(concurring specially).
I would ground an affirmance in this case on two concepts: (1) the harm done thus far to J.A.; and (2) the potential harm to him.
Appellants place great stress on the lack of any physical abuse of J.A. This court has terminated parental rights when there was no evidence of physical abuse. Matter of V. D. D., 278 N.W.2d 194 (S.D.1979).
HARM DONE TO J.A.
J.A. was unable to relate to Mr. and Mrs. A. He manifested interest in objects, rather than his parents, and crawled to corners and rubbed his head against the wall. He was inattentive to his parents and did not progress in his development as a child. His neck was limp and wobbly. J.A. had a neurological problem, and one Dr. Aceto testified that J.A. would require extensive outside care and medical treatment. Finding IX of the trial court states that neither appellant is able or willing to provide for the child’s exceptional needs. This finding is not clearly erroneous.
Mrs. A. attempted to slash her wrists while holding J.A. She used him as a shield in a fight with her husband. She frequently left him unattended and J.A. would roll off of beds and tables. When Dr. Aceto discussed J.A.’s special needs with Mrs. A., she responded “We don’t need outside help.” Mrs. A. was twice hospitalized for mental problems since J.A. was bor.n. Finding VIII states that Mrs. A. is unable to provide proper parental care for J.A. Again, this finding is not clearly erroneous.
Mr. A. had been admitted to the Human Services Center at Yankton 10 times in 15 years. Mr. A. had a long history of violence and marriage instability. He had assaulted all three of his fathers-in-law. One he hit over the head with a bat and the father-in-law had to be hospitalized. He struck his own father in 1974 or 1975. He also hit a sixty-year-old policeman and one of his *328wife’s girlfriends. He assaulted a social worker involved in this case and was convicted therefor. He struck Mrs. A. while she was pregnant with J.A. Mr. A. frequently beat and battered Mrs. A. to the extent that she was bruised, had a bloody nose, and broke her glasses. In short, he was a man of great violence. Finding YII of the trial court states that Mr. A. is unwilling or unable to improve his parenting skills in that several years of counsel-ling has not changed his explosive personality disorder, and that he has indicated he did not need help with his child’s special needs. This finding of the trial court is obviously not clearly erroneous.
POTENTIAL HARM TO J.A.
The potential harm to J.A. is manifest. J.A. could, in the future, be the recipient of the same violence suffered by Mrs. A. or the other victims described above. Neither parent recognizes the need for the special medical attention that J.A. will require in the years to come. Thus, if Mr. and Mrs. A. retain custody of J.A., he will never have an opportunity to function as a normal child. Mr. and Mrs. A. expound their rights, but J.A. also has rights, and the law must not abandon him. He must be permitted to grow and flourish in the fountain of his life.
CONTRACTS UNACCEPTABLE
I do not and will not legally bless any contract entered into between Mr. and Mrs. A. and the Department of Social Services and base a decision upon an alleged violation thereof. The question before a court of law should not be whether a contract was violated, but rather whether a child has been neglected and the termination of the parental rights was proper under our state statutes and decisions of this court. Nor would I found a decision based upon a violation of a condition in a stipulation. To specifically waive a dispositional hearing and deem it to be sufficient if the parents show a lack of cooperation “with a proposal set forth in item 6,” is a dangerous pact which usurps the legitimate function of a trial judge. I am fearful of a state agency’s judgment replacing the judgment of a judge.
In State v. Prosser, 78 S.D. 35, 43, 98 N.W.2d 329, 334 (1959), we stated: “Moreover, the parties cannot by agreement make the recommendation of such an agency binding upon the court since the power of the court to determine matters of custody cannot be delegated to anyone.” I fully appreciate that Prosser, supra, was a habe-as corpus proceeding. And I fully appreciate that this case is neither habeas corpus or a child custody case. However, I do not wish to see a growing use in this state of compacts, contracts, and stipulations between parents and the Department of Social Services regarding the custody of children in dependency and neglect cases which will further erode the powers of the judiciary.
TERMINATION OF RIGHTS
SDCL 26-8-36 provides as follows: “The court may enter a decree terminating all parental rights of one or both parents in the child when it finds that the best interests and welfare of the child so require.”
This court has recognized that parents have a fundamental right to their children. The right is not absolute and must be balanced against the state’s duty to protect children within its borders. People in Interest of D. K., 245 N.W.2d 644 (S.D.1976); In re K. D. K, 87 S.D. 501, 210 N.W.2d 907 (1973). In People in Interest of D. K., supra, this court upheld a finding of dependency and neglect where there was no physical abuse of the child in the usual sense. In D. K., the child had special needs and the mother was incapable or unwilling to care for those special needs. In this case, J.A. has special needs and the parents do not recognize the needs, have refused proffered help, and by their own admissions will not accept assistance in the future.
The evidence adduced at trial supports the trial court’s determination of terminating the parental rights of Mr. and Mrs. A. Appellants must demonstrate by clear evidence that the trial court abused its discretion in adopting its findings rather than *329those of the appellants. Matter of S. J. Z., 252 N.W.2d 224 (S.D.1977). The parents failed to meet their burden.