concurring specially.
I reluctantly concur in the majority opinion. I do not believe Justice Sand’s opinion prohibits corporal punishment of children by parents. North Dakota has not enacted a law reportedly enacted in Sweden that prohibits corporal punishment of children by parents. The majority opinion clearly indicates that how much physical force parents are permitted to use in disciplining their children is governed by the minimum standard of care which the community will tolerate and that such a standard is a flexi*679ble, not a rigid, standard.1 Neither do I construe the majority opinion to mean that parents may not discipline their children, with physical force, if the children use tobacco and marijuana. The use of tobacco by minors is still a criminal offense in North Dakota. Sec. 12.1-31-03, N.D.C.C. The use of marijuana by any person, adult or minor, is also a criminal offense. Sec. 19-03.1-23(3), N.D.C.C. It is not surprising that parents who are concerned about the effect of these substances on their children and who find their children using these substances may become more inflamed and angry than they would be over the violation of a household rule established by the parents. However, I do not disagree that the force used in this instance might well have been excessive.
My concern is that the record apparently does not reflect a pattern of this level of physical punishment. The transcript of testimony at the hearing before the juvenile court does contain testimony of brothers and sisters that they, too, were subjected to physical punishment. There appear to be few incidents, regardless of how minor, that they failed to reveal to the court. There is no doubt from the record that C. W. believed in the use of physical punishment to discipline his children but that, of itself, does not constitute abuse or require a conclusion that the children were deprived. Nevertheless, in 1978 the juvenile court did determine that S. W. was a deprived child. As a result she was placed in a foster home with her sister. As the majority opinion states, .we review the record in a manner similar to the former trial de novo. But in so doing, we are required to give appreciable weight to the findings of the juvenile court. Sec. 27-20-56, N.D.C.C.; In Interest of J. K. S., 274 N.W.2d 244 (N.D.1979).
There was no perfected appeal to this court on the issue of initial deprivation in 1978. The juvenile court again found in 1979 that S. W. was deprived. Before a child may be removed from her parents’ control and custody the court must find the child to be deprived and must further find that the causes and conditions of deprivation are likely to continue or will not be remedied. In Interest of J. K. S., supra. I believe that in this instance we are dangerously close to determining that a child is deprived because of excessive use of physical punishment by the parent on one occasion. That punishment was for a problem, i. e., the use of tobacco and marijuana, about which more parents should be concerned. I am concerned, and I believe the other justices are concerned, about excessive governmental intervention in these matters.
I am well aware that in determining deprivation the standard is whether or not the child is deprived, whether or not the causes and conditions of deprivation are likely to continue or will not be remedied, and whether or not, by reason thereof, the child is suffering or will probably suffer physical, mental, moral, or emotional harm. The standard in deprivation or termination cases is not “the best interest of the child.” See Interest of R. D. S., 259 N.W.2d 636 (N.D. 1977). But even with that understanding, and despite my concern about excessive intervention, it is difficult for me to determine that anything but a year of trouble would result if we were to conclude S. W. is not deprived and should return to her father’s home. She has been living apart from her father since the summer of 1978. At least five months of that time was not as a result of any court order. She has shown no desire to return to her father’s home. She will be 17 years of age in May of this year and will reach her 18th birthday in May of 1981, a little over a year away. At that time she will be free to choose her own place of residence without interference from her father or the juvenile court. I cannot help but be influenced by the fact that requiring S. W. to return to her father’s home for a period of one year, after living apart from him for almost two years and without any desire on her part to return, would serve nobody’s best interests.
. There may be some persons in this community who will disagree that the use of a leather belt to discipline children, at least a child of 15 years of age, is unacceptable.