of discretion and contrary to the best interests of the children. The children were ages 8 and 9 at the time of the August 1986 dispositional hearing. They had not lived with their father since 1978, when H.K. was two (2) and N.K. was one (1) year-old. Father had a history of dis-functional behavior. Although never actually diagnosed as a pedophile, father had an unusual and disturbing sexual preoccupation with children.² When told by the Department of Social Services that they were returning the children to their mother, father said “I’m going to kill [stepfather].” Father was resistant to counseling efforts and antagonistic towards any efforts by the Department of Social Services to supervise the children. When told by another social worker that H.K. did not want to visit him, father told the social worker to physically force the child to visit him.

We do not imply that the trial court should have awarded custody of the children to mother. There was evidence from which the trial court could and did conclude that the children had been sexually abused by stepfather and that mother and stepfather physically abused the children. Although there is considerable evidence of progress made in improving their home environment, the fitness of this home is a matter for the trial court to consider at a new dispositional hearing.

We believe that the trial court unnecessarily restricted itself to a choice between mother and father as a custodial parent. SDCL 26-8-35 provides additional alternatives which should be considered by the trial court at a new dispositional hearing.³

After reviewing the entire record we have a definite and firm conviction that a mistake has been made.

The judgment is reversed and the case is remanded to the circuit court for a new dispositional hearing.

MORGAN and SABERS, JJ., and FOSHEIM, Retired J., concur. HENDERSON, J., dissents. JOHNSON, Circuit Judge, sitting for WUEST, C.J., disqualified. MILLER, J., not having been a member of the court at the time did not participate.

1 . Shortly after entry of judgment, father removed himself and the girls from the state, which precluded any visitation between mother and children and denied the children the benefit of court ordered counseling. A warrant for fathers arrest was issued charging him with violations of SDCL 22-19-9 and 22-19-10.

2 . Although father was acquitted of the sexual contact charge, his diary of the events surrounding the incident contains his vivid and disturbing detailed account of the efforts of the 11 year old babysitter to seduce him over a 4-6 week period at his home.

3 . SDCL 26-8-35 provides:

When a child has been adjudicated to be neglected or dependent, the court shall enter a decree of disposition. When the decree does not terminate parental rights, it shall include one or more of the following provisions which the court finds appropriate:

(1) The comí: may place the child in the legal custody of one or both parents, a guardian, or relative or other suitable person, with or without protective supervision, under such conditions as the court may impose;

(2) The court may place legal custody in the department of social services or a child placement agency for placement in a foster home or other child care facility; or

(3) The court may order that the child be examined or treated by a physician, surgeon, psychiatrist, or psychologist, or that he receive other special care, and may place the child in a hospital or other suitable facility for such purposes.